G.R. No. L-52241 November 19, 1984 PEDRO M.

AZUL, doing business under the names and styles of JERLYN TRADING & CONSTRUCTION SUPPLIES & BERLYN SERVICE CENTER, petitioner, vs. HON. JOSE P. CASTRO, in his capacity as Presiding Judge of the Court of First Instance of Rizal, Branch IX at Quezon City, and ROSALINDA P. TECSON, respondents. Edmundo A. Baculi for petitioner. Benjamin Grecin for respondents. GUTIERREZ, JR., J.: The petitioner raises due process questions in this petition for certiorari contending that the respondent court gravely abused its discretion-(l) when it denied a motion to lift an order of default issued seven (7) days before the petitioner received the order to file responsive pleading; (2) when it denied a motion for new trial or reconsideration on the ground that it was pro-forma; (3) when it rendered a decision, not supported by the facts and the law, granting a total amount of P1,187,615.69 covering the principal and damages in a connection case for only P250,092.55; (4) when it issued orders denying an extension of time to file the record on appeal and dismissing the appeal; and (5) when it issued a writ of preliminary attachment on a bond of P250,000.00 with no basis for the allegation that he is about to remove or dispose of his properties to further defraud his creditors. On March 14, 1979, respondent Rosalinda Tecson filed a complaint for collection of the sum of P250,092.55 with interests. Tecson also prayed for P100,000.00 actual and compensatory damages, P500,000.00 moral damages, exemplary damages as may be proved during the trial, twenty five percent (25%) attorney's fees, litigation expenses, and costs. The complaint alleged that Tecson, on various occasions, loaned a total of P391,822.78 to Azul to finance the latter's deliveries of supplies and construction materials to the Armed Forces of the Philippines. As inducement for the loans in addition to her share of the profits, the private respondent alleged that she was authorized to collect the checks due to Azul from the AFP Finance Center. However, Tecson was able to collect only P141,730.23 thus leaving a balance of P250,092.55, subject matter of the suit filed with the Court of First Instance of Rizal at Quezon City, then presided by Judge Ulpiano Sarmiento. The copy of the complaint was received by petitioner Azul on March 27, 1979. On April 10, 1979, the petitioner filed an urgent ex-parte motion for extension of time to file a responsive pleading. He asked for fifteen (15) days from April 11, 1979. Judge Sarmiento having retired, Judge Lino Anover took over the sala temporarily and gave Azul only five (5) days from April 11, 1979 within which to file his responsive pleading. Unfortunately, the petitioner received this order dated April 11, 1979 to declare the petitioner in default since the extended period had expired. On April 18, 1979, respondent Judge Jose Castro over the sala vacated by Judge Sarmiento. Among his acts on that first day in office was an order declaring Azul in default and directing the presentation of evidence ex-parte before the branch clerk of court "at such time and date convenient to both."

The reception of evidence was conducted by the court's commissioner on April 19, 1979. On April 27, 1979, the respondent court rendered the questioned decision, the dispositive portion of which reads: WHEREFORE, judgment is hereby rendered ordering the defendant to pay plaintiff as follows: a. The sum of P250,092.55 the principal obligation, with interest thereon at the legal rate from the date of filing of the complaint on March 14, 1979 until fully paid; b. the sum of P100,000.00 as actual and compensatory damages in both causes of action; c. the sum of P350,000.00 as moral damages in both causes of action; d. the sum of P150,000.00 as exemplary damages in both causes of action; e. the sum equivalent to 25% percent of the total claims involved in all the causes of action in the complaint as attorney's fees; f. to pay the expenses of litigation and costs of suit. On May 2, 1979, petitioner Azul, as yet unaware of the decision, filed a motion to lift the order of default. Together with the motion, he also filed his answer. On May 7, 1979, the decision adverse to the petitioner was received by his counsel. On June 6, 1979, the petitioner filed a motion for reconsideration or new trial. On July 20, 1979, the court issued an order denying the motion to lift the order of default followed by another order on July 24, 1979 denying the motion for reconsideration or new trial. On August 1, 1979, the petitioner filed a notice of appeal, appeal bond, and a motion for extension of time to file his record on appeal. On August 3, 1979, the respondent court denied the motion for extension of time to file record on appeal stating that the motion was filed late. The petitioner asked that this denial be reconsidered because the decision was actually received on May 7, 1979. The petitioner explained that the date "May 5, 1979" given as the date of receipt was a clerical error and, therefore, the motion for extension of time to file record on appeal was filed within the reglementary period. On August 7, 1979, the court reconsidered its earlier denial and stated, "while the instant motion is not sufficiently meritorious, if only to give the defendant a final chance to ventilate his case on appeal and in the interest of justice, said defendant is given ten (10) days from receipt of this order within which to file his record on appeal. The petitioner filed his record on appeal on August 21, 1979. The court approved it on August 27, 1979. However, acting on an August 30, 1979 opposition filed by respondent Tecson, the court on August 31, 1979 issued an order setting aside its August 27, 1979 order approving the record on appeal. On September 11, 1979 the respondent court issued the order dismissing the appeal. We agree with the petitioner that he was denied due process. The constitutional provision on due process commands all who wield public authority, but most peremptorily courts of justice, to strictly maintain standards of fundamental fairness and to insure that procedural safeguards essential to a fair trial are observed at all stages of a proceeding. From the earliest inception of constitutional government in our country, the concepts of notice and hearing have been fundamental. A fair and enlightened system of justice would be impossible without the right to notice and to be heard. The emphasis on substantive due process and other recent ramifications of the due process clause sometimes leads bench and bar to overlook or forget that due process was initially concerned with fair procedure. Every

law student early learns in law school the definition submitted by counsel Mr. Webster in Trustees of Dartmouth College v. Woodward (4 Wheat. 518) that due process is the equivalent of law of the land which means "the general law; a law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial ... that every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society." A sporting opportunity to be heard and the rendition of judgment only after a lawful hearing by a coldly neutral and impartial judge are essential elements of procedural due process. We had occasion to emphasize in Santiago v. Santos (63 SCRA 392), which, unlike the case before us now, was only a summary action for ejectment that: In an adversary proceeding, fairness and prudence dictate that a judgment, based only on plaintiff's evidence adduced ex parte and rendered without hearing defendant's evidence, should be avoided as much as possible. In order that bias may not be imputed to the judge, he should have the patience and circumspection to give the opposing party a chance to present his evidence even if he thinks that the oppositor's proofs might not be adequate to overthrow the case for the plaintiff. A display of petulance and impatience in the conduct of the trial is a norm of conduct which is inconsistent with the "cold neutrality of an impartial judge". It is true that a party should be vigilant of his rights. It may be argued that when the petitioner's counsel asked for a fifteen (I 5) day extension from April 11, 1979 to file his answer, it was imprudent and neglectful for bum to assume that said first extension would be granted. However, the records show that Atty. Fernando P. Camaya personally went to the session hall of the court with his motion for postponement only- to: be informed that Presiding Judge Ulpiano Sarmiento had just retired but that his motion would be considered "submitted for resolution." Since the sala was vacant and pairing judges in Quezon City are literally swamped with their own heavy loads of cases, counsel may be excused for assuming that, at the very least, lie had the requested fifteen (15) days to file his responsive pleading. It is likewise inexplicable why Judge Lino Anover, who had not permanently taken over the sala vacated by the retired judge, should suddenly rule that only a five-day extension, would be allowed. And to compound the petitioners problems, the order was sent by mail and received only twelve (12) day later or after the five-day period. Before the much publicized Project Mercury of the Bureau of Posts, a court should have known that court orders requiring acts to be done in a matter of days should not be sent by mail. Meanwhile, the petitioner was declared in default. The motion to declare defendant in default is dated April 17, 1979. No copy was furnished the petitioner. It was acted upon on April 18, 1979, the very first day in office of the respondent judge in Quezon City. Jurisprudence on default judgments is clear and abundant. Our ruling in Amante v. Sunga (64 SCRA 192) is appropriate: In the attendant circumstances, We cannot perceive how the interest of justice was served and promoted by the precipitate action of the trial court. A default judgment does not pretend to be based on the merits of the controversy. Its existence is justified by expediency. It may, however, amount to a positive and considerable injustice to the defendant. The possibility of such serious consequences necessarily requires a careful examination of the circumstances under which a default order was issued. And when no real injury would result to the interests of the plaintiff by the reopening of the case, the only objection to such action would, therefore,

be solely on a technicality. On such an infirm foundation, it would be a grievous error to sacrifice the substantial rights of a litigant. For the rules should be liberally construed in order to promote their objective in assisting the parties in obtaining just, speedy and inexpensive determination of their cases. Shortly afterwards, the often cited case of Lim Tanhu v. Ramolete (66 SCRA 425) reiterated the same principle: After careful scrutiny of all the above-related proceedings in the court below and mature deliberation, the Court has arrived at the conclusion that petitioners should be granted relief, if only to stress emphatically once more that the rules of procedure may not be misused and abused as instruments for the denial of substantial justice. A review of the record of this case immediately discloses that here is another demonstrative instance of how some members of the bar, availing of their proficiency in invoking the letter of the rules without regard to their real spirit and intent, succeed in inducing courts to act contrary to the dictates of justice and equity, and, in some instances, to wittingly or unwittingly abet unfair advantage by ironically camouflaging their actuations as earnest efforts to satisfy the public clamor for speedy disposition of litigations, forgetting an the while that the plain injunction of Section 2 of Rule 1 is that the "rules shall be liberally construed in order to promote their object and to assist the parties in obtaining" not only 'speedy' but more imperatively, "just . . . and inexpensive determination of every action and proceeding." We cannot simply pass over the impression that the procedural maneuvers and tactics revealed in the records of the case at bar were deliberately planned with the calculated end in view of depriving petitioners and their codefendants below of every opportunity to properly defend themselves against a claim of more than substantial character, considering the millions of pesos worth of properties involved as found by respondent judge himself in the impugned decision, a claim that appears, in the light of the allegations of the answer and the documents already brought to the attention of the court at the pre-trial, to be rather dubious. What is most regrettable is that apparently, all of these alarming circumstances have escaped respondent judge who did not seem to have hesitated in acting favorably on the motions of the plaintiff conducive to the deplorable objective just mentioned, and which motions, at the very least, appeared to be of highly controversial merit, considering that their obvious tendency and immediate result would be to convert the proceedings into a one-sided affair, a situation that should be readily condemnable and intolerable to any court of justice. The defendant's failure to answer on time was excusable. Moreover, the lower court was presented with defenses which, on their face, appeared to warrant a setting aside of the default order and a full-fledged hearing where both parties could present their respective evidences. The petitioner stated: 11. That defendant has good and valid defenses consisting of: a) I did not borrow the huge sum of THREE HUNDRED NINETY ONE THOUSAND EIGHT HUNDRED TWENTY TWO PESOS & 781100 (P391,822.78) from plaintiff Rosalinda Tecson; b) I did not issue to Rosalinda Tecson the receipt mentioned in par. 8 of her complaint; c) That the same receipts mentioned in par. 8 of her complaint did not state that sums of money stated on the face of these receipts were received as loan, in fact it does not appear on the face of the receipts for what purpose the said money were allegedly received;

d) That the checks she mentioned in par. 8 were issued by her and encashed by her which is very unnatural for a person who is lending money to another; e) That there is pending between Rosalinda Tecson and myself Civil Case No. 113565 of the Court of First Instance of Manila entitled "RIZAL COMMERCIAL BANKING CORPORATION versus PEDRO M. AZUL, ROSALINDA P. TECSON and PURITA DE CASTRO," where the said amount of THREE HUNDRED NINETY ONE THOUSAND EIGHT HUNDRED TWENTY TWO PESOS & 78/100 (P391,822.78) and in addition the same amount of ONE HUNDRED FORTY ONE THOUSAND SEVEN HUNDRED THIRTY PESOS & 20/100 (P141,730.20) mentioned in pars. 8 and 9 of plaintiff's complaint are the subject matter of compulsory crossclaim between the said parties; f) Plaintiff was never authorized to withdraw, collect and receive the checks whose face value amounted to ONE HUNDRED FORTY ONE THOUSAND SEVEN HUNDRED THIRTY PESOS & 20/100 (P 141,730.20) mentioned in par. 9 of her complaint; g) Plaintiff was never authorized to endorse and encash the checks mentioned in par. 9 of her complaint; h) Plaintiff up to this time was not able to show any authority authorizing her to withdraw, receive and endorse checks intended for me; i) The estafa case, I.S. 78-20883, I filed against plaintiff before the City Fiscal's Office of Quezon City is valid and fully supported by a document and in fact, it was filed with and was endorsed by the authorities at Camp Crame after an investigation was conducted, wherein plaintiff Rosalinda Tecson was given the opportunity to present evidence; j) That I filed the said estafa case in the exercise of my right and within legal bounds; 12. That, if given the opportunity to present my evidence before this Court, I would be able to prove my defendant and support them with sufficient documentary and oral evidence; that I need only about three (3) hours to present my evidence in support of these defenses; 13. Attached to this motion is an affidavit of merits as required by the Rules of Court. The private respondent contends that the default judgment has become final and executory and may no longer be set aside. As in the Lim Tanhu case, we cannot simply pass over the impression that the procedural maneuvers and tactics revealed in the records of the case at bar were deliberately planned with the calculated end in view of depriving petitioners of an opportunity to defend themselves, not only against the claim of P250,092.55 but damages and attorney's fees quadruple that amount and of the right to elevate the decision to a higher court. The petitioner cryptically refers to an "unseen hand" orchestrating proceedings. His counsel, Atty. Camaya, went to court with a motion for extension of time to file answer. Instead of being informed that even with the retirement of the presiding judge, he had only five (5) days to answer, he was told to file the motion and consider it submitted. The order granting five days extension was mailed with the near certain knowledge he would not get it on time and after petitioner's being knocked out by an order declaring him in default, there was the well-founded "hope that procedural mistakes along the way will bury forever the presence of an irregularity." The fears of the petitioner turned out to be justified, His counsel fell into some procedural lapses as the respondent's counsel ably blocked every attempt to set aside the default judgment and keep it from becoming final.

Not only was the petitioner not furnished a copy of the motion to declare him in default but no time and date of hearing were fixed. The motion is dated April 17, 1979. It was granted on April 18, 1979. On April 19, 1979, evidence was presented ex-parte before the branch clerk of court. About one week later, the decision was rendered. In addition to the principal claim of P250,092.55, the court awarded interest at the legal rate until paid, P600,000.00 in damages, and P237,523.14 attorney's fees for counsel whose most difficult work up to that point was preparing the complaint and the motion to declare the defendant in default and presenting evidence ex-parte before the branch clerk of court. The July 24, 1979 order of the lower court denied the petitioner's motion for reconsideration or new trial on the ground that it is "pro forma". Even a cursory appraisal of the motion will indicate that it is far from pro forma. The motion discusses in seven (7) typewritten legal size pages why the defendant's failure to file responsive pleading should be excused on grounds of excusable mistake and negligence and why the default judgment should be deemed null and void. The lower court which had just awarded extravagantly liberal damages in a default judgment should have given better reasons for rejecting the motion instead of relying on the conventional finding of a "pro forma" presentation. On August 1, 1979, the petitioner filed a notice of appeal and a motion for extension of time to file record on appeal. The lower court denied the motion for extension of time to file record on appeal on August 3, 1979 on the ground that it was filed two days late. Upon a motion for reconsideration explaining a typographical error which mistakenly indicated that a decision actually received on May 7 was received on May 5, the court granted ten (10) days extension to file the record on appeal only to reverse itself when on September 11, 1979, it granted the respondent's motion to dismiss appeal. The private respondent capitalizes on procedural errors allegedly committed by the petitioner's counsel after he failed to file his answers within the given five-day period. Counsel has explained the delays but without going into the merits of the explanations, we find the delays insufficient reason to warrant our countenancing the denial in this case and the disregard of our many admonitions for courts to be wary and reluctant in deciding cases through default judgments. The petitioner alleges that the decision awarding P1,187,615.69 to the private respondent is not supported by the facts elicited during the hearing ex-parte before the branch clerk of court. The merits of the collection case should be determined after both petitioner and respondent are afforded full opportunity to present their respective evidences. The petitioner's mention of an "unseen hand" orchestrating the proceedings in this case should also be referred to the office of the Court Administrator for investigation and appropriate action. WHEREFORE, the petition for certiorari is hereby GRANTED. The respondent court's order dated March 19, 1979 issuing a writ of preliminary attachment, the order dated April 18, 1979, declaring the petitioner in default, the decision dated April 27, 1979, the order dated July 20, 1979 denying the motion to lift the order of default, the order dated July 24, 1979 denying the motion for reconsideration or new trial, the order dated Septemeber 11, 1979 dismissing the appeal, and the order dated October 29, 1979 issuing a writ of execution to enforce the court's judgment are SET ASIDE as NULL and VOID. The appropriate branch of the Regional Trial Court at Quezon City is ordered to ADMIT the ANSWER filed by the petitioner and CONDUCT

trial on the merits. The Acting Court Administrator is ordered to conduct and INVESTIGATION as abovestated. SO ORDERED. Teehankee, (Actg. C.J.), Melencio-Herrera, Plana, Relova and De la Fuente, JJ., concur. G.R. No. 121327 December 20, 2001 CECILIO P. DE LOS SANTOS and BUKLOD MANGGAGAWA NG CAMARA (BUMACA), petitioners, vs. NATIONAL LABOR RELATIONS COMMISSION (SECOND DIVISION), HON. COMMISSIONERS VICTORIANO R. CALAYCAY, RAUL T. AQUINO, and ROGELIO I. RAYALA, CAMARA STEEL INDUSTRIES INC., JOSELITO JACINTO, ALBERTO F. DEL PILAR, DENNIS ALBANO, MERCEDITA G. PASTRANA, TOP-FLITE and RAUL RUIZ, respondents. BELLOSILLO, J.: This is a petition for certiorari under Rule 65 assailing the Decision of public respondent National Labor Relations Commission (NLRC) which remanded this case to the Labor Arbiter who ruled that petitioner Cecilio P. de los Santos was illegally dismissed by private respondent Camara Steel, Inc., and as a consequence, ordered his immediate reinstatement. Specifically, the dispositive portion of the Labor Arbiter's Decision promulgated 23 May 1999 states WHEREFORE, premises considered, respondent Camara Steel Industries, Inc. is hereby ordered to reinstate complainant Cecilio de los Santos to his former position within ten (10) days from receipt of this Resolution without loss of seniority rights and other benefits with full back wages from date of dismissal up to actual date of reinstatement which is hereby computed as of even date as follows: From 8/23/93-12/15/93 = 3.73 mos. P118 x 26 days x 3.73 mos. 12/16/93 - 3/29/94 135 x 26 days x 3.43 mos. = = = 3.43 mos. 12,039.30 P11,443.64

Total Backwages as of 3/29/94 P23,482.94 Respondent Camara Steel Industries, Inc. is also ordered to pay complainant 10% for and as attorney's fees. All other claims are hereby dismissed for lack of merit. On 3 May 1991 petitioner De los Santos started working at Camara Steel Industries Inc. (CAMARA STEEL), a company engaged in the manufacture of steel products such as LPG cylinders and drums. He was first assigned at the LPG assembly line, then later, as operator of a blasting machine. While performing his task as such operator, he met an accident that forced him to go on leave for one and a half (1-1/2) months. Upon his return, he was designated as a janitor assigned to clean the premises of the company, and occasionally, to transfer scrap and garbage from one site to another.1

On 11 May 1993 petitioner was doing his usual chores as a janitor of CAMARA STEEL when he momentarily left his pushcart to answer the call of Narciso Honrado, scrap in-charge, who summoned him to the company clinic. There Honrado handed him a box which he placed on top of a drum in his pushcart for transfer to the other lot of the company near gate 2. On his way out of gate 2, however, the security guard on duty found in the box handed to him by Honrado two (2) pieces of electric cable measuring 2.26 inches each and another piece of 1.76 meters with a total estimated value of P50.00 to P100.00. Apprehensive that he might be charged with theft, petitioner De los Santos explained that the electric cord was declared a scrap by Honrado whose instructions he was only following to transfer the same to the adjacent lot of the company as scrap. Narciso Honrado admitted responsibility for the haul and his error in declaring the electric cables as scrap. The general manager, apparently appeased by Honrado's apology, issued a memorandum acknowledging receipt of his letter of apology and exculpated him of any wrongdoing. Taking an unexpected volte face, however, the company through its counsel filed on 9 July 1993 a criminal complaint for frustrated qualified theft against Honrado and herein petitioner De los Santos. The complaint however was subsequently dismissed by the Provincial Prosecutor of Pasig for lack of evidence.2 On 23 August 1993, upon request of Top-Flite, alleged manpower agency of De los Santos, CAMARA STEEL terminated his services. Aggrieved by his illegal termination, De los Santos sought recourse with the Labor Arbiter who on 29 March 1994 rendered a decision ordering respondent CAMARA STEEL to reinstate Delos Santos to his former position within ten (10) days without loss of seniority rights and other benefits with full back wages from date of dismissal up to actual reinstatement as herein before stated. CAMARA STEEL went to the NLRC for recourse. Top-Flite filed a Motion for Intervention praying that it be permitted to intervene in the appeal as co-respondent and, accordingly, be allowed to submit its own memorandum and other pleadings.3 On 23 May 1995 the NLRC reversed the Labor Arbiter and ordered the return of the entire records of the case to the arbitration branch of origin for further proceedings. In its Decision, NLRC specified the reasons for the remand to the Labor Arbiter 4 First, as respondents have broadly implied, having alleged that he was an employee of Camara Steel, it was complainant's burden to prove this allegation as a fact, not merely through his uncorroborated statements but through independent evidence. As noted by respondents, he has not submitted one piece of evidence to support his premise on this matter except for his sworn statement. Secondly, the Arbiter maintained that the contract of services submitted by respondents was insufficient to prove that complainant was an employee of Top-Flite, but he has obviously omitted consideration of Annexes F, G, H and I which are time sheets of the complainant with Top-Flite and the corresponding time cards which he punches in for Camara Steel. The NLRC further noted that under the circumstances it became appropriate to conduct a formal hearing on the particular issue of whether an employer-employee relationship existed between the parties, which issue was determinative of the nature of petitioner's dismissal by CAMARA STEEL. That being so, according to the NLRC, it was necessary for the Labor

Arbiter to issue the appropriate directive to summon Top-Flite as a necessary party to the case, for the manpower agency to submit its own evidence on the actual status of petitioner. As pointed out by petitioner, the errors in the disputed decision by the NLRC are: (a) NLRC violated due process of law when it did not consider the evidence on record; (b) CAMARA STEEL, and not Top-Flite, is the real employer of petitioner; (c) Contrary to the finding of NLRC, Top-Flite was made a party respondent in the illegal dismissal case docketed as NLRC-NCR No. 00-08-05302-93 and the NLRC was therefore in error in remanding the case to the Labor Arbiter for further proceedings. Petitioner De los Santos contends that NLRC was in grave error when it ruled that, with the exception of a bare assertion on his sworn statement, he "has not submitted one piece of evidence to support his premise"5 that he was in fact an employee of CAMARA STEEL. To underscore NLRC's oversight, petitioner brings to our attention and specifies the pieces of evidence which he presented before the Labor Arbiter on 19 November 1993 also appended as Annexes to petitioner's "Traverse to Camara's Position Paper and Reply:" (a) Annex "E" to "E-1" Approval signature of Camara's Department head, Reynaldo Narisma, without which petitioner cannot render overtime; (b) Annex "F" Petitioner's daily time record for 8/3/92 to 8/9/92; (c) Annex "F-1" Signature of private respondent Mercedita Pastrana, approving in her capacity as Assistant Manager of Camara Steel; (d) Annex "F-2" Signature of private respondent Dennis Albano, Personnel Manager of Camara Steel Industries Inc. also co-signing for approval; (e) Annex "F-3" Signature of Narisma, as Department Head of Camara Steel Industries Inc. where petitioner is working; (f) Annex "G" Daily Time Record of petitioner for 7/6/92 to 7/12/92; (g) Annex "G-1" Signature of Camara Steel Assistant Manager; (h) Annex "G-2" Signature of Camara's Personnel Manager, Dennis Albano, approving; (i) Annex "G-3" Signature of Camara's Department Head where petitioner is working, Mr. Narisma, approving; (j) Annex "H" to "H-1" Petitioner's Daily Time Card (representative samples) with name and logo of Camara Steel Industries Inc.; and, (k) Annex "J" Affidavit of Complainant. All these pieces of evidence which, according to petitioner De los Santos, were not properly considered by NLRC, plainly and clearly show that the power of control and supervision over him was exercised solely and exclusively by the managers and supervisors of CAMARA STEEL. Even the power to dismiss was also lodged with CAMARA STEEL when it admitted in page 3 of its Reply that upon request by Top-Flite, the steel company terminated his employment after being allegedly caught committing theft. Petitioner De los Santos also advances the view that Top-Flite, far from being his employer, was in fact a "labor-only" contractor as borne out by a contract whereby Top-Flite undertook to supply CAMARA STEEL workers with "warm bodies" for its factory needs and edifices. He insists that such contract was not a job contract but the supply of labor only. All things considered, he is of the firm belief that for all legal intents and purposes, he was an employee a regular one at that of CAMARA STEEL. In its comment, private respondent CAMARA STEEL avers that far from being its employee, De los Santos was merely a project employee of Top-Flite who was assigned as janitor in private respondent company. This much was acknowledged by Top-Flite in its Motion for Intervention filed before the NLRC.6 Such allegation, according to private respondent CAMARA STEEL, supports all along its theory that De los Santos' assignment to the latter as

janitor was based on an independent contract executed between Top-Flite and CAMARA STEEL.7 Respondent CAMARA STEEL further argues that crystal clear in the Motion for Intervention of Top-Flite is its allegation that it was in fact petitioner's real employer as his salaries and benefits during the contractual period were paid by Top-Flite; not only that, De los Santos was dismissed by CAMARA STEEL upon the recommendation of Top-Flite. These ineluctably show that Top-Flite was not only a job contractor but was in truth and in fact the employer of petitioner. In his petition, De los Santos vigorously insists that he was the employee of respondent CAMARA STEEL which in turn was not only denying the allegation but was finger-pointing Top-Flite as petitioner's real employer. De los Santos again objects to this assertion and claims that Top-Flite, far from being an employer, was merely a "labor-only" contractor. In the maze and flurry of claims and counterclaims, several contentious issues continue to stick out like a sore thumb. Was De los Santos illegally dismissed? If so, by whom? Was his employer respondent CAMARA STEEL, in whose premises he was allegedly caught stealing, or was it Top-Flite, the manpower services which allegedly hired him? Inextricably intertwined in the resolution of these issues is the determination of whether there existed an employer-employee relationship between CAMARA STEEL and respondent De Los Santos, and whether Top-Flite was an "independent contractor" or a "labor-only" contractor. A finding that Top-Flite was a "labor-only" contractor reduces it to a mere agent of CAMARA STEEL which by statute would be responsible to the employees of the "labor-only" contractor as if such employees had been directly employed by the employer. Etched in an unending stream of cases are the four (4) standards in determining the existence of an employer-employee relationship, namely: (a) the manner of selection and engagement of the putative employee; (b) the mode of payment of wages; (c) the presence or absence of power of dismissal; and, (d) the presence or absence of control of the putative employee's conduct. Most determinative among these factors is the so-called "control test." As shown by the evidence on record, De los Santos was hired by CAMARA STEEL after undergoing an interview with one Carlos Suizo, its timekeeper who worked under the direct supervision of one Renato Pacion, a supervisor of CAMARA STEEL. These allegations are contained in the affidavit8 executed by De los Santos and were never disputed by CAMARA STEEL. Also remaining uncontroverted are the pieces of documentary evidence adduced by De los Santos consisting of daily time records marked Annexes "F" and "G" which, although bearing the heading and logo of Top-Flite, were signed by officers of respondent CAMARA STEEL, and Annexes "H" and "I" with the heading and logo of CAMARA STEEL. Incidentally, we do not agree with NLRC's submission that the daily time records serve no other purpose than to establish merely the presence of De los Santos within the premises of CAMARA STEEL. Contrarily, these records, which were signed by the company's officers, prove that the company exercised the power of control and supervision over its employees, particularly De los Santos. There is dearth of proof to show that Top-Flite was the real employer of De los Santos other than a naked and unsubstantiated denial by CAMARA STEEL that it has no power of control over De los Santos. Records would attest that even the power to dismiss was vested with CAMARA STEEL which admitted in its Reply that "Top-Flite

requested CAMARA STEEL to terminate his employment after he was caught by the security guard committing theft." A cursory reading of the above declaration will confirm the fact that the dismissal of De los Santos could only be effected by CAMARA STEEL and not by Top-Flite as the latter could only "request" for De los Santos' dismissal. If Top-Flite was truly the employer of De los Santos, it would not be asking permission from or "requesting" respondent CAMARA STEEL to dismiss De los Santos considering that it could very well dismiss him without CAMARA STEEL's assent. All the foregoing considerations affirm by more than substantial evidence the existence of an employer-employee relationship between De los Santos and CAMARA STEEL. As to whether petitioner De los Santos was illegally terminated from his employment, we are in full agreement with the Labor Arbiter's finding that he was illegally dismissed. As correctly observed by the Labor Arbiter, it was Narciso Honrado, scrap in-charge, who handed the box containing the electrical cables to De los Santos. No shred of evidence can show that De los Santos was aware of its contents, or if ever, that he conspired with Honrado in bilking the company of its property. What is certain however is that while Honrado admitted, in a letter of apology, his culpability for the unfortunate incident and was unconditionally forgiven by the company, De los Santos was not only unceremoniously dismissed from service but was charged before the court for qualified theft (later dismissed by the public prosecutor for lack of evidence). For sure, De los Santos cannot be held more guilty than Honrado who, being the scrap in-charge, had the power to classify the cables concerned as scrap. Neither can we gratify CAMARA STEEL's contention that petitioner was validly dismissed for loss of trust and confidence. As provided for in the Labor Code: Art. 282. Termination by employment An employer may terminate an employment for any of the following causes: x x x (c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative x x x x Of course, it must be stressed that loss of confidence as a just cause for the termination of employment is based on the premise that the employee holds a position of trust and confidence, as when he is entrusted with responsibility involving delicate matters, and the task of a janitor does not fall squarely under this category. Petitioner De los Santos argues that Top-Flite was merely a "labor-only" contractor. To fortify his stance, De los Santos brings to our attention the contract of service9 dated 8 February 1991 between CAMARA STEEL and Top-Flite which provides: 1) The contractor (Top-Flite) shall provide workers (non-skilled) six (6) days a week for the Client's (Camara) factory and edifices. However, both respondent CAMARA STEEL and Top-Flite10 are adamant in their belief that the latter was not a "labor-only" contractor as they rely on another provision of the contract which states 2) The Contractor warrants the honesty, reliability, industry and cooperative disposition of the person it employs to perform the job subject to this contract, and shall employ such persons only as are in possession of health certificates and police clearances x x x The preceding provisions do not give a clear and categorical answer as regards the real character of Top-Flite's business. For whatever its worth, the invocation of the contract of service is a tacit admission by both parties that the employment of De los Santos was by

virtue of such contract. Be that as it may, Top-Flite, much less CAMARA STEEL, cannot dictate, by the mere expedient of a unilateral declaration in a contract, the character of its business, i.e., whether as "labor-only" contractor, or job contractor, it being crucial that its character be measured in terms of and determined by the criteria set by statute. The case of Tiu v. NLRC11 succinctly enunciates this statutory criteria Job contracting is permissible only if the following conditions are met: 1) the contractor carries on an independent business and undertakes the contract work on his own account under his own responsibility according to his own manner and method, free from the control and direction of his employer or principal in all matters connected with the performance of the work except as to the results thereof; and 2) the contractor has substantial capital or investment in the form of tools, equipment, machineries, work premises, and other materials which are necessary in the conduct of the business. "Labor-only contracting" as defined in Sec. 4, par. (f), Rule VIII-A, Book III, of the Omnibus Rules Implementing the Labor Code states that a "labor-only" contractor, prohibited under this Rule, is an arrangement where the contractor or subcontractor merely recruits, supplies or places workers to perform a job, work or service for a principal and the following elements are present: (a) The contractor or subcontractor does not have substantial capital or investment to actually perform the job, work or service under its own account or responsibility; and, (b) The employees recruited, supplied or placed by such contractor or subcontractor are performing activities which are directly related to the main business of the principal. Applying the foregoing provisions, the Court finds Top-Flite to be a "labor-only" contractor, a mere supplier of labor to CAMARA STEEL, the real employer. Other than its open declaration that it is an independent contractor, no substantial evidence was adduced by Top-Flite to back up its claim. Its revelation that it provided a sweeper to petitioner would not suffice to convince this Court that it possesses adequate capitalization to undertake an independent business.12 Neither will the submission prosper that De los Santos did not perform a task directly related to the principal business of respondent CAMARA STELL. As early as in Guarin v. NLRC13 we ruled that "the jobs assigned to the petitioners as mechanics, janitors, gardeners, firemen and grasscutters were directly related to the business of Novelty as a garment manufacturer," reasoning that "for the work of gardeners in maintaining clean and well-kept grounds around the factory, mechanics to keep the machines functioning properly, and firemen to look out for fires, are directly related to the daily operations of a garment factory." In its comment respondent CAMARA STEEL emphatically argues that Top-Flite, although impleaded as respondent in NLRC-NCR Cases Nos. 00-0704761-93 and 00-0805061-93, subject of the present appeal, was never summoned for which reason it was deprived of procedural due process; basically the same line of argument adopted by the NLRC in its decision to remand the case to the arbitration branch of origin. CAMARA STEEL obviously wants to impress upon us that Top-flite, being a necessary party, should have been summoned and the failure to do so would justify the remand of the case to the Labor Arbiter. We are not persuaded. The records show that Top-Flite was not only impleaded in the aforementioned case but was in fact afforded an opportunity to be heard when it submitted a position paper. This much was admitted by Top-Flite in par. 5 of its Motion for Intervention where it stated that "movant submitted its position paper in the cases mentioned in the

preceding paragraph but the Presiding Arbiter ignored the clear and legal basis of the position of the movant."14 In other words, the failure of Top-Flite to receive summons was not a fatal procedural flaw because it was never deprived of the opportunity to ventilate its side and challenge petitioner in its position paper, not to mention the comment which it submitted through counsel before this Court.15 It moved to intervene not because it had no notice of the proceedings but because its position paper allegedly was not considered by the Labor Arbiter. While jurisdiction over the person of the defendant can be acquired by service of summons, it can also be acquired by voluntary appearance before the court which includes submission of pleadings in compliance with the order of the court or tribunal. A fortiori, administrative tribunals exercising quasi-judicial powers are unfettered by the rigidity of certain procedural requirements subject to the observance of fundamental and essential requirements of due process in justiciable cases presented before them. In labor cases, a punctilious adherence to stringent technical rules may be relaxed in the interest of the workingman. A remand of the case, as the NLRC envisions, would compel petitioner, a lowly worker, to tread once again the calvary of a protracted litigation and flagellate him into submission with the lash of technicality. WHEREFORE, the petition is GRANTED and the appealed Decision of the NLRC is REVERSED and SET ASIDE and the Decision of the Labor Arbiter promulgated 23 May 1999 is REINSTATED and ADOPTED as the Decision in this case. SO ORDERED. Mendoza, Quisumbing and De Leon, Jr., JJ ., concur. Buena, J ., on official business G.R. Nos. 79690-707 April 27, 1988 ENRIQUE A. ZALDIVAR, petitioner, vs. THE HONORABLE SANDIGANBAYAN AND HONORABLE RAUL M. GONZALEZ, CLAIMING TO BE AND ACTING AS TANODBAYAN-OMBUDSMAN UNDER THE 1987 CONSTITUTION, respondents. G.R. No. L-80578 April 27, 1988 ENRIQUE A. ZALDIVAR, petitioner, vs. HON. RAUL M. GONZALEZ, claiming to be and acting as Tanodbayan-Ombudsman under the 1987 Constitution, respondent. Francisco Carreon and Nestor C. Lumba for petitioner. The Solicitor General for respondent. PER CURIAM: In G.R. Nos. 79690-707 "Petition for Certiorari, Prohibition, and mandamus under Rule 65," petitioner Enrique A. Zaldivar, governor of the province of Antique, sought to restrain the Sandiganbayan and Tanodbayan Raul Gonzalez from proceeding with the prosecution and hearing of Criminal Cases Nos. 12159 to 12161 and 12163-12177 on the ground thatsaid cases were filed by said Tanodbayan without legal and constitutional authority, since under the 1987 Constitution which took effect on February 2, 1987, it is only the Ombudsman (not

the present or incumbent Tanodbayan) who has the authority to file cases with the Sandiganbayan. The complete prayer of the petition reads: WHEREFORE, it is respectfully prayed that pending the final disposition of this petition or until further orders of the Honorable Court, a writ of preliminary injunction issue upon the filing of a bond in such amount as may be fixed by the Honorable Court, restraining the Honorable Sandiganbayan from hearing and trying Criminal Cases Nos. 12159 to 12161, and 12163 to 12177 insofar as petitioner Enrique A. Zaldivar is concerned and from hearing and resolving the special prosecutor's motion to suspend (Annex J) and thereafter, final judgment be rendered: (1) ordering that the amended informations in the above-mentioned crimininal cases be or issuing a writ of mandamus commanding and ordering the respondent Sandiganbayan to do so and, in consequence, prohibiting and restraining the respondent Sandigan-bayan from proceeding to hear and try the abovementioned criminal cases or making the temporary preliminary injunction permanent; (2) declaring the acts of respondent Gonzalez as "Tanodbayan-Ombudsman" after 2 February 1987 relating to these cases as anullity and without legal effect, particularly, the promulgation of Tanodbayan resolution of 5 February 1987, the filing of the original informations on 3 March 1987 and the amended ones on 4 June 1987, and the filing of the Motion for Suspension Pendente Lite. PETITIONER prays for such other and further relief as may be deemed proper in the premises, with costs against the respondents. Manila, Philippines, September 9, 1987. (pp. 45-47, Rollo) In G.R. No. 80578, petitioner Enrique A. Zaldivar, on substantially the same ground as the first petition, prays that Tanodbayan Gonzalez be restrained from conducting preliminary investigations and similar cases with the Sandiganbayan. The prayer reads: WHEREFORE, it is respectfully prayed that pending the final disposition of this petition or until further orders of this Honorable court, a writ of preliminary injunction issue restraining the respondent from further acting in TBP CASE NO. 87-01304 and, particularly, from filing the criminal Information consequent thereof-, and from conducting preliminary investigations in, and filing criminal informations for, such other complaints/ cases now pending or which may hereafter be filed against petitioner with the Office of the respondent. It is likewise prayed that the present petition be consolidated with G.R.L-Nos. 79690-79707. After proper proceedings, it is prayed that final judgment be rendered annulling the acts of respondent Gonzalez as "Tanodbayan- Ombudsman" after 2 February 1987 relating to the investigation of complaints against petitioner, particularly: (1) Annulling, for absolute want of jurisdiction, the preliminary investigation conducted, and the Resolution rendered, by respondent in TBP CASE NO. 87-01304; (2) Prohibiting and restraining the respondent from filing any criminal Information as a consequence of the void preliminary investigation he conducted in TBP CASE NO. 87-01304, or annulling the criminal Information in the said case which may, in the meantime, have already been filed;

(3) Prohibiting and restraining the respondent from conducting preliminary investigations in, and filing criminal informations for, such other complaints/cases now pending or which may hereafter be filed against petitioner with the Office of the respondent. PETITIONER further prays for such other and further reliefs as may be deemed proper in the proper with costs against the respondent. Manila, Philippines, November 18,1987 (pp. 24-25, Rollo) We issued the restraining orders prayed for. After a study of the petitions, We have decided to give due course to the same; to consider the comments of the Solicitor-General and of Tanodbayan Gonzalez as their Answers thereto; and to forthwith decide the petitions. We find the petitions impressed with merit. Under the 1987 Constitution, the Ombudsman (as distinguished from theincumbent Tanodbayan) is charged with the duty to: Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or commission appears to be illegal, unjust, improper, or inefficient (Sec. 13, par. 1) The Constitution likewise provides that: The existing Tanodbayan shall hereafter be known as the office of the Special Prosecutor. It shall continue to function and exercise its powers as now or hereafter may be provided by law, contemptexcept those conferred on the office of the Ombudsman created under this Constitution. (Art. XI, Section 7) (Emphasis ours). Now then, inasmuch as the aforementioned duty is given to the Ombudsman, the incumbent Tanodbayan (caged Special Prosecutor under the 1987 constitution and who is supposed to retain powers and duties NOT GIVEN to the Ombudsman) is clearly without authority to conduct preliminary investigations and to direct the filing of criminal cases with the Sandiganbayan, except upon orders of the Ombudsman. This right to do so was lost effective February 2, 1987. From that time, he has been divested of such authority. Under the present Constitution, the Special Prosecutor (Raul Gonzalez) is a mere subordinate of the Tanodbayan Ombudsman) and can investigate and prosecute cases only upon the latter's authority or orders. The Special Prosecutor cannot initiate the prosecution of cases but can only conduct the same if instructed to do so by the Ombudsman. Even his original power to issue subpoena, which he still claims under Section 10(d) of PD 1630, is now deemed transferred to the Ombudsman, who may, however, retain it in the Spedal Prosecutor in connection with the cases he is ordered to investigate. It is not correct either to suppose that the Special Prosecutor remains the Ombudsman as long as he has not been replaced, for the fact is that he has never been the Ombudsman. The Office of the Ombudsman is a new creation under Article XI of the Constitution different from the Office of the Tanodbayan created under PD 1607 although concededly some of the powers of the two offices are Identical or similar. The Special Prosecutor cannot plead that he has a right to hold over the position of Ombudsman as he has never held it in the first place. WHEREFORE, We hereby: (1) GRANT the consolidated petitions filed by petitioner Zaldivar and hereby NULLIFY the criminal informations filed against him in the Sandiganbayan; and

(2) ORDER respondent Raul Gonzalez to cease and desist from conducting investigations and filing criminal cases with the Sandiganbayan or otherwise exercising the powers and function of the Ombudsman. SO ORDERED. G.R. No. L-59329 July 19, 1985 EASTERN BROADCASTING CORPORATION (DYRE) petitioner, vs. THE HON. JOSE P. DANS, JR., MINISTER OF TRANSPORTATION & COMMUNICATIONS, THE HON. CEFERINO S. CARREON, COMMISSIONER, NATIONAL TELECOM., COMMISSION, ET AL., respondents. RESOLUTION GUTIERREZ, JR., J.: This petition was filed to compel the respondents to allow the reopening of Radio Station DYRE which had been summarily closed on grounds of national security. The petitioner contended that it was denied due process when it was closed on the mere allegation that the radio station was used to incite people to sedition. it alleged that no hearing was held and not a bit of proof was submitted to establish a factual basis for the closure. The petitioner was not informed beforehand why administrative action which closed the radio station was taken against it. No action was taken by the respondents to entertain a motion seeking the reconsideration of the closure action. The petitioner also raised the issue of freedom of speech. It appears from the records that the respondents' general charge of "inciting people to commit acts of sedition" arose from the petitioner's shift towards what it stated was the coverage of public events and the airing of programs geared towards public affairs. On March 25, 1985, before the Court could promulgate a decision squarely passing upon all the issues raised, the petitioner through its president, Mr. Rene G. Espina suddenly filed a motion to withdraw or dismiss the petition. The petitioner alleged: 1. Petitioner Eastern Broadcasting Corporation has already sold its radio broadcasting station in favor of Manuel B. Pastrana as well as its rights and interest in the radio station DYRE in Cebu including its right to operate and its equipment; 2. Respondent National Telecommunications Commission has expressed its willingness to grant to the said new owner Manuel B. Pastrana the requisite license and franchise to operate the said radio station and to approve the sale of the radio transmitter of said station DYRE; 3. In view of the foregoing, petitioner has no longer any interest in said case, and the new owner, Manuel B. Pastrana is likewise not interested in pursuing the case any further. The case, therefore, has become moot and academic. However, for the guidance of inferior courts and administrative tribunals exercising quasi-judicial functions, the Court issues the following guidelines: (1) The cardinal primary requirements in administrative proceedings laid down by this Court in Ang Tibay v. Court of Industrial Relations (69 Phil. 635) should be followed before a broadcast station may be closed or its operations curtailed. 1

(2) It is necessary to reiterate that while there is no controlling and precise definition of due process, it furnishes an unavoidable standard to which government action must conform in order that any deprivation of life, liberty, or property, in each appropriate case, may be valid (Ermita-Malate Hotel and Motel Operators Association v. City Mayor, 20 SCRA 849). (3) All forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and expression clause. The test for limitations on freedom of expression continues to be the clear and present danger rule that words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the lawmaker has a right to prevent, In hisConstitution of the Philippines (2nd Edition, pp. 569-570) Chief Justice Enrique M. Fernando cites at least nine of our decisions which apply the test (Primicias v. Fugoso [80 Phil. 71], American Bible Society v. City of Manila[101 Phil. 386], Cabansag v. Fernandez [102 Phil. 152], Vera v. Arca [28 SCRA 351], Navarro v. Villegas [31 SCRA 931], Imbong v. Ferrer [35 SCRA 28], Badoy v. Commission on Elections [35 SCRA 285], People v. Ferrer [48 SCRA 382], and the Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc. [51 SCRA 189]. More recently, the clear and present danger test was applied in J.B.L. Reyes in behalf of the Anti-Bases Coalition v. Bagatsing [125 SCRA 553]. (4) The clear and present danger test, however, does not lend itself to a simplistic and all embracing interpretation applicable to all utterances in all forums. Broadcasting has to be licensed. Airwave frequencies have to be allocated among qualified users. A broadcast corporation cannot simply appropriate a certain frequency without regard for government regulation or for the rights of others. All forms of communication are entitled to the broad protection of the freedom of expression clause. Necessarily, however, the freedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and print media. The American Court in Federal Communications Commission v. Pacifica Foundation (438 U.S. 726), confronted with a patently offensive and indecent regular radio program, explained why radio broadcasting, more than other forms of communications, receives the most limited protection from the free expression clause. First, broadcast media have established a uniquely pervasive presence in the lives of all citizens, Material presented over the airwaves confronts the citizen, not only in public, but in the privacy of his home. Second, broadcasting is uniquely accessible to children. Bookstores and motion picture theaters may be prohibited from making certain material available to children, but the same selectivity cannot be done in radio or television, where the listener or viewer is constantly tuning in and out. Similar considerations apply in the area of national security. The broadcast media have also established a uniquely pervasive presence in the lives of all Filipinos, Newspapers and current books are found only in metropolitan areas and in the poblaciones of municipalities accessible to fast and regular transportation. Even here, there are low income masses who find the cost of books, newspapers, and magazines beyond their humble means. Basic needs like food and shelter perforce enjoy high priorities. On the other hand, the transistor radio is found everywhere. The television set is also becoming universal. Their message may be simultaneously received by a national or regional audience of listeners including the indifferent or unwilling who happen to be within reach of a blaring radio or television set. The materials broadcast over the airwaves reach every person

of every age, persons of varying susceptibilities to persuasion, persons of different I.Q.s and mental capabilities, persons whose reactions to inflammatory or offensive speech would be difficult to monitor or predict. The impact of the vibrant speech is forceful and immediate. Unlike readers of the printed work, the radio audience has lesser opportunity to cogitate analyze, and reject the utterance. (5) The clear and present danger test, therefore, must take the particular circumstances of broadcast media into account. The supervision of radio stations-whether by government or through self-regulation by the industry itself calls for thoughtful, intelligent and sophisticated handling. The government has a right to be protected against broadcasts which incite the listeners to violently overthrow it. Radio and television may not be used to organize a rebellion or to signal the start of widespread uprising. At the same time, the people have a right to be informed. Radio and television would have little reason for existence if broadcasts are limited to bland, obsequious, or pleasantly entertaining utterances. Since they are the most convenient and popular means of disseminating varying views on public issues, they also deserve special protection. (6) The freedom to comment on public affairs is essential to the vitality of a representative democracy. In the 1918 case of United States v. Bustos (37 Phil. 731) this Court was already stressing that. The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence and dignity of the individual be exalted. (7) Broadcast stations deserve the special protection given to all forms of media by the due process and freedom of expression clauses of the Constitution. WHEREFORE, the case having become moot and academic, the petitioner's motion to withdraw or dismiss the petition is hereby GRANTED. SO ORDERED. Melencio-Herrera, Plana, Escolin Relova, Cuevas and Alampay, JJ., concur. Makasiar, Concepcion, Jr. and De la Fuente, JJ., concur in the result (the case having become moot and academic). Aquino, J., took no part. G.R. No. 72335-39 March 21, 1988 FRANCISCO S. TATAD, petitioner, vs. THE SANDIGANBAYAN, and THE TANODBAYAN, respondents. YAP, J.: In this petition for certiorari and prohibition, with preliminary injunction, dated October 16, 1985, petitioner seeks to annul and set aside the resolution of the Tanodbayan of April 7,

1985, and the resolutions of the Sandiganbayan, dated August 9, 1985, August 12,1985 and September 17, 1985, and to enjoin the Tanodbayan and the Sandiganbayan from continuing with the trial or any other proceedings in Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503, an entitled "People of the Philippines versus Francisco S. Tatad." The petition alleges, among other things, that sometime in October 1974, Antonio de los Reyes, former Head Executive Assistant of the then Department of Public Information (DPI) and Assistant Officer-in-Charge of the Bureau of Broadcasts, filed a formal report with the Legal Panel, Presidential Security Command (PSC), charging petitioner, who was then Secretary and Head of the Department of Public Information, with alleged violations of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act. Apparently, no action was taken on said report. Then, in October 1979, or five years later, it became publicly known that petitioner had submitted his resignation as Minister of Public Information, and two months after, or on December 12, 1979, Antonio de los Reyes filed a complaint with the Tanodbayan (TBP Case No. 8005-16-07) against the petitioner, accusing him of graft and corrupt practices in the conduct of his office as then Secretary of Public Information. The complaint repeated the charges embodied in the previous report filed by complainant before the Legal Panel, Presidential Security Command (PSC). On January 26, 1980, the resignation of petitioner was accepted by President Ferdinand E. Marcos. On April 1, 1980, the Tanodbayan referred the complaint of Antonio de los Reyes to the Criminal Investigation Service (CIS) for fact-finding investigation. On June 16, 1980, Roberto P. Dizon, CIS Investigator of the Investigation and Legal Panel, PSC, submitted his Investigation Report, with the following conclusion, ". . . evidence gathered indicates that former Min. TATAD have violated Sec. 3 (e) and Sec. 7 of RA 3019, respectively. On the other hand, Mr. ANTONIO L. CANTERO is also liable under Sec. 5 of RA 3019," and recommended appropriate legal action on the matter. Petitioner moved to dismiss the complaint against him, claiming immunity from prosecution by virtue of PD 1791, but the motion was denied on July 26, 1982 and his motion for reconsideration was also denied on October 5, 1982. On October 25, 1982, all affidavits and counter-affidavits were with the Tanodbayan for final disposition. On July 5, 1985, the Tanodbayan approved a resolution, dated April 1, 1985, prepared by Special Prosecutor Marina Buzon, recommending that the following informations be filed against petitioner before the Sandiganbayan, to wit: l. Violation of Section 3, paragraph (e) of RA. 3019 for giving D' Group, a private corporation controlled by his brother-in-law, unwarranted benefits, advantage or preference in the discharge of his official functions through manifest partiality and evident bad faith; 2. Violation of Section 3, paragraph (b) of RA. 3019 for receiving a check of P125,000.00 from Roberto Vallar, President/General Manager of Amity Trading Corporation as consideration for the release of a check of P588,000.00 to said corporation for printing services rendered for the Constitutional Convention Referendum in 1973; 3. Violation of Section 7 of RA. 3019 on three (3) counts for his failure to file his Statement of Assets and Liabilities for the calendar years 1973, 1976 and 1978. Accordingly, on June 12, 1985, the following informations were flied with the Sandiganbayan against the petitioner:

Re: Criminal Case No. 10499 The undersigned Tanodbayan Special Prosecutor accuses Francisco S. Tatad with Violation of Section 3, paragraph (b) of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, committed as follows: That on or about the 16th day of July, 1973 in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, the above- named accused, being then the Secretary of the Department (now Ministry) of Public Information, did then and there, wilfully and unlawfully demand and receive a check for Pl25,000.00 from Roberto Vallar, President/General Manager of Amity Trading Corporation as consideration for the payment to said Corporation of the sum of P588,000.00, for printing services rendered for the Constitutional Convention Referendum of January, 1973, wherein the accused in his official capacity had to intervene under the law in the release of the funds for said project. That the complaint against the above-named accused was filed with the Office of the Tanodbayan on May 16, 1980. CONTRARY TO LAW. Re: Criminal Case No. 10500 The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S. TATAD with Violation of Section 7 of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practice Act, committed as follows: That on or about the 31st day of January, 1974 in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, the above- named accused, a public officer being then the Secretary of the Department (now Ministry) of Public Information, did then and there wilfully and unlawfully fail to prepare and file with the Office of the President, a true detailed and sworn statement of his assets and liabilities, as of December 31, 1973, including a statement of the amounts and sources of his income, the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar year (1973), as required of every public officer. That the complaint against the above-named accused was flied with the Office of the Tanodbayan on June 20, 1980. CONTRARY TO LAW. Re: Criminal Case No. 10501 The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S. TATAD with Violation of Section 3, paragraph (e) of Republic Act No. 3019, otherwise known as the AntiGraft and Corrupt Practices Act, committed as follows: That on or about the month of May, 1975 and for sometime prior thereto, in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer being then the Secretary of the Department (now Ministry) of Public Information, did then and there, wilfully and unlawfully give Marketing Communication Group, Inc. (D' Group), a private corporation of which his brother-in-law, Antonio L. Cantero, is the President, unwarranted benefits, advantage or preference in the discharge of his official functions, through manifest partiality and evident bad faith, by allowing the transfer of D' GROUP of the funds, assets and ownership of South East Asia Research Corporation (SEARCH), allegedly a private corporation registered with the Securities and Exchange Corporation on June 4, 1973, but whose organization and operating expenses came from the confidential funds of the

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Department of Public Information as it was organized to undertake research, projects for the government, without requiring an accounting of the funds advanced by the Department of Public Information and reimbursement thereof by D' GROUP, to the damage and prejudice of the government. That the complaint against the above-named accused was filed with the Office of the Tanodbayan on May 16, 1980. CONTRARY TO LAW. Re: Criminal Case No. 10502 The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S. TATAD with Violation of Section 7 of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, committed as follows: That on or about the 31st day of January, 1977 in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer being then the Secretary of the Department (now Ministry) of Public Information, did then and there wilfully and unlawfully fail to prepare and file with the Office of the President, a true and sworn statement of his assets and liabilities, as of December 31, 1976, including a statement of the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar year (1976), as required of every public officer. That the complaint against the above-named accused was filed with the Office of the Tanodbayan on June 20, 1988. CONTRARY TO LAW. Re: Criminal Case No. 10503 The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S. TATAD with Violation of Section 7 of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, committed as follows: That on or about the 15th day of April, 1979, in the City of Manila Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer being then the Secretary of the Department (now Ministry) of Public Information, did then and there wilfully and unlawfully fail to prepare and file with the Office of the President, a true, detailed and sworn statement of his assets and liabilities, as of December 31, 1978, including a statement of the amounts and sources of his income, the amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar year (1978), as required of every public officer. That the complaint against the above-named accused was filed with the Office of the Tanodbayan on June 20, 1980. CONTRARY TO LAW. On July 22, 1985, petitioner filed with the Sandiganbayan a consolidated motion to quash the informations on the follow grounds: 1 The prosecution deprived accused-movant of due process of law and of the right to a speedy disposition of the cases filed against him, amounting to loss of jurisdiction to file the informations; 2. Prescription of the offenses charged in Crim. Case Nos. 10499, 10500 and 10501; 3. The facts charged in Criminal Case No. 10500 (for failure to file Statement of Assets and Liabilities for the year 1973) do not constitute an offense;

4. No prima facie case against the accused-movant exists in Criminal Cases Nos. 10500, 10502 and 10503; 5. No prima facie case against the accused-movant exists in Criminal Case No. 10199 for Violation of Sec. 3, par. (b) of R.A. 3019, as amended; 6. No prima facie case against the accused-movant exists in Criminal Case No. 10501 (for Violation of Sec. 3 (e) of R.A. 3019, as amended. On July 26, 1985, the Tanodbayan filed its opposition to petitioner's consolidated motion to quash, stating therein in particular that there were only two grounds in said motion that needed refutation, namely: 1. The offense charged in Criminal Cases Nos. 10499,10500 and 10501, have already prescribed and criminal liability is extinguished; and 2. The facts charged in the information (Criminal Case No. 10500 For failure to file Statement of Assets and Liabilities for the year 1973) do not constitute an offense. On the issue of prescription, Tanodbayan citing the case of Francisco vs. Court of Appeals, 122 SCRA 538, contended that the filing of the complaint or denuncia in the fiscal's office interrupts the period of prescription. Since the above-numbered cases were filed with the Office of the Tanodbayan in 1980 and the alleged offenses were committed on July 16, 1973, January 31, 1974 and in May 1975, respectively, although the charges were actually filed in Court only on July 9, 1985, the Tanodbayan has still the right to prosecute the same, it appearing that the ten (10) year prescriptive period has not yet lapsed. Moreover, Tanodbayan pointed out that a law such as Batas Pambansa Blg. 195, extending the period of limitation with respect to criminal prosecution, unless the right to acquittal has been acquired, is constitutional. Tanodbayan likewise said that the requirement for the filing of the Statement of Assets and Liabilities in P.D. 379 is separate and distinct from that required pursuant to the provisions of the Anti-Graft Law, as amended. For while the former requires "any natural or juridical person having gross assets of P50,000.00 or more..." to submit a statement of assets and liabilities "... regardless of the networth," the mandate in the latter law is for ALL government employees and officials to submit a statement of assets and liabilities. Hence, the prosecution under these two laws are separate and distinct from each other. Tanodbayan also explained that delay in the conduct of preliminary investigation does not impair the validity of the informations filed and that neither will it render said informations defective. Finally, Tanodbayan added that P.D. 911, the law which governs preliminary investigations is merely directory insofar as it fixes a period of ten (10) days from its termination to resolve the preliminary investigation. On August 9, 1985, the Sandiganbayan rendered its challenged resolution denying petitioner's motion to quash, the dispositive portion of which reads: WHEREFORE, prescinding therefrom, We find, and so hold, that the accused's "Consolidated Motion to Quash" should be as it is hereby, denied for lack of merit. Conformably to Rule 117, Section 4 of the 1985 Rules on Criminal Procedure, the defect in the information in Criminal Case No. 10500 being one which could be cured by amendment, the Tanodbayan is hereby directed to amend said information to change the date of the alleged commission of the offense therein charged fromJanuary 31, 1974 to September 30, 1974 within five (5) days from receipt hereof. SO ORDERED.

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On August 10, 1985, in compliance with the Sandiganbayan's resolution of August 8, 1985, the Tanodbayan filed an amended information in Criminal Case No. 10500, changing the date of the commission of the offense to September 30, 1974. On August 30, 1985, petitioners filed a consolidated motion for reconsideration which was denied by the Sandiganbayan September 17, 1985. Hence, petitioner filed this petition on October 16, 1985 assailing the denial of his motion to quash. On October 22, 1985, the Court, without giving due course the petition, resolved to require the respondents to comment thereon and issued a temporary restraining order effective immediately and continuing until further orders of the Court, enjoining the respondents Sandiganbayan and Tanodbayan from continuing with the trial and other proceedings in Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503. In compliance with said resolution, the respondents, through ,Solicitor General Estelito P. Mendoza, filed their comment on January 6, 1986. On April 10, 1986, the Court required the parties to move in the premises considering the supervening events, including the change of administration that had transpired, and the provisions of Sec. 18, Rule 3 of the Rules of Court, insofar far as the Public respondents were concerned, which requires the successor official to state whether or not he maintains the action or position taken by his predecessor in office. On June 20, 1986, the new Tanodbayan manifested that since "the charges are not political offenses and they have no political bearing whatsoever," he had no alternative but to pursue the cases against the petitioner, should the Court resolve to deny the petition; that in any event, petitioner is not precluded from pursuing any other legal remedies under the law, such as the filing of a motion for re-evaluation of his cases with the Tanodbayan. The new Solicitor General filed a manifestation dated June 27, 1986 in which he concurred with the position taken by the new Tanodbayan. Pursuant to the above manifestation of the new Tanodbayan, the petitioner filed a motion for re-evaluation with the Office of the Tanodbayan, dated July 21, 1986, praying that the cases in question be re-evaluated and the informations be quashed. The Court is not aware of what action, if any, has been taken thereon by the Tanodbayan. However, be that as it may, the filing of the aforesaid motion for re-evaluation with the Tanodbayan has no material bearing insofar as the duty of this Court to resolve the issues raised in the instant petition is concerned. Petitioner has raised the following issues in his petition: 1. Whether the prosecution's long delay in the filing of these cases with the Sandiganbayan had deprived petitioner of his constitutional light to due process and the right to a speedy disposition of the cases against him. 2. Whether the crimes charged has already prescribed. 3. Whether there is a discriminatory prosecution of the petitioner by the Tanodbayan. 4. Whether Sandiganbayan should have ruled on the question of amnesty raised by the petitioner. 5. Whether petitioner's contention of the supposed lack or non- existence of prima facie evidence to sustain the filing of the cases at bar justifies the quashal of the questioned informations. Petitioner claims that the Tanodbayan culpably violated the constitutional mandate of "due process" and "speedy disposition of cases" in unduly prolonging the termination of the preliminary investigation and in filing the corresponding informations only after more than a

decade from the alleged commission of the purported offenses, which amounted to loss of jurisdiction and authority to file the informations. The respondent Sandiganbayan dismissed petitioner's contention, saying that the applicability of the authorities cited by him to the case at bar was "nebulous;" that it would be premature for the court to grant the "radical relief" prayed for by petitioner at this stage of the proceeding; that the mere allegations of "undue delay" do not suffice to justify acceptance thereof without any showing "as to the supposed lack or omission of any alleged procedural right granted or allowed to the respondent accused by law or administrative fiat" or in the absence of "indubitable proof of any irregularity or abuse" committed by the Tanodbayan in the conduct of the preliminary investigation; that such facts and circumstances as would establish petitioner's claim of denial of due process and other constitutionally guaranteed rights could be presented and more fully threshed out at the trial. Said the Sandiganbayan: That there was a hiatus in the proceedings between the alleged termination of the proceedings before the investigating fiscal on October 25, 1982 and its resolution on April 17, 1985 could have been due to certain factors which do not appear on record and which both parties did not bother to explain or elaborate upon in detail. It could even be logically inferred that the delay may be due to a painstaking an gruelling scrutiny by the Tanodbayan as to whether the evidence presented during the preliminary investigation merited prosecution of a former high-ranking government official. In this respect, We are the considered opinion that the provision of Pres. Decree No. 911, as amended, regarding the resolution of a complaint by the Tanodbayan within ten (10) days from termination of the preliminary investigation is merely "directory" in nature, in view of the nature and extent of the proceedings in said office. The statutory grounds for the quashal of an information are clearly set forth in concise language in Rule 117, Section 2, of the 1985 Rules on Criminal Procedure and no other grounds for quashal may be entertained by the Court prior to arraignment inasmuch as it would be itself remiss in the performance of its official functions and subject to the charge that it has gravely abused its discretion. Such facts and circumstances which could otherwise justify the dismissal of the case, such as failure on the part of the prosecution to comply with due process or any other constitutionally-guaranteed rights may presented during the trial wherein evidence for and against the issue involved may be fully threshed out and considered. Regrettably, the accused herein attempts to have the Court grant such a radical relief during this stage of the proceedings which precludes a pre-cocious or summary evaluation of insufficient evidence in support thereof. This brings us to the crux of the issue at hand. Was petitioner deprived of his constitutional right to due process and the right to "speedy disposition" of the cases against him as guaranteed by the Constitution? May the court, ostrich like, bury its head in the sand, as it were, at the initial stage of the proceedings and wait to resolve the issue only after the trial? In a number of cases, 1 this Court has not hesitated to grant the so-called "radical relief" and to spare the accused from undergoing the rigors and expense of a full-blown trial where it is clear that he has been deprived of due process of law or other constitutionally guaranteed rights. Of course, it goes without saying that in the application of the doctrine enunciated in those cases, particular regard must be taken of the facts and circumstances peculiar to each case.

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Coming to the case at bar, the following relevant facts appear on record and are largely undisputed. The complainant, Antonio de los Reyes, originally filed what he termed "a report" with the Legal Panel of the Presidential Security Command (PSC) on October 1974, containing charges of alleged violations of Rep. Act No. 3019 against then Secretary of Public Information Francisco S. Tatad. The "report" was made to "sleep" in the office of the PSC until the end of 1979 when it became widely known that Secretary (then Minister) Tatad had a falling out with President Marcos and had resigned from the Cabinet. On December 12, 1979, the 1974 complaint was resurrected in the form of a formal complaint filed with the Tanodbayan and docketed as TBP Case No. 8005-16-07. The Tanodbayan acted on the complaint on April 1, 1980-which was around two months after petitioner Tatad's resignation was accepted by Pres. Marcos by referring the complaint to the CIS, Presidential Security Command, for investigation and report. On June 16, 1980, the CIS report was submitted to the Tanodbayan, recommending the filing of charges for graft and corrupt practices against former Minister Tatad and Antonio L. Cantero. By October 25, 1982, all affidavits and counteraffidavits were in the case was already for disposition by the Tanodbayan. However, it was only on July 5, 1985 that a resolution was approved by the Tanodbayan, recommending the ring of the corresponding criminal informations against the accused Francisco Tatad. Five (5) criminal informations were filed with the Sandiganbayan on June 12, 1985, all against petitioner Tatad alone. A painstaking review of the facts can not but leave the impression that political motivations played a vital role in activating and propelling the prosecutorial process in this case. Firstly, the complaint came to life, as it were, only after petitioner Tatad had a falling out with President Marcos. Secondly, departing from established procedures prescribed by law for preliminary investigation, which require the submission of affidavits and counter-affidavits by the complainant and the respondent and their witnesses, the Tanodbayan referred the complaint to the Presidential Security Command for finding investigation and report. We find such blatant departure from the established procedure as a dubious, but revealing attempt to involve an office directly under the President in the prosecutorial process, lending credence to the suspicion that the prosecution was politically motivated. We cannot emphasize too strongly that prosecutors should not allow, and should avoid, giving the impression that their noble office is being used or prostituted, wittingly or unwittingly, for political ends or other purposes alien to, or subversive of, the basic and fundamental objective of serving the interest of justice even handedly, without fear or favor to any and all litigants alike, whether rich or poor, weak or strong, powerless or mighty. Only by strict adherence to the established procedure may the public's perception of the of the prosecutor be enhanced. Moreover, the long delay in resolving the case under preliminary investigation can not be justified on the basis of the facts on record. The law (P.D. No. 911) prescribes a ten-day period for the prosecutor to resolve a case under preliminary investigation by him from its termination. While we agree with the respondent court that this period fixed by law is merely "directory," yet, on the other hand, it can not be disregarded or ignored completely, with absolute impunity. It certainly can not be assumed that the law has included a provision that is deliberately intended to become meaningless and to be treated as a dead letter. We find the long delay in the termination of the preliminary investigation by the Tanodbayan in the instant case to be violative of the constitutional right of the accused to due process.

Substantial adherence to the requirements of the law governing the conduct of preliminary investigation, including substantial compliance with the time limitation prescribed by the law for the resolution of the case by the prosecutor, is part of the procedural due process constitutionally guaranteed by the fundamental law. Not only under the broad umbrella of the due process clause, but under the constitutional guarantee of "speedy disposition" of cases as embodied in Section 16 of the Bill of Rights (both in the 1973 and the 1987 Constitutions), the inordinate delay is violative of the petitioner's constitutional rights. A delay of close to three (3) years can not be deemed reasonable or justifiable in the light of the circumstance obtaining in the case at bar. We are not impressed by the attempt of the Sandiganbayan to sanitize the long delay by indulging in the speculative assumption that "the delay may be due to a painstaking and gruelling scrutiny by the Tanodbayan as to whether the evidence presented during the preliminary investigation merited prosecution of a former high ranking government official." In the first place, such a statement suggests a double standard of treatment, which must be emphatically rejected. Secondly, three out of the five charges against the petitioner were for his alleged failure to file his sworn statement of assets and liabilities required by Republic Act No. 3019, which certainly did not involve complicated legal and factual issues necessitating such "painstaking and gruelling scrutiny" as would justify a delay of almost three years in terminating the preliminary investigation. The other two charges relating to alleged bribery and alleged giving of unwarranted benefits to a relative, while presenting more substantial legal and factual issues, certainly do not warrant or justify the period of three years, which it took the Tanodbayan to resolve the case. It has been suggested that the long delay in terminating the preliminary investigation should not be deemed fatal, for even the complete absence of a preliminary investigation does not warrant dismissal of the information. True-but the absence of a preliminary investigation can be corrected by giving the accused such investigation. But an undue delay in the conduct of a preliminary investigation can not be corrected, for until now, man has not yet invented a device for setting back time. After a careful review of the facts and circumstances of this case, we are constrained to hold that the inordinate delay in terminating the preliminary investigation and filing the information in the instant case is violative of the constitutionally guaranteed right of the petitioner to due process and to a speedy disposition of the cases against him. Accordingly, the informations in Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503 should be dismissed. In view of the foregoing, we find it unnecessary to rule on the other issues raised by petitioner. Accordingly, the Court Resolved to give due course to the petition and to grant the same. The informations in Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503, entitled "People of the Philippines vs. Francisco S. Tatad" are hereby DISMISSED. The temporary restraining order issued on October 22, 1985 is made permanent. SO ORDERED. Teehankee, C.J., Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes and Grio-Aquino, JJ., concur. G.R. No. 111397 August 12, 2002 HON. ALFREDO LIM and RAFAELITO GARAYBLAS, petitioners, vs.

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THE COURT OF APPEALS, HON. WILFREDO REYES and BISTRO PIGALLE, INC., respondents. CARPIO, J.: The Case Before us is a petition for review on certiorari1 of the Decision of the Court of Appeals dated March 25, 1993,2 and its Resolution dated July 13, 19933 which denied petitioners motion for reconsideration. The assailed Decision sustained the orders dated December 29, 1992, January 20, 1993 and March 2, 1993,4 issued by Branch 36 of the Regional Trial Court of Manila. The trial courts orders enjoined petitioner Alfredo Lim ("Lim" for brevity), then Mayor of Manila, from investigating, impeding or closing down the business operations of the New Bangkok Club and the Exotic Garden Restaurant owned by respondent Bistro Pigalle Inc. ("Bistro" for brevity). The Antecedent Facts On December 7, 1992 Bistro filed before the trial court a petition5 for mandamus and prohibition, with prayer for temporary restraining order or writ of preliminary injunction, against Lim in his capacity as Mayor of the City of Manila. Bistro filed the case because policemen under Lims instructions inspected and investigated Bistros license as well as the work permits and health certificates of its staff. This caused the stoppage of work in Bistros night club and restaurant operations.6 Lim also refused to accept Bistros application for a business license, as well as the work permit applications of Bistros staff, for the year 1993.7 In its petition, Bistro argued that Lims refusal to issue the business license and work permits violated the doctrine laid down this Court in De la Cruz vs. Paras,8 to wit: "Municipal corporations cannot prohibit the operation of nightclubs. They may be regulated, but not prevented from carrying on their business." Acting on Bistros application for injunctive relief, the trial court issued the first assailed temporary restraining order on December 29, 1992, the dispositive portion of which reads: "WHEREFORE, respondent and/or his agents and representatives are ordered to refrain from inspecting or otherwise interfering in the operation of the establishments of petitioner (Bistro Pigalle, Inc.)."9 At the hearing, the parties submitted their evidence in support of their respective positions. On January 20, 1993, the trial court granted Bistros application for a writ of prohibitory preliminary injunction. The dispositive portion of the trial courts order declared: "WHEREFORE, in view of all the foregoing, Petitioners application for a writ of prohibitory preliminary injunction is granted, and Respondent, and any/all persons acting under his authority, are and (sic) ordered to cease and desist from inspecting, investigating and otherwise closing or impeding the business operations of Petitioner Corporations establishments while the petition here is pending resolution on the merits. Considering that the Respondent is a government official and this injunction relates to his official duties, the posting of an injunction bond by the Petitioners is not required. On the other hand, Petitioners application for a writ of mandatory injunction is hereby denied, for to grant the same would amount to granting the writ of mandamus prayed for. The Court reserves resolution thereof until the parties shall have been heard on the merits."10 However, despite the trial courts order, Lim still issued a closure order on Bistros operations effective January 23, 1993, even sending policemen to carry out his closure order.

On January 25, 1993, Bistro filed an "Urgent Motion for Contempt" against Lim and the policemen who stopped Bistros operations on January 23, 1993. At the hearing of the motion for contempt on January 29, 1993, Bistro withdrew its motion on condition that Lim would respect the courts injunction. However, on February 12, 13, 15, 26 and 27, and on March 1 and 2, 1993, Lim, acting through his agents and policemen, again disrupted Bistros business operations. Meanwhile, on February 17, 1993, Lim filed a motion to dissolve the injunctive order of January 20, 1993 and to dismiss the case. Lim insisted that the power of a mayor to inspect and investigate commercial establishments and their staff is implicit in the statutory power of the city mayor to issue, suspend or revoke business permits and licenses. This statutory power is expressly provided for in Section 11 (l), Article II of the Revised Charter of the City of Manila and in Section 455, paragraph 3 (iv) of the Local Government Code of 1991. The trial court denied Lims motion to dissolve the injunction and to dismiss the case in an order dated March 2, 1993, the dispositive portion of which stated: "WHEREFORE, premises considered, the Court hereby orders: (1) The denial of respondents motion to dissolve the writ of preliminary prohibitory injunction or the dismissal of the instant case; (2) Petitioner-corporation is authorized to remove the wooden cross-bars or any other impediments which were placed at its establishments, namely, New Bangkok Club and Exotic Garden Restaurant on February 12, 1993 and February 15, 1993, respectively, and thereafter said establishments are allowed to resume their operations; (3) All the other petitioners are allowed to continue working in the aforenamed establishments of petitioner-corporation if they have not yet reported; and (4) The hearing on the contempt proceedings is deferred to give sufficient time to respondent to elevate the matters assailed herein to the Supreme Court."11 On March 10, 1993, Lim filed with the Court of Appeals a petition for certiorari, prohibition and mandamus against Bistro and Judge Wilfredo Reyes. Lim claimed that the trial judge committed grave abuse of discretion amounting to lack of jurisdiction in issuing the writ of prohibitory preliminary injunction. On March 25, 1993, the Court of Appeals rendered the assailed decision.12 In a resolution dated July 13, 1993, the Court of Appeals denied Lims motion for reconsideration.13 On July 1, 1993, Manila City Ordinance No. 778314 took effect. On the same day, Lim ordered the Western Police District Command to permanently close down the operations of Bistro, which order the police implemented at once.15 The Ruling of the Court of Appeals In denying Lims petition, the Court of Appeals held that the trial court did not commit grave abuse of discretion since it issued the writ after hearing on the basis of the evidence adduced. The Court of Appeals reasoned thus: "x x x. A writ of preliminary injunction may issue if the act sought to be enjoined will cause irreparable injury to the movant or destroy the status quo before a full hearing can be had on the merits of the case. A writ of preliminary injunction, as an ancillary or preventive remedy, may only be resorted to by a litigant to protect or preserve his rights or interests and for no other purpose during the

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pendency of the principal action. It is primarily intended to maintain the status quo between the parties existing prior to the filing of the case. In the case at bar, We find that the respondent Judge did not act improvidently in issuing the assailed orders granting the writ of preliminary injunction in order to maintain the status quo, while the petition is pending resolution on the merits. The private respondent correctly points out that the questioned writ was regularly issued after several hearings, in which the parties were allowed to adduce evidence, and argue their respective positions. The issuance of a writ of preliminary injunction is within the limits of the sound exercise of discretion of the court and the appellate court will not interfere, except, in a clear case of abuse thereof. x x x. WHEREFORE, the petition is DENIED DUE COURSE and is accordingly DISMISSED."16 Hence, this petition. The Issues In their Memorandum, petitioners raise the following issues: 1. "DID RESPONDENT JUDGE COMMIT GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING HIS SAID ASSAILED ORDERS OF DECEMBER 29, 1992, JANUARY 20, 1993 AND MARCH 2, 1993?" 2. "DID RESPONDENT COURT OF APPEALS COMMIT REVERSIBLE ERRORS IN RENDERING ITS ASSAILED DECISION OF MARCH 25, 1993 AND ITS ASSAILED RESOLUTION OF JULY 13, 1993?" 3. "DID SAID CIVIL CASE NO. 92-63712 AND SAID CA-G.R. SP NO. 30381 BECOME MOOT AND ACADEMIC WHEN THE NEW BANGKOK CLUB AND THE EXOTIC GARDEN RESTAURANT OF PRIVATE RESPONDENT WERE CLOSED ON JULY 1, 1993 PURSUANT TO ORDINANCE NO. 7783?" The Ruling of the Court The petition is without merit. Considering that the constitutionality of Ordinance No. 7783 was not raised before the trial court or the Court of Appeals, and this issue is still under litigation in another case, 17 the Court will deal only with the first two issues raised by petitioner. Validity of the Preliminary Injunction Bistros cause of action in the mandamus and prohibition proceedings before the trial court is the violation of its property right under its license to operate. The violation consists of the work disruption in Bistros operations caused by Lim and his subordinates as well as Lims refusal to issue a business license to Bistro and work permits to its staff for the year 1993. The primary relief prayed for by Bistro is the issuance of writs of mandatory and prohibitory injunction. The mandatory injunction seeks to compel Lim to accept Bistros 1993 business license application and to issue Bistros business license. Also, the mandatory injunction seeks to compel Lim to accept the applications of Bistros staff for work permits. The writ of prohibitory injunction seeks to enjoin Lim from interfering, impeding or otherwise closing down Bistros operations. The trial court granted only the prohibitory injunction. This enjoined Lim from interfering, impeding or otherwise closing down Bistros operations pending resolution of whether Lim can validly refuse to issue Bistros business license and its staffs work permits for the year 1993.

Lim contends that the Court of Appeals erred in upholding the prohibitory injunction. Lim relies primarily on his power, as Mayor of the City of Manila, to grant and refuse municipal licenses and business permits as expressly provided for in the Local Government Code and the Revised Charter of the City of Manila. Lim argues that the powers granted by these laws implicitly include the power to inspect, investigate and close down Bistros operations for violation of the conditions of its licenses and permits. On the other hand, Bistro asserts that the legal provisions relied upon by Lim do not apply to the instant case. Bistro maintains that the Local Government Code and the Revised Charter of the City of Manila do not expressly or impliedly grant Lim any power to prohibit the operation of night clubs. Lim failed to specify any violation by Bistro of the conditions of its licenses and permits. In refusing to accept Bistros business license application for the year 1993, Bistro claims that Lim denied Bistro due process of law. The Court of Appeals held that the trial court did not commit grave abuse of discretion in issuing the prohibitory preliminary injunction. We uphold the findings of the Court of Appeals. The authority of mayors to issue business licenses and permits is beyond question. The law expressly provides for such authority. Section 11 (l), Article II of the Revised Charter of the City of Manila, reads: "Sec. 11. General duties and powers of the mayor. The general duties and powers of the mayor shall be: x x x. (l) To grant and refuse municipal licenses or permits of all classes and to revoke the same for violation of the conditions upon which they were granted, or if acts prohibited by law or municipal ordinances are being committed under the protection of such licenses or in the premises in which the business for which the same have been granted is carried on, or for any other reason of general interest." (Emphasis supplied) On the other hand, Section 455 (3) (iv) of the Local Government Code provides: "Sec. 455. Chief Executive, Powers, Duties and Compensation: xxx. (b) For efficient, effective and economical governance the purpose of which is the general welfare of the City and its inhabitants pursuant to Section 16 of this Code, the City Mayor shall: (3) x x x. (iv) Issue licenses and permits and suspend or revoke the same for any violation of the condition upon which said licenses or permits had been issued, pursuant to law or ordinance." (Emphasis supplied) From the language of the two laws, it is clear that the power of the mayor to issue business licenses and permits necessarily includes the corollary power to suspend, revoke or even refuse to issue the same. However, the power to suspend or revoke these licenses and permits is expressly premised on the violation of the conditions of these permits and licenses. The laws specifically refer to the "violation of the condition(s)" on which the licenses and permits were issued. Similarly, the power to refuse to issue such licenses and permits is premised on non-compliance with the prerequisites for the issuance of such licenses and permits. The mayor must observe due process in exercising these powers, which means that the mayor must give the applicant or licensee notice and opportunity to be heard.

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True, the mayor has the power to inspect and investigate private commercial establishments for any violation of the conditions of their licenses and permits. However, the mayor has no power to order a police raid on these establishments in the guise of inspecting or investigating these commercial establishments. Lim acted beyond his authority when he directed policemen to raid the New Bangkok Club and the Exotic Garden Restaurant. Such act of Lim violated Ordinance No. 771618 which expressly prohibits police raids and inspections, to wit: "Section 1. No member of the Western Police District shall conduct inspection of food and other business establishments for the purpose of enforcing sanitary rules and regulations, inspecting licenses and permits, and/or enforcing internal revenue and customs laws and regulations. This responsibility should be properly exercised by Local Government Authorities and other concerned agencies." (Emphasis supplied) These local government officials include the City Health Officer or his representative, pursuant to the Revised City Ordinances of the City of Manila,19 and the City Treasurer pursuant to Section 470 of the Local Government Code.20 Lim has no authority to close down Bistros business or any business establishment in Manila without due process of law. Lim cannot take refuge under the Revised Charter of the City of Manila and the Local Government Code. There is no provision in these laws expressly or impliedly granting the mayor authority to close down private commercial establishments without notice and hearing, and even if there is, such provision would be void. The due process clause of the Constitution requires that Lim should have given Bistro an opportunity to rebut the allegations that it violated the conditions of its licenses and permits. The regulatory powers granted to municipal corporations must always be exercised in accordance with law, with utmost observance of the rights of the people to due process and equal protection of the law.21 Such power cannot be exercised whimsically, arbitrarily or despotically. In the instant case, we find that Lims exercise of this power violated Bistros property rights that are protected under the due process clause of the Constitution. Lim did not charge Bistro with any specific violation of the conditions of its business license or permits. Still, Lim closed down Bistros operations even before the expiration of its business license on December 31, 1992. Lim also refused to accept Bistros license application for 1993, in effect denying the application without examining whether it complies with legal prerequisites. Lims zeal in his campaign against prostitution is commendable. The presumption is that he acted in good faith and was motivated by his concern for his constituents when he implemented his campaign against prostitution in the Ermita-Malate area. However, there is no excusing Lim for arbitrarily closing down, without due process of law, the business operations of Bistro. For this reason, the trial court properly restrained the acts of Lim. Consequently, the Court of Appeals did not err in upholding the trial courts orders. The sole objective of a writ of preliminary injunction is to preserve the status quo until the merits of the case can be heard fully. It is generally availed of to prevent actual or threatened acts, until the merits of the case can be disposed of.22 In the instant case, the issuance of the writ of prohibitory preliminary injunction did not dispose of the main case for mandamus. The trial court issued the injunction in view of the disruptions and stoppage in Bistros operations as a consequence of Lims closure orders. The injunction was intended to maintain the status quo while the petition has not been resolved on the merits.

WHEREFORE, the petition is denied for lack of merit. The assailed Decision of the Court of Appeals in CA-G.R. SP NO. 30381 is AFFIRMED in toto. SO ORDERED. Puno, and Panganiban, JJ., concur. Sandoval-Gutierrez, J., on leave. G.R. No. 129900 October 2, 2001 JANE CARAS y SOLITARIO, petitioner, vs. HON. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents. QUISUMBING, J.: This is an appeal by certiorari from the decision of the Court of Appeals 1 which affirmed the decision of the Regional Trial Court of Quezon City, Branch 92, finding petitioner Jane Caras y Solitario guilty of 15 counts of Batas Pambansa Blg. 22 (Bouncing Checks Law) violations. The facts of the case as found by the Court of Appeals are as follows: JANE S. CARAS has appealed from the judgment of conviction in fifteen (15) related cases of Violation of the Bouncing Checks Law. The first Information (docketed as Criminal Case No. Q-93-44420) against her reads as follows: That on or about the 5th day of January 1992 in Quezon City, Philippines, the said accused did then and there wilfully, unlawfully and feloniously make or draw and issue to Chu Yang T. Atienza to apply on account or for value PCI Bank, Commonwealth Ave. Branch Check No. 017744 dated March 18, 1992 payable to the order of CASH in the amount of P14,125.00 Philippine Currency, said accused well knowing that at the time of issue she did not have sufficient funds in or credit with the drawee bank for payment of such check in full upon its presentment which check when presented for payment was subsequently dishonored by the drawee bank for Account Closed and despite receipt of notice of such dishonor, said accused failed to pay said Chu Yang T. Atienza the amount of said check or to make arrangement for full payment of the same within five (5) banking days after receiving said notice. In Criminal Case Nos. Q-93-44421 to Q-93-44434, the informations were similarly worded as above, except for the respective amounts involved, dates, numbers of checks and dates of commission. When arraigned on August 16, 1993, accused Caras pleaded "not guilty". Thereafter, trial proceeded. The evidence for the prosecution tends to show that on or about February 18, 1992, up to May 31, 1992 at Quezon City, accused Jane Caras obtained from complainant Chu Yang T. Atienza on installment various gift checks and purchase orders from Uniwide Sales and in payment thereof, the accused issued to the complainant the following checks drawn against Philippine Commercial Bank: Check No. Date Amount 017744 017743 017627 3-18-92 3-03-92 3-03-92 P 14,125.00 P 14,625.00 P 14,125.00

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017745 017664 017746 017789 017790 017663 017662 017768 017788 017665 017767

4-03-92 4-18-92 4-18-92 3-18-92 4-03-92 4-02-92 3-18-92 3-18-92 3-03-92 5-02-92 3-03-92

P 14,125.00 P 23,500.00 P 14,125.00 P 14,125.00 P 14,125.00 P 23,500.00 P 24,440.00 P 7,062.50 P 14,125.00 P 23,500.00 P 7,062.50

017769 3-31-92 P540,318.35 When the checks were presented for deposit or encashment, they were all dishonored for the reason "Account Closed". Despite repeated verbal and written demands made on her to replace the dishonored checks with cash, she failed and refused to do so. The accused admitted that she issued the fifteen (15) checks. She claimed, however, that they were given to Marivic Nakpil,2 alleged sister of the complainant, as "guarantee deposit," that is, for every gift check and purchase order given to the accused, she issued personal checks to guarantee its payment. The checks are not to be encashed nor deposited with any bank. With regard to Check No. 017769 in the amount of P540,316.35 (Exh. "O"), accused claimed that she entrusted the said check to Marivic Nakpil in blank, with her signature but without any amount or numerical figures on the face of the check. On May 13, 1994, the Court a quo rendered its judgment with the following disposition: WHEREFORE, Judgment is hereby rendered as follows: 1. In Crim. Case No. Q-93-44420 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of four (4) months and to indemnify the offended party in the amount of P14,125.00 and to pay the costs; 2. In Crim. Case No. Q-93-44421 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambans Blg. 22 and is hereby sentenced to suffer an imprisonment of four (4) months and indemnify the offended party in the amount of P14,625.00 and to pay the costs; 3. In Crim. Case No. Q-93-44422 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of four (4) months and to indemnify the offended party in the amount of P14,125.00 and to pay the costs; 4. In Crim. Case No. Q-93-44423 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer

an imprisonment of four (4) months and to indemnify the offended party in the amount of P14,125.00 and to pay the costs; 5. In Crim. Case No. Q-93-44424 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of six (6) months and to indemnify the offended party in the amount of P23,500.00 and to pay the costs; 6. In Crim. Case No. Q-93-44425 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of four (4) months and to indemnify the offended party in the amount of P14,125.00 and to pay the costs; 7. In Crim. Case No. Q-93-44426 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of four (4) months and to indemnify the offended party in the amount of P14,125.00 and to pay the costs; 8. In Crim. Case No. Q-93-44427 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of four (4) months and to indemnify the offended party in the amount of P14,125.00 and to pay the costs; 9. In Crim. Case No. Q-93-44428 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of six (6) months and to indemnify the offended party in the amount of P23,500.00 and to pay the costs; 10. In Crim. Case No. Q-93-44429 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of six (6) months and to indemnify the offended party in the amount of P24,440.00 and to pay the costs; 11. In Crim. Case No. Q-93-44430 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of two (2) months and to indemnify the offended party in the amount of P7,062.50 and to pay the costs; 12. In Crim. Case No. Q-93-44431 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of four (4) months and to indemnify the offended party in the amount of P14,125.00 and to pay the costs; 13. In Crim. Case No. Q-93-44432 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of six (6) months and to indemnify the offended party in the amount of P23,500.00 and to pay the costs; 14. In Crim. Case No. Q-93-44433 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of two (2) months and to indemnify the offended party in the amount of P7,062.50 and to pay the costs; 15. In Crim. Case No. Q-93-44434 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer

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an imprisonment of eight (8) months and to indemnify the offended party in the amount of P540,318.35 and to pay the costs. SO ORDERED.3 On June 13, 1994, petitioner filed a Motion for Reconsideration which was denied by the trial court in an Order dated September 22, 1994. Petitioner then filed an appeal with the Court of Appeals which rendered judgment as follows: WHEREFORE, the appealed decision is hereby AFFIRMED in toto. Costs against appellant. SO ORDERED.4 On April 11, 1997, petitioner filed a Motion for Reconsideration which was denied by the Court of Appeals in a Resolution dated July 15, 1997. Hence, this petition, in which petitioner alleges that the Court of Appeals erred: I - IN NOT RESOLVING THE ISSUES BROUGHT OUT IN THE MOTION FOR RECONSIDERATION; II - IN COMPLETELY IGNORING THE PURPOSE OF THE ISSUANCE OF THE CHECKS; III - IN COMPLETELY IGNORING THE LACK OF PERSONALITY OF THE PRIVATE COMPLAINANT TO INITIATE AND PROSECUTE THESE CASES; IV - IN NOT ACQUITTING THE ACCUSED FOR LACK OF CONSIDERATION (AS TO PCIB CHECK NO 017769 FOR P540,318.35) AND FOR LACK OF KNOWLEDGE OF THE INSUFFICIENCY OF HER FUNDS; V - IN COMPLETELY IGNORING THAT THE COURT A QUO HAD NO TERRITORIAL JURISDICTION OVER THE OFFENSE.5 Petitioner admits having issued the checks subject of this case, save for one, but insists that she issued them merely to guarantee payment of her obligation to a certain Marivic Nakpil; they were not supposed to have been deposited in a bank. Petitioner also denies having transacted with private complainant Chu Yang T. Atienza, and asserts that the latter did not have personality to prosecute this case. Petitioner argues that one of the checks, PCIB check no. 017769, was issued in blank. She claims that this check was issued without consideration and that the element of the crime that the check must be issued for value is lacking as regards this particular check. Also in relation to her fourth assignment of error, petitioner asserts that she was not properly notified of the dishonor of her checks. She maintains that the prosecution failed to show that she received the notices of dishonor purportedly sent to her. She points out that no return card nor acknowledgment receipt for the first demand letter was presented in evidence. While there was a return card attached to the second demand letter, this was not marked nor offered in evidence, and hence must be ignored.6 Petitioner also assails the jurisdiction of the Quezon City RTC over the case, maintaining that there is no evidence showing that the checks were issued and delivered in Quezon City. Neither is there evidence as to where the private complainant received the checks, and whether or not she received them from the accused herself. For its part, the Office of the Solicitor General argues that B.P. 22 does not make any distinction regarding the purpose for which the checks were issued. Thus, it is of no moment even if it were true that, as claimed by accused, the checks she issued were meant only to guarantee payment of her obligation. Criminal liability attaches whether the checks were issued in payment of an obligation or to guarantee payment of that obligation. 7 There is

violation of B.P. 22 when a worthless check is issued and is subsequently dishonored by the drawee bank. The OSG also points out that accused did not deny having issued the subject checks. After a careful consideration of the records and the submissions of the parties, we find that the resolution of this petition hinges on the issue of whether the prosecution evidence suffices to convict the accused, herein petitioner Jane Caras. The elements of the offense under Section 1 of B.P. Blg. 22 are: (1) drawing and issuance of any check to apply on account or for value; (2) knowledge by the maker, drawer, or issuer that at the time of issue he did not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon presentment; and (3) said check is subsequently dishonored by the drawee bank for insufficiency of funds or credit, or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment.8 What the law punishes is the issuance of a bouncing check and not the purpose for which the check was issued, nor the terms and conditions of its issuance. There are matters we need to pursue, because, as said in Llamado v. Court of Appeals,9 to determine the reasons for which checks are issued, or the terms and conditions for their issuance, will greatly erode the faith the public reposes in the stability and commercial value of checks as currency substitutes, and bring about havoc in trade and in banking communities. Thus, petitioners contention that she issued the checks subject of this case merely to guarantee payment of her obligation is hardly a defense. The mere act of issuing a worthless check is malum prohibitum and is punishable under B.P. 22, provided the other elements of the offense are properly proved. In particular, we note that the law provides for a prima facie rule of evidence. Knowledge of insufficiency of funds in or credit with the bank is presumed from the act of making, drawing, and issuing a check payment of which is refused by the drawee bank for insufficiency of funds when presented within 90 days from the date of issue. However, this presumption may be rebutted by the accused-petitioner. Such presumption does not hold when the maker or drawer pays or makes arrangements for the payment of the check within five banking days after receiving notice that such check had been dishonored.10 Thus, it is essential for the maker or drawer to be notified of the dishonor of her check, so she could pay the value thereof or make arrangements for its payment within the period prescribed by law. Petitioner denies having received any notice that the checks she issued had been dishonored by the drawee bank. After carefully going over the records of this case, we find that indeed no clear evidence is shown on whether petitioner was informed that her checks had been dishonored. The notice of dishonor, as held in Lao v. Court of Appeals,11 may be sent by the offended party or the drawee bank. Complainant testified that she hired lawyers to prepare and send the demand letters.12 The prosecution presented and marked in evidence two letters demanding payment which were purportedly sent to petitioner. However, the prosecution presented no evidence that would establish petitioners actual receipt of any demand letter which could have served as notice to petitioner. None of the letters contained an indication that they were actually received by petitioner. No acknowledgement receipt nor return card for the first and second demand letters were offered in evidence. Such omission and neglect on the part of the prosecution is fatal to its cause.

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There is testimony on record that private complainant asked petitioner to pay the value of the checks. However, there is no mention of when the demand to pay was made, whether before or after the checks were dishonored by the drawee bank.13 It is possible that payment was requested before the checks were deposited, since, as testified to by petitioner, the usual arrangement was that she issues checks and then she replaces them with cash. The checks were not deposited but were, instead, returned to her.14 However, according to the prosecution, petitioner started having problems with her cash flow resulting to her inability to replace the checks she issued with cash. But such problems leading to illiquidity of petitioner are not material elements of the crime. What is pertinent here is prior notice to the drawer that her checks have been dishonored, so that within five banking days from receipt of such notice she could pay the check fully or make arrangements for such payment. Even the testimony of Manuel Panuelos, branch manager of PCI Bank where petitioner maintained her checking account, indicates that the bank also failed to send notice to petitioner for her to pay the value of the checks or make arrangements for their payment within five days from the dishonor of the said checks. Note his testimony on crossexamination: Q: Did you give the accused notice within five (5) banking days within which to make arrangement with the bank within ninety (90) days regarding the bounced checks? Atty. Palaa: Your Honor, that is already answered by the witness. Atty. Dela Torre: No, that is not the answer, what I want is that..... Court: Reform Atty. Dela Torre: Is it not your procedure that when a check bounced, you give notice to the .... A: It is not our procedure. Q: It is not your procedure? A: No. In fact we do it verbally.... Q: Is it not standard operating procedure in your bank to give customers notice within five (5) banking days to make arrangement with the bank within ninety (90) days regarding the bounced check? A: No, that is not our procedure. Q: You do not follow that procedure? A: We do not. That is not our standard procedure.15 Petitioner on the witness stand denied receiving any notice from the bank. Q: Madam Witness, all these checks were deposited with the bank in one day. Will you please tell this Honorable Court when the first check bounced by the reason of DAIF, were you notified by your depositary bank which is PCIB within five (5) banking days to make arrangement within...days regarding that bouncing checks? A: No, sir, I did not receive any notice.16 The absence of proof that petitioner received any notice informing her of the fact that her checks were dishonored and giving her five banking days within which to make arrangements for payment of the said checks prevents the application of the disputable presumption that she

had knowledge of the insufficiency of her funds at the time she issued the checks. Absent such presumption, the burden shifts to the prosecution to prove that petitioner had knowledge of the insufficiency of her funds when she issued the said checks, otherwise, she cannot be held liable under the law.17 Even more crucial, the absence of any notice of dishonor personally sent to and received by the accused is a violation of the petitioners right to due process. This is in effect our ruling in Lao vs. Court of Appeals,18 where we held: It has been observed that the State, under this statute, actually offers the violator "a compromise by allowing him to perform some act which operates to preempt the criminal action, and if he opts to perform it the action is abated". This was also compared "to certain laws"(citing E.O. 107, 83 O.G. No. 7, p. 576 (February 16, 1987), and E.O. 122, 89 O.G. No. 44, p. 6349 (November 1, 1993) allowing illegal possessors of firearms a certain period of time to surrender the illegally possessed firearms to the Government, without incurring any criminal liability" (citing Nitafan, David G., Notes and Comments on the Bouncing Checks Law (BP Blg. 22), pp. 121-122). In this light, the full payment of the amount appearing in the check within five banking days from notice of dishonor is a "complete defense" (citing Navarro vs. Court of Appeals, 234 SCRA 639). The absence of a notice of dishonor necessarily deprives an accused an opportunity to preclude a criminal prosecution. Accordingly, procedural due process clearly enjoins that a notice of dishonor be actually served on petitioner. Petitioner has a right to demand - and the basic postulates of fairness require - that the notice of dishonor be actually sent to and received by her to afford her the opportunity to avert prosecution under B.P. Blg. 22. (Underscoring and emphasis supplied.) Absent a clear showing that petitioner actually knew of the dishonor of her checks and was given the opportunity to make arrangements for payment as provided for under the law, we cannot with moral certainty convict her of violation of B.P. Blg. 22. The failure of the prosecution to prove that petitioner was given the requisite notice of dishonor is a clear ground for her acquittal.19 Discussion of the other assigned errors need no longer detain us. However, it should be stressed that this decision in no way prejudices the civil obligations, if any, that she might have incurred by reason of her transactions with private complainant. For we note that petitioner does not deny having issued the subject checks.20 And while no criminal liability could be imposed in this case for lack of sufficient proof of the offense charged, a fair distinction should be made as to civil aspects of the transaction between the parties. WHEREFORE, the assailed decision of the Court of Appeals affirming that of the Regional Trial Court, is REVERSED and SET ASIDE. Petitioner Jane Caras is ACQUITTED on the ground that her guilt has not been established beyond reasonable doubt. This decision is without prejudice to the filing of an appropriate civil case, if warranted, to determine the civil aspects of petitioners transactions. No pronouncement as to costs. SO ORDERED. Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur. G.R. No. 139465 January 18, 2000

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SECRETARY OF JUSTICE, petitioner, vs. HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of Manila, Branch 25, and MARK B. JIMENEZ, respondents. MELO, J.: The individual citizen is but a speck of particle or molecule vis--vis the vast and overwhelming powers of government. His only guarantee against oppression and tyranny are his fundamental liberties under the Bill of Rights which shield him in times of need. The Court is now called to decide whether to uphold a citizen's basic due process rights, or the government's ironclad duties under a treaty. The bugle sounds and this Court must once again act as the faithful guardian of the fundamental writ. The petition at our doorstep is cast against the following factual backdrop: On January 13, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1069 "Prescribing the Procedure for the Extradition of Persons Who Have Committed Crimes in a Foreign Country". The Decree is founded on: the doctrine of incorporation under the Constitution; the mutual concern for the suppression of crime both in the state where it was committed and the state where the criminal may have escaped; the extradition treaty with the Republic of Indonesia and the intention of the Philippines to enter into similar treaties with other interested countries; and the need for rules to guide the executive department and the courts in the proper implementation of said treaties. On November 13, 1994, then Secretary of Justice Franklin M. Drilon, representing the Government of the Republic of the Philippines, signed in Manila the "Extradition Treaty Between the Government of the Republic of the Philippines and the Government of the United States of America" (hereinafter referred to as the RP-US Extradition Treaty). The Senate, by way of Resolution No. 11, expressed its concurrence in the ratification of said treaty. It also expressed its concurrence in the Diplomatic Notes correcting Paragraph (5)(a), Article 7 thereof (on the admissibility of the documents accompanying an extradition request upon certification by the principal diplomatic or consular officer of the requested state resident in the Requesting State). On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs U.S. Note Verbale No. 0522 containing a request for the extradition of private respondent Mark Jimenez to the United States. Attached to the Note Verbale were the Grand Jury Indictment, the warrant of arrest issued by the U.S. District Court, Southern District of Florida, and other supporting documents for said extradition. Based on the papers submitted, private respondent appears to be charged in the United States with violation of the following provisions of the United States Code (USC): A) 18 USC 371 (Conspiracy to commit offense or to defraud the United States; two [2] counts; Maximum Penalty 5 years on each count); B) 26 USC 7201 (Attempt to evade or defeat tax; four [4] counts; Maximum Penalty 5 years on each count); C) 18 USC 1343 (Fraud by wire, radio, or television; two [2] counts; Maximum Penalty 5 years on each count); D) 18 USC 1001 (False statement or entries; six [6] counts; Maximum Penalty 5 years on each count);

E) 2 USC 441f (Election contributions in name of another; thirty-three [33] counts; Maximum Penalty less than one year). (p. 14, Rollo.) On the same day, petitioner issued Department Order No. 249 designating and authorizing a panel of attorneys to take charge of and to handle the case pursuant to Section 5(1) of Presidential Decree No. 1069. Accordingly, the panel began with the "technical evaluation and assessment" of the extradition request and the documents in support thereof. The panel found that the "official English translation of some documents in Spanish were not attached to the request and that there are some other matters that needed to be addressed" (p. 15, Rollo). Pending evaluation of the aforestated extradition documents, private respondent, through counsel, wrote a letter dated July 1, 1999 addressed to petitioner requesting copies of the official extradition request from the U.S. Government, as well as all documents and papers submitted therewith; and that he be given ample time to comment on the request after he shall have received copies of the requested papers. Private respondent also requested that the proceedings on the matter be held in abeyance in the meantime. Later, private respondent requested that preliminary, he be given at least a copy of, or access to, the request of the United States Government, and after receiving a copy of the Diplomatic Note, a period of time to amplify on his request. In response to private respondent's July 1, 1999 letter, petitioner, in a reply-letter dated July 13, 1999 (but received by private respondent only on August 4, 1999), denied the foregoing requests for the following reasons: 1. We find it premature to furnish you with copies of the extradition request and supporting documents from the United States Government, pending evaluation by this Department of the sufficiency of the extradition documents submitted in accordance with the provisions of the extradition treaty and our extradition law. Article 7 of the Extradition Treaty between the Philippines and the United States enumerates the documentary requirements and establishes the procedures under which the documents submitted shall be received and admitted as evidence. Evidentiary requirements under our domestic law are also set forth in Section 4 of P.D. No. 1069. Evaluation by this Department of the aforementioned documents is not a preliminary investigation nor akin to preliminary investigation of criminal cases. We merely determine whether the procedures and requirements under the relevant law and treaty have been complied with by the Requesting Government. The constitutionally guaranteed rights of the accused in all criminal prosecutions are therefore not available. It is only after the filing of the petition for extradition when the person sought to be extradited will be furnished by the court with copies of the petition, request and extradition documents and this Department will not pose any objection to a request for ample time to evaluate said documents. 2. The formal request for extradition of the United States contains grand jury information and documents obtained through grand jury process covered by strict secrecy rules under United States law. The United States had to secure orders from the concerned District Courts authorizing the United States to disclose certain grand jury information to Philippine government and law enforcement personnel for the purpose of extradition of Mr. Jimenez. Any further disclosure of the said information is not authorized by the United States District Courts.

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In this particular extradition request the United States Government requested the Philippine Government to prevent unauthorized disclosure of the subject information. This Department's denial of your request is consistent with Article 7 of the RP-US Extradition Treaty which provides that the Philippine Government must represent the interests of the United States in any proceedings arising out of a request for extradition. The Department of Justice under P.D. No. 1069 is the counsel of the foreign governments in all extradition requests. 3. This Department is not in a position to hold in abeyance proceedings in connection with an extradition request. Article 26 of the Vienna Convention on the Law of Treaties, to which we are a party provides that "[E]very treaty in force is binding upon the parties to it and must be performed by them in good faith". Extradition is a tool of criminal law enforcement and to be effective, requests for extradition or surrender of accused or convicted persons must be processed expeditiously. (pp. 77-78, Rollo.) Such was the state of affairs when, on August 6, 1999, private respondent filed with the Regional Trial Court of the National Capital Judicial Region a petition against the Secretary of Justice, the Secretary of Foreign Affairs, and the Director of the National Bureau of Investigation, for mandamus (to compel herein petitioner to furnish private respondent the extradition documents, to give him access thereto, and to afford him an opportunity to comment on, or oppose, the extradition request, and thereafter to evaluate the request impartially, fairly and objectively);certiorari (to set aside herein petitioner's letter dated July 13, 1999); and prohibition (to restrain petitioner from considering the extradition request and from filing an extradition petition in court; and to enjoin the Secretary of Foreign Affairs and the Director of the NBI from performing any act directed to the extradition of private respondent to the United States), with an application for the issuance of a temporary restraining order and a writ of preliminary injunction (pp. 104-105, Rollo). The aforementioned petition was docketed as Civil Case No. 99-94684 and thereafter raffled to Branch 25 of said regional trial court stationed in Manila which is presided over by the Honorable Ralph C. Lantion. After due notice to the parties, the case was heard on August 9, 1999. Petitioner, who appeared in his own behalf, moved that he be given ample time to file a memorandum, but the same was denied. On August 10, 1999, respondent judge issued an order dated the previous day, disposing: WHEREFORE, this Court hereby Orders the respondents, namely: the Secretary of Justice, the Secretary of Foreign Affairs and the Director of the National Bureau of Investigation, their agents and/or representatives to maintain the status quo by refraining from committing the acts complained of; from conducting further proceedings in connection with the request of the United States Government for the extradition of the petitioner; from filing the corresponding Petition with a Regional Trial court; and from performing any act directed to the extradition of the petitioner to the United States, for a period of twenty (20) days from service on respondents of this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of Court. The hearing as to whether or not this Court shall issue the preliminary injunction, as agreed upon by the counsels for the parties herein, is set on August 17, 1999 at 9:00 o'clock in the morning. The respondents are, likewise, ordered to file their written comment and/or opposition to the issuance of a Preliminary Injunction on or before said date.

SO ORDERED. (pp. 110-111, Rollo.) Forthwith, petitioner initiated the instant proceedings, arguing that: PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE TEMPORARY RESTRAINING ORDER BECAUSE: I. BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING THE ACTS COMPLAINED OF, I.E., TO DESIST FROM REFUSING PRIVATE RESPONDENT ACCESS TO THE OFFICIAL EXTRADITION REQUEST AND DOCUMENTS AND FROM DENYING PRIVATE RESPONDENT AN OPPORTUNITY TO FILE A COMMENT ON, OR OPPOSITION TO, THE REQUEST, THE MAIN PRAYER FOR A WRIT OF MANDAMUSIN THE PETITION FOR MANDAMUS, CERTIORARI AND PROHIBITION WAS, IN EFFECT, GRANTED SO AS TO CONSTITUTE AN ADJUDICATION ON THE MERITS OF THE MANDAMUS ISSUES; II. PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING LEGAL DUTIES UNDER THE EXTRADITION TREATY AND THE PHILIPPINE EXTRADITION LAW; III. THE PETITION FOR (MANDAMUS), CERTIORARI AND PROHIBITION IS, ON ITS FACE, FORMALLY AND SUBSTANTIALLY DEFICIENT; AND IV. PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS PROTECTION AND ENFORCEMENT, AND WILL NOT SUFFER ANY IRREPARABLE INJURY. (pp. 19-20, Rollo.) On August 17, 1999, the Court required private respondent to file his comment. Also issued, as prayed for, was a temporary restraining order (TRO) providing: NOW, THEREFORE, effective immediately and continuing until further orders from this Court, You, Respondent Judge Ralph C. Lantion, your agents, representatives or any person or persons acting in your place or stead are hereby ORDERED to CEASE and DESIST from enforcing the assailed order dated August 9, 1999 issued by public respondent in Civil Case No. 99-94684. GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice, Supreme Court of the Philippines, this 17th day of August 1999. (pp. 120-121, Rollo.) The case was heard on oral argument on August 31, 1999, after which the parties, as directed, filed their respective memoranda. From the pleadings of the opposing parties, both procedural and substantive issues are patent. However, a review of these issues as well as the extensive arguments of both parties, compel us to delineate the focal point raised by the pleadings: During the evaluation stage of the extradition proceedings, is private respondent entitled to the two basic due process rights of notice and hearing? An affirmative answer would necessarily render the proceedings at the trial court, moot and academic (the issues of which are substantially the same as those before us now), while a negative resolution would call for the immediate lifting of the TRO issued by this Court dated August 24, 1999, thus allowing petitioner to fast-track the process leading to

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the filing of the extradition petition with the proper regional trial court. Corollarily, in the event that private respondent is adjudged entitled to basic due process rights at the evaluation stage of the extradition proceedings, would this entitlement constitute a breach of the legal commitments and obligations of the Philippine Government under the RP-US Extradition Treaty? And assuming that the result would indeed be a breach, is there any conflict between private respondent's basic due process rights and the provisions of the RP-US Extradition Treaty? The issues having transcendental importance, the Court has elected to go directly into the substantive merits of the case, brushing aside peripheral procedural matters which concern the proceedings in Civil Case No. 99-94684, particularly the propriety of the filing of the petition therein, and of the issuance of the TRO of August 17, 1999 by the trial court. To be sure, the issues call for a review of the extradition procedure. The RP-US Extradition Treaty which was executed only on November 13, 1994, ushered into force the implementing provisions of Presidential Decree No. 1069, also called as the Philippine Extradition Law. Section 2(a) thereof defines extradition as "the removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government." The portions of the Decree relevant to the instant case which involves a charged and not convicted individual, are abstracted as follows: The Extradition Request The request is made by the Foreign Diplomat of the Requesting State, addressed to the Secretary of Foreign Affairs, and shall be accompanied by: 1. The original or an authentic copy of the criminal charge and the warrant of arrest issued by the authority of the Requesting State having jurisdiction over the matter, or some other instruments having equivalent legal force; 2. A recital of the acts for which extradition is requested, with the fullest particulars as to the name and identity of the accused, his whereabouts in the Philippines, if known, the acts or omissions complained of, and the time and place of the commission of these acts; 3. The text of the applicable law or a statement of the contents of said law, and the designation or description of the offense by the law, sufficient for evaluation of the request; and 4. Such other documents or information in support of the request. (Sec. 4. Presidential Decree No. 1069.) Sec. 5 of the Presidential Decree, which sets forth the duty of the Secretary of Foreign Affairs, pertinently provides . . . (1) Unless it appears to the Secretary of Foreign Affairs that the request fails to meet the requirements of this law and the relevant treaty or convention, he shall forward the request together with the related documents to the Secretary of Justice, who shall immediately designate and authorize an attorney in his office to take charge of the case. The above provision shows only too clearly that the executive authority given the task of evaluating the sufficiency of the request and the supporting documents is the Secretary of Foreign Affairs. What then is the coverage of this task?

In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition Treaty, the executive authority must ascertain whether or not the request is supported by: 1. Documents, statements, or other types of information which describe the identity and probable location of the person sought; 2. A statement of the facts of the offense and the procedural history of the case; 3. A statement of the provisions of the law describing the essential elements of the offense for which extradition is requested; 4. A statement of the provisions of law describing the punishment for the offense; 5. A statement of the provisions of the law describing any time limit on the prosecution or the execution of punishment for the offense; 6. Documents, statements, or other types of information specified in paragraph 3 or paragraph 4 of said Article, as applicable. (Paragraph 2, Article 7, Presidential Decree No. 1069.) 7. Such evidence as, according to the law of the Requested State, would provide probable cause for his arrest and committal for trial if the offense had been committed there; 8. A copy of the warrant or order of arrest issued by a judge or other competent authority; and 9. A copy of the charging document. (Paragraph 3, ibid.) The executive authority (Secretary of Foreign Affairs) must also see to it that the accompanying documents received in support of the request had been certified by the principal diplomatic or consular officer of the Requested State resident in the Requesting State (Embassy Note No. 052 from U. S. Embassy; Embassy Note No. 951309 from the Department of Foreign Affairs). In this light, Paragraph 3, Article 3 of the Treaty provides that "[e]xtradition shall not be granted if the executive authority of the Requested State determines that the request is politically motivated, or that the offense is a military offense which is not punishable under non-military penal legislation." The Extradition Petition Upon a finding made by the Secretary of Foreign Affairs that the extradition request and its supporting documents are sufficient and complete in form and substance, he shall deliver the same to the Secretary of Justice, who shall immediately designate and authorize an attorney in his office to take charge of the case (Paragraph [1], Section 5, P.D. No. 1069). The lawyer designated shall then file a written petition with the proper regional trial court of the province or city, with a prayer that the court take the extradition request under consideration (Paragraph [2], ibid.). The presiding judge of the regional trial court, upon receipt of the petition for extradition, shall, as soon as practicable, issue an order summoning the prospective extraditee to appear and to answer the petition on the day and hour fixed in the order. The judge may issue a warrant of arrest if it appears that the immediate arrest and temporary detention of the accused will best serve the ends of justice (Paragraph [1], Section 6, ibid.), particularly to prevent the flight of the prospective extraditee. The Extradition Hearing The Extradition Law does not specifically indicate whether the extradition proceeding is criminal, civil, or a special proceeding. Nevertheless, Paragraph [1], Section 9 thereof

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provides that in the hearing of the extradition petition, the provisions of the Rules of Court, insofar as practicable and not inconsistent with the summary nature of the proceedings, shall apply. During the hearing, Section 8 of the Decree provides that the attorney having charge of the case may, upon application by the Requesting State, represent the latter throughout the proceedings. Upon conclusion of the hearing, the court shall render a decision granting the extradition and giving the reasons therefor upon a showing of the existence of a prima facie case, or dismiss the petition (Section 10, ibid.). Said decision is appealable to the Court of Appeals, whose decision shall be final and immediately executory (Section 12, ibid.). The provisions of the Rules of Court governing appeal in criminal cases in the Court of Appeals shall apply in the aforementioned appeal, except for the required 15-day period to file brief (Section 13, ibid.). The trial court determines whether or not the offense mentioned in the petition is extraditable based on the application of the dual criminality rule and other conditions mentioned in Article 2 of the RP-US Extradition Treaty. The trial court also determines whether or not the offense for which extradition is requested is a political one (Paragraph [1], Article 3, RP-US Extradition Treaty).1wphi1.nt With the foregoing abstract of the extradition proceedings as backdrop, the following query presents itself: What is the nature of the role of the Department of Justice at the evaluation stage of the extradition proceedings? A strict observance of the Extradition Law indicates that the only duty of the Secretary of Justice is to file the extradition petition after the request and all the supporting papers are forwarded to him by the Secretary of Foreign Affairs. It is the latter official who is authorized to evaluate the extradition papers, to assure their sufficiency, and under Paragraph [3], Article 3 of the Treaty, to determine whether or not the request is politically motivated, or that the offense is a military offense which is not punishable under non-military penal legislation. Ipso facto, as expressly provided in Paragraph [1], Section 5 of the Extradition Law, the Secretary of Justice has the ministerial duty of filing the extradition papers. However, looking at the factual milieu of the case before us, it would appear that there was failure to abide by the provisions of Presidential Decree No. 1069. For while it is true that the extradition request was delivered to the Department of Foreign Affairs on June 17, 1999, the following day or less than 24 hours later, the Department of Justice received the request, apparently without the Department of Foreign Affairs discharging its duty of thoroughly evaluating the same and its accompanying documents. The statement of an assistant secretary at the Department of Foreign Affairs that his Department, in this regard, is merely acting as a post office, for which reason he simply forwarded the request to the Department of Justice, indicates the magnitude of the error of the Department of Foreign Affairs in taking lightly its responsibilities. Thereafter, the Department of Justice took it upon itself to determine the completeness of the documents and to evaluate the same to find out whether they comply with the requirements laid down in the Extradition Law and the RP-US Extradition Treaty. Petitioner ratiocinates in this connection that although the Department of Justice had no obligation to evaluate the extradition documents, the Department also had to go over them so as to be able to prepare an extradition petition (tsn, August 31, 1999, pp. 24-25). Notably, it was also at this stage where private respondent insisted on the following; (1) the right to be furnished the request and the supporting papers; (2) the right to be heard which consists in

having a reasonable period of time to oppose the request, and to present evidence in support of the opposition; and (3) that the evaluation proceedings be held in abeyance pending the filing of private respondent's opposition to the request. The two Departments seem to have misread the scope of their duties and authority, one abdicating its powers and the other enlarging its commission. The Department of Foreign Affairs, moreover, has, through the Solicitor General, filed a manifestation that it is adopting the instant petition as its own, indirectly conveying the message that if it were to evaluate the extradition request, it would not allow private respondent to participate in the process of evaluation. Plainly then, the record cannot support the presumption of regularity that the Department of Foreign Affairs thoroughly reviewed the extradition request and supporting documents and that it arrived at a well-founded judgment that the request and its annexed documents satisfy the requirements of law. The Secretary of Justice, eminent as he is in the field of law, could not privately review the papers all by himself. He had to officially constitute a panel of attorneys. How then could the DFA Secretary or his undersecretary, in less than one day, make the more authoritative determination? The evaluation process, just like the extradition proceedings proper, belongs to a class by itself. It is sui generis. It is not a criminal investigation, but it is also erroneous to say that it is purely an exercise of ministerial functions. At such stage, the executive authority has the power: (a) to make a technical assessment of the completeness and sufficiency of the extradition papers; (b) to outrightly deny the request if on its face and on the face of the supporting documents the crimes indicated are not extraditable; and (c) to make a determination whether or not the request is politically motivated, or that the offense is a military one which is not punishable under non-military penal legislation (tsn, August 31, 1999, pp. 28-29; Article 2 & and Paragraph [3], Article 3, RP-US Extradition Treaty). Hence, said process may be characterized as an investigative or inquisitorial process in contrast to a proceeding conducted in the exercise of an administrative body's quasi-judicial power. In administrative law, a quasi-judicial proceeding involves: (a) taking and evaluation of evidence; (b) determining facts based upon the evidence presented; and (c) rendering an order or decision supported by the facts proved (De Leon, Administrative Law: Text and Cases, 1993 ed., p. 198, citing Morgan vs. United States, 304 U.S. 1). Inquisitorial power, which is also known as examining or investigatory power, is one or the determinative powers of an administrative body which better enables it to exercise its quasi-judicial authority (Cruz, Phil. Administrative Law, 1996 ed., p. 26). This power allows the administrative body to inspect the records and premises, and investigate the activities, of persons or entities coming under its jurisdiction (Ibid., p. 27), or to require disclosure of information by means or accounts, records, reports, testimony of witnesses, production of documents, or otherwise (De Leon, op. cit., p. 64). The power of investigation consists in gathering, organizing, and analyzing evidence, which is a useful aid or tool in an administrative agency's performance of its rule-making or quasijudicial functions. Notably, investigation is indispensable to prosecution. In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had occasion to rule on the functions of an investigatory body with the sole power of investigation. It does not exercise judicial functions and its power is limited to investigating the facts and making findings in

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respect thereto. The Court laid down the test of determining whether an administrative body is exercising judicial functions or merely investigatory functions: Adjudication signifies the exercise of power and authority to adjudicate upon the rights and obligations of the parties before it. Hence, if the only purpose for investigation is to evaluate evidence submitted before it based on the facts and circumstances presented to it, and if the agency is not authorized to make a final pronouncement affecting the parties, then there is an absence of judicial discretion and judgment. The above description in Ruperto applies to an administrative body authorized to evaluate extradition documents. The body has no power to adjudicate in regard to the rights and obligations of both the Requesting State and the prospective extraditee. Its only power is to determine whether the papers comply with the requirements of the law and the treaty and, therefore, sufficient to be the basis of an extradition petition. Such finding is thus merely initial and not final. The body has no power to determine whether or not the extradition should be effected. That is the role of the court. The body's power is limited to an initial finding of whether or not the extradition petition can be filed in court. It is to be noted, however, that in contrast to ordinary investigations, the evaluation procedure is characterized by certain peculiarities. Primarily, it sets into motion the wheels of the extradition process. Ultimately, it may result in the deprivation of liberty of the prospective extraditee. This deprivation can be effected at two stages: First, the provisional arrest of the prospective extraditee pending the submission of the request. This is so because the Treaty provides that in case of urgency, a contracting party may request the provisional arrest of the person sought pending presentation of the request (Paragraph [1], Article 9, RP-US Extradition Treaty), but he shall be automatically discharged after 60 days if no request is submitted (Paragraph 4). Presidential Decree No. 1069 provides for a shorter period of 20 days after which the arrested person could be discharged (Section 20[d]). Logically, although the Extradition Law is silent on this respect, the provisions only mean that once a request is forwarded to the Requested State, the prospective extraditee may be continuously detained, or if not, subsequently rearrested (Paragraph [5], Article 9, RP-US Extradition Treaty), for he will only be discharged if no request is submitted. Practically, the purpose of this detention is to prevent his possible flight from the Requested State. Second, the temporary arrest of the prospective extraditee during the pendency of the extradition petition in court (Section 6, Presidential Decree No. 1069). Clearly, there is an impending threat to a prospective extraditee's liberty as early as during the evaluation stage. It is not only an imagined threat to his liberty, but a very imminent one. Because of these possible consequences, we conclude that the evaluation process is akin to an administrative agency conducting an investigative proceeding, the consequences of which are essentially criminal since such technical assessment sets off or commences the procedure for, and ultimately, the deprivation of liberty of a prospective extraditee. As described by petitioner himself, this is a "tool" for criminal law enforcement (p. 78,Rollo). In essence, therefore, the evaluation process partakes of the nature of a criminal investigation. In a number of cases, we had occasion to make available to a respondent in an administrative case or investigation certain constitutional rights that are ordinarily available only in criminal prosecutions. Further, as pointed out by Mr. Justice Mendoza during the oral arguments, there are rights formerly available only at the trial stage that had been advanced to an earlier stage

in the proceedings, such as the right to counsel and the right against self-incrimination (tsn, August 31, 1999, p. 135; Escobedo vs. Illinois, 378 U.S. 478; Gideon vs. Wainwright, 372 U.S. 335; Miranda vs. Arizona, 384 U.S. 436). In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the right against self-incrimination under Section 17, Article III of the 1987 Constitution which is ordinarily available only in criminal prosecutions, extends to administrative proceedings which possess a criminal or penal aspect, such as an administrative investigation of a licensed physician who is charged with immorality, which could result in his loss of the privilege to practice medicine if found guilty. The Court, citing the earlier case of Cabal vs. Kapunan (6 SCRA 1059 [1962]), pointed out that the revocation of one's license as a medical practitioner, is an even greater deprivation than forfeiture of property. Cabal vs. Kapunan (supra) involved an administrative charge of unexplained wealth against a respondent which was filed under Republic Act No. 1379, or the Anti-Graft Law. Again, we therein ruled that since the investigation may result in forfeiture of property, the administrative proceedings are deemed criminal or penal, and such forfeiture partakes the nature of a penalty. There is also the earlier case of Almeda, Sr. vs. Perez (5 SCRA 970 [1962]), where the Court, citing American jurisprudence, laid down the test to determine whether a proceeding is civil or criminal: If the proceeding is under a statute such that if an indictment is presented the forfeiture can be included in the criminal case, such proceeding is criminal in nature, although it may be civil in form; and where it must be gathered from the statute that the action is meant to be criminal in its nature, it cannot be considered as civil. If, however, the proceeding does not involve the conviction of the wrongdoer for the offense charged, the proceeding is civil in nature. The cases mentioned above refer to an impending threat of deprivation of one's property or property right. No less is this true, but even more so in the case before us, involving as it does the possible deprivation of liberty, which, based on the hierarchy of constitutionally protected rights, is placed second only to life itself and enjoys precedence over property, for while forfeited property can be returned or replaced, the time spent in incarceration is irretrievable and beyond recompense. By comparison, a favorable action in an extradition request exposes a person to eventual extradition to a foreign country, thus saliently exhibiting the criminal or penal aspect of the process. In this sense, the evaluation procedure is akin to a preliminary investigation since both procedures may have the same result the arrest and imprisonment of the respondent or the person charged. Similar to the evaluation stage of extradition proceedings, a preliminary investigation, which may result in the filing of an information against the respondent, can possibly lead to his arrest, and to the deprivation of his liberty. Petitioner's reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992]) (p. 8, petitioner's Memorandum) that the extradition treaty is neither a piece of criminal legislation nor a criminal procedural statute is not well-taken.Wright is not authority for petitioner's conclusion that his preliminary processing is not akin to a preliminary investigation. The characterization of a treaty in Wright was in reference to the applicability of the prohibition against an ex post facto law. It had nothing to do with the denial of the right to notice, information, and hearing. As early as 1884, the United States Supreme Court ruled that "any legal proceeding enforced by public authority, whether sanctioned by age or custom, or newly devised in the discretion of

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the legislative power, in furtherance of the general public good, which regards and preserved these principles of liberty and justice, must be held to be due process of law" (Hurtado vs. California, 110 U.S. 516). Compliance with due process requirements cannot be deemed noncompliance with treaty commitments. The United States and the Philippines share a mutual concern about the suppression and punishment of crime in their respective jurisdictions. At the same time, both States accord common due process protection to their respective citizens. The due process clauses in the American and Philippine Constitutions are not only worded in exactly identical language and terminology, but more importantly, they are alike in what their respective Supreme Courts have expounded as the spirit with which the provisions are informed and impressed, the elasticity in their interpretation, their dynamic and resilient character which make them capable of meeting every modern problem, and their having been designed from earliest time to the present to meet the exigencies of an undefined and expanding future. The requirements of due process are interpreted in both the United States and the Philippines as not denying to the law the capacity for progress and improvement. Toward this effect and in order to avoid the confines of a legal straitjacket, the courts instead prefer to have the meaning of the due process clause "gradually ascertained by the process of inclusion and exclusion in the course of the decisions of cases as they arise" (Twining vs. New Jersey, 211 U.S. 78). Capsulized, it refers to "the embodiment of the sporting idea of fair play" (Ermita-Malate Hotel and Motel Owner's Association vs. City Mayor of Manila, 20 SCRA 849 [1967]). It relates to certain immutable principles of justice which inhere in the very idea of free government (Holden vs. Hardy, 169 U.S. 366). Due process is comprised of two components substantive due process which requires the intrinsic validity of the law in interfering with the rights of the person to his life, liberty, or property, and procedural due process which consists of the two basic rights of notice and hearing, as well as the guarantee of being heard by an impartial and competent tribunal (Cruz, Constitutional Law, 1993 Ed., pp. 102-106). True to the mandate of the due process clause, the basic rights of notice and hearing pervade not only in criminal and civil proceedings, but in administrative proceedings as well. Nonobservance of these rights will invalidate the proceedings. Individuals are entitled to be notified of any pending case affecting their interests, and upon notice, they may claim the right to appear therein and present their side and to refute the position of the opposing parties (Cruz, Phil. Administrative Law, 1996 ed., p. 64). In a preliminary investigation which is an administrative investigatory proceeding, Section 3, Rule 112 of the Rules of Court guarantees the respondent's basic due process rights, granting him the right to be furnished a copy of the complaint, the affidavits, and other supporting documents, and the right to submit counter-affidavits and other supporting documents within ten days from receipt thereof. Moreover, the respondent shall have the right to examine all other evidence submitted by the complainant. These twin rights may, however, be considered dispensable in certain instances, such as: 1. In proceeding where there is an urgent need for immediate action, like the summary abatement of a nuisance per se (Article 704, Civil Code), the preventive suspension of a public servant facing administrative charges (Section 63, Local Government Code, B.P. Blg. 337), the padlocking of filthy restaurants or theaters showing obscene movies or like

establishments which are immediate threats to public health and decency, and the cancellation of a passport of a person sought for criminal prosecution; 2. Where there is tentativeness of administrative action, that is, where the respondent is not precluded from enjoying the right to notice and hearing at a later time without prejudice to the person affected, such as the summary distraint and levy of the property of a delinquent taxpayer, and the replacement of a temporary appointee; and 3. Where the twin rights have previously been offered but the right to exercise them had not been claimed. Applying the above principles to the case at bar, the query may be asked: Does the evaluation stage of the extradition proceedings fall under any of the described situations mentioned above? Let us take a brief look at the nature of American extradition proceedings which are quite noteworthy considering that the subject treaty involves the U.S. Government. American jurisprudence distinguishes between interstate rendition or extradition which is based on the Extradition Clause in the U.S. Constitution (Art. IV, 2 cl 2), and international extradition proceedings. In interstate rendition or extradition, the governor of the asylum state has the duty to deliver the fugitive to the demanding state. The Extradition Clause and the implementing statute are given a liberal construction to carry out their manifest purpose, which is to effect the return as swiftly as possible of persons for trial to the state in which they have been charged with crime (31A Am Jur 2d 754-755). In order to achieve extradition of an alleged fugitive, the requisition papers or the demand must be in proper form, and all the elements or jurisdictional facts essential to the extradition must appear on the face of the papers, such as the allegation that the person demanded was in the demanding state at the time the offense charged was committed, and that the person demanded is charged with the commission of the crime or that prosecution has been begun in the demanding state before some court or magistrate (35 C.J.S. 406-407). The extradition documents are then filed with the governor of the asylum state, and must contain such papers and documents prescribed by statute, which essentially include a copy of the instrument charging the person demanded with a crime, such as an indictment or an affidavit made before a magistrate. Statutory requirements with respect to said charging instrument or papers are mandatory since said papers are necessary in order to confer jurisdiction on the government of the asylum state to effect extradition (35 C.J.S. 408-410). A statutory provision requiring duplicate copies of the indictment, information, affidavit, or judgment of conviction or sentence and other instruments accompanying the demand or requisitions be furnished and delivered to the fugitive or his attorney is directory. However, the right being such a basic one has been held to be a right mandatory on demand (Ibid., p. 410, citing Ex parte Moore, 256 S.W. 2d 103, 158 Tex. Cr. 407 andEx parte Tucker, Cr., 324, S.W.2d 853). In international proceedings, extradition treaties generally provide for the presentation to the executive authority of the Requested State of a requisition or demand for the return of the alleged offender, and the designation of the particular officer having authority to act in behalf of the demanding nation (31A Am Jur 2d 815). In petitioner's memorandum filed on September 15, 1999, he attached thereto a letter dated September 13, 1999 from the Criminal Division of the U.S. Department of Justice, summarizing the U.S. extradition procedures and principles, which are basically governed by

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a combination of treaties (with special reference to the RP-US Extradition Treaty), federal statutes, and judicial decisions, to wit: 1. All requests for extradition are transmitted through the diplomatic channel. In urgent cases, requests for the provincial arrest of an individual may be made directly by the Philippine Department of Justice to the U.S. Department of Justice, and vice-versa. In the event of a provisional arrest, a formal request for extradition is transmitted subsequently through the diplomatic channel. 2. The Department of State forwards the incoming Philippine extradition request to the Department of Justice. Before doing so, the Department of State prepares a declaration confirming that a formal request has been made, that the treaty is in full force and effect, that under Article 17 thereof the parties provide reciprocal legal representation in extradition proceedings, that the offenses are covered as extraditable offenses under Article 2 thereof, and that the documents have been authenticated in accordance with the federal statute that ensures admissibility at any subsequent extradition hearing. 3. A judge or magistrate judge is authorized to issue a warrant for the arrest of the prospective extraditee (18 U.S.C. 3184). Said judge or magistrate is authorized to hold a hearing to consider the evidence offered in support of the extradition request (Ibid.) 4. At the hearing, the court must determine whether the person arrested is extraditable to the foreign country. The court must also determine that (a) it has jurisdiction over the defendant and jurisdiction to conduct the hearing; (b) the defendant is being sought for offenses for which the applicable treaty permits extradition; and (c) there is probable cause to believe that the defendant is the person sought and that he committed the offenses charged (Ibid.) 5. The judge or magistrate judge is vested with jurisdiction to certify extraditability after having received a "complaint made under oath, charging any person found within his jurisdiction" with having committed any of the crimes provided for by the governing treaty in the country requesting extradition (Ibid.) [In this regard, it is noted that a long line of American decisions pronounce that international extradition proceedings partake of the character of a preliminary examination before a committing magistrate, rather than a trial of the guilt or innocence of the alleged fugitive (31A Am Jur 2d 826).] 6. If the court decides that the elements necessary for extradition are present, it incorporates its determinations in factual findings and conclusions of law and certifies the person's extraditability. The court then forwards this certification of extraditability to the Department of State for disposition by the Secretary of State. The ultimate decision whether to surrender an individual rests with the Secretary of State (18 U.S.C. 3186). 7. The subject of an extradition request may not litigate questions concerning the motives of the requesting government in seeking his extradition. However, a person facing extradition may present whatever information he deems relevant to the Secretary of State, who makes the final determination whether to surrender an individual to the foreign government concerned. From the foregoing, it may be observed that in the United States, extradition begins and ends with one entity the Department of State which has the power to evaluate the request and the extradition documents in the beginning, and, in the person of the Secretary of State, the power to act or not to act on the court's determination of extraditability. In the Philippine setting, it is the Department of Foreign Affairs which should make the initial evaluation of the

request, and having satisfied itself on the points earlier mentioned (see pp. 10-12), then forwards the request to the Department of Justice for the preparation and filing of the petition for extradition. Sadly, however, the Department of Foreign Affairs, in the instant case, perfunctorily turned over the request to the Department of Justice which has taken over the task of evaluating the request as well as thereafter, if so warranted, preparing, filing, and prosecuting the petition for extradition. Private respondent asks what prejudice will be caused to the U.S. Government should the person sought to be extradited be given due process rights by the Philippines in the evaluation stage. He emphasizes that petitioner's primary concern is the possible delay in the evaluation process. We agree with private respondent's citation of an American Supreme Court ruling: The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest worthy of cognizance in constitutional adjudication. But the Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause, in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones. (Stanley vs. Illinois, 404 U.S. 645, 656) The United States, no doubt, shares the same interest as the Philippine Government that no right that of liberty secured not only by the Bills of Rights of the Philippines Constitution but of the United States as well, is sacrificed at the altar of expediency. (pp. 40-41, Private Respondent's Memorandum.) In the Philippine context, this Court's ruling is invoked: One of the basic principles of the democratic system is that where the rights of the individual are concerned, the end does not justify the means. It is not enough that there be a valid objective; it is also necessary that the means employed to pursue it be in keeping with the Constitution. Mere expediency will not excuse constitutional shortcuts. There is no question that not even the strongest moral conviction or the most urgent public need, subject only to a few notable exceptions, will excuse the bypassing of an individual's rights. It is no exaggeration to say that a person invoking a right guaranteed under Article III of the Constitution is a majority of one even as against the rest of the nation who would deny him that right (Association of Small Landowners in the Philippines, Inc. vs. Secretary of Agrarian Reform, 175 SCRA 343, 375-376 [1989]). There can be no dispute over petitioner's argument that extradition is a tool of criminal law enforcement. To be effective, requests for extradition or the surrender of accused or convicted persons must be processed expeditiously. Nevertheless, accelerated or fast-tracked proceedings and adherence to fair procedures are, however, not always incompatible. They do not always clash in discord. Summary does not mean precipitous haste. It does not carry a disregard of the basic principles inherent in "ordered liberty." Is there really an urgent need for immediate action at the evaluation stage? At that point, there is no extraditee yet in the strict sense of the word. Extradition may or may not occur. In interstate extradition, the governor of the asylum state may not, in the absence of mandatory statute, be compelled to act favorably (37 C.J.S. 387) since after a close evaluation of the

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

and critical public opinion which alone can protect the values of democratic government (Ibid.). Petitioner argues that the matters covered by private respondent's letter-request dated July 1, 1999 do not fall under the guarantee of the foregoing provision since the matters contained in the documents requested are not of public concern. On the other hand, private respondent argues that the distinction between matters vested with public interest and matters which are of purely private interest only becomes material when a third person, who is not directly affected by the matters requested, invokes the right to information. However, if the person invoking the right is the one directly affected thereby, his right to information becomes absolute. The concept of matters of public concerns escapes exact definition. Strictly speaking, every act of a public officer in the conduct of the governmental process is a matter of public concern (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 336). This concept embraces a broad spectrum of subjects which the public may want to know, either because these directly affect their lives or simply because such matters arouse the interest of an ordinary citizen (Legaspi v. Civil Service Commission, 150 SCRA 530 [1987]). Hence, the real party in interest is the people and any citizen has "standing". When the individual himself is involved in official government action because said action has a direct bearing on his life, and may either cause him some kind of deprivation or injury, he actually invokes the basic right to be notified under Section 1 of the Bill of Rights and not exactly the right to information on matters of public concern. As to an accused in a criminal proceeding, he invokes Section 14, particularly the right to be informed of the nature and cause of the accusation against him. The right to information is implemented by the right of access to information within the control of the government (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 337). Such information may be contained in official records, and in documents and papers pertaining to official acts, transactions, or decisions. In the case at bar, the papers requested by private respondent pertain to official government action from the U.S. Government. No official action from our country has yet been taken. Moreover, the papers have some relation to matters of foreign relations with the U.S. Government. Consequently, if a third party invokes this constitutional provision, stating that the extradition papers are matters of public concern since they may result in the extradition of a Filipino, we are afraid that the balance must be tilted, at such particular time, in favor of the interests necessary for the proper functioning of the government. During the evaluation procedure, no official governmental action of our own government has as yet been done; hence the invocation of the right is premature. Later, and in contrast, records of the extradition hearing would already fall under matters of public concern, because our government by then shall have already made an official decision to grant the extradition request. The extradition of a fellow Filipino would be forthcoming. We now pass upon the final issue pertinent to the subject matter of the instant controversy: Would private respondent's entitlement to notice and hearing during the evaluation stage of the proceedings constitute a breach of the legal duties of the Philippine Government under the RP-Extradition Treaty? Assuming the answer is in the affirmative, is there really a conflict between the treaty and the due process clause in the Constitution?

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First and foremost, let us categorically say that this is not the proper time to pass upon the constitutionality of the provisions of the RP-US Extradition Treaty nor the Extradition Law implementing the same. We limit ourselves only to the effect of the grant of the basic rights of notice and hearing to private respondent on foreign relations. The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of international law, requires the parties to a treaty to keep their agreement therein in good faith. The observance of our country's legal duties under a treaty is also compelled by Section 2, Article II of the Constitution which provides that "[t]he Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with nations." Under the doctrine of incorporation, rules of international law form part of the law of the and land no further legislative action is needed to make such rules applicable in the domestic sphere (Salonga & Yap, Public International Law, 1992 ed., p. 12). The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are confronted with situations in which there appears to be a conflict between a rule of international law and the provisions of the constitution or statute of the local state. Efforts should first be exerted to harmonize them, so as to give effect to both since it is to be presumed that municipal law was enacted with proper regard for the generally accepted principles of international law in observance of the observance of the Incorporation Clause in the above-cited constitutional provision (Cruz, Philippine Political Law, 1996 ed., p. 55). In a situation, however, where the conflict is irreconcilable and a choice has to be made between a rule of international law and municipal law, jurisprudence dictates that municipal law should be upheld by the municipal courts (Ichong vs. Hernandez, 101 Phil. 1155 [1957]; Gonzales vs. Hechanova, 9 SCRA 230 [1963]; In re: Garcia, 2 SCRA 984 [1961]) for the reason that such courts are organs of municipal law and are accordingly bound by it in all circumstances (Salonga & Yap, op. cit., p. 13). The fact that international law has been made part of the law of the land does not pertain to or imply the primacy of international law over national or municipal law in the municipal sphere. The doctrine of incorporation, as applied in most countries, decrees that rules of international law are given equal standing with, but are not superior to, national legislative enactments. Accordingly, the principle lex posterior derogat priori takes effect a treaty may repeal a statute and a statute may repeal a treaty. In states where the constitution is the highest law of the land, such as the Republic of the Philippines, both statutes and treaties may be invalidated if they are in conflict with the constitution (Ibid.). In the case at bar, is there really a conflict between international law and municipal or national law? En contrario, these two components of the law of the land are not pined against each other. There is no occasion to choose which of the two should be upheld. Instead, we see a void in the provisions of the RP-US Extradition Treaty, as implemented by Presidential Decree No. 1069, as regards the basic due process rights of a prospective extraditee at the evaluation stage of extradition proceedings. From the procedures earlier abstracted, after the filing of the extradition petition and during the judicial determination of the propriety of extradition, the rights of notice and hearing are clearly granted to the prospective extraditee. However, prior thereto, the law is silent as to these rights. Reference to the U.S. extradition procedures also manifests this silence.

Petitioner interprets this silence as unavailability of these rights. Consequently, he describes the evaluation procedure as an "ex parte technical assessment" of the sufficiency of the extradition request and the supporting documents. We disagree. In the absence of a law or principle of law, we must apply the rules of fair play. An application of the basic twin due process rights of notice and hearing will not go against the treaty or the implementing law. Neither the Treaty nor the Extradition Law precludes these rights from a prospective extraditee. Similarly, American jurisprudence and procedures on extradition pose no proscription. In fact, in interstate extradition proceedings as explained above, the prospective extraditee may even request for copies of the extradition documents from the governor of the asylum state, and if he does, his right to be supplied the same becomes a demandable right (35 C.J.S. 410). Petitioner contends that the United States requested the Philippine Government to prevent unauthorized disclosure of confidential information. Hence, the secrecy surrounding the action of the Department of Justice Panel of Attorneys. The confidentiality argument is, however, overturned by petitioner's revelation that everything it refuses to make available at this stage would be obtainable during trial. The Department of Justice states that the U.S. District Court concerned has authorized the disclosure of certain grand jury information. If the information is truly confidential, the veil of secrecy cannot be lifted at any stage of the extradition proceedings. Not even during trial. A libertarian approach is thus called for under the premises. One will search in vain the RP-US Extradition Treaty, the Extradition Law, as well as American jurisprudence and procedures on extradition, for any prohibition against the conferment of the two basic due process rights of notice and hearing during the evaluation stage of the extradition proceedings. We have to consider similar situations in jurisprudence for an application by analogy. Earlier, we stated that there are similarities between the evaluation process and a preliminary investigation since both procedures may result in the arrest of the respondent or the prospective extraditee. In the evaluation process, a provisional arrest is even allowed by the Treaty and the Extradition Law (Article 9, RP-US Extradition Treaty; Sec. 20, Presidential Decree No. 1069). Following petitioner's theory, because there is no provision of its availability, does this imply that for a period of time, the privilege of the writ of habeas corpus is suspended, despite Section 15, Article III of the Constitution which states that "[t]he privilege of the writ or habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires it"? Petitioner's theory would also infer that bail is not available during the arrest of the prospective extraditee when the extradition petition has already been filed in court since Presidential Decree No. 1069 does not provide therefor, notwithstanding Section 13, Article III of the Constitution which provides that "[a]ll persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. . ." Can petitioner validly argue that since these contraventions are by virtue of a treaty and hence affecting foreign relations, the aforestated guarantees in the Bill of Rights could thus be subservient thereto?

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The basic principles of administrative law instruct us that "the essence of due process in administrative proceeding is an opportunity to explain one's side or an opportunity to seek reconsideration of the actions or ruling complained of (Mirano vs. NLRC, 270 SCRA 96 [1997]; Padilla vs. NLRC, 273 SCRA 457 [1997]; PLDT vs. NLRC, 276 SCRA 1 [1997]; Helpmate, Inc. vs. NLRC, 276 SCRA 315 [1997]; Aquinas School vs. Magnaye, 278 SCRA 602 [1997]; Jamer vs. NLRC, 278 SCRA 632 [1997]). In essence, procedural due process refers to the method or manner by which the law is enforced (Corona vs. United Harbor Pilots Association of the Phils., 283 SCRA 31 [1997]). This Court will not tolerate the least disregard of constitutional guarantees in the enforcement of a law or treaty. Petitioner's fears that the Requesting State may have valid objections to the Requested State's non-performance of its commitments under the Extradition Treaty are insubstantial and should not be given paramount consideration. How then do we implement the RP-US Extradition Treaty? Do we limit ourselves to the four corners of Presidential Decree No. 1069? Of analogous application are the rulings in Government Service Insurance System vs. Court of Appeals (201 SCRA 661 [1991]) and Go vs. National Police Commission (271 SCRA 447 [1997]) where we ruled that in summary proceedings under Presidential Decree No. 807 (Providing for the Organization of the Civil Service Commission in Accordance with Provisions of the Constitution, Prescribing its Powers and Functions and for Other Purposes), and Presidential Decree No. 971 (Providing Legal Assistance for Members of the Integrated National Police who may be charged for Service-Connected Offenses and Improving the Disciplinary System in the Integrated National Police, Appropriating Funds Therefor and for other purposes), as amended by Presidential Decree No. 1707, although summary dismissals may be effected without the necessity of a formal investigation, the minimum requirements of due process still operate. As held in GSIS vs. Court of Appeals: . . . [I]t is clear to us that what the opening sentence of Section 40 is saying is that an employee may be removed or dismissed even without formal investigation, in certain instances. It is equally clear to us that an employee must be informed of the charges preferred against him, and that the normal way by which the employee is so informed is by furnishing him with a copy of the charges against him. This is a basic procedural requirement that a statute cannot dispense with and still remain consistent with the constitutional provision on due process. The second minimum requirement is that the employee charged with some misfeasance or malfeasance must have a reasonable opportunity to present his side of the matter, that is to say, his defenses against the charges levelled against him and to present evidence in support of his defenses. . . . (at p. 671) Said summary dismissal proceedings are also non-litigious in nature, yet we upheld the due process rights of the respondent. In the case at bar, private respondent does not only face a clear and present danger of loss of property or employment, but of liberty itself, which may eventually lead to his forcible banishment to a foreign land. The convergence of petitioner's favorable action on the extradition request and the deprivation of private respondent's liberty is easily comprehensible.

We have ruled time and again that this Court's equity jurisdiction, which is aptly described as "justice outside legality," may be availed of only in the absence of, and never against, statutory law or judicial pronouncements (Smith Bell & Co., Inc. vs. Court of Appeals, 267 SCRA 530 [1997]; David-Chan vs. Court of Appeals, 268 SCRA 677 [1997]). The constitutional issue in the case at bar does not even call for "justice outside legality," since private respondent's due process rights, although not guaranteed by statute or by treaty, are protected by constitutional guarantees. We would not be true to the organic law of the land if we choose strict construction over guarantees against the deprivation of liberty. That would not be in keeping with the principles of democracy on which our Constitution is premised. Verily, as one traverses treacherous waters of conflicting and opposing currents of liberty and government authority, he must ever hold the oar of freedom in the stronger arm, lest an errant and wayward course be laid. WHEREFORE, in view of the foregoing premises, the instant petition is hereby DISMISSED for lack of merit. Petitioner is ordered to furnish private respondent copies of the extradition request and its supporting papers, and to grant him a reasonable period within which to file his comment with supporting evidence. The incidents in Civil Case No. 99-94684 having been rendered moot and academic by this decision, the same is hereby ordered dismissed. SO ORDERED. Bellosillo, Purisima, Buena and De Leon, Jr., JJ., concur. Davide, Jr., C.J., I join Mr. Justice Puno in his dissent. Puno, J., please see dissent. Vitug, J., see separate opinion. Kapunan, J., see separate concurring opinion. Panganiban, J., please see my dissenting opinion. Mendoza, J., I join the dissents of Puno and Panganiban, JJ. Quisumbing, J., with concurring opinion. Pardo, J., I join J. Puno & J. Panganiban. Gonzaga-Reyes, J., I join the dissent of Justices Puno & Panganiban. Ynares-Santiago, J., please see separate concurring opinion. G.R. No. 148571 September 24, 2002 GOVERNMENT OF THE UNITED STATES OF AMERICA, Represented by the Philippine Department of Justice, petitioner, vs. HON. GUILLERMO PURGANAN, Presiding Judge Regional Trial Court of Manila and MARC JIMENEZ a.k.a. MARCIO BATACAN CRESPO, respondent Davide Jr., CJ, Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, YnaresSantiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Morales and Callejo, Sr. DECISION PANGANIBAN, J.: In extradition proceedings, are prospective extraditees entitled to notice and hearing before warrants for their arrest can be issued? Equally important, are they entitled to the right to bail and provisional liberty while the extradition proceedings are pending? In general, the

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answer to these two novel questions is "No." The explanation of and the reasons for, as well as the exceptions to, this rule are laid out in this Decision. The Case Before us is a Petition for Certiorari under Rule 65 of the Rules of Court, seeking to void and set aside the Orders dated May 23, 2001 1 and July 3, 2001 2 issued by the Regional Trial Court (RTC) of Manila, Branch 42. 3The first assailed Order set for hearing petitioners application for the issuance of a warrant for the arrest of Respondent Mark B. Jimenez. The second challenged Order, on the other hand, directed the issuance of a warrant, but at the same time granted bail to Jimenez. The dispositive portion of the Order reads as follows: WHEREFORE, in the light of the foregoing, the [Court] finds probable cause against respondent Mark Jimenez. Accordingly let a Warrant for the arrest of the respondent be issued. Consequently and taking into consideration Section 9, Rule 114 of the Revised Rules of Criminal Procedure, this Court fixes the reasonable amount of bail for respondents temporary liberty at ONE MILLION PESOS (Php 1,000,000.00), the same to be paid in cash. Furthermore respondent is directed to immediately surrender to this Court his passport and the Bureau of Immigration and Deportation is likewise directed to include the name of the respondent in its Hold Departure List." 4 Essentially, the Petition prays for the lifting of the bail Order, the cancellation of the bond, and the taking of Jimenez into legal custody. The Facts This Petition is really a sequel to GR No. 139465 entitled Secretary of Justice v. Ralph C. Lantion. 5 Pursuant to the existing RP-US Extradition Treaty, 6 the United States Government, through diplomatic channels, sent to the Philippine Government Note Verbale No. 0522 dated June 16, 1999, supplemented by Note Nos. 0597, 0720 and 0809 and accompanied by duly authenticated documents requesting the extradition of Mark B. Jimenez, also known as Mario Batacan Crespo. Upon receipt of the Notes and documents, the secretary of foreign affairs (SFA) transmitted them to the secretary of justice (SOJ) for appropriate action, pursuant to Section 5 of Presidential Decree (PD) No. 1069, also known as the Extradition Law. Upon learning of the request for his extradition, Jimenez sought and was granted a Temporary Restraining Order (TRO) by the RTC of Manila, Branch 25. 7 The TRO prohibited the Department of Justice (DOJ) from filing with the RTC a petition for his extradition. The validity of the TRO was, however, assailed by the SOJ in a Petition before this Court in the said GR No. 139465. Initially, the Court -- by a vote of 9-6 -- dismissed the Petition. The SOJ was ordered to furnish private respondent copies of the extradition request and its supporting papers and to grant the latter a reasonable period within which to file a comment and supporting evidence. 8 Acting on the Motion for Reconsideration filed by the SOJ, this Court issued its October 17, 2000 Resolution. 9 By an identical vote of 9-6 -- after three justices changed their votes -- it reconsidered and reversed its earlier Decision. It held that private respondent was bereft of

the right to notice and hearing during the evaluation stage of the extradition process. This Resolution has become final and executory. Finding no more legal obstacle, the Government of the United States of America, represented by the Philippine DOJ, filed with the RTC on May 18, 2001, the appropriate Petition for Extradition which was docketed as Extradition Case No. 01192061. The Petition alleged, inter alia, that Jimenez was the subject of an arrest warrant issued by the United States District Court for the Southern District of Florida on April 15, 1999. The warrant had been issued in connection with the following charges in Indictment No. 99-00281 CR-SEITZ: (1) conspiracy to defraud the United States and to commit certain offenses in violation of Title 18 US Code Section 371; (2) tax evasion, in violation of Title 26 US Code Section 7201; (3) wire fraud, in violation of Title 18 US Code Sections 1343 and 2; (4) false statements, in violation of Title 18 US Code Sections 1001 and 2; and (5) illegal campaign contributions, in violation of Title 2 US Code Sections 441b, 441f and 437g(d) and Title 18 US Code Section 2. In order to prevent the flight of Jimenez, the Petition prayed for the issuance of an order for his "immediate arrest" pursuant to Section 6 of PD No. 1069. Before the RTC could act on the Petition, Respondent Jimenez filed before it an "Urgent Manifestation/Ex-Parte Motion," 10 which prayed that petitioners application for an arrest warrant be set for hearing. In its assailed May 23, 2001 Order, the RTC granted the Motion of Jimenez and set the case for hearing on June 5, 2001. In that hearing, petitioner manifested its reservations on the procedure adopted by the trial court allowing the accused in an extradition case to be heard prior to the issuance of a warrant of arrest. After the hearing, the court a quo required the parties to submit their respective memoranda. In his Memorandum, Jimenez sought an alternative prayer: that in case a warrant should issue, he be allowed to post bail in the amount of P100,000. The alternative prayer of Jimenez was also set for hearing on June 15, 2001. Thereafter, the court below issued its questioned July 3, 2001 Order, directing the issuance of a warrant for his arrest and fixing bail for his temporary liberty at one million pesos in cash. 11 After he had surrendered his passport and posted the required cash bond, Jimenez was granted provisional liberty via the challenged Order dated July 4, 2001. 12 Hence, this Petition. 13 Issues Petitioner presents the following issues for the consideration of this Court: I. The public respondent acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in adopting a procedure of first hearing a potential extraditee before issuing an arrest warrant under Section 6 of PD No. 1069. II. The public respondent acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in granting the prayer for bail and in allowing Jimenez to go on provisional liberty because: 1. An extradition court has no power to authorize bail, in the absence of any law that provides for such power.

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2. Section 13, Article III (right to bail clause) of the 1987 Philippine Constitution and Section 4, Rule 114 (Bail) of the Rules of Court, as amended, which [were] relied upon, cannot be used as bases for allowing bail in extradition proceedings. 3. The presumption is against bail in extradition proceedings or proceedings leading to extradition. 4. On the assumption that bail is available in extradition proceedings or proceedings leading to extradition, bail is not a matter of right but only of discretion upon clear showing by the applicant of the existence of special circumstances. 5. Assuming that bail is a matter of discretion in extradition proceedings, the public respondent received no evidence of special circumstances which may justify release on bail. 6. The risk that Jimenez will flee is high, and no special circumstance exists that will engender a well-founded belief that he will not flee. 7. The conditions attached to the grant of bail are ineffectual and do not ensure compliance by the Philippines with its obligations under the RP-US Extradition Treaty. 8. The Court of Appeals Resolution promulgated on May 10, 2001 in the case entitled Eduardo T. Rodriguez et al. vs. The Hon. Presiding Judge, RTC, Branch 17, Manila, CA-G.R. SP No. 64589, relied upon by the public respondent in granting bail, had been recalled before the issuance of the subject bail orders." 14 In sum, the substantive questions that this Court will address are: (1) whether Jimenez is entitled to notice and hearing before a warrant for his arrest can be issued, and (2) whether he is entitled to bail and to provisional liberty while the extradition proceedings are pending. Preliminarily, we shall take up the alleged prematurity of the Petition for Certiorari arising from petitioners failure to file a Motion for Reconsideration in the RTC and to seek relief in the Court of Appeals (CA), instead of in this Court. 15 We shall also preliminarily discuss five extradition postulates that will guide us in disposing of the substantive issues. The Courts Ruling The Petition is meritorious. Preliminary Matters Alleged Prematurity of Present Petition Petitioner submits the following justifications for not filing a Motion for Reconsideration in the Extradition Court: "(1) the issues were fully considered by such court after requiring the parties to submit their respective memoranda and position papers on the matter and thus, the filing of a reconsideration motion would serve no useful purpose; (2) the assailed orders are a patent nullity, absent factual and legal basis therefor; and (3) the need for relief is extremely urgent, as the passage of sufficient time would give Jimenez ample opportunity to escape and avoid extradition; and (4) the issues raised are purely of law." 16 For resorting directly to this Court instead of the CA, petitioner submits the following reasons: "(1) even if the petition is lodged with the Court of Appeals and such appellate court takes cognizance of the issues and decides them, the parties would still bring the matter to this Honorable Court to have the issues resolved once and for all [and] to have a binding precedent that all lower courts ought to follow; (2) the Honorable Court of Appeals had in one case 17 ruled on the issue by disallowing bail but the court below refused to recognize the decision as a judicial guide and all other courts might likewise adopt the same attitude of refusal; and (3) there are pending issues on bail both in the extradition courts and the Court of

Appeals, which, unless guided by the decision that this Honorable Court will render in this case, would resolve to grant bail in favor of the potential extraditees and would give them opportunity to flee and thus, cause adverse effect on the ability of the Philippines to comply with its obligations under existing extradition treaties." 18 As a general rule, a petition for certiorari before a higher court will not prosper unless the inferior court has been given, through a motion for reconsideration, a chance to correct the errors imputed to it. This rule, though, has certain exceptions: (1) when the issue raised is purely of law, (2) when public interest is involved, or (3) in case of urgency. 19 As a fourth exception, the Court has also ruled that the filing of a motion for reconsideration before availment of the remedy of certiorari is not a sine qua non, when the questions raised are the same as those that have already been squarely argued and exhaustively passed upon by the lower court. 20 Aside from being of this nature, the issues in the present case also involve pure questions of law that are of public interest. Hence, a motion for reconsideration may be dispensed with. Likewise, this Court has allowed a direct invocation of its original jurisdiction to issue writs of certiorari when there are special and important reasons therefor. 21 In Fortich v. Corona 22 we stated: [T]he Supreme Court has the full discretionary power to take cognizance of the petition filed directly [before] it if compelling reasons, or the nature and importance of the issues raised, warrant. This has been the judicial policy to be observed and which has been reiterated in subsequent cases, namely: Uy vs. Contreras, et. al., Torres vs. Arranz, Bercero vs. De Guzman, and, Advincula vs. Legaspi, et. al. As we have further stated in Cuaresma: x x x. A direct invocation of the Supreme Courts original jurisdiction to issue these writs should be allowed only when there are special and important reasons therefor, clearly and specifically set out in the petition. This is established policy. x x x. Pursuant to said judicial policy, we resolve to take primary jurisdiction over the present petition in the interest of speedy justice and to avoid future litigations so as to promptly put an end to the present controversy which, as correctly observed by petitioners, has sparked national interest because of the magnitude of the problem created by the issuance of the assailed resolution. Moreover, x x x requiring the petitioners to file their petition first with the Court of Appeals would only result in a waste of time and money. That the Court has the power to set aside its own rules in the higher interests of justice is well-entrenched in our jurisprudence. We reiterate what we said in Piczon vs. Court of Appeals: 23 Be it remembered that rules of procedure are but mere tools designed to facilitate the attainment of justice. Their strict and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial justice, must always be avoided. Time and again, this Court has suspended its own rules and excepted a particular case from their operation whenever the higher interests of justice so require. In the instant petition, we forego a lengthy disquisition of the proper procedure that should have been taken by the parties involved and proceed directly to the merits of the case. In a number of other exceptional cases, 24 we held as follows: This Court has original jurisdiction, concurrent with that of Regional Trial Courts and the Court of Appeals, over petitions for certiorari, prohibition, mandamus, quo warranto and

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habeas corpus, and we entertain direct resort to us in cases where special and important reasons or exceptional and compelling circumstances justify the same." In the interest of justice and to settle once and for all the important issue of bail in extradition proceedings, we deem it best to take cognizance of the present case. Such proceedings constitute a matter of first impression over which there is, as yet, no local jurisprudence to guide lower courts. Five Postulates of Extradition The substantive issues raised in this case require an interpretation or construction of the treaty and the law on extradition. A cardinal rule in the interpretation of a treaty or a law is to ascertain and give effect to its intent. 25Since PD 1069 is intended as a guide for the implementation of extradition treaties to which the Philippines is a signatory, 26 understanding certain postulates of extradition will aid us in properly deciding the issues raised here. 1. Extradition Is a Major Instrument for the Suppression of Crime. First, extradition treaties are entered into for the purpose of suppressing crime 27 by facilitating the arrest and the custodial transfer 28 of a fugitive 29 from one state to the other. With the advent of easier and faster means of international travel, the flight of affluent criminals from one country to another for the purpose of committing crime and evading prosecution has become more frequent. Accordingly, governments are adjusting their methods of dealing with criminals and crimes that transcend international boundaries. Today, "a majority of nations in the world community have come to look upon extradition as the major effective instrument of international co-operation in the suppression of crime." 30 It is the only regular system that has been devised to return fugitives to the jurisdiction of a court competent to try them in accordance with municipal and international law. 31 An important practical effect x x x of the recognition of the principle that criminals should be restored to a jurisdiction competent to try and punish them is that the number of criminals seeking refuge abroad will be reduced. For to the extent that efficient means of detection and the threat of punishment play a significant role in the deterrence of crime within the territorial limits of a State, so the existence of effective extradition arrangements and the consequent certainty of return to the locus delicti commissi play a corresponding role in the deterrence of flight abroad in order to escape the consequence of crime. x x x. From an absence of extradition arrangements flight abroad by the ingenious criminal receives direct encouragement and thus indirectly does the commission of crime itself." 32 In Secretary v. Lantion 33 we explained: The Philippines also has a national interest to help in suppressing crimes and one way to do it is to facilitate the extradition of persons covered by treaties duly entered [into] by our government. More and more, crimes are becoming the concern of one world. Laws involving crimes and crime prevention are undergoing universalization. One manifest purpose of this trend towards globalization is to deny easy refuge to a criminal whose activities threaten the peace and progress of civilized countries. It is to the great interest of the Philippines to be part of this irreversible movement in light of its vulnerability to crimes, especially transnational crimes." Indeed, in this era of globalization, easier and faster international travel, and an expanding ring of international crimes and criminals, we cannot afford to be an isolationist

state. We need to cooperate with other states in order to improve our chances of suppressing crime in our own country. 2. The Requesting State Will Accord Due Process to the Accused Second, an extradition treaty presupposes that both parties thereto have examined, and that both accept and trust, each others legal system and judicial process. 34 More pointedly, our duly authorized representatives signature on an extradition treaty signifies our confidence in the capacity and the willingness of the other state to protect the basic rights of the person sought to be extradited. 35 That signature signifies our full faith that the accused will be given, upon extradition to the requesting state, all relevant and basic rights in the criminal proceedings that will take place therein; otherwise, the treaty would not have been signed, or would have been directly attacked for its unconstitutionality. 3. The Proceedings Are Sui Generis Third, as pointed out in Secretary of Justice v. Lantion, 36 extradition proceedings are not criminal in nature. In criminal proceedings, the constitutional rights of the accused are at fore; in extradition which is sui generis -- in a class by itself -- they are not. An extradition [proceeding] is sui generis. It is not a criminal proceeding which will call into operation all the rights of an accused as guaranteed by the Bill of Rights. To begin with, the process of extradition does not involve the determination of the guilt or innocence of an accused. His guilt or innocence will be adjudged in the court of the state where he will be extradited. Hence, as a rule, constitutional rights that are only relevant to determine the guilt or innocence of an accused cannot be invoked by an extraditee x x x. xxxxxxxxx There are other differences between an extradition proceeding and a criminal proceeding. An extradition proceeding is summary in nature while criminal proceedings involve a full-blown trial. In contradistinction to a criminal proceeding, the rules of evidence in an extradition proceeding allow admission of evidence under less stringent standards. In terms of the quantum of evidence to be satisfied, a criminal case requires proof beyond reasonable doubt for conviction while a fugitive may be ordered extradited upon showing of the existence of a prima facie case. Finally, unlike in a criminal case where judgment becomes executory upon being rendered final, in an extradition proceeding, our courts may adjudge an individual extraditable but the President has the final discretion to extradite him. The United States adheres to a similar practice whereby the Secretary of State exercises wide discretion in balancing the equities of the case and the demands of the nations foreign relations before making the ultimate decision to extradite." Given the foregoing, it is evident that the extradition court is not called upon to ascertain the guilt or the innocence of the person sought to be extradited. 37 Such determination during the extradition proceedings will only result in needless duplication and delay. Extradition is merely a measure of international judicial assistance through which a person charged with or convicted of a crime is restored to a jurisdiction with the best claim to try that person. It is not part of the function of the assisting authorities to enter into questions that are the prerogative of that jurisdiction. 38 The ultimate purpose of extradition proceedings in court is only to determine whether the extradition request complies with the Extradition Treaty, and whether the person sought is extraditable. 39 4. Compliance Shall Be in Good Faith.

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Fourth, our executive branch of government voluntarily entered into the Extradition Treaty, and our legislative branch ratified it. Hence, the Treaty carries the presumption that its implementation will serve the national interest. Fulfilling our obligations under the Extradition Treaty promotes comity 40 with the requesting state. On the other hand, failure to fulfill our obligations thereunder paints a bad image of our country before the world community. Such failure would discourage other states from entering into treaties with us, particularly an extradition treaty that hinges on reciprocity. 41 Verily, we are bound by pacta sunt servanda to comply in good faith with our obligations under the Treaty.42 This principle requires that we deliver the accused to the requesting country if the conditions precedent to extradition, as set forth in the Treaty, are satisfied. In other words, "[t]he demanding government, when it has done all that the treaty and the law require it to do, is entitled to the delivery of the accused on the issue of the proper warrant, and the other government is under obligation to make the surrender." 43 Accordingly, the Philippines must be ready and in a position to deliver the accused, should it be found proper. 5. There Is an Underlying Risk of Flight Fifth, persons to be extradited are presumed to be flight risks. This prima facie presumption finds reinforcement in the experience 44 of the executive branch: nothing short of confinement can ensure that the accused will not flee the jurisdiction of the requested state in order to thwart their extradition to the requesting state. The present extradition case further validates the premise that persons sought to be extradited have a propensity to flee. Indeed, extradition hearings would not even begin, if only the accused were willing to submit to trial in the requesting country. 45 Prior acts of herein respondent -- (1) leaving the requesting state right before the conclusion of his indictment proceedings there; and (2) remaining in the requested state despite learning that the requesting state is seeking his return and that the crimes he is charged with are bailable -- eloquently speak of his aversion to the processes in the requesting state, as well as his predisposition to avoid them at all cost. These circumstances point to an ever-present, underlying high risk of flight. He has demonstrated that he has the capacity and the will to flee. Having fled once, what is there to stop him, given sufficient opportunity, from fleeing a second time? First Substantive Issue: Is Respondent Entitled to Notice and Hearing Before the Issuance of a Warrant of Arrest? Petitioner contends that the procedure adopted by the RTC --informing the accused, a fugitive from justice, that an Extradition Petition has been filed against him, and that petitioner is seeking his arrest -- gives him notice to escape and to avoid extradition. Moreover, petitioner pleads that such procedure may set a dangerous precedent, in that those sought to be extradited -- including terrorists, mass murderers and war criminals -- may invoke it in future extradition cases. On the other hand, Respondent Jimenez argues that he should not be hurriedly and arbitrarily deprived of his constitutional right to liberty without due process. He further asserts that there is as yet no specific law or rule setting forth the procedure prior to the issuance of a warrant of arrest, after the petition for extradition has been filed in court; ergo, the formulation of that procedure is within the discretion of the presiding judge.

Both parties cite Section 6 of PD 1069 in support of their arguments. It states: SEC. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices.- (1) Immediately upon receipt of the petition, the presiding judge of the court shall, as soon as practicable, summon the accused to appear and to answer the petition on the day and hour fixed in the order. [H]e may issue a warrant for the immediate arrest of the accused which may be served any where within the Philippines if it appears to the presiding judge that the immediate arrest and temporary detention of the accused will best serve the ends of justice. Upon receipt of the answer, or should the accused after having received the summons fail to answer within the time fixed, the presiding judge shall hear the case or set another date for the hearing thereof. (2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served each upon the accused and the attorney having charge of the case." (Emphasis ours) Does this provision sanction RTC Judge Purganans act of immediately setting for hearing the issuance of a warrant of arrest? We rule in the negative. 1. On the Basis of the Extradition Law It is significant to note that Section 6 of PD 1069, our Extradition Law, uses the word "immediate" to qualify the arrest of the accused. This qualification would be rendered nugatory by setting for hearing the issuance of the arrest warrant. Hearing entails sending notices to the opposing parties, 46 receiving facts and arguments 47 from them, 48 and giving them time to prepare and present such facts and arguments. Arrest subsequent to a hearing can no longer be considered "immediate." The law could not have intended the word as a mere superfluity but, on the whole, as a means of imparting a sense of urgency and swiftness in the determination of whether a warrant of arrest should be issued. By using the phrase "if it appears," the law further conveys that accuracy is not as important as speed at such early stage. The trial court is not expected to make an exhaustive determination to ferret out the true and actual situation, immediately upon the filing of the petition. From the knowledge and the material then available to it, the court is expected merely to get a good first impression -- a prima facie finding -- sufficient to make a speedy initial determination as regards the arrest and detention of the accused. Attached to the Petition for Extradition, with a Certificate of Authentication among others, were the following: (1) Annex H, the Affidavit executed on May 26, 1999 by Mr. Michael E. Savage -- trial attorney in the Campaign Financing Task Force of the Criminal Division of the US Department of Justice; (2) Annexes H to G, evidentiary Appendices of various exhibits that constituted evidence of the crimes charged in the Indictment, with Exhibits 1 to 120 (duly authenticated exhibits that constituted evidence of the crimes charged in the Indictment); (3) Annex BB, the Exhibit I "Appendix of Witness [excerpts] Statements Referenced in the Affidavit of Angela Byers" and enclosed Statements in two volumes; (4) Annex GG, the Exhibit J "Table of Contents for Supplemental Evidentiary Appendix" with enclosed Exhibits 121 to 132; and (5) Annex MM, the Exhibit L "Appendix of Witness [excerpts] Statements Referenced in the Affidavit of Betty Steward" and enclosed Statements in two volumes. 49 It is evident that respondent judge could have already gotten an impression from these records adequate for him to make an initial determination of whether the accused was

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someone who should immediately be arrested in order to "best serve the ends of justice." He could have determined whether such facts and circumstances existed as would lead a reasonably discreet and prudent person to believe that the extradition request was prima facie meritorious. In point of fact, he actually concluded from these supporting documents that "probable cause" did exist. In the second questioned Order, he stated: In the instant petition, the documents sent by the US Government in support of [its] request for extradition of herein respondent are enough to convince the Court of the existence of probable cause to proceed with the hearing against the extraditee." 50 We stress that the prima facie existence of probable cause for hearing the petition and, a priori, for issuing an arrest warrant was already evident from the Petition itself and its supporting documents. Hence, after having already determined therefrom that a prima facie finding did exist, respondent judge gravely abused his discretion when he set the matter for hearing upon motion of Jimenez. 51 Moreover, the law specifies that the court sets a hearing upon receipt of the answer or upon failure of the accused to answer after receiving the summons. In connection with the matter of immediate arrest, however, the word "hearing" is notably absent from the provision. Evidently, had the holding of a hearing at that stage been intended, the law could have easily so provided. It also bears emphasizing at this point that extradition proceedings are summary 52 in nature. Hence, the silence of the Law and the Treaty leans to the more reasonable interpretation that there is no intention to punctuate with a hearing every little step in the entire proceedings. It is taken for granted that the contracting parties intend something reasonable and something not inconsistent with generally recognized principles of International Law, nor with previous treaty obligations towards third States. If, therefore, the meaning of a treaty is ambiguous, the reasonable meaning is to be preferred to the unreasonable, the more reasonable to the less reasonable x x x ." 53 Verily, as argued by petitioner, sending to persons sought to be extradited a notice of the request for their arrest and setting it for hearing at some future date would give them ample opportunity to prepare and execute an escape. Neither the Treaty nor the Law could have intended that consequence, for the very purpose of both would have been defeated by the escape of the accused from the requested state. 2. On the Basis of the Constitution Even Section 2 of Article III of our Constitution, which is invoked by Jimenez, does not require a notice or a hearing before the issuance of a warrant of arrest. It provides: Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by 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."

To determine probable cause for the issuance of arrest warrants, the Constitution itself requires only the examination -- under oath or affirmation -- of complainants and the witnesses they may produce. There is no requirement to notify and hear the accused before the issuance of warrants of arrest. In Ho v. People 54 and in all the cases cited therein, never was a judge required to go to the extent of conducting a hearing just for the purpose of personally determining probable cause for the issuance of a warrant of arrest. All we required was that the "judge must have sufficient supporting documents upon which to make his independent judgment, or at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause." 55 In Webb v. De Leon, 56 the Court categorically stated that a judge was not supposed to conduct a hearing before issuing a warrant of arrest: Again, we stress that before issuing warrants of arrest, judges merely determine personally the probability, not the certainty of guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence." At most, in cases of clear insufficiency of evidence on record, judges merely further examine complainants and their witnesses. 57 In the present case, validating the act of respondent judge and instituting the practice of hearing the accused and his witnesses at this early stage would be discordant with the rationale for the entire system. If the accused were allowed to be heard and necessarily to present evidence during the prima facie determination for the issuance of a warrant of arrest, what would stop him from presenting his entire plethora of defenses at this stage -- if he so desires -- in his effort to negate a prima facie finding? Such a procedure could convert the determination of a prima facie case into a full-blown trial of the entire proceedings and possibly make trial of the main case superfluous. This scenario is also anathema to the summary nature of extraditions. That the case under consideration is an extradition and not a criminal action is not sufficient to justify the adoption of a set of procedures more protective of the accused. If a different procedure were called for at all, a more restrictive one -- not the opposite -- would be justified in view of respondents demonstrated predisposition to flee. Since this is a matter of first impression, we deem it wise to restate the proper procedure: Upon receipt of a petition for extradition and its supporting documents, the judge must study them and make, as soon as possible, a prima facie finding whether (a) they are sufficient in form and substance, (b) they show compliance with the Extradition Treaty and Law, and (c) the person sought is extraditable. At his discretion, the judge may require the submission of further documentation or may personally examine the affiants and witnesses of the petitioner. If, in spite of this study and examination, no prima facie finding 58 is possible, the petition may be dismissed at the discretion of the judge. On the other hand, if the presence of a prima facie case is determined, then the magistrate must immediately issue a warrant for the arrest of the extraditee, who is at the same time summoned to answer the petition and to appear at scheduled summary hearings.

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Prior to the issuance of the warrant, the judge must not inform or notify the potential extraditee of the pendency of the petition, lest the latter be given the opportunity to escape and frustrate the proceedings. In our opinion, the foregoing procedure will "best serve the ends of justice" in extradition cases. Second Substantive Issue: Is Respondent Entitled to Bail? Article III, Section 13 of the Constitution, is worded as follows: Art. III, Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required." Respondent Mark B. Jimenez maintains that this constitutional provision secures the right to bail of all persons, including those sought to be extradited. Supposedly, the only exceptions are the ones charged with offenses punishable with reclusion perpetua, when evidence of guilt is strong. He also alleges the relevance to the present case of Section 4 59 of Rule 114 of the Rules of Court which, insofar as practicable and consistent with the summary nature of extradition proceedings, shall also apply according to Section 9 of PD 1069. On the other hand, petitioner claims that there is no provision in the Philippine Constitution granting the right to bail to a person who is the subject of an extradition request and arrest warrant. Extradition Different from Ordinary Criminal Proceedings We agree with petitioner. As suggested by the use of the word "conviction," the constitutional provision on bail quoted above, as well as Section 4 of Rule 114 of the Rules of Court, applies only when a person has been arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings, because extradition courts do not render judgments of conviction or acquittal. Moreover, the constitutional right to bail "flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt." 60 It follows that the constitutional provision on bail will not apply to a case like extradition, where the presumption of innocence is not at issue. The provision in the Constitution stating that the "right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended" does not detract from the rule that the constitutional right to bail is available only in criminal proceedings. It must be noted that the suspension of the privilege of the writ of habeas corpus finds application "only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion." 61 Hence, the second sentence in the constitutional provision on bail merely emphasizes the right to bail in criminal proceedings for the aforementioned offenses. It cannot be taken to mean that the right is available even in extradition proceedings that are not criminal in nature. That the offenses for which Jimenez is sought to be extradited are bailable in the United States is not an argument to grant him one in the present case. To stress, extradition proceedings are separate and distinct from the trial for the offenses for which he is charged.

He should apply for bail before the courts trying the criminal cases against him, not before the extradition court. No Violation of Due Process Respondent Jimenez cites the foreign case Paretti 62 in arguing that, constitutionally, "[n]o one shall be deprived of x x x liberty x x x without due process of law." Contrary to his contention, his detention prior to the conclusion of the extradition proceedings does not amount to a violation of his right to due process. We iterate the familiar doctrine that the essence of due process is the opportunity to be heard 63 but, at the same time, point out that the doctrine does not always call for a prior opportunity to be heard. 64 Where the circumstances -- such as those present in an extradition case -- call for it, a subsequent opportunity to be heard is enough. 65 In the present case, respondent will be given full opportunity to be heard subsequently, when the extradition court hears the Petition for Extradition. Hence, there is no violation of his right to due process and fundamental fairness. Contrary to the contention of Jimenez, we find no arbitrariness, either, in the immediate deprivation of his liberty prior to his being heard. That his arrest and detention will not be arbitrary is sufficiently ensured by (1) the DOJs filing in court the Petition with its supporting documents after a determination that the extradition request meets the requirements of the law and the relevant treaty; (2) the extradition judges independent prima facie determination that his arrest will best serve the ends of justice before the issuance of a warrant for his arrest; and (3) his opportunity, once he is under the courts custody, to apply for bail as an exception to the no-initial-bail rule. It is also worth noting that before the US government requested the extradition of respondent, proceedings had already been conducted in that country. But because he left the jurisdiction of the requesting state before those proceedings could be completed, it was hindered from continuing with the due processes prescribed under its laws. His invocation of due process now has thus become hollow. He already had that opportunity in the requesting state; yet, instead of taking it, he ran away. In this light, would it be proper and just for the government to increase the risk of violating its treaty obligations in order to accord Respondent Jimenez his personal liberty in the span of time that it takes to resolve the Petition for Extradition? His supposed immediate deprivation of liberty without the due process that he had previously shunned pales against the governments interest in fulfilling its Extradition Treaty obligations and in cooperating with the world community in the suppression of crime. Indeed, "[c]onstitutional liberties do not exist in a vacuum; the due process rights accorded to individuals must be carefully balanced against exigent and palpable government interests." 66 Too, we cannot allow our country to be a haven for fugitives, cowards and weaklings who, instead of facing the consequences of their actions, choose to run and hide. Hence, it would not be good policy to increase the risk of violating our treaty obligations if, through overprotection or excessively liberal treatment, persons sought to be extradited are able to evade arrest or escape from our custody. In the absence of any provision -- in the Constitution, the law or the treaty -- expressly guaranteeing the right to bail in extradition proceedings, adopting the practice of not granting them bail, as a general rule, would be a

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step towards deterring fugitives from coming to the Philippines to hide from or evade their prosecutors.1wphi1.nt The denial of bail as a matter of course in extradition cases falls into place with and gives life to Article 14 67of the Treaty, since this practice would encourage the accused to voluntarily surrender to the requesting state to cut short their detention here. Likewise, their detention pending the resolution of extradition proceedings would fall into place with the emphasis of the Extradition Law on the summary nature of extradition cases and the need for their speedy disposition. Exceptions to the No Bail Rule The rule, we repeat, is that bail is not a matter of right in extradition cases. However, the judiciary has the constitutional duty to curb grave abuse of discretion 68 and tyranny, as well as the power to promulgate rules to protect and enforce constitutional rights. 69 Furthermore, we believe that the right to due process is broad enough to include the grant of basic fairness to extraditees. Indeed, the right to due process extends to the "life, liberty or property" of every person. It is "dynamic and resilient, adaptable to every situation calling for its application." 70 Accordingly and to best serve the ends of justice, we believe and so hold that, after a potential extraditee has been arrested or placed under the custody of the law, bail may be applied for and granted as an exception, only upon a clear and convincing showing (1) that, once granted bail, the applicant will not be a flight risk or a danger to the community; and (2) that there exist special, humanitarian and compelling circumstances 71 including, as a matter of reciprocity, those cited by the highest court in the requesting state when it grants provisional liberty in extradition cases therein. Since this exception has no express or specific statutory basis, and since it is derived essentially from general principles of justice and fairness, the applicant bears the burden of proving the above two-tiered requirement with clarity, precision and emphatic forcefulness. The Court realizes that extradition is basically an executive, not a judicial, responsibility arising from the presidential power to conduct foreign relations. In its barest concept, it partakes of the nature of police assistance amongst states, which is not normally a judicial prerogative. Hence, any intrusion by the courts into the exercise of this power should be characterized by caution, so that the vital international and bilateral interests of our country will not be unreasonably impeded or compromised. In short, while this Court is ever protective of "the sporting idea of fair play," it also recognizes the limits of its own prerogatives and the need to fulfill international obligations. Along this line, Jimenez contends that there are special circumstances that are compelling enough for the Court to grant his request for provisional release on bail. We have carefully examined these circumstances and shall now discuss them. 1. Alleged Disenfranchisement While his extradition was pending, Respondent Jimenez was elected as a member of the House of Representatives. On that basis, he claims that his detention will disenfranchise his Manila district of 600,000 residents. We are not persuaded. In People v. Jalosjos, 72 the Court has already debunked the disenfranchisement argument when it ruled thus: When the voters of his district elected the accused-appellant to Congress, they did so with full awareness of the limitations on his freedom of action. They did so with the knowledge that he could achieve only such legislative results which he could accomplish within the

confines of prison. To give a more drastic illustration, if voters elect a person with full knowledge that he is suffering from a terminal illness, they do so knowing that at any time, he may no longer serve his full term in office. In the ultimate analysis, the issue before us boils down to a question of constitutional equal protection. The Constitution guarantees: x x x nor shall any person be denied the equal protection of laws. This simply means that all persons similarly situated shall be treated alike both in rights enjoyed and responsibilities imposed. The organs of government may not show any undue favoritism or hostility to any person. Neither partiality nor prejudice shall be displayed. Does being an elective official result in a substantial distinction that allows different treatment? Is being a Congressman a substantial differentiation which removes the accusedappellant as a prisoner from the same class as all persons validly confined under law? The performance of legitimate and even essential duties by public officers has never been an excuse to free a person validly [from] prison. The duties imposed by the mandate of the people are multifarious. The accused-appellant asserts that the duty to legislate ranks highest in the hierarchy of government. The accused-appellant is only one of 250 members of the House of Representatives, not to mention the 24 members of the Senate, charged with the duties of legislation. Congress continues to function well in the physical absence of one or a few of its members. Depending on the exigency of Government that has to be addressed, the President or the Supreme Court can also be deemed the highest for that particular duty. The importance of a function depends on the need for its exercise. The duty of a mother to nurse her infant is most compelling under the law of nature. A doctor with unique skills has the duty to save the lives of those with a particular affliction. An elective governor has to serve provincial constituents. A police officer must maintain peace and order. Never has the call of a particular duty lifted a prisoner into a different classification from those others who are validly restrained by law. A strict scrutiny of classifications is essential lest[,] wittingly or otherwise, insidious discriminations are made in favor of or against groups or types of individuals. The Court cannot validate badges of inequality. The necessities imposed by public welfare may justify exercise of government authority to regulate even if thereby certain groups may plausibly assert that their interests are disregarded. We, therefore, find that election to the position of Congressman is not a reasonable classification in criminal law enforcement. The functions and duties of the office are not substantial distinctions which lift him from the class of prisoners interrupted in their freedom and restricted in liberty of movement. Lawful arrest and confinement are germane to the purposes of the law and apply to all those belonging to the same class." 73 It must be noted that even before private respondent ran for and won a congressional seat in Manila, it was already of public knowledge that the United States was requesting his extradition. Hence, his constituents were or should have been prepared for the consequences of the extradition case against their representative, including his detention pending the final resolution of the case. Premises considered and in line with Jalosjos, we are constrained to rule against his claim that his election to public office is by itself a compelling reason to grant him bail. 2. Anticipated Delay

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Respondent Jimenez further contends that because the extradition proceedings are lengthy, it would be unfair to confine him during the pendency of the case. Again we are not convinced. We must emphasize that extradition cases are summary in nature. They are resorted to merely to determine whether the extradition petition and its annexes conform to the Extradition Treaty, not to determine guilt or innocence. Neither is it, as a rule, intended to address issues relevant to the constitutional rights available to the accused in a criminal action. We are not overruling the possibility that petitioner may, in bad faith, unduly delay the proceedings. This is quite another matter that is not at issue here. Thus, any further discussion of this point would be merely anticipatory and academic. However, if the delay is due to maneuverings of respondent, with all the more reason would the grant of bail not be justified. Giving premium to delay by considering it as a special circumstance for the grant of bail would be tantamount to giving him the power to grant bail to himself. It would also encourage him to stretch out and unreasonably delay the extradition proceedings even more. This we cannot allow. 3. Not a Flight Risk? Jimenez further claims that he is not a flight risk. To support this claim, he stresses that he learned of the extradition request in June 1999; yet, he has not fled the country. True, he has not actually fled during the preliminary stages of the request for his extradition. Yet, this fact cannot be taken to mean that he will not flee as the process moves forward to its conclusion, as he hears the footsteps of the requesting government inching closer and closer. That he has not yet fled from the Philippines cannot be taken to mean that he will stand his ground and still be within reach of our government if and when it matters; that is, upon the resolution of the Petition for Extradition. In any event, it is settled that bail may be applied for and granted by the trial court at anytime after the applicant has been taken into custody and prior to judgment, even after bail has been previously denied. In the present case, the extradition court may continue hearing evidence on the application for bail, which may be granted in accordance with the guidelines in this Decision. Brief Refutation of Dissents The proposal to remand this case to the extradition court, we believe, is totally unnecessary; in fact, it is a cop-out. The parties -- in particular, Respondent Jimenez -- have been given more than sufficient opportunity both by the trial court and this Court to discuss fully and exhaustively private respondents claim to bail. As already stated, the RTC set for hearing not only petitioners application for an arrest warrant, but also private respondents prayer for temporary liberty. Thereafter required by the RTC were memoranda on the arrest, then position papers on the application for bail, both of which were separately filed by the parties. This Court has meticulously pored over the Petition, the Comment, the Reply, the lengthy Memoranda and the Position Papers of both parties. Additionally, it has patiently heard them in Oral Arguments, a procedure not normally observed in the great majority of cases in this Tribunal. Moreover, after the Memos had been submitted, the parties -particularly the potential extraditee -- have bombarded this Court with additional pleadings --

entitled "Manifestations" by both parties and "Counter-Manifestation" by private respondent -in which the main topic was Mr. Jimenezs plea for bail. A remand would mean that this long, tedious process would be repeated in its entirety. The trial court would again hear factual and evidentiary matters. Be it noted, however, that, in all his voluminous pleadings and verbal propositions, private respondent has not asked for a remand. Evidently, even he realizes that there is absolutely no need to rehear factual matters. Indeed, the inadequacy lies not in the factual presentation of Mr. Jimenez. Rather, it lies in his legal arguments. Remanding the case will not solve this utter lack of persuasion and strength in his legal reasoning. In short, this Court -- as shown by this Decision and the spirited Concurring, Separate and Dissenting Opinions written by the learned justices themselves -- has exhaustively deliberated and carefully passed upon all relevant questions in this case. Thus, a remand will not serve any useful purpose; it will only further delay these already very delayed proceedings, 74 which our Extradition Law requires to be summary in character. What we need now is prudent and deliberate speed, not unnecessary and convoluted delay. What is needed is a firm decision on the merits, not a circuitous cop-out. Then, there is also the suggestion that this Court is allegedly "disregarding basic freedoms when a case is one of extradition." We believe that this charge is not only baseless, but also unfair. Suffice it to say that, in its length and breath, this Decision has taken special cognizance of the rights to due process and fundamental fairness of potential extraditees. Summation As we draw to a close, it is now time to summarize and stress these ten points: 1. The ultimate purpose of extradition proceedings is to determine whether the request expressed in the petition, supported by its annexes and the evidence that may be adduced during the hearing of the petition, complies with the Extradition Treaty and Law; and whether the person sought is extraditable. The proceedings are intended merely to assist the requesting state in bringing the accused -- or the fugitive who has illegally escaped -- back to its territory, so that the criminal process may proceed therein. 2. By entering into an extradition treaty, the Philippines is deemed to have reposed its trust in the reliability or soundness of the legal and judicial system of its treaty partner, as well as in the ability and the willingness of the latter to grant basic rights to the accused in the pending criminal case therein. 3. By nature then, extradition proceedings are not equivalent to a criminal case in which guilt or innocence is determined. Consequently, an extradition case is not one in which the constitutional rights of the accused are necessarily available. It is more akin, if at all, to a courts request to police authorities for the arrest of the accused who is at large or has escaped detention or jumped bail. Having once escaped the jurisdiction of the requesting state, the reasonable prima facie presumption is that the person would escape again if given the opportunity. 4. Immediately upon receipt of the petition for extradition and its supporting documents, the judge shall make a prima facie finding whether the petition is sufficient in form and substance, whether it complies with the Extradition Treaty and Law, and whether the person sought is extraditable. The magistrate has discretion to require the petitioner to submit further documentation, or to personally examine the affiants or witnesses. If convinced that a prima

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facie case exists, the judge immediately issues a warrant for the arrest of the potential extraditee and summons him or her to answer and to appear at scheduled hearings on the petition. 5. After being taken into custody, potential extraditees may apply for bail. Since the applicants have a history of absconding, they have the burden of showing that (a) there is no flight risk and no danger to the community; and (b) there exist special, humanitarian or compelling circumstances. The grounds used by the highest court in the requesting state for the grant of bail therein may be considered, under the principle of reciprocity as a special circumstance. In extradition cases, bail is not a matter of right; it is subject to judicial discretion in the context of the peculiar facts of each case. 6. Potential extraditees are entitled to the rights to due process and to fundamental fairness. Due process does not always call for a prior opportunity to be heard. A subsequent opportunity is sufficient due to the flight risk involved. Indeed, available during the hearings on the petition and the answer is the full chance to be heard and to enjoy fundamental fairness that is compatible with the summary nature of extradition. 7. This Court will always remain a protector of human rights, a bastion of liberty, a bulwark of democracy and the conscience of society. But it is also well aware of the limitations of its authority and of the need for respect for the prerogatives of the other co-equal and coindependent organs of government. 8. We realize that extradition is essentially an executive, not a judicial, responsibility arising out of the presidential power to conduct foreign relations and to implement treaties. Thus, the Executive Department of government has broad discretion in its duty and power of implementation. 9. On the other hand, courts merely perform oversight functions and exercise review authority to prevent or excise grave abuse and tyranny. They should not allow contortions, delays and "over-due process" every little step of the way, lest these summary extradition proceedings become not only inutile but also sources of international embarrassment due to our inability to comply in good faith with a treaty partners simple request to return a fugitive. Worse, our country should not be converted into a dubious haven where fugitives and escapees can unreasonably delay, mummify, mock, frustrate, checkmate and defeat the quest for bilateral justice and international cooperation. 10. At bottom, extradition proceedings should be conducted with all deliberate speed to determine compliance with the Extradition Treaty and Law; and, while safeguarding basic individual rights, to avoid the legalistic contortions, delays and technicalities that may negate that purpose. WHEREFORE, the Petition is GRANTED. The assailed RTC Order dated May 23, 2001 is hereby declared NULL and VOID, while the challenged Order dated July 3, 2001 is SET ASIDE insofar as it granted bail to Respondent Mark Jimenez. The bail bond posted by private respondent is CANCELLED. The Regional Trial Court of Manila is directed to conduct the extradition proceedings before it, with all deliberate speed pursuant to the spirit and the letter of our Extradition Treaty with the United States as well as our Extradition Law. No costs. SO ORDERED.

G.R. No. 114944 May 29, 2002 MANUEL C. ROXAS and AHMED S. NACPIL, petitioners, vs. HON. CONRADO M. VASQUEZ, Ombudsman and JOSE DE FERRER, Deputy Special Prosecutor, and the HONORABLE SANDIGANBAYAN, respondents. RESOLUTION YNARES-SANTIAGO, J.: Before us is the Motion for Reconsideration of petitioner Manuel C. Roxas seeking to set aside our Decision dated June 19, 2001 which dismissed the instant petition, anchored on the following arguments: I WITH ALL DUE RESPECT, THE INSTANT CASE DOES NOT ATTEMPT TO UNNECESSARILY AND EXCESSIVELY ENTANGLE THE HONORABLE COURT WITH THE TASK OF UNDULY REVIEWING OR INTERFERING WITH THE PROSECUTORIAL PREROGATIVES OF THE OMBUDSMAN. II WITH ALL DUE RESPECT, THERE EXIST MORE THAN SUFFICIENT REASONS FOR THE HONORABLE COURT TO FIND VIOLATION OF DUE PROCESS AND GRAVE ABUSE OF DISCRETION IN THE INSTANT CASE WHEN THE TOTALITY OF THE CIRCUMSTANCES IS TESTED IN THE CRUCIBLE OF FUNDAMENTAL FAIRNESS. III WITH ALL DUE RESPECT, THE DECISION HAS SERIOUS AND FAR-REACHING IMPLICATIONS IN THE ADMINISTRATION OF JUSTICE CONSIDERING THAT BECAUSE OF IT, NO DECISION OF THE OMBUDSMAN IN THE DETERMINATION OF PROBABLE CAUSE WILL EVER ACHIEVE FINALITY.1 Respondents were required to file their respective comments to the motion.2 In its Comment,3 the Office of the Special Prosecutor argued that the issues presented in the Motion for Reconsideration have already been raised, resolved and passed upon by this Court. On the other hand, the Solicitor General, in his Comment, 4 maintained that petitioner Roxas was not denied due process since he was no stranger to the proceedings; the reinvestigation was just a continuation of the investigation of the case where petitioner was a party-respondent. In order to resolve the Motion for Reconsideration, it is helpful to restate the salient antecedent facts. Manuel C. Roxas was the Chairman, while Ahmed S. Nacpil was a Member, of the Bids and Awards Committee of the Philippine ConstabularyIntegrated National Police (PC-INP). The PC-INP invited bids for the supply of sixty-five units of fire trucks. After the public bidding, General Cesar P. Nazareno created a Technical Evaluation Committee, headed by General Mario Tanchanco, which was sent to Korea and Japan to conduct ocular inspections of the plant facilities and equipment of the five qualified proponents. Thereafter, the Technical Evaluation Committee recommended for procurement the Morita Isuzu and Nikki-Hino fire trucks.

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Meanwhile, the Bids and Awards Committee voted to recommend to Director General Cesar Nazareno the procurement of Ssangyong fire trucks. Instead of acting on this recommendation, Gen. Nazareno created a Review Committee headed by Gen. Gerardo N. Flores, which found that there was a failure to bid. Gen. Nazareno thus instructed the Bids and Awards Committee to reconsider its earlier recommendation and to conduct further evaluation of the proponents, but this time limiting itself to the two Japanese brands recommended by the Technical Evaluation Committee, namely, Morita Isuzu and Nikki-Hino. The Bids and Awards Committee subsequently voted to award the contract to the Tahei Co., Ltd., manufacturer of Nikki-Hino.5 Accordingly, the contract of sale of sixty-five units of Nikki-Hino fire trucks was executed between Gen. Nazareno, on behalf of the PC-INP, and Tahei Company, Ltd. The corresponding Purchase Order was prepared and signed by Col. Nicasio Custodio, Chief of the PNP Logistics Support Command; Major Obedio Espea, Acting Chief, PNP Procurement Center; Gen. Cesar Nazareno; and DILG Secretary Luis Santos. Thereafter, Custodio, Espea and Nazareno, together with the PNP Chief Accountant, Generosa Ramirez, prepared the disbursement vouchers, authorizing the payment to Tahei Co., Ltd. of the sum of P167,335,177.24, as marginal deposit for the sixty-five fire trucks. The COA subsequently discovered that while the disbursement voucher indicated the bid price of Tahei Co., Ltd. to be only P2,292,784.00 per unit, the purchase order showed the unit price as P2,585,562.00, resulting in a discrepancy of P292,778.00 per unit of fire truck or a total of P19,030,570.00. On February 12, 1993, DILG Secretary Rafael Alunan III filed a complaint with the Ombudsman for violation of Section 3 (e) of Republic Act No. 3019 against the following: 1. Dir. Gen. Cesar Nazareno, PNP 2. Dep. Dir. Manuel Roxas, PNP 3. Fire Marshal Mario Tanchanco 4. Fire B/Gen. Diosdado Godoy (Ret.) 5. P/Sr. Supt. Ahmed Nacpil, PNP 6. P/Supt. Juhan Kairan, PNP 7. CInsp. Reynaldo Osea, PNP 8. Dep. Dir. Gen. Gerardo Flores, PNP 9. Dir. Nicasio Custodio, PNP 10. Supt. Obedio Espea, PNP 11. Former DILG Secretary Luis Santos 12. Ms. Generosa Ramirez After preliminary investigation, the Deputy Ombudsman for the Military recommended the indictment of all respondents, except Generosa Ramirez.6 On review, the Office of the Special Prosecutor recommended the dismissal of the complaints against Manuel Roxas, Ahmed Nacpil, Diosdado Codoy, Juhan Kairan and Generosa Ramirez.7 This was approved by the Special Prosecutor and the Ombudsman in a Memorandum dated April 15, 1993. Hence, formal charges were filed with the Sandiganbayan against Nazareno, Flores, Tanchanco, Custodio, Osia, Espea and Santos, docketed as Criminal Case No. 18956.8 Roxas, Nacpil, Codoy, Kairan and Ramirez were not included in the criminal information.

Flores and Tanchanco moved for a reinvestigation, which was granted. Thereafter, on October 19, 1993, the Office of the Special Prosecutor recommended the dismissal of the charges against Flores and Tanchanco. In the same resolution, however, the Special Prosecutor made a sudden turnabout as regards Roxas, Nacpil and Kairan, and ordered their inclusion as accused in Criminal Case No. 18956. Deputy Special Prosecutor Jose de Ferrer voted for the approval of the recommendation. Special Prosecutor Aniano A. Desierto dissented. Ombudsman Conrado M. Vasquez approved the recommendation. Roxas, Nacpil and Kairan filed a Motion for Reconsideration. The Review Committee of the Office of the Special Prosecutor recommended that the Motion for Reconsideration be granted and that the charge against the movants be dismissed. However, Deputy Special Prosecutor de Ferrer and Ombudsman Vasquez disapproved the recommendation. Accordingly, the Office of the Ombudsman filed an amended information with the Sandiganbayan impleading Roxas, Nacpil and Kairan as co-accused.9 Thus, Roxas and Nacpil filed with this Court the instant petition for certiorari and prohibition, seeking to annul the orders of the Ombudsman directing their inclusion as accused in Criminal Case No. 18956. The petition was dismissed in our Decision dated June 19, 2001 on the ground that the Ombudsman did not lose jurisdiction over petitioners after the charges against them were dismissed, considering that the reinvestigation was merely a repeat investigation. Likewise, petitioners were not denied due process when the Ombudsman issued the assailed orders because they were able to file their counter-affidavits during the preliminary investigation. After a careful and meticulous review of the case, we find merit in the Motion for Reconsideration. The records show that the participation of petitioner Roxas in the transactions complained of is limited to the following: (1) He was the Chairman of the Bids and Awards Committee of the PC-INP. (2) He wrote a letter to Mrs. Carol de Jesus of Ssangyong Corporation informing her that her company had been selected as the supplier of fire trucks. (3) Upon the directive of Gen. Nazareno, he conducted an immediate review of the recommendation of the Bids and Awards Committee which awarded the supply contract to Ssangyong and, instead, adopted the findings and recommendation of the Review Committee, again upon specific orders of Nazareno. (4) He submitted a memorandum to Gen. Nazareno that Majority of the members of the Bids and Awards Committee have chosen the Nikki-Hino brand over Morita Isuzu. Based on these established facts, the Review Committee of the Office of the Special Prosecutor, in a Memorandum dated April 15, 1993, recommended the dismissal of the charges against petitioner on the following considerations: The action of [the Bids and Awards] Committee in choosing Ssangyong over Kanglim does not appear to have caused any damage to the Government or any party because it did not materialize. This action was nullified on order of Gen. Nazareno and upon recommendation of the Review Committee. Therefore, this does not merit a lengthy discussion. Suffice it to stay that the procedure followed by the committee which resulted in the choices of Ssangyong does not indicate any irregularity. Neither does it suggest an unwarranted choice considering that Ssangyong was the next lower bidder to V.G. Roxas-Kanglim.

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What is of significance was the action of the INP BAC which chose Nikki-Hino as the final winning bidder. It is this action that resulted in the nullification of the previous action by the INP BAC and the purchase of 56 units of fire trucks at a price much higher than the prices for Kanglim or Ssangyong Fire Trucks. Records show that Gen. Nazareno issued the Order directing this Committee to reconsider its previous actions. To this Order was attached the recommendation of Chairman Mario C. Tanchanco of the Technical Evaluation Committee for the consideration of the Japanese fire trucks only namely: Nikki Hino and Morita Isuzu. In other words, the authority of the INP BAC this time to conduct the bidding was limited to only Nikki Hino and Morita Isuzu by no less than the approving authority and the highest ranking commander of the INP. This Committees action, in the light of General Nazarenos order, appeared to be regular and proper because it chose the lowest bidder among the Japanese fire trucks supplied to them by General Nazareno. It could not possibly consider Ssangyong because its previous action choosing Ssangyong was precisely ordered set aside. Neither could it choose Kanglim because this was not recommended in the Tanchanco report which was appended by General Nazareno in the abovestated Order addressed to the INP BAC. For the foregoing reasons, we find no reason to hold the members of the INP BAC liable for violation of the Anti-Graft Law. However, we make exception to respondent P/Supt. Reynold Osia because he was implicated by Supt. Concordio Apolonio in his sworn statement (page 73, Records) as the one who acted as liaison of General Nazareno in discreetly sending his messages to the members of the INP BAC to vote in favor of Nikki Hino. It can be said that respondent Osia cooperated with General Nazareno in the manipulative scheme to corner the award in favor of Tahei Co., Ltd. We therefore hold respondent Osia liable for violation of the Anti-Graft Law.10 The foregoing recommendation was unanimously approved by Deputy Special Prosecutor Jose De Ferrer, Special Prosecutor Aniano Desierto and Ombudsman Conrado M. Vasquez. During the reinvestigation, however, the Office of the Special Prosecutor recommended the indictment of petitioners on the assumption that: "The said persons of the Bids and Awards Committee who voted for the Nikki-Hino perfected and awarded the contract to Nikki-Hino. Their cooperation was indispensable for the consummation of the contract which was irregular."11 Petitioners filed a motion for reconsideration. On February 10, 1994, the team of Special Prosecution Officer III Reynaldo L. Mendoza, Special Prosecution Officer II Luz L. QuionesMarcos and Special Prosecution Officer I Cornelio L. Somido recommended that petitioners motion for reconsideration be granted, saying: It appears that the charge against respondents Roxas, Nacpil and Kairan was previously dismissed by this Office by virtue of the approved resolution dated April 15, 1993. For this reason, as far as the said respondents are concerned, there being no motion or reconsideration filed by the complainant (underscoring supplied), the said respondents ceased to be parties in this case. Consequently, the mere filing of motions for reconsideration by those previously indicted, without questioning the dismissal of the charge against the said respondents, could not and should not be made the basis for impleading them as accused in this case without violating their right to due process.12

At first blush, it would appear that the findings of the Special Prosecution Officers on April 15, 1993 and February 10, 1994 are well supported by the evidence presented during the preliminary investigation. This notwithstanding, the Deputy Special Prosecutor and the Ombudsman, in their marginal notes, disapproved the recommendation on February 10, 1994. Ordinarily, we will not interfere with the discretion of the Ombudsman to determine whether there exists reasonable ground to believe that a crime has been committed and that the accused is probable guilty thereof and, thereafter, to file the corresponding information with the appropriate courts.13 However, we find that the case at bar falls under one of the recognized exceptions to this rule, more specifically, the constitutional rights of the accused are impaired and the charges are manifestly false.14 In cases where the Ombudsman and the Special Prosecutor were unable to agree on whether or not probable cause exists, we may interfere with the findings and conclusions.15 Be that as it may, we recognize that the power to investigate offenses of this nature belongs to the Ombudsman and the Special Prosecutor.16 While the Ombudsman may have erred in disregarding the recommendations of the Special Prosecution Officers which appear to be substantiated by the record, he should be allowed an opportunity to review his decision and, where necessary, correct it. Furthermore, it appears that petitioners were deprived of due process when the Special Prosecutor reinstated the complaint against them without their knowledge. Due process of law requires that every litigant must be given an opportunity to be heard. He has the right to be present and defend himself in person at every stage of the proceedings.17 Under Rule II, Section 7 of Administrative Order No. 07, i.e., the Rules of Procedure of the Office of the Ombudsman, motions for reconsideration or reinvestigation of an approved order or resolution of the Ombudsman or the Deputy Ombudsman must be filed within fifteen (15) days from notice thereof. It is significant to note in this case that no motion for reconsideration was filed from the resolution of the Ombudsman dismissing the charges against petitioners. Hence, petitioners had a right to consider the complaint against them as closed. Indeed, every litigation must come to an end; otherwise, it would become even more intolerable than the wrong and injustice it is designed to correct.18 For all intents and purposes, therefore, petitioners were no longer parties in the criminal action. Evidently, the Office of the Special Prosecutor thought so too. It did not give petitioners notice of the reinvestigation, which would have enabled them to participate in the proceedings. But when it later found probable cause against petitioners, it should have first given them notice and afforded them an opportunity to be heard before ordering their inclusion in Criminal Case No. 18956. The finding of probable cause against petitioners in proceedings which they had neither knowledge of nor participation in violated their right to procedural due process. At the very least, they should have been notified that the complaint against them has not yet been finally disposed of; or that the fight was not yet over, so to speak. They should have been apprised of their possible implication in the criminal case to enable them to meet any new accusations against them head-on, and to prepare for their defense. WHEREFORE, in view of the foregoing, the Decision dated April June 19, 2001 is RECONSIDERED and SET ASIDE. This case is ordered REMANDED to the Office of the

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Ombudsman for further proceedings for the determination of probable cause against petitioners Manuel C. Roxas and Ahmed S. Nacpil in OMB-AFP-CRIM-93-0016. SO ORDERED. Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Austria-Martinez, JJ., concur. G.R. No. L-37051 August 3l, 1977 ANITA U. LORENZANA, petitioner, vs. POLLY CAYETANO and COURT OF APPEALS, respondents. Desiderio P. Jurado for petitioner. Vicente L. Santiago for private respondent. GUERRERO, J.: Appeal by certiorari from the judgment of the Court of Appeals in CA-G.R. No. 31082-R entitled "Polly Cayetano, Plaintiff-Appellant vs. Anita U. Lorenzana, et al., DefendantsAppellees" and from the resolution of the Court denying petitioner's motion for reconsideration. We find in this case a perfect example that proves the -validity of that classic legal dictum that a man's house is his castle where the wind may enter, the rain may enter but neither the King nor the King's men may enter without the consent of the owner. The records show that 'In 1958, petitioner filled n the Municipal Court of Manila ejectment cases for non-payment of rentals against her tenants occupying different stalls in that quonset hut situated in the San Lazaro Estate (corner of C.M. Recto St. and Quezpn Blvd., Manila, adjacent to the Bilibid Compound) with a floor area of 360 square meters. leased by her (which she afterwards purchased) from the Manila Railroad Company and later from the Bureau of Lands together with the use of the land north and wouth of the quonset hut with an area of 340 square meters. The private respondent, on the other hand, occupied the area north of the quonset hut which area was also leased by her from the Manila Railroad Company and subsequently from the Bureau of Lands, and on which her house stood. Hence, the areas occupied by the two principal protagonists are adjacent to each other. The ejectment. cases having been decided by the Municipal Court in favor of the petitioner, the same were appealed to the Court of First Instance of Manila, Branch I. The Court affirmed the decision of the municipal court and ordered the defendants-tenants to vacate the premises leased. Upon refusal of the tenants to vacate the premises, the court granted a partial execution of the judgment and on July 20, 1959, a writ of demolition was issued, specifically commanding the Sheriff of Manila "to demolish the premises subject of the above-name cases" (Record on Appeal, p. 4). Thereupon on July 27, 1959, Petitioner together with her counsel, Atty. Nereo Paculdo and Deputy Sheriff Jose L. Cruz proceeded and entered the premises of the respondent and in spite of her protests that she was not a party to the ejectment cases in which the demolition order was secured and that her premises was not subject of said ejectment cases, they destroyed the latter's fence including flower pots trellises and electric installations and carted away the materials thereof and built another fence 5 meters into the premises of the respondent, boring holes into the cemented garden or patio of her house.

On August 3, 1959, respondent presented to the court a motion to declare petitioner, her counsel and the sheriff guilty of contempt; that they be punished and held liable in damages to the petitioner. The presiding judge held the motion in abeyance until the decision of the court in the ejectment cases shall have been rendered. Acting upon the petitioner's ex-parte motion and urgent motion for demolition in the two appealed ejectment cases, Civil Case No. 29664 and Civil Case No. 29665, the court on September 28, 1959 ordered that "a writ of demolition be issued ordering the Sheriff of Manila or any of his deputies to demolish any or all improvements erected and existing on the parcel of land subject of the above- entitled cases. which consists of an area of about 700 square meters." (Record on Appeal, p. 55). The writ of demolition was issued by the Sheriff on September 30, 1959. Upon procurement of this order or demolition, petitioner, together with her counsel and the deputy sheriff proceeded once more to respondent's premises on October 1, 1959 and moved the fence where it was illegally placed by them on July 27, 1959. On the same day, October 1, 1959, respondent filed an urgent motion for the suspension of the execution of the writ of demolition, which motion was denied by the court the next day, October 2, 1959. The records further establish that on November 27, 1959, petitioner, her lawyer, Atty. Paculdo, and Sheriff Cruz went back and moved the fence 1 Meter more into the premises of the respondent; that on February 19, 1960, the respondent filed an ex-parte motion to withdraw the petition for contempt on the ground that "conferring with Judge Bayona after this petition was heard, the petitioner was informed that not being a party to the above-numbered cases, she is like an intruder to act on her petition." (Record on Appeal, p. 80). On October 1, 1959, the respondent Polly Cayetano filed in the Court of First Instance of Manila, Civil Case No. 42001 against the petitioner Anita U. Lorenzana, Atty. Nereo J. Paculdo and Deputy Sheriff Jose L. Cruz for damages with mandatory injunction. The defendants therein filed a motion to dismiss, which was opposed by the plaintiff, and the Court, Branch XVII, denied on December 19, 1959 the motion to dismiss and the petition for issuance of the writ of preliminary injunction. The defendants filed their answers. Under date of March 9, 1962, the Court issued the Decision dismissing the complaint of the plaintiff as well as the counterclaim of the defendants Anita U. Lorenzana and Atty. Nereo J. Paculdo for lack of sufficient evidence. A motion for reconsideration was filed by the plaintiff but denied by the Court. Not satisfied with the Decision of the Court, Polly Cayetano appealed to the Court of Appeals. The Court of Appeals reversed the decision appealed from, and ordered "defendant-appellee Lorenzana to restore to appellant the possession of the property invaded and occupied by her as shown in Exh. L-1 to L-4; to put back appellant's fence and other valuable improvements in their place before the writ of demolition was served; ordering defendants, Lorenzana and Cruz, to pay jointly and severally to the plaintiff-appellant the sum of P5,500.00 as actual and moral damages, and pay the costs, except defendant, Paculdo." The above Decision is now sought to be reviewed in the instant petition for certiorari upon the following assignment of errors: 1. That the Court of Appeals erred in holding that the writ of demolition issued by Branch I of the Court of First Instance of Manila presided over by Judge Bayona could not be legally effected against respondent Polly Cayetano; II. That the Court of Appeals erred in holding that the private respondent's failure to pursue her remedy before a higher court did not to amount a waiver of her rights; III. The Court of Appeals erred in holding

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in effect that a writ of execution and an order of demolition can be collaterally attacked in an action specifically brought for recovery of damages; and IV. The Court of Appeals erred in holding that the issuance of the writ of demolition by Judge Bayona was in violation of Section 14, Rule 39. This case hinges on the legal effects of the writs of demolition issued in the ejectment cases wherein the respondent was not a party thereto . The writs were issued by virtue of the judgment rendered by the Court of First Instance of Manila (Branch I), the dispositive portion of which states, as follows: "WHEREFORE, judgment is rendered condemning the defendants ... to vacate the premises; ordering herein defendants... to pay rent to plaintiff ... plus attorney's fees and costs." The petitioner contends that the respondent having voluntarily appeared before the court and invoked its jurisdiction seeking affirmative relief by filing on August 3, 1959, a petition to declare Lorenzana, Atty. Paculdo and Sheriff Cruz in contempt and holding them liable in damages, and by filing on October 1, 1959, an urgent petition for the suspension of the execution of the writ of demolition, she could no longer contest the efficacy of the writ. There is no merit to this contention and We find no error in the ruling of the Court of Appeals that the writ of demolition could not be legally effected against the respondent. It must be noted that respondent was not a party to any of the 12 ejectment cases wherein the writs of demolition had been issued; she did not make her appearance in and during the pendency of these ejectment cases. Respondent only went to court to protect her property from demolition after the judgment in the ejectment cases had become final and executory. Hence, with respect to the judgment in said ejectment cases, respondent remains a third person to such judgement, which does not bind her; 1 nor can its writ of execution be enforced against her since she was not afforded her day in court in said ejectment cases. 2 The vital legal point here is that respondent did not derive her right or interest from the defendants-tenants nor from the plaintiff-landlord (the herein petitioner) but from the Bureau of Lands from which she had leased the property. She is neither a party nor successor in interest to any of the litigants in the ejectment cases. We also find no merit in the contention of the petitioner that respondent having been duly heard by the Court, she was not deprived of her day in court and was accorded the due process of law. It cannot be said that the constitutional requirements of due process were sufficiently complied with because the respondent had been duly heard. Indeed, respondent was heard but simply hearing her did not fulfill the basic conditions of procedural due process in courts. When respondent appeared before the court to protect and preserve her property, the Court had not lawfully acquired jurisdiction over the property of the respondent because the premises of the respondent was not included in the ejectment cases and the judgment in said cases could not affect her property, much less demolish the same. In the leading case of El Banco-Espa;olFilipino v. Palanca 3 cited in Macabingkil v. Yatco, et al., 4 We laid down the court's constitutional requirements of due process, thus As applied to judicial proceedings. . . it may be laid down with certainty that the requirements of due process is satisfied if the following conditions are present namely: (1) There must be a court or tribunal clothed with judicial power to hear and determine the matter before it; (2) jurisdiction must be lawfully acquired over the person of the defendant or over the property

which is the subject of the proceedings: (3) the defendant must be given an opportunity to be heard; and (4) judgment must be rendered upon lawful hearing. Respondent pursued various steps to protect her property from the invasion and encroachment of the petitioner, abetted by her counsel and the deputy Sheriff. She filed a motion for contempt; she protested to the Sheriff of Manila; she appealed to the Director of the Bureau of Lands; she filed an urgent motion to suspend the writ of demolition. Although the motions for contempt and for suspension wer heard by the court, such action s taken af ter the jugdgment had become final and executory did not make the respondent a party litigant in the ejectment cases. The respondent remained a stranger to the case and she cannot be bound by the judgment rendered therein, nor by the writs of execution and demolition issued in pursuance to said judgment. Intervening as a prejudiced owner of improvements being wrongly demolished merely to oppose such order of demolition upon learning that the said order was directed against premises not her own, is not the same as being a party to the suit to the extent of being bound by the judgment in the case where such order of demolition was issued. 5Furthermore, it must be noted that said petitions were filed after the promulgation of the decision in the ejectment cases and while in the process of execution. lt. is not proper to speak of an intention in a case already terminated by final judgment .6 Respondent, not being bound thereby, may avail herself of the proper action afforded by Section 17, Rule 39 of the Revised Rules of Court which provides the proceedings where property levied upon is claimed by a third person, stating as follows: ...Tile officer is not liable for damages, for the taking or keeping of the property to any thirdparty claimant unless a claim is made by the latter- and unless an action for damages is brought by him against the officer within one hundred twenty (120) days from the date of the filing of the bond. But nothing herein contained shall prevent such claimant o any third person ffrom windicating his claim to the property by any proper action... (Emphasis supplied) Respondent acted within and exercised her right when she filed the proper action to vindicate her claim afforded to her by Sec. 17, Rule 39 of the Revised Rules of Court, against the instruders or trespassers before the Court of First Instance of Manila, Branch XVII, in Civil Case No. 42001 for dam with mandatory injunction. If she did not insist on her motion for contempt which the court held in abeyance and was later withdrawn by her, if she did not appeal from the order of the court denying her motion to suspend the writ of demolition, such failure did not amount to a waiver of her right to pursue the proper action or remedy provided to her by the Rules of Court. It is of no moment that the respondent did not file a motion to quash the writ of execution or file a petition for relief under Rule 38 of the Revised Rules of Court or file a petition for certiorari and prohibition with a higher court after her petition to suspend the writ of demolition had been denied as suggested by petitioner. The law has specifically given her the remedies to vindicate her claim to the property. When the property of one person is unlawfully taken by another, the former has a right of action against the latter for the recovery of the property or for damages for the taking or retention, and he is entitled to his choice of these two remedies. 7 We find no legal compulsion for respondent to pursue the remedies suggested by the petitioner, for the rights of a third party claimant should not be decided in the action where the third-party claim has been presented, but in a separate action to be instituted by the third person. 8 In Queblar v. Gardu;o 9 this Court held that:

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Strictly speaking, the appeal interposed by the third-party claimant- appellant is improper, because she was not one of the parties in the action who were exclusively Venancio Queblar as plaintiff and Leonardo Gardu;o as defendant. Considering the provisions of said section 451 of the Code of Civil Procedure, as amended by Act No. 4108, the appealed order was not appealable. The appeal that should have been interposed by her, if the term "appeal" may properly be employed, is a separate reivindicatory action against the execution creditor or the purchaser of her property after the sale at public auction, or a complaint for damages to be charged against the bond filed by the judgment creditor in favor of the sheriff. In Potenciano v. Dineros, 10 We ruled that: We see no merit in the claim that the denial or dismissal of Potenciano's claim in the court below constitutes a bar to the present action. Potenciano, it is true, did not appeal, from the disapproval of his claim. But it should be borne in mind that appeal is not proper in such cases. (Queblar v. Gardu;o supra). As was said in that case, the appeal that should be interposed "if the term 'appeal' may properly be employed, is a separate reivindicatory action against the execution creditor or the purchaser of the property after the sale at public auction, or complaint for damages to be charged against the bond filed by the judgment creditor in favor of the sheriff." Such reivindicatory action is resurged to the third-party claimant by Section 15 (now 17) of Rule 39 despite disapproval of his claim by the court itself. (Planas v. Madrigal & Co., supra; Lara v. Bayona, L-7920, May 10, 1955), and it is the action availed by Potenciano in this case. The petitioner contends that a writ of execution and an order of demolition cannot be collaterally attacked in an action specifically brought for recovery of damages, and that said action for damages and mandatory injunction (Civil Case No. 42001) filed by the respondent with Branch XVII was nothing less than an action to review the validity of the order of demolition issued by Branch I in the ejectment cases which have long become final. We are not in accord with this contention. The civil case filed by the respondent for damages and the restoration of the property destroyed aid her premises taken unlawfully under the writ of demolition was not brought to reverse, impugn or set aside the judgment in the ejectment cases but to declare that the writ of demolition should not have been applied to that portion of the land and the building occupied by her, as correctly stated by the Court of Appeals. To put it succinctly the judgment and the demolition orders were valid and binding to the tenants but not to the respondent and her property. Fundamentally, it is the wrongful execution of the judgment and the writ that is the basis of the claim for damages. If the judgment and the writs of execution and demolition were alleged in the complaint for damages, this was not necessarily a collateral attack on said processes of another branch of the Court but averments to prove the wrongful, illegal and unauthorized exercise of the writs; it is merely a statement of the legal basis which the sheriff exceeded, abetted by the petitioner. The contention of the petitioner that a branch of a Court of First Instance cannot interfere with or nullify decisions, orders or proceedings of another branch of the same court and therefore the writs of execution and demolition cannot be impugned is not exactly on all fours with and hence not applicable to the case at bar. The settled rule has been clearly laid down in Abiera v. Court of Appeals, 11 wherein the Court, after a review of the doctrines inCabigao v. Del Rosario & Lim, 44 Phil. 192; Manila Herald Publishing Co., Inc., v. Ramos, 88 Phil.

94; Hacbang, et al. v. Hon. Clementino Diez, 8 SCRA 103 (May 30,1963) and National Power Corporation v. Hon. Jesus de Veyra 3 SCRA 646 (Dec. 22,1961), held that No court has power to interfere by injunction with the judgments or decrees of a court of concurrent or coordinate jurisdiction having equal power to grant the relief sought by injunction. For this doctrine to apply, the injunction issued by one court must interfere with the judgment or decree issued by another court of equal or coordinate jurisdiction and the relief sought by such injunction must be one which could be granted by the court which rendered the judgment or issued the decree. Under Section 17 of Rule 39 a third person who claims property levied upon on execution may vindicate such claim by action. A judgment rendered in his favor - declaring him to be the owner of' the property would not constitute interference with the powers or processes of the court which rendered the judgment to enforce which the execution was levied. If that be so and it is so because the property, being that of a stranger, is not subject to levy then an interlocutory order, such as injunction, upon a claim and prima facie showing of ownership by the claimant, cannot be considered as such interference either The right of a person who claims to be the owner of property levied upon on execution to file a third-party claim with the sheriff is not exclusive, and he may file an action to vindicate his claim even if the judgment creditor files an indemnity bond in favor of the sheriff to answer for any damages that may be suffered by the third-party claimant. By "action," as stated in the Rule, what is meant is a separate and independent action. With respect to the fourth assignment of error, petitioner's contention appears to be quite tenable in that under See. 14, Rule 39 of the Revised Rules of Court which the Court of Appeals applied, the notice required before demolition of the improvements on the property subject of the execution, is notice to the judgment debtor, and not to a stranger or third party to the case like the private respondent herein. Nonetheless, the claim that the Court of Appeals misconstrued the aforecited Rule is as immaterial and inconsequential as the application of this legal provision is superflous and unnecessary for the affirmance of the Court's decision. The Manifestation filed by petitioner in the records dated June 1, 1977 with Annexes A, B, C and D, is Noted. IN VIEW OF ALL THE FOREGOING, the petition herein is dismissed, and the appealed judgment is affirmed, with costs against petitioner. SO ORDERED. Makasiar, Martin and Fernandez, JJ., concur. G.R. No. 140964 January 16, 2002 INSULAR LIFE ASSURANCE COMPANY, LTD., INSULAR SAVINGS BANK and JACINTO D. JIMENEZ,petitioners, vs. ROBERT YOUNG, GABRIEL LA'O II, ARTHUR TAN, LOPE JUBAN, JR., MARIA LOURDES ONGPIN, ANTONIO ONGPIN, ELSIE DIZON, YOLANDA BAYER, CECILIA VIRAY, MANUEL VIRAY and JOSE VITO BORROMEO,respondents. x---------------------------------------------------------x

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G.R. No. 142267 January 16, 2002 INSULAR LIFE ASSURANCE COMPANY, LTD., INSULAR SAVINGS BANK and JACINTO D. JIMENEZ,petitioners, vs. ROBERT YOUNG, GABRIEL LA'O II, ARTHUR TAN, LOPE JUBAN, JR., MARIA LOURDES ONGPIN, ANTONIO ONGPIN, ELSIE DIZON, YOLANDA BAYER, CECILIA VIRAY, MANUEL VIRAY and JOSE VITO BORROMEO, COURT OF APPEALS and DEPUTY SHERIFF RUBEN NEQUINTO, respondents. SANDOVAL-GUTIERREZ, J.: Before this Court are two (2) consolidated petitions, the first, docketed as G.R. No. 140964, is a petition for review on certiorari1 of the Decision of the Court of Appeals dated September 22, 1999 in CA-G.R. CV No. 54264 reversing the Decision of the Regional Trial Court, Branch 142, Makati City in Civil Case No. 92-049. The other, G. R. No. 142267, is a petition for certiorari,2 assailing the Resolution dated March 10, 2000 of the Court of Appeals (in the same civil case) which granted private respondents' motion for execution pending appeal. The undisputed facts are: In December, 1987, respondent Robert Young, together with his associates and corespondents, namely: Gabriel La'O II, Arthur Tan, Lope Juban, Jr., Maria Lourdes Ongpin, Antonio Ongpin, Elsie Dizon, Yolanda Bayer, Cecilia Viray, Manuel Viray and Jose Vito Borromeo, acquired by purchase Home Bankers Savings and Trust Co., now petitioner Insular Savings Bank ("the Bank," for brevity), from the Licaros family for P65,000,000.00. Young and his group obtained 55% equity in the Bank, while Jorge Go and his group owned the remaining 45%. Subsequently, the Bank granted respondents and others individual loans in the total amount of P153,000,000.00, secured by promissory notes.3 On December, 1990, Benito Araneta, a stockholder of the Bank, signified his intention to purchase 99.82% of its outstanding capital stock for P340,000,000.00, subject to the condition that the ownership of all the shares will be consolidated in Young's name. On February 5, 1991, Araneta paid Young P14,000,000.00 as part of the downpayment.4 In order to carry out the intended sale to Araneta, Young bought from Jorge Go and his group their 45% equity in the Bank for P153,000,000.00. In order to pay this amount, Young obtained a short-term loan of P170,000,000.00 from International Corporate Bank ("Interbank") to finance the purchase. However, Araneta backed out from the intended sale and demanded the return of his downpayment. Meanwhile, Young's loan from Interbank became due, causing his serious financial problem. Consequently, he engaged the services of Asian Oceanic Investment House, Inc. ("Asian Oceanic"), a domestic company owned and controlled by another petitioner, Insular Life Assurance Co., Ltd. ("Insular Life"), to look for possible sources of capital. On August 27, 1991, through the intervention of Asian Oceanic, Young and Insular Life entered into a Credit Agreement.5 Under its provisions, Insular Life extended a loan to Young in the amount of P200,000,000.00. To secure the loan, Young, acting in his behalf and as attorney-in-fact of the other stockholders, executed on the same day a Deed of Pledge 6 over 1,324,864 shares which represented 99.82% of the outstanding capital stock of the Bank. The

next day, he also executed a promissory note7 in favor of Insular Life in the same amount with an interest rate of 26% per annum to mature 120 days from execution. The Credit Agreement further provides that Insular Life shall have the prior right to purchase the Schedule I Shares (owned by Young) and the Schedule II Shares (owned by the other stockholders of the Bank), as well as the 250,000 shares which will be issued after the additional capital of P25,000,000.00 (payable from the proceeds of the loan) shall have been infused. On October 1, 1991, Insular Life and Insular Life Pension Fund formally informed Young of their intention to acquire 30% and 12%, respectively, of the Bank's outstanding shares, subject to due diligence audit and proper documentation.8 On October 9, 1991, Insular Life and Young, authorized to represent the other stockholders, entered into a Memorandum of Agreement (MOA),9 wherein Insular Life and its Pension Fund agreed to purchase 830,860 common shares and 311,572 common shares, respectively, for a total consideration of P198,000,000.00. Under its terms, the MOA is subject to Young's representations and warranties10 that, as of September 30, 1991, the Bank has (a) a total outstanding paid-in capital of P157,714,900.00, (b) a total net worth of P114,801,539.00, and (c) total loans with doubtful recovery of P60,000,000.00. The MOA is also subject to these "condition precedents":11 (1) Young shall infuse additional capital of P50,000,000.00 into the Bank, and (2) Insular Life and its Pension Fund shall undertake a due diligence audit on the Bank to determine whether the provision forP60,000,000.00 doubtful account made by Young is sufficient. On October 11, 1991, Insular Life, through a team of auditors led by Mr. Wilfrido Patawaran, conducted a due diligence audit on the Bank pursuant to the MOA. The audit revealed several check-kiting operations which amounted to P340,000,000.00. As a result, the Bank's Board of Directors was convened to discuss this matter. On October 17, 1991, a special meeting of the Bank's directors was held. Chief Executive Officer Antonino L. Alindogan, Jr. reported to the Board the initial findings of the audit team about the irregularities in the Bank's "kiting operations." When asked to explain these anomalies, Young, who was then the Bank's President, assumed responsibility since it happened during his incumbency. Thereupon, he offered, among others, to the Bank the 45% of his holdings as security. He admitted that he has compromised the interest of the Bank and thus tendered his resignation. The Board deferred its acceptance.12 On October 21, 1991, Young signed a letter13 prepared by Atty. Jacinto Jimenez, counsel of Insular Life, addressed to Mr. Vicente R. Ayllon, Chairman of the Bank's Board of Directors, stating that due to business reverses, he shall not be able to pay his obligations under the Credit Agreement between him and Insular Life. Consequently, Young "unconditionally and irrevocably waive(s) the benefit of the period" of the loan (up to December 26, 1991) and Insular "may consider (his) obligations thereunder as defaulted." He likewise interposes no objection to Insular Life's exercise of its rights under the said agreement. Forthwith, Insular Life instructed its counsel to foreclose the pledge constituted upon the shares. The latter then sent Young a notice informing him of the sale of the shares in a public auction scheduled on October 28, 1991, and in the event that the shares are not sold, a second auction sale shall be held the next day, October 29. On October 28, 1991, only Insular Life submitted a bid, hence, the shares were not sold on that day. The next day, a second auction was held. Again, Insular Life was the sole bidder.

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Since the shares were not sold at the two public auctions, Insular Life appropriated to itself, not only the original 1,324,864 shares, but also the 250,000 shares subsequently issued by the Bank and delivered to Insular Life by way of pledge. Thus, Insular Life gave Young an acquittance of his entire claim.14 Thereafter, title to the said shares was consolidated in the name of Insular Life. On November 12, 1991, the Bangko Sentral ng Pilipinas' Supervision and Examination Sector approved Insular Life's request to maintain its present ownership of 99.82% of the Bank.15 From October 31, 1991 to December 27, 1991, Insular Life invested a total of P325,000,000.00 in the Bank. Meanwhile, on November 27, 1991, its Board of Directors, during its meeting, accepted the resignation of Young as President.16 On January 7, 1992, Young and his associates filed with the Regional Trial Court (RTC), Branch 142, Makati City, a complaint17 against the Bank, Insular Life and its counsel, Atty. Jacinto Jimenez, petitioners, for annulment of notarial sale, specific performance and damages, docketed as Civil Case No. 92-049. The complaint alleges, inter alia, that the notarial sale conducted by petitioner Atty. Jacinto Jimenez is void as it does not comply with the requirement of notice of the second auction sale; that Young was forced by the officers of Insular Life to sign letters to enable them to have control of the Bank; that under the MOA, Insular Life should apply the purchase price of P198,000,000.00 (corresponding to the 55% of the outstanding capital stock of the Bank) to Young's loan of P200,000,000.00 and pay the latter P162,000,000.00, representing the remaining 45% of its outstanding capital stock, which must be set-off against the loans of the other respondents. Petitioners filed their answer18 with counterclaim against Young, Gabriel La'O II, Arthur Tan, Lope Juban, Jr., Antonio Ongpin, Elsie Dizon, Yolanda Bayer and Manuel Viray, respondents herein. Except for Young, none of the respondents answered the counterclaim, hence, the RTC declared them in default. On May 10, 1995, the RTC rendered a Decision,19 dismissing the complaint, ordering the respondents to pay the Bank their respective loans with interest at the rate of 30% per annum and monthly penalty interest of 3% from the date they are due until fully paid and dismissing petitioners' counterclaim against Young, thus: "Judgment is therefore rendered as follows: 1. Dismissing the complaint; and 2. Ordering the plaintiffs jointly and severally to reimburse to the defendants the sum of P300,000.00 as attorney's fees and cost of litigation; ON THE COUNTERCLAIMS: Judgment is hereby rendered in favor of counterplaintiff HOME as follows: 1. Ordering GABRIEL LA'O II to pay HOME the following amounts: a. the sum of P4 Million with interest at the rate of 30% per annum and monthly penalty interest at 3% from June 17, 1991 until fully paid; b. the sum of P6 Million with interest at the rate of 30% per annum and monthly penalty interest at 3% from September 10, 1991 until fully paid; c. the sum of P500,000.00 with interest at the rate of 30% per annum and monthly penalty interest at 3% from September 12, 1991 until fully paid; 2. Ordering ARTHUR TAN to pay to HOME the sum of P4.2 Million with interest at the rate of 30% per annum and monthly penalty interest at 3% from July 4, 1991 until fully paid;

3. Ordering LOPE JUBAN, JR., to pay to HOME the sum of P3 Million with interest at the rate of 29% per annum from May 27, 1991 to August 25, 1991, and 30% per annum from August 26, 1991 and monthly penalty interest at 3% from May 27, 1991 until fully paid; 4. Ordering ANTONIO ONGPIN to pay to HOME the following amounts: a. the sum of P445,000.00 with interest at the rate of 32% per annum from May 25, 1991 to August 29, 1991, and 29% per annum from August 30, 1991, and monthly penalty interest at 3% from May 25, 1991 until fully paid; b. the sum of P1 Million with interest at the rate of 32% a month from May 4, 1991 to August 29, 1991, and 29% per annum from August 30, 1991, and monthly penalty interest at 3% from May 4, 1991 until fully paid; c. the sum of P550,000.00 with interest at the rate of 32% per annum from May 21, 1991 to August 29, 1991, and 29% per annum from August 30, 1991 and monthly penalty interest at 3% from May 21, 1991 until fully paid; d. the sum of P5 Million with interest at the rate of 32% per annum from May 16, 1991 to August 29, 1991, and 29% per annum from August 30, 1991 and monthly penalty interest at 3% from May 16, 1991 until fully paid; e. the sum of P705,000.00 with interest at the rate of 32% per annum from May 4, 1991 to August 29, 1991, and 29% per annum from May 4, 1991 and monthly penalty interest at 3% from May 4, 1991 until fully paid; 5. Ordering ELSIE DIZON to pay to HOME the following amounts: a. the sum of P2 Million with interest at the rate of 30% per annum and monthly penalty interest at 3% from June 17, 1991 until fully paid; and b. the sum of P7.4 Million with interest at the rate of 30% per annum and monthly penalty interest at 3% from September 10, 1991 until fully paid; 6. Ordering YOLANDA BAYER to pay to HOME the following amounts: a. the sum of P1 Million with interest at the rate of 30% per annum and monthly penalty interest at 3% from June 17, 1991 until fully paid; and b. the sum of P6.9 Million with interest at the rate of 30% per annum and monthly penalty interest at 3% from September 10, 1991 until fully paid; 7. Ordering MANUEL VIRAY to pay to HOME the sum of P8.7 Million with interest at the rate of 29% per annum from May 29, 1991 to August 26, 1991, and 30% per annum from August 27, 1991, and monthly penalty interest at 3% from May 29, 1991 until fully paid; 8. Ordering the above counter defendants jointly and severally to pay to the counterplaintiff the some ofP500,000.00 as attorney's fees and cost of litigation. The counterclaim against YOUNG is dismissed for lack of merit."20 Aggrieved by the RTC Decision, respondents appealed to the Court of Appeals. On September 22, 1999, the Court of Appeals rendered judgment21 reversing the RTC Decision, the dispositive portion of which reads: "PREMISES CONSIDERED, the decision appealed from is hereby REVERSED and SET ASIDE, and a new one entered thereby: 1. Declaring the Credit Agreement dated August 27, 1991 and the Memorandum of Agreement dated October 9, 1991 valid and binding between the parties; 2. Declaring the 'delinquent' accounts of borrowers Lope Juben, Elsie Dizon, Arthur Tan, Gabriel La' O, Yolanda Bayer, Antonio Ongpin and Jose Vito Borromeo as fully paid;

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3. Ordering the defendant Insular Life to pay the appellant Robert T. Young the amount of One Hundred Sixty Two Million Pesos (P162,000,000.00) representing the money value of 45% of the shareholdings of Home Bankers Savings and Trust Co., Inc.; 4. Ordering the appellee Insular Life Assurance Co., Ltd. to pay appellant Robert T. Young moral damages in the amount of Five Million Pesos (P5,000,000.00); and 5. Ordering the appellees to pay attorney's fees of One Million Five Hundred Thousand Pesos (P1,500,000.00) and the costs of the suit. SO ORDERED."22 On October 14, 1999, petitioners filed a motion for reconsideration, while respondents filed a motion for execution pending appeal. On December 1, 1999, the Court of Appeals issued a Resolution23 denying petitioners' motion for reconsideration for lack of merit, prompting them to file the instant petition for review on certiorari (G. R. No. 140964). On March 10, 2000, the Court of Appeals issued a Resolution24 granting respondents' motion for execution pending appeal. Forthwith, petitioners filed the instant petition for certiorari (G. R. No. 142267). On March 27, 2000, we issued a Resolution25 ordering the consolidation of the two petitions and directing the parties "to maintain the STATUS QUO before the assailed (CA) Resolution of March 10, 2000 was issued, until further orders from this Court." In G.R. No. 140964, petitioners ascribe to the Court of Appeals the following errors: 1. In declaring the MOA dated October 9, 1991 valid and enforceable between the parties despite respondent Young's failure to comply with the terms and conditions thereof; 2. In holding that the foreclosure of the pledge held on October 29, 1992 is void; and 3. In awarding moral damages and attorney's fees in favor of respondent Robert Young. In G.R. No. 142267, petitioners allege that the Court of Appeals acted with grave abuse of discretion in granting respondent Young's motion for execution pending appeal.26 Petitioners contend that the MOA executed on October 9, 1991 is not enforceable considering that Robert Young committed fraud, misrepresented the warranties and failed to comply with his obligations. Hence, the Court of Appeals erred when it held that the MOA is valid and ordered petitioners to pay for the shares covered by the same. In their comment, respondents simply contend that since the MOA was prepared by counsel of petitioner Insular Life and duly signed by them, they cannot now impugn the same and avoid compliance with their obligations specified therein. The Court of Appeals, in reversing the Decision of the RTC, ruled that the MOA is binding between the parties as it was not validly rescinded. In exercising its option to rescind the MOA, Insular Life failed to notify Young pursuant to Article 1599 of the Civil Code.27 Hence, the MOA is enforceable against the parties thereto. The Appellate Court then concluded that Young's loan with Insular Life is deemed fully paid based on the representation and warranty in the MOA that "the entire proceeds of the sale shall be used to pay off the outstanding debt of Robert T. Young to Insular Life." In other words, the Court of Appeals construed the MOA as a contract of sale since it applied Article 1599 of the Civil Code which pertains to cases where there is a breach of warranty.1wphi1.nt We disagree.

The Memorandum of Agreement pertinently provides: "1. Insular Life and the Pension Fund hereby agree to purchase from the Vendor and the Vendor agrees to convey, transfer, assign EIGHT HUNDRED THIRTY THOUSAND EIGHT HUNDRED SIXTY (830,860) Common Shares and THREE HUNDRED ELEVEN THOUSAND FIVE HUNDRED SEVENTY TWO (311,572) Common Shares of Home Bankers Savings and Trust Co., respectively, Insular Life and the Pension Fund, or to such person designated by Insular Life or the Pension Fund, for a total consideration of ONE HUNDRED NINETY-EIGHT MILLION PESOS (P198,000,000.00), subject to the following terms and conditions and representations and warranties made by the Vendor: A. REPRESENTATION AND WARRANTIES: 1. As of September 30, 1991, the total outstanding paid in capital of the bank is ONE HUNDRED FIFTY SEVEN MILLION SEVEN HUNDRED FOURTEEN THOUSAND NINE HUNDRED PESOS (P157,714,900.00), 2. As of September 30, 1991, the total net worth of the bank is ONE HUNDRED FOURTEEN MILLION EIGHT HUNDRED ONE THOUSAND FIVE HUNDRED THIRTY NINE PESOS (P114,801,593.00), 3. As of September 30, 1991, the total loans with doubtful recovery amounted to SIXTY MILLION PESOS (P60,000,000.00), which includes the loans with doubtful recovery contained in the May 1991 findings of the Central Bank and an additional provision for certain loan accounts identified and listed by Robert T. Young, 4. The entire proceeds of the sale shall be used to pay off the outstanding debt of Robert T. Young to Insular Life. B. CONDITION PRECEDENTS: Upon the signing of this Agreement and prior to the execution of a Deed of Sale by the parties, the following events shall occur: 1. The Vendor shall infuse an additional capital of FIFTY MILLION PESOS (P50,000,000.00) into the Bank, 2. The Vendee shall undertake a due diligence audit on the bank for a period not exceeding 60 days from the date of the signing of this Agreement, and the audit shall be undertaken to determine that the provision for SIXTY MILLION PESOS (P60,000,000.00) for doubtful account is sufficient, 3. After signing of this Agreement and during the 60 days due diligence audit of the Vendee, as mentioned in No. 2, the Vendor shall endorse and deliver the stock certificates representing TWENTY FIVE (25%) percent of the total outstanding capital stock of the bank to the Vendee, the stock certificates shall be returned to the Vendor at the end of the 60 days due diligence audit and after the Vendee is satisfied that the provision of SIXTY MILLION PESOS (P60,000,000.00) for doubtful accounts is sufficient."28 (Emphasis ours) Contrary to the findings of the Court of Appeals, the foregoing provisions of the MOA negate the existence of a perfected contract of sale. The MOA is merely a contract to sell since the parties therein specifically undertook to enter into a contract of sale if the stipulated conditions are met and the representation and warranties given by Young prove to be true. The obligation of petitioner Insular Life to purchase, as well as the concomitant obligation of Young to convey to it the shares, are subject to the fulfillment of the conditions contained in the MOA. Once the conditions, representation and warranties are satisfied, then it is incumbent upon the

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parties to perform their respective obligations under the contract. Conversely, in the event that these conditions are not met or complied with, no obligation on the part of either party arises. This is in accord with Article 1181 of the Civil Code which provides that "(i)n conditional obligations, the acquisition of rights, as well as the extinguishment or loss of those already acquired, shall depend upon the happening of the event which constitutes the condition." And when the obligation assumed by a party to a contract is expressly subjected to a condition, the obligation cannot be enforced against him unless the condition is complied with.29 Here, the MOA provides that Young shall infuse additional capital of P50,000,000.00 into the Bank. It likewise specifies the warranty given by Young that the doubtful accounts of petitioner Bank amounted to P60,000,000.00 only. However, records show that Young failed to infuse the required additional capital. Moreover, the due diligence audit shows that Young was involved in fraudulent schemes like check-kiting30 which amounted to a staggering P344,000,000.00. This belies his representation that the doubtful accounts of petitioner Bank amounted only to P60,000,000.00. As a result of these anomalous transactions, the reserves of the Bank were depleted and it had to undergo a ten-year rehabilitation plan under the supervision of the Central Bank. Significantly, respondents do not dispute petitioners' assertion that Young committed fraud, misrepresented the warranties and failed to comply with his obligations under the MOA. Accordingly, no right in favor of Young's arose and no obligation on the part of Insular Life was created.31 In Mortel vs. Kassco, Inc.,32 this Court held: "In contracts subject to a suspensive condition, the birth or effectivity of such contracts only takes place if and when the event constituting the condition happens or is fulfilled, and if the suspensive condition does not take place or is not fulfilled, the parties would stand as if the conditional obligation had never existed." Since no sale transpired between the parties, the Court of Appeals erred in concluding that Insular Life purchased 55% of the total shares of the Bank under the MOA. Consequently, its findings that the debt of Young has been fully paid and that Insular Life is liable to pay for the remaining 45% equity have no basis. It must be emphasized that the MOA did not convey title of the shares to Insular Life. If ever there was delivery of the said shares to Insular Life, it was because they were pledged by Young to Insular Life under the Credit Agreement. It would be unfair on the part of Young to demand compliance by Insular Life of its obligations when he himself was remiss in his own. Neither can he feign ignorance of the stipulation in the MOA since it is presumed that he read the same and was satisfied with its provisions before he affixed his signature therein. The fact that no deed of sale was subsequently executed by the parties confirms the conclusion that no sale transpired between them. Notably, the Deed of Pledge which secured the Credit Agreement between the parties, covered not only 1,324,864 shares which then constituted 99.82% of the total outstanding shares of petitioner Bank, but also the 250,000 shares subsequently issued. Consequently, when Young waived in his letter the period granted him under the said agreement and manifested his inability to pay his obligation (which waiver has been declared by the RTC and the CA to be valid), the loan extended by petitioner Insular Life became due and demandable.33 Definitely, petitioners merely exercised the right granted to them under the law, which is to foreclose the pledge constituted on the shares, in satisfaction of respondent Young's loan.1wphi1.nt

The Court of Appeals also erred in declaring that the auction sale is void since petitioners failed to send a separate notice for the second auction. Article 2112 of the Civil Code provides: "The creditor to whom the credit has not been satisfied in due time, may proceed before a Notary Public for the sale of the thing pledged. The sale shall be made at a public auction, and with notification to the debtor and the owner of the thing pledged in a proper case, stating the amount for which the public sale is to be held. If at the first auction the thing is not sold, a second one with the same formalities shall be held; and if at the second auction there is no sale either, the creditor may appropriate the thing pledged. In this case he shall be obliged to give an acquittance for his entire claim." Clearly, there is no prohibition contained in the law against the sending of one notice for the first and second public auction as was done here by petitioner Insular Life. The purpose of the law in requiring notice is to sufficiently apprise the debtor and the pledgor that the thing pledged to secure payment of the loan will be sold in a public auction and the proceeds thereof shall be applied to satisfy the debt. When petitioner Insular Life sent a notice to Young informing him of the public auction scheduled on October 28, 1991, and a second auction on the next day, October 29, in the event that the shares are not sold on the first auction, the purpose of the law was achieved. We thus reject respondents' argument that the term "second one" refers to a separate notice which requires the same formalities as the first notice. Petitioners contend that the Court of Appeals likewise erred when it declared in the fallo of its decision that the unpaid accounts of the other respondents have been fully paid. There is no showing how the Appellate Court reached such conclusion. In doing so, the Court of Appeals violated the constitutional mandate that "(n)o decision shall be rendered by any court without expressing clearly and distinctly the facts and the law on which it is based." 34 Indeed, due process demands that the parties to a litigation be informed of how it was decided with an explanation of the factual and legal reasons that led to the conclusions of the court.35 It must be observed that those respondents did not contest petitioners' counterclaim against them. On the issue of damages, we find the Court of Appeals' award of moral damages of P5,000,000.00 and attorney's fees of P1,500,000.00 to respondents without any basis. Under Article 2220 of the Civil Code, moral damages may be awarded in breach of contracts where the defendant acted fraudulently or in bad faith. Contrary to the finding of the Court of Appeals, we find no such breach committed by petitioners, much less any badge of fraud or bad faith on their part. It must be stressed that moral damages are emphatically not intended to enrich a plaintiff at the expense of the defendant.36 Attorney's fees are not automatically awarded to every winning litigant.37 It must be shown that any of the instances enumerated under Art. 2208 of the Civil Code exists to justify the award thereof.38Not one of such instances exists here. Surprisingly, the Court of Appeals awarded the excessive amounts ofP5,000,000.00 as moral damages and P1,500,000.00 as attorney's fees to respondents. We now come to the issue of whether or not the Court of Appeals committed grave abuse of discretion when it ordered the execution of its own judgment, thus: "It can not be denied that the plaintiffs-appellants, who are stockholders of Home, have long been deprived of their rights as such stockholders. It has been almost a decade since their cause of action accrued. And to this day, no immediate relief is still in sight. On the contrary, with Insular Life practically controlling the fate of Home, redress may become all but nugatory.

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This is the very line of reasoning this Court has adopted in rendering its main decision. There has been an unjust enrichment on the part of the defendants-appellees, all to the injury and humiliation of the plaintiffs-appellants are denied what is properly theirs, the injury will be a continued one. "This, we believe, is good reason enough to grant the plaintiffs'-appellants' motion. Good reasons consist of compelling circumstances justifying the immediate execution lest judgment becomes illusory, or the prevailing party may after the lapse of time become unable to enjoy it, considering the tactics of the adverse party who may apparently have no case except to delay. "The allegation by the defendants-appellees that the plaintiff-appellant Young is a fugitive from justice deserves scant consideration from this Court. It is a personal attack on an adverse party that is completely uncalled for and has no bearing whatsoever in the present case. And even if the same is true, it is not difficult to see that the present predicament Young now finds himself in stemmed from the unfair, nay, unlawful treatment he has received from the defendants-appellees. That Young now has very little assets should not come as a surprise to the defendants-appellees; through their own machinations they deprived him of the same. To now hold the plight of Young against himself would be to and insult to injury, especially if one is to consider that the latter's situation was brought about by the same party who now opposes the claim for immediate relief. "With the grant of the instant motion, plaintiff-appellant Young may once again reclaim his rightful place in society, before he sinks deeper into the mire in which he, according to the defendants-appellees, may now be in. Contrary to the defendants'-appellees' contentions, it is, in fact, another reason to extend our favorable consideration to the motion. It is the least we can do. x x x "In fine, it is this Court's considered opinion that the combination of all the foregoing facts, and the plaintiffs'-appellants' readiness and willingness to post the requisite bond, constitute sufficient grounds to grant immediate relief."39 We reject the Court of Appeal's ratiocination. The ruling of this Court in Heirs of the Late Justice Jose B. L. Reyes vs. Court of Appeals40 is instructive on this point: "One final word. It was bad enough that the Court of Appeals erred in ruling that the lease contract must be judicially rescinded before respondent MMB, Inc. may be evicted from the premises. It was worse that the Court of Appeals immediately enforced its decision pending appeal restoring respondent in possession of the leased premises and worst, appointed a special sheriff to carry out the writ of execution. In the first place, we emphatically rule that the Court of Appeals has no authority to issue immediate execution pending appeal of its own decision. Discretionary execution under Rule 29, Section 2 (a), 1997 Rules of Civil Procedure, as amended, is allowed pending appeal of a judgment or final order of the trial court, upon good reasons to be stated in a special order after due hearing. A judgment of the Court of Appeals cannot be executed pending appeal. Once final and executory, the judgment must be remanded to the lower court, where a motion for its execution may be filed only after its entry. In other words, before its finality, the judgment cannot be executed. There can be no discretionary execution of a decision of the Court of Appeals. x x x."

We therefore rule that the Court of Appeals committed grave abuse of discretion when it granted respondents' motion for execution pending appeal. WHEREFORE, the petitions are GRANTED. In G.R. No. 140964, the assailed Decision dated September 22, 1999 and the Resolution dated December 1, 1999 issued by the Court of Appeals in CA G.R. CV No. 54264 areREVERSED and SET ASIDE. In G.R. No. 142267, the Resolution dated March 10, 2000 issued by the Court of Appeals granting respondents' motion for execution is declared VOID. The Decision dated March 10, 1995 of the Regional Trial Court, Branch 42, Makati City, in Civil Case No. 92-049, is REINSTATED. Costs against respondents. SO ORDERED. Melo, Vitug, Panganiban, and Carpio, JJ., concur. G.R. No. 139884 February 15, 2001 SPOUSES OCTAVIO and EPIFANIA LORBES, petitioners, vs. COURT OF APPEALS, RICARDO DELOS REYES and JOSEFINA CRUZ, respondents. GONZAGA-REYES, J.: This petition for review on certiorari arose from an action for reformation of instrument and damages originally filed with the Regional Trial Court of Antipolo, Rizal, Branch 74, the decision on which was reviewed and reversed by the Third Division of the Court of Appeals. Petitioners were the registered owners of a 225-square meter parcel of land located in Antipolo, Rizal covered by Transfer Certificate of Title No. 165009. Sometime in August 1991, petitioners mortgaged this property to Florencio and Nestor Carlos in the amount of P150,000.00. About a year later, the mortgage obligation had increased to P500,000.00 and fearing foreclosure of the property, petitioners asked their son-in-law, herein private respondent Ricardo delos Reyes, for help in redeeming their property. Private respondent delos Reyes agreed to redeem the property but because he allegedly had no money then for the purpose he solicited the assistance of private respondent Josefina Cruz, a family friend of the delos Reyeses and an employee of the Land Bank of the Philippines.1wphi1.nt It was agreed that petitioners will sign a deed of sale conveying the mortgaged property in favor of private respondent Cruz and thereafter, Cruz will apply for a housing loan with Land Bank, using the subject property as collateral. It was further agreed that out of the proceeds of the loan, P500,000.00 will be paid to the Carloses as mortgagees, and an such balance will be applied by petitioners for capital gains tax, expenses for the cancellation of the mortgage to the Carloses, transfer of title to Josefina Cruz, and registration of a mortgage in favor of Land Bank.1 Moreover, the monthly amortization on the housing loan which was supposed to be deducted from the salary of private respondent Cruz will be reimbursed by private respondent delos Reyes. On September 29, 1992, the Land Bank issued a letter of guarantee in favor of the Carloses, informing them that Cruzs loan had been approved. On October 22, 1992, Transfer Certificate of Title No. 165009 was cancelled and Transfer Certificate of Title No. 229891 in the name of Josefina Cruz was issued in lieu thereof.2 On November 25, 1992, the mortgage was discharged.

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Sometime in 1993, petitioners notified private respondent delos Reyes that they were ready to redeem the property but the offer was refused. Aggrieved, petitioners filed on July 22, 1994 a complaint for reformation of instrument and damages with the RTC of Antipolo, Rizal, docketed as Civil Case No. 94-3296. In the complaint, petitioners claimed that the deed was merely a formality to meet the requirements of the bank for the housing loan, and that the real intention of the parties in securing the loan was to apply the proceeds thereof for the payment of the mortgage obligation.3 They alleged that the deed of sale did not reflect the true intention of the parties, and that the transaction was not an absolute sale but an equitable mortgage, considering that the price of the sale was inadequate considering the market value of the subject property and because they continued paying the real estate taxes thereto even after the execution of the said deed of sale. Petitioners averred that they did not see any reason why private respondents would retract from their original agreement other than that they (petitioners) and the members of their family resigned en masse from the Mahal Namin Organization, of which private respondent delos Reyes was the president and chairman of the board of directors, and private respondent Cruz was the treasurer. In the same complaint, they demanded moral damages, exemplary damages, and attorneys fees. On July 29, 1996, the trial court issued a temporary restraining order enjoining private respondents from ejecting petitioners from the premises of the disputed property; this was soon replaced by a writ of preliminary injunction. Summons and a copy of the complaint were served upon private respondents on August 1, 1994. Private respondents filed their answer beyond the reglamentary period, or only on September 1, 1994. Thus, on September 5, 1994, petitioners filed a motion to declare private respondents in default, which the trial court granted in an order dated September 16, 1994. On September 30 of the same year, petitioners presented their evidence ex parte before the trial court. The principal witness presented was petitioner Octavio Lorbes, whose testimony was corroborated by his son, Atty. Salvador Lorbes. On October 12, 1994, private respondents filed a motion to lift order of default and to strike out evidence presented ex parte, which the court denied in an order dated October 26, 1994. On June 20, 1995, the trial court rendered judgment in favor of petitioners, upon finding that: (1) the Deed of Absolute Sale dated October 21, 1992 did not reflect the true intention of the parties, and (2) the transaction entered into between petitioners and Cruz was not an absolute sale but an equitable mortgage, considering that the price stated in the Deed of Absolute Sale was insufficient compared to the value of the property, petitioners are still in possession of the property, and petitioners had continued to pay the real estate taxes thereon after the execution of the said deed of sale. As explained by the trial court in its decision: The foregoing uncontroverted facts clearly show that the transaction entered into between the plaintiffs and the defendants is not an absolute sale but merely an equitable mortgage as the sale was executed in order to secure a loan from a certain bank to save the property from the danger of foreclosure and to use it as collateral thereof for bank loan purposes and that the same does not reflect the real intention of the parties in executing the said Deed of Sale. The court notes that at the time the transaction and the Deed of Absolute Sale was executed by the plaintiffs sometime in 1992, the prevailing market value of the lot alone was P400,000.00 per square meter such that the lot alone consisting of 255 square meters, excluding the house

and improvements thereon would already cost more than a million pesos already hence, the consideration of P600,000.00 in the said Deed of Sale is considerably insufficient compared to the value of the property. Further, the plaintiffs are still in possession of the subject property and had been paying the realty taxes thereon even after the execution of the sale and the transfer of the title from the plaintiffs to defendant Josephine Cruz which clearly evinces the true badge of the transaction which occurred between the plaintiffs and defendants as that of an equitable mortgage and not an absolute sale and that the plaintiffs were only compelled to enter into the said transaction of sale with the defendants as the former were in extreme need of money in order to redeem their only conjugal property and to save it from being foreclosed for non-payment of the mortgage obligation and that it was never the intention of the plaintiffs to sell the property to the defendants, as it was their agreement that plaintiffs can redeem the property or any member of the family thereof, when they become financially stable.4 The dispositive portion of the trial courts decision thus provides: WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of the plaintiffs and against the defendants, ordering the latter jointly and severally, as follows: 1. To reconvey the subject property to the plaintiffs upon payment of the price stipulated in the contract of sale; 2. To pay plaintiffs the sum of P50,000.00 as moral damages; 3. To pay plaintiffs the sum of P50,000.00 as and by way of attorneys fees plus P1,000.00 per court appearance; 4. To pay the costs of suit. SO ORDERED.5 The Court of Appeals reversed the above decision, finding that private respondents were denied due process by the refusal of the trial court to lift the order of default against them, and that the transaction between petitioners and Cruz was one of absolute sale, not of equitable mortgage. It also held the RTC decision to be constitutionally infirm for its failure to clearly and distinctly state the facts and the law on which it is based. The Court of Appeals held that the reformation of the Deeds of Absolute Sale in the instant case is improper because there is no showing that such instrument failed to express the true intention of the parties by reason of mistake, fraud, inequitable conduct, or accident in the execution thereof.6 To the Court of Appeals, the transaction was unmistakably a contract of sale, as evidenced by the numerous supporting documents thereto, such as the Contract to Sell dated June 1992, Affidavit of Waiver/Assignment dated August 14, 1992, Receipt of Partial Advance Payment dated September 9, 1992, and Transfer Certificate of Title No. 229891 issued in the name of private respondent Cruz. Going over the indicators giving rise to a presumption of equitable mortgage cited in the decision of the RTC, the Court of Appeals held: (1) inadequacy of price is material only in a sale with right to repurchase, which is not the case with herein petitioners and Cruz; moreover, the estimate of the market value of the property came only from the bare testimony of petitioner Octavio Lorbes, (2) petitioners remaining in possession of the property resulted only from their refusal to vacate the same despite the lawful demands of private respondent Cruz, and (3) there was no documentary evidence that petitioners continued paying the taxes on the disputed property after the execution of the Deed of Absolute Sale.

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In its decision, the Court of Appeals also pointed out that under the usual arrangement of pacto de retro the vendor of the property is a debtor of the vendee, and the property is used as security for his obligation. In the instant case, the mortgage creditors (the Carloses) are third persons to the Deed of Absolute Sale. This petition raises three issues before the Court: (1) whether respondent court erred in ruling that the Deed of Absolute Sale dated October 21, 1992 was an equitable mortgage, (2) whether respondent court erred in ruling that by declaring private respondents in default they were denied due process of law, and (3) whether respondent court erred in ruling that the trial courts decision violates the constitutional requirement that it should clearly and distinctly state the facts and the law on which it is based.7 We shall first deal with the second and third issues, these being preliminary matters. Well-settled is the rule that courts should be liberal in setting aside orders of default for judgments of default are frowned upon, unless in cases where it clearly appears that the reopening of the case is intended for delay.8 The issuance of orders of default should be the exception rather than the rule, to be allowed only in clear cases of obstinate refusal by the defendant to comply with the orders of the trial court.9 Under the factual milieu of this case, the RTC was indeed remiss in denying private respondents motion to lift the order of default and to strike out the evidence presented by petitioners ex parte, especially considering that an answer was filed, though out of time. We thus sustain the holding of the Court of Appeals that the default order of the RTC was immoderate and in violation of private respondents due process rights. However, we do not think that the violation was of a degree as to justify a remand of the proceedings to the trial court, first, because such relief was not prayed for by private respondents, and second, because the affirmative defenses and evidence that private respondents would have presented before the RTC were capably ventilated before respondent court, and were taken into account by the latter in reviewing the correctness of the evaluation of petitioners evidence by the RTC and ultimately, in reversing the decision of the RTC. This is evident from the discussions in the decision of the Court of Appeals, which cited with approval a number of private respondents arguments and evidence, including the documents annexed to their opposition to the issuance of a writ of preliminary injunction filed with the RTC.10 To emphasize, the reversal of respondent court was not simply on due process grounds but on the merits, going into the issue of whether the transaction was one of equitable mortgage or of sale, and so we find that we can properly take cognizance of the substantive issue in this case, while of course bearing in mind the inordinate manner by which the RTC issued its default order. As regards the third issue, we reverse for being unfounded the holding of the Court of Appeals since the RTC decision, some parts of which we even reproduced in our earlier discussions, clearly complied with the constitutional requirement to state clearly and distinctly the facts and the law on which it was based. Thus, the one issue essential to the resolution of this case is the nature of the transaction between petitioners and private respondent Cruz concerning the subject parcel of land. Did the parties intend for the contested Deed of Absolute Sale to be a bona fide and absolute conveyance of the property, or merely an equitable mortgage?

On the outset, it must be emphasized that there is no conclusive test to determine whether a deed absolute on its face is really a simple loan accommodation secured by a mortgage.11 "The decisive factor in evaluating such agreement is the intention of the parties, as shown not necessarily by the terminology used in the contract but by all the surrounding circumstances, such as the relative situation of the parties at that time, the attitude, acts, conduct, declarations of the parties, the negotiations between them leading to the deed, and generally, all pertinent facts having a tendency to fix and determine the real nature of their design and understanding. As such, documentary and parol evidence may be submitted and admitted to prove the intention of the parties."12 The conditions which give way to a presumption of equitable mortgage, as set out in Article 1602 of the Civil Code, apply with equal force to a contract purporting to be one of absolute sale.13 Moreover, the presence of even one of the circumstances laid out in Article 1602, and not a concurrence of the circumstances therein enumerated, suffices to construe a contract of sale to be one of equitable mortgage.14 This is simply in consonance with the rule that the law favors the least transmission of property rights.15 Thus, under Article 1602 of the Civil Code, a contract shall be presumed to be an equitable mortgage when --- (a) the price of a sale with right to repurchase is unusually inadequate; (b) the vendor remains in possession as lessee or otherwise; (c) upon or after the expiration of the right of repurchase another instrument extending the period of redemption or granting a new period is executed; (d) the purchaser retains for himself a part of the purchase price; (e) the vendor binds himself to pay the taxes on the thing sold; and, (f) in any other case where it may be fairly inferred that the real intention of the parties is that the transaction shall secure the payment of a debt or the performance of any other obligation. Applying the foregoing considerations to the instant case, the Court finds that the true intention between the parties for executing the Deed of Absolute Sale was not to convey ownership of the property in question but merely to secure the housing loan of Cruz, in which petitioners had a direct interest since the proceeds thereof were to be immediately applied to their outstanding mortgage obligation to the Carloses. It is not disputed that before the execution of the Deed of Absolute Sale petitioners mortgage obligation to the Carloses as nearing maturity and they were in dire need of money to meet the same. Hence, they asked for the help of their son-in-law delos Reyes who in turn requested Cruz to take out a housing loan with Land Bank. Since collateral is a standard requirement of banks in giving out loans, it was made to appear that the subject property was sold to Cruz so she can declare the same as collateral for the housing loan. This was simply in line with the basic requirement in our laws that the mortgagor be the absolute owner of the property sought to be mortgaged.16Consistent with their agreement, as soon as the housing loan was approved, the full amount of the proceeds were immediately turned over to petitioners, who promptly paid P500,000.00 therefrom to the Carloses in full satisfaction of their mortgage obligation. The balance was spent by petitioners in transferring title to the property to Cruz and registering the new mortgage with Land Bank. Understandably, the Deed of Absolute Sale and its supporting documents do not reflect the true arrangement between the parties as to how the loan proceeds are to be actually applied because it was not the intention of the parties for these documents to do so. The sole purpose

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for preparing these documents was to satisfy Land Bank that the requirement of collateral relative to Cruzs application for a housing loan was met. Were we to accept, as respondent court had, that the loan that Cruz took out with Land Bank was indeed a housing loan, then it is rather curious that Cruz kept none of the loan proceeds but allowed for the bulk thereof to be immediately applied to the payment of petitioners outstanding mortgage obligation. It also strains credulity that petitioners, who were exhausting all means to save their sole conjugal real property from being foreclosed by the Carloses, would concurrently part with the same in favor of Cruz. Such urgent prospect of foreclosure helps to explain why petitioners would subscribe to an agreement like the Deed of Absolute Sale in the herein case, which on its face represents their unconditional relinquishment of ownership over their property. Passing upon previous similar situations the Court has declared that "while it was true that plaintiffs were aware of the contents of the contracts, the preponderance of the evidence showed however that they signed knowing that said contracts did not express their real intention, and if they did so notwithstanding this, it was due to the urgent necessity of obtaining funds. "Necessitous men are not, truly speaking, free men; but to answer a present emergency, will submit to any terms that the crafty may impose upon them."17 The facts further bear out that petitioners remained in possession of the disputed property after the execution of the Deed of Absolute Sale and the transfer of registered title to Cruz in October 1992. Cruz made no demand on petitioners to vacate the subject premises until March 19, 1994;18 interestingly, this was two days after petitioners signified their intention to redeem the property by paying the full amount of P600,000.00. 19 On this basis, the finding of respondent court that petitioners remained in possession of the property only because they refused to vacate on Cruzs demand is not accurate because the records reflect that no such demand was made until more than a year since the purported sale of the property. Copies of realty tax receipts attached to the record also show that petitioners continued paying for the taxes on the property for the period 1992 to 1994, 20 or after the property was supposed to have been sold to Cruz. From the above, the Court is satisfied that enough of the circumstances set out in Article 1602 of the Civil Code are attendant in the instant case, as to show that the true arrangement between petitioners and private respondent Cruz was an equitable mortgage. That a transfer certificate of title was issued in favor of private respondent Cruz also does not import conclusive evidence of ownership or that the agreement between the parties was one of sale. As was stated in Oronce vs. Court of Appeals,21 citing Macapinlac vs. Gutierrez Repide22: xxx it must be borne in mind that the equitable doctrine xxx to the effect that any conveyance intended as security for a debt will be held in effect to be a mortgage, whether so actually expressed in the instrument or not, operates regardless of the form of the agreement chosen by the contracting parties as the repository of their will. Equity looks through the form and considers the substance; and no kind of engagement can be adopted which will enable the parties to escape from the equitable doctrine to which reference is made. In other words, a conveyance of land, accompanied by registration in the name of the transferee and the issuance of a new certificate, is no more secured from the operation of the equitable doctrine than the most informal conveyance that could be devised.

Before we fully set aside this issue, it will be recalled that the instant petition originated as a complaint for reformation filed before the RTC of Antipolo, Rizal. The Court of Appeals found petitioners action for reformation unmeritorious because there was no showing that the failure of the deed of sale to express the parties true intention was because of mistake, fraud, inequitable conduct, or accident.23 Indeed, under the facts of the present case, reformation may not be proper for failure to fully meet the requisites in Article 1359 of the Civil Code, and because as the evidence eventually bore out the contested Deed of Absolute Sale was not intended to reflect the true agreement between the parties but was merely to comply with the collateral requirements of Land Bank. However, the fact that the complaint filed by petitioners before the trial court was categorized to be one for reformation of instrument should not preclude the Court from passing upon the issue of whether the transaction was in fact an equitable mortgage as the same has been squarely raised in the complaint and had been the subject of arguments and evidence of the parties. Thus we have held that it is not the caption of the pleading but the allegations therein that determine the nature of the action, and the Court shall grant relief warranted by the allegations and the proof even if no such relief is prayed for.24 Finally, on the award of damages. Considering the due process flaws that attended the default judgment of the RTC, and applying the rule adopted by this Court that in instances where no actual damages are adjudicated the awards for moral and exemplary damages may be reduced,25 we reduce the award for moral damages in the instant case from P50,000.00 to P30,000.00. At the same time, we sustain the award of attorneys fees in the amount of P50,000.00, it being clear that petitioners were compelled to incur expenses and undergo the rigors of litigation to recover their property.1wphi1.nt WHEREFORE, the decision of the Court of Appeals is REVERSED and SET ASIDE. The decision of the Regional Trial Court of Antipolo, Rizal is REINSTATED, with the MODIFICATION that the award of moral damages is reduced to P30,000.00, and in all other respects AFFIRMED. Costs against private respondents. SO ORDERED. Melo, Vitug, Panganiban, and Sandoval-Gutierrez, JJ., concur. G.R. No. L-39962 April 7, 1976 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RICARDO BERIALES, BENEDICTO CUSTODIO and PABLITO CUSTODIO, accusedappellants. Francisco D. Abas for appellants. Solicitor General Estelito P. Mendoza, Assistant Solicitor General Alicia V. Sempio-Diy and Solicitor Amado D. Aquino for appellee. CONCEPCION JR., J.: Appeal from the decision of the Court of First Instance of Leyte, Branch V, Ormoc City, in Criminal Case No. 562-0, convicting the accused Ricardo Beriales Benedicto Custodio and Pablito Custodio of the crime of murder, sentencing each one of them to the penalty

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of reclusion perpetua, and to jointly and severally pay the heirs of Saturnina Gonzales Porcadilla the sum of P12,000.00 and to pay the costs. 1 It appears that in Criminal Case No. 562-0 the herein appellants were charged with the crime of murder in an information filed by the City Fiscal of Ormoc City on November 22, 1974, allegedly committed as follows: That on or about the 13th of September, 1974, at around 9:00 o'clock in the morning at Barrio Mahayahay, this city, and within the jurisdiction of this Honorable Court, the above-named accused, RICARDO BERIALES BENEDICTO CUSTODIO and PABLITO CUSTODIO, conspiring together, confederating with and mutually helping and aiding one another, with treachery and evident premeditation and with intent to kill, did then and there wilfully, unlawfully and feloniously attack, assault, strike and stab the person of SATURNINA PORCADILLA, without giving the latter sufficient time to defend herself, thereby inflicting upon the latter mortal wounds which caused her death. ... 2 At the hearing of November 26, 1974, appellants' counsel moved for a reinvestigation of said ease, along with two other related cases 3 which the court a quo granted, in its Order reading as follows: On motion of Atty. Abas counsel for the accused and without objection on the part of Fiscal Ramon So Jr., let the reinvestigation of this case immediately take place at the Office of the City Fiscal and let the arraignment and trial be postponed until December 5 and 6, 1974 at 7:30 a.m. of each day, if and when the Fiscal shall recommend that the case shall proceed after it shall have been reinvestigated, with notice to Attys. Abas and Cornejos as well as Fiscal Solis in open court. 4 On December 3, 1974, the trial court postponed the hearing of the case to December 17 and 18, 1974. 5 in view of the City Fiscal's motion "for a deferment of the hearing or trial set for December 5 and 6, 1974 until such time the REINVESTIGATION shall have been terminated for which the result of said reinvestigation will be submitted to this Honorable Court for its resolution in the premises." 6 On December 6, 1974, however, the trial court, motu proprio cancelled the aforesaid hearings on December 17, and 18, 1974, and, instead, reset the arraignment and trial of the case to December 10 and 11, 1974. 7 At the hearing of December 10, 1974, appellants counsel manifested to the court that pursuant to its approval of his motion for reinvestigation, the City Fiscal had set the reinvestigation for December 12, 1974 and had already issued the corresponding subpoena to secure the attendance of the witnesses. 8 Nevertheless, the court a quo,issued an order setting the hearing of the case to the next day, December 11, 1974, 9 at which hearing, appellants' counsel reiterated his manifestation that since the City Fiscal had already ordered the reinvestigation on December 12, 1974, the said reinvestigation should first be finished and the corresponding resolution rendered thereon and submitted to the court before any trial of the case should take place. 10 The trial court, however, relying on the mandate of the New Constitution that "All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies" 11 re-scheduled the hearing to December 13, 1974. 12 Immediately thereafter, Special Counsel Rosario R. Polines, in representation of the City Fiscal,

manifested that the private prosecutor, Atty. Procadilla, be authorized to conduct the case for the prosecution. When the case was called for hearing on December 13, 1974, counsel for the appellant asked the court to wait for the City Fiscal to appear, since the reinvestigation of the case had already been terminated and the Fiscal, if given a chance, might be able to report on said reinvestigation. 14 The trial court, however, insisted in arraigning the appellants. 15 When arraigned, the three appellants declined to plead, saying: "I am not going to answer the question because the Fiscal is not yet around." 16 Thereupon, the trial court entered a plea of "Not Guilty" for each of them. 17 Thereafter, appellants' counsel again manifested that the City Fiscal was absent and that they could not go to trial without the fiscal and his report on the reinvestigation conducted by him. 18 Nonetheless, the trial court, ordered the presentation of evidence by the private prosecutor since he had been previously authorized by the City Fiscal to handle the case. 19 After the direct examination of the witnesses presented by the private prosecutor, the trial court asked the counsel for the defense if he desired to cross-examine the witnesses. Appellants' counsel, however, reiterated his manifestation that they would not go to trial until the City Fiscal shall have submitted the result of the reinvestigation to the court, and the court each time ruled that it considered such manifestation as a waiver on the part of the appellants to cross-examine the witnesses. 20 Thereafter, the private prosecutor rested the case for the prosecution and the court called for the evidence of the defense. Again, appellants' counsel manifested that the appellants were not agreeing to the trial of the case unless they first received the result of the reinvestigation conducted by the City Fiscal. 21 Whereupon, the court considered the case submitted for decision and announced the promulgation of the decision on December 17, 1974. 22 When the case was called on December 17, 1974, appellants' counsel manifested that the accused were not in conformity with the promulgation of the decision on the ground that they did not agree to the trial of the case. 23Nonetheless, the trial court promulgated its judgment on the same day. 24 Hence, the appellants interpose this appeal, upon the principal ground that they were denied due process of law.25 The Solicitor General agrees with such contention and recommends that the judgment under review be set aside and the case remanded to the lower court for another arraignment and trial. 26 We sustain the appellants. After the trial court granted the appellants' motion for reinvestigation, it became incumbent upon the court to hold in abeyance the arraignment and trial of the case until the City Fiscal shall have conducted and made his report on the result of such reinvestigation. That was a matter of duty on its part, not only to be consistent with its own order but also to do justice aid at the same time to avoid a possible miscarriage of justice. It should be borne in mind, that the appellants herein were charged with the serious crime of murder, and considering that their motion for reinvestigation is based upon the ground that it was Felipe Porcadilla (husband and father, respectively, of the two deceased, Saturnina Porcadilla and Quirino Porcadilla) who was the aggressor for having attacked and seriously wounded appellant Pablito Custodio 27 it was entirely possible for the City Fiscal to modify or change his conclusion after conducting the reinvestigation. When the trial court, therefore, ignored the appellants' manifestations objecting to the arraignment and the trial of the case,

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until after the City Fiscal shall have rendered a resolution on his reinvestigation, but instead considered such manifestations on their part as a plea of riot guilty and proceeded to try the case, received the evidence for the prosecution, and then rendered judgment against them on the basis thereof, it committed a serious irregularity which nullifies the proceedings below because such a procedure is repugnant to the due process clause of the Constitution. 28 Besides, as correctly pointed out by the Solicitor General, "what is more deplorable and which renders patently irregular all the proceedings taken in this case, was the total absence of the City Fiscal and/or any of his assistants or special counsel on December 13, 1974, when the appellants were arraigned and when the private prosecutor presented evidence and rested the case supposedly for the People. Under the Rules of Court, "All criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal." 29 In the trial of criminal cases, it is the duty of the public prosecutor to appeal for the government. 30 As stated by this Court, "once a public prosecutor has been entrusted with the investigation of a case and has acted thereon by filing the necessary information in court he is b law in duty bound to take charge thereof until its finally termination, for under the law he assumes full responsibility for his failure or success since he is the one more adequately prepared to pursue it to its termination." 31 While there is nothing in the rule of practice and procedure in criminal cases which denies the right of the fiscal, in the exercise of a sound discretion, to turn over the active conduct of the trial to a private prosecutor, 32 nevertheless, his duty to direct and control the prosecution of criminal cases requires that he must be present during the proceedings. Thus, in the case of People vs. Munar 33 this Court upheld the right of the private prosecutor therein to conduct the examination of the witnesses because the government prosecutors were present at the hearing; hence, the prosecution of the case remained under their direct supervision and control. In the present case, although the private prosecutor had previously been authorized by the special counsel Rosario R. Polines to present the evidence for the prosecution, nevertheless, in view of the absence of the City Fiscal at the hearing on December 13, 1974, it cannot be said that the prosecution of the case was under the control of the City Fiscal. It follows that the evidence presented by the private prosecutor at said hearing could not be considered as evidence for the plaintiff, the People of the Philippines. There was, therefore, no evidence at all to speak of which could have been the basis of the decision of the trial court. Moreover, as aptly observed by the Solicitor General, "to permit such prosecution of a criminal case by the private prosecutor with the fiscal in absentia can set an obnoxious precedent that can be taken advantage of by some indolent members of the prosecuting arm of the government as well as those who are oblivious of their bounden duty to see to it not only that the guilty should be convicted, but that the innocent should be acquitted a duty that can only be effectively and sincerely performed if they actively participate in the conduct of the case, especially in the examination of the witnesses and the presentation of documentary evidence for both parties." 34 WHEREFORE, the decision appealed from is hereby set aside and the case remanded to the trial court for another arraignment and trial. Costs de oficio. SO ORDERED. Barredo, Antonio, Aquino and Martin, JJ., concur.

G.R. No. L-52364 March 25, 1983 RICARDO VALLADOLID, petitioner, vs. HON. AMADO G. INCIONG, Deputy Minister of Labor, and COPACABANA APARTMENTHOTEL, respondents. G.R. No.L-53349 March 25, 1983 J.R.M. & CO., INC. as owner and operator of Copacabana Apartment-Hotel petitioners, vs. HON. AMADO G. INCIONG, as Deputy Minister of Labor,HON. FRANCISCO L. ESTRELLA, as Regional Director of the National Capital Region, Ministry of Labor, nd RICARDO VALLADOLID, respondents. Daniel Co for petitioner Ricardo Valadolid. The Solicitor General for respondents. Vicente V. Ocampo & Antonio V. de Ocampo for J.R.M. & Co., Inc. MELENCIO-HERRERA, J.: The Order dated December 26, 1979 of the Deputy Minister of Labor affirming the Order of May 2, 1979 for reinstatement without backwages issued by Regional Director Francisco L. Estrella in Case No. R4-STF-2-1316-79 entitled, "Ricardo C. Valladolid, Jr. vs. Copacabana Apartment-Hotel," is being assailed by the parties in these petitions. J. R. M. & Co., Inc. (hereinafter referred to as JRM), as petitioner in G.R. No. 53349, is also the respondent in G.R. No. 52364 named therein as Copacabana Apartment-Hotel. JRM originally owned and operated not only Copacabana but also Tropicana Apartment-Hotel. The principal stockholders of JRM were the brothers Joseph, Manuel, Vicente and Roman, all surnamed Yu. Upon the death of Joseph on October 12, 1975, although both Copacabana and Tropicana continued technically as owned by JRM, the controlling (70%) interest in Copacabana was lodged in the surviving heirs of Joseph, with brothers Manuel and Roman having a 15% interest each. JRM was placed under the management of the heirs of Joseph. The brothers Manuel, Roman and Vicente were allowed 100% equity interest in Tropicana, which was operated separately from JRM. Eventually, Tropicana and Copacabana became competing businesses. Ricardo Valladolid, petitioner in G.R. No. 52364 and respondent in G.R. No. 53349, after the death of Joseph, was employed by JRM in 1977 as a telephone switchboard operator. He was subsequently transferred to the position of clerk-collector by Mrs. Lourdes T. Yu, President of JRM. According to the affidavit of Daniel T. Yu, Executive Vice-President, attached to the position paper submitted by JRM before the Regional Director, the transfer was motivated by the fact: xxx xxx xxx That as such switchboard operator numerous telephone conversations and communications relating to business and confidential matters were intercepted and relayed to Tropicana Apartment-Hotel, a competitor;

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That to confirm suspicion on Ricardo Valladolid as the person responsible for said interception and relay, Mrs. Lourdes T. Yu, President of JRM & Co., Inc. sent him on an errand to Manila Hotel to bring flowers on the occasion of Wedding Anniversary of Mr. & Mrs. Yu Hong Ty. Matters which Mrs. Lourdes Yu told him in confidence and admonitions not to tell anyone, reached Tropicana people; xxx xxx xxx 1 The affidavit further disclosed: xxx xxx xxx That while serving in his capacity as clerk/collector, copies of Accounts Receivables, reach Tropicana Management although said copies were not referred to them; That conferred (sic) on numerous confidential matters taken in the office of Copacabana Apartment-Hotel reached Tropicana Apartment-Hotel; That to finally and fully confirmed suspicions that Ricardo Valladolid was the person responsible for the aforementioned disclosures, a plan for the entrapment was conceived by the management of Copacabana Apartment- Hotel; That on November 9, 1979, pursuance of said plan, a cash voucher for P500,000.00 supposedly in payment for representation expenses to myself with the corresponding check were prepared and issued respectively by Juan V. Bermudo, Apartment-Hotel Manager, who thereafter called Ricardo Valladolid and asked the latter to bring the said cash voucher and check to my room which he did; few minutes later I came down to the office and asked Mr. Ricardo Valladolid to prepare the corresponding deposit slip to Pacific Banking Corporation for said check; That thereafter, the aforementioned cash voucher, corresponding check and deposit slip were kept in the hotel vault with no other person other than myself, Juan Bermudo and Ricardo Valladolid having any knowledge of preparation and existence thereof; That unknown to Ricardo Villadolid, the aforementioned check, cash voucher and deposit slip were cancelled; That on December 4, 1978, Mr. Manuel Yu Chua, came to Copacabana Apartment-Hotel as minority stockholder of the latter, vehemently demanding for an accounting of Copacabana books; That he strongly charged that information reached him that I received a disbursement of P500,000.00 from Copacabana Apartment-Hotel as representation expenses in my capacity as Executive Vice-President thereof; That at this juncture, I brought out the cancelled cash voucher, check and deposit slip with mouth agape Manuel Yu Chua, could do nothing else but admit that in fact, his informer within Copacabana Apartment-Hotel was no other than Mr. Ricardo C. Villadolid; That I then informed Manuel Yu Chua, that under the circumstances, I could no longer repose any trust whatsoever on Ricardo Valladolid and requested him to take the latter to Tropicana Apartment-Hotel and just swap him with someone else; Mr. Manuel Yu Chua directed me to tell Valladolid to see him; That after few days, Ricardo Valladolid came back and told me that Manuel Yu Chua has no place for him at Tropicana Apartment-Hotel; in this conversation, Ricardo Valladolid apologized for having betrayed the trust that we had reposed on him, especially after Mrs.

Lourdes T. Yu had told him to stay impartial; that he then having done this for Manuel Yu Chua, the latter could not even accept him in Tropicana Apartment-Hotel; xxx xxx xxx 2 The entrapment scheme was corroborated by the affidavits of Sofia Mo. Gianan, External Auditor of J.R.M. & Co., Inc., and Juan V. Bermudo, Copacabana Apartment-Hotel Manager, which affidavits formed part of JRM's position paper filed before the agency below. 3 The cancelled Cash Voucher, the uncashed check, and the unused deposit slip, all in the respective amounts of P500,000.00 were also attached to the same position paper as Exhibits "4", "5" and "6". On December 29, 1978, or after the entrapment scheme had been effected, Valladolid filed a written request for a five (5) day vacation leave starting December 30, 1978 with the Manager of Copacabana, stating therein that he would report for work on January 5, 1979. 4 He did not report for work on January 5 but sent a telegram from Bicol on January 8, 1979 requesting for 15 days sick leave as he was confined for flu at the Dr. Estrellado Clinic. 5 On January 23, 1979, Valladolid's wife allegedly called up JRM informing the company through its accountant, Eddie Escueta, that her husband was still sick and requested for 30 days sick leave, which was allegedly granted. This was denied by JRM. Valladolid reported for work on February 16, 1979. The Executive Vice- President, Mr. Daniel Yu, allegedly refused to admit him and instead asked him to resign. JRM maintains that Valladolid left the office that same day and never returned, because he was reprimanded for his unauthorized absences. On February 22, 1979, Valladolid filed a Complaint for Illegal Dismissal with vacation and sick leave pay. 6 On February 24, 1979, JRM sent a letter to Valladolid signed by Daniel T. Yu, advising him of his preventive suspension effective February 26, 1979 preparatory to the termination of his services 10 days from receipt of a copy of the application for clearance to dismiss him. The grounds given were: (1) Willful Breach of Trust for having divulged, in various instances, confidential business matters to competitors of the company; and (2) Gross Neglect of Duty for having been absent without leave or notice for more than 25 days, to the detriment of the company. 7 On February 28, 1979, JRM filed said application for clearance with the Ministry of Labor. 8 The application for clearance and Valladolid's complaint for Illegal Dismissal were consolidated and docketed as R4-STF-2-1316-79. The parties submitted their respective position papers and documentary evidence. On May 2, 1979, the Regional Director issued the following challenged Order: WHEREFORE, premises considered, the application for clearance with preventive suspension is hereby denied. Respondent is hereby ordered to reinstate complainant to his former position without backwages and without loss of seniority rights. Let the time this case was pending be considered as complainant's suspension for his absences. The claim for vacation sick leave pay is dismissed for failure to substantiate the same. Valladolid appealed the foregoing order to the Minister of Labor seeking modification of the same, praying for the award of backwages from the time he was illegally dismissed on February 16, 1979 to the date of his actual reinstatement. JRM also appealed the said Order.

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On December 26, 1979, the Deputy Minister of Labor, in a succinct Order, dismissed both appeals after finding "no sufficient justification or valid reason to alter, modify, much less reverse the Order appealed from." On January 21, 1980, Valladolid filed a Petition for certiorari with this Court, docketed as G.R. No. 52364, praying for a modification of the Order of December 26, 1979 of the Deputy Minister of Labor so as to grant him backwages. This Court resolved. on February 4, 1980, to give due course to the petition, and required the parties to submit simultaneous memoranda. On March 12, 1980, JRM also filed a petition for certiorari with this Court assailing that same Order. This Court gave due course to the petition and consolidated the same with G.R. No. 52364. Thereafter, the parties filed their respective memoranda. The non-award of backwages is the only issue being raised by Valladolid claiming that the Orders in question are contrary to law and evidence, and were issued arbitrarily and capriciously with grave abuse of discretion, amounting to excess or lack of jurisdiction. JRM, on the other hand, assails the said Orders on the following grounds: I That respondent Deputy Minister of Labor committed grave abuse of discretion when in his questioned order in effect sustained the finding of respondent Regional Director that there is no evidence to support the dismissal of private respondent. II That respondent Deputy Minister Amado Inciong and Regional Director Francisco Estrella committed grave abuse of discretion when they arbitrarily failed to consider in their respective orders under review, established jurisprudence. III That respondent Regional Director committed grave abuse of discretion when he held that preventive suspension is equivalent to dismissal. IV That the order of respondent Hon. Amado Inciong was a capricious and whimsical exercise of judgment when it failed to state the facts and conclusion of law upon which it is based. V That respondent Regional Director Francisco Estrella acted in excess of his jurisdiction when, without any statutory authority or transcending beyond his jurisdiction, he absolutely disregarded procedural requirement in the hearing of the present controversy, thus depriving petitioner of its right to due process. Valladolid, in his affidavit dated March 29, 1979, denied having committed any breach of trust. 9 In corroboration, he presented the affidavits of Mr. Manuel Yu dated March 20, 1979 and March 29, 1979, wherein the latter stated that Valladolid was "one of Copacabana's most hard-working and efficient employees;" that Valladolid's work is "mere routinary collection and clerical in nature which do not involve trust (or) confidential business or trade secrets which he may 'divulge' to other companies." 10 On this issue, the Regional Director ruled that "there is no evidence on record that Valladolid furnished copies of receivables or divulged confidential business matters to Mr. Manuel Yu and the 'Tropicana People' including the P500,000.00 'entrapment scheme.'" That finding is not supported by the records. The affidavits attached to petitioner's position paper adequately show that JRM did not act on mere suspicion but on the contrary, acted

prudently when it first transferred Valladolid from switchboard operator where he could eavesdrop on telephone conversations, to a less crucial position of clerk-collector. But even in the latter capacity, JRM's fears were confirmed as shown by the entrapment scheme. Manuel Yu's certification as to Valladolid's trustworthiness cannot be given much weight not only because it was disproved by the entrapment contrived but more so because even Manuel Yu himself refused to employ him at Tropicana when Daniel Yu had suggested that Tropicana absorb Valladolid because JRM had lost confidence in the latter. And although Manuel Yu, who owns 15% of the equity holding of Copacabana, and being a member of the Board of Directors of JRM had a right to know the business standing of said establishment, there is basis to believe that he would not have been able to pinpoint the particular "disbursement" of P500,000.00, if the same had not been leaked out to him. Loss of confidence is a valid ground for dismissing an employee. Proof beyond reasonable doubt of the employee's misconduct is not required, it being sufficient that there is some basis for the same or that the employer has reasonable ground to believe that the employee is responsible for the misconduct and his participation therein renders him unworthy of the trust and confidence demanded of his position. 11 However, as this was Valladolid's first offense, as found by the Regional Director, dismissal from the service is too harsh a punishment, considering that he had not been previously admonished, warned or suspended for any misdemeanor. Besides as clerk-collector, he need not be given access to facts relative to the business of Copacabana, which, if divulged to Tropicana would be to the former's prejudice. Moreover, we find basis for the finding of the Regional Director that Valladolid was terminated without prior clearance. J.R.M. sent a memorandum to Valladolid on February 24, 1979 advising him of his preventive suspension effective February 26, 1979 pending approval of the application for clearance to dismiss him. The clearance application was filed on February 28, 1979. However, even prior to that date, or on February 22, 1979, Valladolid had already filed a complaint for Illegal Dismissal. This shows that Valladolid was indeed refused admittance on February 16, 1979 when he reported back to work, so that he was practically dismissed before he was formally notified of his suspension leading to his dismissal, in violation of the requirement of Section 3, Rule XIV, Book V, Rules & Regulation Implementing the Labor Code. 12 And as provided in Section 2 of the same Rule, any dismissal without prior clearance shall be "conclusively presumed to be termination of employment without a just cause." JRM cannot claim that it was deprived of due process considering that applications for clearance have to be summarily investigated and a decision required to be rendered within ten (10) days from the filing of the opposition13 As this Court had occasion to hold there is no violation of due process where the Regional Director merely required the submission of position papers and resolved the case summarily thereafter. 14 Nor is the questioned Order of the Deputy Minister of Labor violative of Section 9, Article X of the Constitution, which requires a statement of the facts and the conclusions of law upon which it is based. That prescription applies to decisions of Courts of record. The Ministry of Labor is an administrative body with quasi-judicial functions. Section 5, Rule XIII, Book V, Ibid, states that proceedings in the NLRC shall be non-litigious and summary in nature without regard to legal technicalities obtaining in courts of law. As the Deputy Minister was in full accord with the findings of fact and the conclusions of law drawn from those facts by the Regional Director, there was no necessity of discussing anew the issues raised therein.

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JRM admits that Valladolid requested for leave for 5 days from December 30, 1978, and thereafter for 15 days, but denies that he notified the company of his absences subsequent to this. The Regional Director ruled that the absences of Valladolid were unauthorized but did not amount to gross neglect of duty or abandonment of work which requires deliberate refusal to resume employment or a clear showing in terms of specific circumstances that the worker does not intend to report for work. We agree. But as Valladolid had been AWOL, no error was committed by respondent Regional Director in ordering his reinstatement without backwages. 16 WHEREFORE, both Petitions for certiorari are hereby denied. No costs. SO ORDERED. Plana, Vasquez, Relova and Gutierrez, Jr., JJ., concur. Teehankee, J., took no part. G.R. Nos. 109430-43 December 28, 1994 REPUBLIC OF THE PHILIPPINES, petitioner, vs. SANDIGANBAYAN (Second Division), IMELDA R. MARCOS AND ESTATE/HEIRS OF THE LATE FERDINAND E. MARCOS, respondents. M.M. Lazaro & Associates for respondent Imelda R. Marcos. RESOLUTION BELLOSILLO, J.: Challenged in this petition for certiorari (with prayer for writ of preliminary injunction or temporary restraining order) is the resolution of public respondent Sandiganbayan (Second Division) dated 28 October 1992 1 which lifted its order of default of 6 April 1989 against private respondent Imelda R. Marcos in connection with the now well-known "ill-gotten wealth" cases pending before said court as well as the resolution of 6 January 1993 2 denying the motion to reconsider the order of 28 October 1992. The Republic of the Philippines states assiduously that private respondent moved to regain her standing in court only on 8 July 1992, thereby incurring unreasonable delay, as demonstrated by the following circumstances: (a) The late Ferdinand E. Marcos died on 28 September 1989 and after his interment his widow, private respondent Imelda R. Marcos, was reasonably expected to regain her composure to enable her to attend to her cases; (b) She was exonerated in the racketeering case before the Southern District Court of New York on 2 July 1990 so that much of what public respondent considered as "abnormal burden" had "simply vanished or faded away"; and, (c) Upon her return to the Philippines in November 1991, she had every opportunity to personally take care of her cases being then fully aware of their pendency since 1987. From the moment she arrived, due diligence and reasonable promptness should have impelled her to take concrete steps in this regard; instead, she ran for the highest office of the land hoping that should she be successful in her bid all the cases against her would be rendered moot. Petitioner likewise disputes the finding of the Sandiganbayan that private respondent has prima facie meritorious defenses. Petitioner further claims that res judicata has set in

because the ruling in Imelda R. Marcos v. Presiding Justice Garchitorena, 3 has definitely settled the validity of the default order against private respondent. We find no grave abuse in the exercise of public respondent's discretion under review. First. Prefatorily, we shall resolve the claim of petitioner that the Imelda R. Marcos v. Presiding Justice Garchitorena cases have finally resolved the issue of whether the order of default was valid. It must be stressed that the resolution in said cases is conclusive only with respect to the default order for failure of the Marcoses to file their answer within sixty (60) days from 10 November 1988, the date the alias summonses were served. In other words, the central issue in those cases was whether there was valid service of summonses upon them in Hawaii. In the case at bench, we are asked to rule on the propriety of the grounds and circumstances set forth by private respondent to justify her failure to file her answers, which the Sandiganbayan considered as meritorious when it lifted the default order on 28 October 1992. As the causes of action are different, res judicata cannot be invoked. Second. Sec. 3, Rule 18, of the Rules of Court provides that "[a] party declared in default may at any time after discovery thereof and before judgment file a motion under oath to set aside the order of default upon proper showing that his failure to answer was due to fraud, accident, mistake or excusable neglect and that he has a meritorious defense. . . ." It is settled that whether the default order should be maintained under the circumstances attending a particular case, or whether it should be set aside, is addressed to the sound discretion of the trial court. 4 Absent any grave abuse, this Court will not interfere in the exercise of that discretion by the trial court. As a matter of fact, every presumption is in favor of the correctness of its action. 5 While Sec. 3 of Rule 18 is explicit that the reglementary period for filing the motion to lift the order of default is at any time after discovery and before judgment, it is to the party's advantage that such motion is filed promptly and without unnecessary delay 6 because this is a factor taken into account in granting the prayer. In this regard, petitioner asserts that there was inordinate delay on the part of private respondent in filing her motion. Be that as it may, the records disclose that almost all of the "ill-gotten wealth" cases against private respondent and her family have not even reached the pre-trial stage such that no real injury against the interest of the State will result with the lifting of the default order. Besides, as will hereafter be shown, the peculiar circumstances of the present case justify the questioned resolutions of public respondent. We agree with the ruling of the Sandiganbayan that the failure of private respondent to properly respond to the various complaints pending before it was due to fraud, accident and excusable neglect. At the time the complaints were instituted against private respondent, circumstances occurred which ordinary prudence could not have guarded against and by reason of which her rights were impaired. Thus, private respondent and her family were effectively barred by the government from returning to the Philippines. She was likewise burdened with numerous civil and criminal suits in the United States for alleged violation of the so-called RICO Act. Moreover, the deteriorating health of her husband aggravated the problems confronting her. Corollarily, the complexities of her legal battles necessitated extensive preparation but which she could not undertake as she was barred from coming back to the country. The claim of petitioner that she ran for the presidency for the purpose of

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rendering academic the cases against her in the event she succeeded is conjectural and speculative and deserves scant consideration. Third. Equally important as the evidence on fraud, accident and excusable neglect is that private respondent has shown, prima facie at least according to public respondent, that she has meritorious defenses the tenability of which remains to be ascertained during the trial. The proffered defenses are: (a) She neither took advantage nor abused her late husband's position to acquire funds and other assets for her own personal benefit and aggrandizement; (b) Subject funds and assets were legally acquired by her and her husband using legitimatelysourced private funds; (c) Subject transactions were all entered at arm's length and did not, under any circumstances, cause prejudice nor damage to petitioner and the Filipino people; and, (d) Subject funds and assets were merely entrusted to the individuals and/or corporations concerned. Fourth. Aside from the foregoing considerations, the most elementary sense of fairness and liberality appears to have prompted the Sandiganbayan to lift the order of default. Significantly, it is the avowed policy of the law to accord both parties every opportunity to pursue and defend their cases in the open and relegate technicality to the background in the interest of substantial justice. After all, petitioner had applied, on several occasions, for leave to file amended or expanded complaints which applications were invariably granted, notwithstanding the resulting delay. Perhaps, it is now the turn of private respondent to be the recipient of and enjoy the same procedural liberality if not compassion. WHEREFORE, there being no grave abuse of discretion committed by public respondent Sandiganbayan (Second Division) in the issuance of the assailed resolution of 28 October 1992 lifting the order of default, as well as the resolution of 6 January 1993 denying the reconsideration thereof, the instant petition is DISMISSED. SO ORDERED. Quiason and Kapunan, JJ., concur. G.R. No. 84818 December 18, 1989 PHILIPPINE COMMUNICATIONS SATELLITE CORPORATION, petitioner, vs. JOSE LUIS A. ALCUAZ, as NTC Commissioner, and NATIONAL TELECOMMUNICATIONS COMMISSION,respondents. Rilloraza, Africa, De Ocampo & Africa for petitioner. Victor de la Serna for respondent Alcuaz. REGALADO, J.: This case is posed as one of first impression in the sense that it involves the public utility services of the petitioner Philippine Communications Satellite Corporation (PHILCOMSAT, for short) which is the only one rendering such services in the Philippines. The petition before us seeks to annul and set aside an Order 1 issued by respondent Commissioner Jose Luis Alcuaz of the National Telecommunications Commission (hereafter, NTC), dated September 2, 1988, which directs the provisional reduction of the rates which may be charged by petitioner for certain specified lines of its services by fifteen percent (15%) with the reservation to make further reductions later, for being violative of the constitutional

prohibition against undue delegation of legislative power and a denial of procedural, as well as substantive, due process of law. The antecedental facts as summarized by petitioner 2 are not in dispute. By virtue of Republic Act No. 5514, PHILCOMSAT was granted "a franchise to establish, construct, maintain and operate in the Philippines, at such places as the grantee may select, station or stations and associated equipment and facilities for international satellite communications." Under this franchise, it was likewise granted the authority to "construct and operate such ground facilities as needed to deliver telecommunications services from the communications satellite system and ground terminal or terminals." Pursuant to said franchise, petitioner puts on record that it undertook the following activities and established the following installations: 1. In 1967, PHILCOMSAT established its provisional earth station in Pinugay, Rizal. 2. In 1968, earth station standard "A" antenna (Pinugay I) was established. Pinugay I provided direct satellite communication links with the Pacific Ocean Region (the United States, Australia, Canada, Hawaii, Guam, Korea, Thailand, China [PROC], New Zealand and Brunei) thru the Pacific Ocean INTELSAT satellite. 3. In 1971, a second earth station standard "A" antenna(Pinugay III) was established. Pinugay II provided links with the Indian Ocean Region (major cities in Europe, Middle East, Africa, and other Asia Pacific countries operating within the region) thru the Indian Ocean INTELSAT satellite. 4. In 1983, a third earth station standard "B" antenna (Pinugay III) was established to temporarily assume the functions of Pinugay I and then Pinugay II while they were being refurbished. Pinugay III now serves as spare or reserved antenna for possible contingencies. 5. In 1983, PHILCOMSAT constructed and installed a standard "B" antenna at Clark Air Field, Pampanga as a television receive-only earth station which provides the U.S. Military bases with a 24-hour television service. 6. In 1989, petitioner completed the installation of a third standard "A" earth station (Pinugay IV) to take over the links in Pinugay I due to obsolescence. 3 By designation of the Republic of the Philippines, the petitioner is also the sole signatory for the Philippines in the Agreement and the Operating Agreement relating to the International Telecommunications Satellite Organization (INTELSAT) of 115 member nations, as well as in the Convention and the Operating Agreement of the International Maritime Satellite Organization (INMARSAT) of 53 member nations, which two global commercial telecommunications satellite corporations were collectively established by various states in line with the principles set forth in Resolution 1721 (XVI) of the General Assembly of the United Nations. Since 1968, the petitioner has been leasing its satellite circuits to: 1. Philippine Long Distance Telephone Company; 2. Philippine Global Communications, Inc.; 3. Eastern Telecommunications Phils., Inc.; 4. Globe Mackay Cable and Radio Corp. ITT; and 5. Capitol Wireless, Inc. or their predecessors-in-interest. The satellite services thus provided by petitioner enable said international carriers to serve the public with indispensable communication services, such as

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overseas telephone, telex, facsimile, telegrams, high speed data, live television in full color, and television standard conversion from European to American or vice versa. Under Section 5 of Republic Act No. 5514, petitioner was exempt from the jurisdiction of the then Public Service Commission, now respondent NTC. However, pursuant to Executive Order No. 196 issued on June 17, 1987, petitioner was placed under the jurisdiction, control and regulation of respondent NTC, including all its facilities and services and the fixing of rates. Implementing said Executive Order No. 196, respondents required petitioner to apply for the requisite certificate of public convenience and necessity covering its facilities and the services it renders, as well as the corresponding authority to charge rates therefor. Consequently, under date of September 9, 1987, petitioner filed with respondent NTC an application 4 for authority to continue operating and maintaining the same facilities it has been continuously operating and maintaining since 1967, to continue providing the international satellite communications services it has likewise been providing since 1967, and to charge the current rates applied for in rendering such services. Pending hearing, it also applied for a provisional authority so that it can continue to operate and maintain the above mentioned facilities, provide the services and charge therefor the aforesaid rates therein applied for. On September 16, 1987, petitioner was granted a provisional authority to continue operating its existing facilities, to render the services it was then offering, and to charge the rates it was then charging. This authority was valid for six (6) months from the date of said order. 5 When said provisional authority expired on March 17, 1988, it was extended for another six (6) months, or up to September 16, 1988. The NTC order now in controversy had further extended the provisional authority of the petitioner for another six (6) months, counted from September 16, 1988, but it directed the petitioner to charge modified reduced rates through a reduction of fifteen percent (15%) on the present authorized rates. Respondent Commissioner ordered said reduction on the following ground: The Commission in its on-going review of present service rates takes note that after an initial evaluation by the Rates Regulation Division of the Common Carriers Authorization Department of the financial statements of applicant, there is merit in a REDUCTION in some of applicant's rates, subject to further reductions, should the Commission finds (sic) in its further evaluation that more reduction should be effected either on the basis of a provisional authorization or in the final consideration of the case. 6 PHILCOMSAT assails the above-quoted order for the following reasons: 1. The enabling act (Executive Order No. 546) of respondent NTC empowering it to fix rates for public service communications does not provide the necessary standards constitutionally required, hence there is an undue delegation of legislative power, particularly the adjudicatory powers of NTC; 2. Assuming arguendo that the rate-fixing power was properly and constitutionally conferred, the same was exercised in an unconstitutional manner, hence it is ultra vires, in that (a) the questioned order violates procedural due process for having been issued without prior notice and hearing; and (b) the rate reduction it imposes is unjust, unreasonable and confiscatory, thus constitutive of a violation of substantive due process. I. Petitioner asseverates that nowhere in the provisions of Executive Order No. 546, providing for the creation of respondent NTC and granting its rate-fixing powers, nor of Executive Order

No. 196, placing petitioner under the jurisdiction of respondent NTC, can it be inferred that respondent NTC is guided by any standard in the exercise of its rate-fixing and adjudicatory powers. While petitioner in its petition-in-chief raised the issue of undue delegation of legislative power, it subsequently clarified its said submission to mean that the order mandating a reduction of certain rates is undue delegation not of legislative but of quasijudicial power to respondent NTC, the exercise of which allegedly requires an express conferment by the legislative body. Whichever way it is presented, petitioner is in effect questioning the constitutionality of Executive Orders Nos. 546 and 196 on the ground that the same do not fix a standard for the exercise of the power therein conferred. We hold otherwise. Fundamental is the rule that delegation of legislative power may be sustained only upon the ground that some standard for its exercise is provided and that the legislature in making the delegation has prescribed the manner of the exercise of the delegated power. Therefore, when the administrative agency concerned, respondent NTC in this case, establishes a rate, its act must both be non- confiscatory and must have been established in the manner prescribed by the legislature; otherwise, in the absence of a fixed standard, the delegation of power becomes unconstitutional. In case of a delegation of rate-fixing power, the only standard which the legislature is required to prescribe for the guidance of the administrative authority is that the rate be reasonable and just. However, it has been held that even in the absence of an express requirement as to reasonableness, this standard may be implied. 7 It becomes important then to ascertain the nature of the power delegated to respondent NTC and the manner required by the statute for the lawful exercise thereof. Pursuant to Executive Orders Nos. 546 and 196, respondent NTC is empowered, among others, to determine and prescribe rates pertinent to the operation of public service communications which necessarily include the power to promulgate rules and regulations in connection therewith. And, under Section 15(g) of Executive Order No. 546, respondent NTC should be guided by the requirements of public safety, public interest and reasonable feasibility of maintaining effective competition of private entities in communications and broadcasting facilities. Likewise, in Section 6(d) thereof, which provides for the creation of the Ministry of Transportation and Communications with control and supervision over respondent NTC, it is specifically provided that the national economic viability of the entire network or components of the communications systems contemplated therein should be maintained at reasonable rates. We need not go into an in-depth analysis of the pertinent provisions of the law in order to conclude that respondent NTC, in the exercise of its rate-fixing power, is limited by the requirements of public safety, public interest, reasonable feasibility and reasonable rates, which conjointly more than satisfy the requirements of a valid delegation of legislative power. II. On another tack, petitioner submits that the questioned order violates procedural due process because it was issued motu proprio, without notice to petitioner and without the benefit of a hearing. Petitioner laments that said order was based merely on an "initial evaluation," which is a unilateral evaluation, but had petitioner been given an opportunity to present its side before the order in question was issued, the confiscatory nature of the rate reduction and the consequent deterioration of the public service could have been shown and

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demonstrated to respondents. Petitioner argues that the function involved in the rate fixingpower of NTC is adjudicatory and hence quasi-judicial, not quasi- legislative; thus, notice and hearing are necessary and the absence thereof results in a violation of due process. Respondents admit that the application of a policy like the fixing of rates as exercised by administrative bodies is quasi-judicial rather than quasi-legislative: that where the function of the administrative agency is legislative, notice and hearing are not required, but where an order applies to a named person, as in the instant case, the function involved is adjudicatory. 8 Nonetheless, they insist that under the facts obtaining the order in question need not be preceded by a hearing, not because it was issued pursuant to respondent NTC's legislative function but because the assailed order is merely interlocutory, it being an incident in the ongoing proceedings on petitioner's application for a certificate of public convenience; and that petitioner is not the only primary source of data or information since respondent is currently engaged in a continuing review of the rates charged. We find merit in petitioner's contention. In Vigan Electric Light Co., Inc. vs. Public Service Commission, 9 we made a categorical classification as to when the rate-filing power of administrative bodies is quasi-judicial and when it is legislative, thus: Moreover, although the rule-making power and even the power to fix rates- when such rules and/or rates are meant to apply to all enterprises of a given kind throughout the Philippinesmay partake of a legislative character, such is not the nature of the order complained of. Indeed, the same applies exclusively to petitioner herein. What is more, it is predicated upon the finding of fact-based upon a report submitted by the General Auditing Office-that petitioner is making a profit of more than 12% of its invested capital, which is denied by petitioner. Obviously, the latter is entitled to cross-examine the maker of said report, and to introduce evidence to disprove the contents thereof and/or explain or complement the same, as well as to refute the conclusion drawn therefrom by the respondent. In other words, in making said finding of fact, respondent performed a function partaking of a quasi-judicial character, the valid exercise of which demands previous notice and hearing. This rule was further explained in the subsequent case of The Central Bank of the Philippines vs. Cloribel, et al. 10to wit: It is also clear from the authorities that where the function of the administrative body is legislative, notice of hearing is not required by due process of law (See Oppenheimer, Administrative Law, 2 Md. L.R. 185, 204, supra, where it is said: 'If the nature of the administrative agency is essentially legislative, the requirements of notice and hearing are not necessary. The validity of a rule of future action which affects a group, if vested rights of liberty or property are not involved, is not determined according to the same rules which apply in the case of the direct application of a policy to a specific individual) ... It is said in 73 C.J.S. Public Administrative Bodies and Procedure, sec. 130, pages 452 and 453: 'Aside from statute, the necessity of notice and hearing in an administrative proceeding depends on the character of the proceeding and the circumstances involved. In so far as generalization is possible in view of the great variety of administrative proceedings, it may be stated as a general rule that notice and hearing are not essential to the validity of administrative action where the administrative body acts in the exercise of executive, administrative, or legislative functions; but where a public administrative body acts in a judicial or quasi-judicial matter, and

its acts are particular and immediate rather than general and prospective, the person whose rights or property may be affected by the action is entitled to notice and hearing. 11 The order in question which was issued by respondent Alcuaz no doubt contains all the attributes of a quasi-judicial adjudication. Foremost is the fact that said order pertains exclusively to petitioner and to no other. Further, it is premised on a finding of fact, although patently superficial, that there is merit in a reduction of some of the rates charged- based on an initial evaluation of petitioner's financial statements-without affording petitioner the benefit of an explanation as to what particular aspect or aspects of the financial statements warranted a corresponding rate reduction. No rationalization was offered nor were the attending contingencies, if any, discussed, which prompted respondents to impose as much as a fifteen percent (15%) rate reduction. It is not far-fetched to assume that petitioner could be in a better position to rationalize its rates vis-a-vis the viability of its business requirements. The rates it charges result from an exhaustive and detailed study it conducts of the multi-faceted intricacies attendant to a public service undertaking of such nature and magnitude. We are, therefore, inclined to lend greater credence to petitioner's ratiocination that an immediate reduction in its rates would adversely affect its operations and the quality of its service to the public considering the maintenance requirements, the projects it still has to undertake and the financial outlay involved. Notably, petitioner was not even afforded the opportunity to crossexamine the inspector who issued the report on which respondent NTC based its questioned order. At any rate, there remains the categorical admission made by respondent NTC that the questioned order was issued pursuant to its quasi-judicial functions. It, however, insists that notice and hearing are not necessary since the assailed order is merely incidental to the entire proceedings and, therefore, temporary in nature. This postulate is bereft of merit. While respondents may fix a temporary rate pending final determination of the application of petitioner, such rate-fixing order, temporary though it may be, is not exempt from the statutory procedural requirements of notice and hearing, as well as the requirement of reasonableness. Assuming that such power is vested in NTC, it may not exercise the same in an arbitrary and confiscatory manner. Categorizing such an order as temporary in nature does not perforce entail the applicability of a different rule of statutory procedure than would otherwise be applied to any other order on the same matter unless otherwise provided by the applicable law. In the case at bar, the applicable statutory provision is Section 16(c) of the Public Service Act which provides: Section 16. Proceedings of the Commission, upon notice and hearing the Commission shall have power, upon proper notice and hearing in accordance with the rules and provisions of this Act, subject to the limitations and exceptions mentioned and saving provisions to the contrary: xxx xxx xxx (c) To fix and determine individual or joint rates, ... which shall be imposed, observed and followed thereafter by any public service; ... There is no reason to assume that the aforesaid provision does not apply to respondent NTC, there being no limiting, excepting, or saving provisions to the contrary in Executive Orders Nos. 546 and 196.

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It is thus clear that with regard to rate-fixing, respondent has no authority to make such order without first giving petitioner a hearing, whether the order be temporary or permanent, and it is immaterial whether the same is made upon a complaint, a summary investigation, or upon the commission's own motion as in the present case. That such a hearing is required is evident in respondents' order of September 16, 1987 in NTC Case No. 87-94 which granted PHILCOMSAT a provisional authority "to continue operating its existing facilities, to render the services it presently offers, and to charge the rates as reduced by them "under the condition that "(s)ubject to hearing and the final consideration of the merit of this application, the Commission may modify, revise or amend the rates ..." 12 While it may be true that for purposes of rate-fixing respondents may have other sources of information or data, still, since a hearing is essential, respondent NTC should act solely on the basis of the evidence before it and not on knowledge or information otherwise acquired by it but which is not offered in evidence or, even if so adduced, petitioner was given no opportunity to controvert. Again, the order requires the new reduced rates to be made effective on a specified date. It becomes a final legislative act as to the period during which it has to remain in force pending the final determination of the case. 13An order of respondent NTC prescribing reduced rates, even for a temporary period, could be unjust, unreasonable or even confiscatory, especially if the rates are unreasonably low, since the utility permanently loses its just revenue during the prescribed period. In fact, such order is in effect final insofar as the revenue during the period covered by the order is concerned. Upon a showing, therefore, that the order requiring a reduced rate is confiscatory, and will unduly deprive petitioner of a reasonable return upon its property, a declaration of its nullity becomes inductible, which brings us to the issue on substantive due process. III. Petitioner contends that the rate reduction is confiscatory in that its implementation would virtually result in a cessation of its operations and eventual closure of business. On the other hand, respondents assert that since petitioner is operating its communications satellite facilities through a legislative franchise, as such grantee it has no vested right therein. What it has is merely a privilege or license which may be revoked at will by the State at any time without necessarily violating any vested property right of herein petitioner. While petitioner concedes this thesis of respondent, it counters that the withdrawal of such privilege should nevertheless be neither whimsical nor arbitrary, but it must be fair and reasonable. There is no question that petitioner is a mere grantee of a legislative franchise which is subject to amendment, alteration, or repeal by Congress when the common good so requires. 14 Apparently, therefore, such grant cannot be unilaterally revoked absent a showing that the termination of the operation of said utility is required by the common good. The rule is that the power of the State to regulate the conduct and business of public utilities is limited by the consideration that it is not the owner of the property of the utility, or clothed with the general power of management incident to ownership, since the private right of ownership to such property remains and is not to be destroyed by the regulatory power. The power to regulate is not the power to destroy useful and harmless enterprises, but is the power to protect, foster, promote, preserve, and control with due regard for the interest, first and foremost, of the public, then of the utility and of its patrons. Any regulation, therefore, which operates as an effective confiscation of private property or constitutes an arbitrary or

unreasonable infringement of property rights is void, because it is repugnant to the constitutional guaranties of due process and equal protection of the laws. 15 Hence, the inherent power and authority of the State, or its authorized agent, to regulate the rates charged by public utilities should be subject always to the requirement that the rates so fixed shall be reasonable and just. A commission has no power to fix rates which are unreasonable or to regulate them arbitrarily. This basic requirement of reasonableness comprehends such rates which must not be so low as to be confiscatory, or too high as to be oppressive. 16 What is a just and reasonable rate is not a question of formula but of sound business judgment based upon the evidence 17 it is a question of fact calling for the exercise of discretion, good sense, and a fair, enlightened and independent judgment. 18 In determining whether a rate is confiscatory, it is essential also to consider the given situation, requirements and opportunities of the utility. A method often employed in determining reasonableness is the fair return upon the value of the property to the public utility. Competition is also a very important factor in determining the reasonableness of rates since a carrier is allowed to make such rates as are necessary to meet competition. 19 A cursory perusal of the assailed order reveals that the rate reduction is solely and primarily based on the initial evaluation made on the financial statements of petitioner, contrary to respondent NTC's allegation that it has several other sources of information without, however, divulging such sources. Furthermore, it did not as much as make an attempt to elaborate on how it arrived at the prescribed rates. It just perfunctorily declared that based on the financial statements, there is merit for a rate reduction without any elucidation on what implications and conclusions were necessarily inferred by it from said statements. Nor did it deign to explain how the data reflected in the financial statements influenced its decision to impose a rate reduction. On the other hand, petitioner may likely suffer a severe drawback, with the consequent detriment to the public service, should the order of respondent NTC turn out to be unreasonable and improvident. The business in which petitioner is engaged is unique in that its machinery and equipment have always to be taken in relation to the equipment on the other end of the transmission arrangement. Any lack, aging, acquisition, rehabilitation, or refurbishment of machinery and equipment necessarily entails a major adjustment or innovation on the business of petitioner. As pointed out by petitioner, any change in the sending end abroad has to be matched with the corresponding change in the receiving end in the Philippines. Conversely, any in the receiving end abroad has to be matched with the corresponding change in the sending end in the Philippines. An inability on the part of petitioner to meet the variegations demanded be technology could result in a deterioration or total failure of the service of satellite communications. At present, petitioner is engaged in several projects aimed at refurbishing, rehabilitating, and renewing its machinery and equipment in order to keep up with the continuing charges of the times and to maintain its facilities at a competitive level with the technological advances abroad. There projected undertakings were formulated on the premise that rates are maintained at their present or at reasonable levels. Hence, an undue reduction thereof may practically lead to a cessation of its business. While we concede the primacy of the public interest in an adequate and efficient service, the same is not necessarily to be equated with

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reduced rates. Reasonableness in the rates assumes that the same is fair to both the public utility and the consumer. Consequently, we hold that the challenged order, particularly on the issue of rates provided therein, being violative of the due process clause is void and should be nullified. Respondents should now proceed, as they should heretofore have done, with the hearing and determination of petitioner's pending application for a certificate of public convenience and necessity and in which proceeding the subject of rates involved in the present controversy, as well as other matter involved in said application, be duly adjudicated with reasonable dispatch and with due observance of our pronouncements herein. WHEREFORE, the writ prayed for is GRANTED and the order of respondents, dated September 2, 1988, in NTC Case No. 87-94 is hereby SET ASIDE. The temporary restraining order issued under our resolution of September 13, 1988, as specifically directed against the aforesaid order of respondents on the matter of existing rates on petitioner's present authorized services, is hereby made permanent. SO ORDERED. Fernan, (C.J.), Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes, Grio-Aquino and Medialdea, JJ., concur. Padilla, J., took no part. G.R. No. 177878 April 7, 2010 SPO1 LEONITO ACUZAR, Petitioner, vs. APRONIANO JOROLAN and HON. EDUARDO A. APRESA, PEOPLE'S LAW ENFORCEMENT BOARD (PLEB) Chairman, New Corella, Davao del Norte, Respondents. DECISION VILLARAMA, JR., J.: Before this Court is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, filed by petitioner SPO1 Leonito Acuzar assailing the March 23, 2007 Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 77110. The assailed decision reversed and set aside the October 15, 2002 Decision2 of the Regional Trial Court (RTC) of Tagum City, Branch 31, which had annulled the Decision 3 of the Peoples Law Enforcement Board (PLEB) of the Municipality of New Corella, Davao del Norte, finding petitioner guilty of Grave Misconduct and ordering his dismissal from service. The facts are as follows: On May 2, 2000, respondent Aproniano Jorolan filed Administrative Case No. 2000014 against petitioner before the PLEB charging the latter of Grave Misconduct for allegedly having an illicit relationship with respondents minor daughter. On May 11, 2000, respondent also instituted a criminal case against petitioner before the Municipal Trial Court of New Corella, docketed as Criminal Case No. 1712, for Violation of Section 5 (b), Article III of Republic Act No. 7610, otherwise known as the Child Abuse Act. On May 15, 2000, petitioner filed his Counter-Affidavit5 before the PLEB vehemently denying all the accusations leveled against him. In support thereof, petitioner attached the affidavit of

complainants daughter, Rigma A. Jorolan, who denied having any relationship with the petitioner or having kissed him despite knowing him to be a married person. On July 24, 2000, petitioner filed a motion to suspend the proceedings before the PLEB pending resolution of the criminal case filed before the regular court. The PLEB denied his motion for lack of merit and a hearing of the case was conducted. The PLEB also denied petitioners motion for reconsideration on August 9, 2000 for allegedly being dilatory. On August 17, 2000, after due proceedings, the PLEB issued a decision, the decretal portion of which reads: WHEREFORE, premises considered, the Board finds the respondent, SPO1 Leonito Acuzar, PNP New Corella, Davao del Norte Police Station GUILTY of GRAVE MISCONDUCT (Child Abuse) which is punishable by DISMISSAL effective immediately. SO ORDERED.6 Immediately upon receipt of the decision, petitioner filed a Petition for Certiorari with Prayer for Preliminary Mandatory Injunction and Temporary Restraining Order7 with the RTC of Tagum City, Branch 31, docketed as Special Civil Case No. 384. Petitioner alleged that the subject decision was issued without giving him an opportunity to be heard. He likewise averred that the respondent Board acted without jurisdiction in proceeding with the case without the petitioner having been first convicted in the criminal case before the regular court. Petitioner pointed out that under the PLEB Rules of Procedure, prior conviction was required before the Board may act on the administrative case considering that the charge was actually for violation of law, although denominated as one (1) for grave misconduct. On September 16, 2000, petitioner was ordered dismissed from the Philippine National Police (PNP) by the Chief Regional Directorial Staff of the PNP, Police Regional Office 11, effective September 7, 2000. On October 15, 2002, the trial court rendered a Decision annulling the Decision of the PLEB. The trial court noted: xxxx But nothing in the record would show that the Board scheduled a hearing for the reception of the evidence of the petitioner. In a nutshell, the petitioner was not given his day in Court. The Board could have scheduled the hearing for the reception of petitioners evidence and if he failed to appear, then the Board could have considered the non-appearance of the petitioner as a waiver to present his evidence. It was only then that the decision could have been rendered. xxxx The hearing at the Peoples Law Enforcement Board, although administrative in nature, has penal sanction of dismissal and for forfeiture of benefits of the petitioner. It is along this context that the petitioner should be afforded all the opportunities of hearing which principally includes the reception of his evidence consistent with our established rules. Due process of law embraces not only substantive due process, but also procedural due process. xxxx While this Court does not tolerate any form of misconduct committed by members of the Philippine National Police, yet it equally considers the right of the petitioner enshrined under the Bill of Rights and the deprivation of petitioners gainful employment which is the economic life blood of the family, especially the innocent dependents.8

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Respondent thereafter elevated the case to the CA. On March 23, 2007, the CA rendered its Decision reversing and setting aside the trial courts decision. The CA found merit in respondents argument that the petition for certiorari filed by petitioner before the RTC was not the proper remedy because (1) appeal was available and (2) the issues raised were not pure questions of law but both questions of law and fact. According to the CA, the existence and availability of the right of appeal proscribes resort to certiorari because one (1) of the requirements for its availment is the absence of the remedy of appeal or any other plain, speedy or adequate remedy. The CA ruled that petitioner should have appealed the decision of the PLEB to the regional appellate board of the PNP before resorting to certiorari before the court. The CA added that while it is true that there are instances where the extraordinary remedy of certiorari may be resorted to despite the availability of an appeal, petitioner, however, failed to demonstrate any ground to warrant immediate resort to it. Thus, it held that the trial court erred in giving due course to the petition. Petitioner now assails the Decision of the CA in this recourse raising the following assigned errors: 1. The Honorable Court of Appeals erred in ruling that Certiorari was not a proper remedy [to assail] the Decision of the Respondent-Peoples Law Enforcement Board (PLEB), New Corella, Davao del Norte, because (1) appeal was available; and (2) the issue raised were not pure questions of law but both questions of law and fact. And that herein Petitioner failed to exhaust administrative remedies. 2. The Honorable Court of Appeals erred in ruling that Petitioner was accorded with due process before the Respondent-Peoples Law Enforcement Board (PLEB), New Corella, Davao del Norte, and was given his day in court for his defense.9 In essence, the issue is whether or not the CA erred in ruling that petitioners resort to certiorari was not warranted as the remedy of appeal from the decision of the PLEB was available to him. Petitioner contends that the petition he filed before the trial court was appropriate because the instant case falls under the exceptions to the rule on exhaustion of administrative remedies, the decision being patently illegal. Petitioner maintains that a conviction should have been first obtained in the criminal case filed against him for child abuse before the PLEB can acquire jurisdiction over his administrative case. He also maintains that the Boards decision was reached without giving him an opportunity to be heard and his right to due process was violated. The Boards decision having been rendered without jurisdiction, appeal was not an appropriate remedy. We affirm the appellate courts ruling. To reiterate, petitioner opted to file a petition for certiorari before the trial court on the pretext that the PLEB had no jurisdiction to hear the administrative case until petitioner is convicted before the regular court. According to petitioner, although the case filed before the PLEB was captioned as "Grave Misconduct," the offense charged was actually for "Violation of Law," which requires prior conviction before a hearing on the administrative case can proceed. Thus, petitioner insists that the PLEB should have awaited the resolution of the criminal case before conducting a hearing on the administrative charge against him. The contention however is untenable. A careful perusal of respondents affidavit-complaint against petitioner would show that petitioner was charged with grave misconduct for engaging

in an illicit affair with respondents minor daughter, he being a married man, and not for violation of law, as petitioner would like to convince this Court. Misconduct generally means wrongful, improper or unlawful conduct, motivated by premeditated, obstinate or intentional purpose.10 It usually refers to transgression of some established and definite rule of action, where no discretion is left except what necessity may demand; it does not necessarily imply corruption or criminal intention but implies wrongful intention and not to mere error of judgment.11 On the other hand, "violation of law" presupposes final conviction in court of any crime or offense penalized under the Revised Penal Code or any special law or ordinance.12 The settled rule is that criminal and administrative cases are separate and distinct from each other.13 In criminal cases, proof beyond reasonable doubt is needed whereas in administrative proceedings, only substantial evidence is required. Verily, administrative cases may proceed independently of criminal proceedings.14 The PLEB, being the administrative disciplinary body tasked to hear complaints against erring members of the PNP, has jurisdiction over the case. Moreover, Section 43 (e) of Republic Act No. 6975,15 is explicit, thus: SEC. 43. Peoples Law Enforcement Board (PLEB). - x x x xxxx (e) Decisions The decision of the PLEB shall become final and executory: Provided, That a decision involving demotion or dismissal from the service may be appealed by either party with the regional appellate board within ten (10) days from receipt of the copy of the decision. It is apparent from the foregoing provision that the remedy of appeal from the decision of the PLEB to the Regional Appellate Board was available to petitioner. Since appeal was available, filing a petition for certiorari was inapt. The existence and availability of the right of appeal are antithetical to the availment of the special civil action of certiorari. 16 Corollarily, the principle of exhaustion of administrative remedies requires that before a party is allowed to seek the intervention of the court, it is a precondition that he should have availed of the means of administrative processes afforded to him. If a remedy is available within the administrative machinery of the administrative agency, then this alternative should first be utilized before resort can be made to the courts. This is to enable such body to review and correct any mistakes without the intervention of the court. Moreover, for a special civil action for certiorari to prosper, the following requisites must concur: (1) it must be directed against a tribunal, board or officer exercising judicial or quasijudicial functions; (2) the tribunal, board or officer must have acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction; and (3) there is no appeal nor any plain, speedy and adequate remedy in the ordinary course of law.17 For sure, petitioners bare allegation that appeal from the judgment of the Board may not be adequate does not justify immediate resort to certiorari. Moreover, the extraordinary writ of certiorari may be issued only where it is clearly shown that there is patent and gross abuse of discretion as to amount to an evasion of positive duty or to virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility.18Here, not only was an appeal available to petitioner as a remedy from the decision of the PLEB, petitioner also failed to sufficiently show any grave abuse of discretion of the Board which would justify his immediate resort to certiorari in lieu of an appeal.

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Contrary to petitioners claim that he has not been afforded all the opportunity to present his side, our own review of the records of the proceedings before the PLEB reveals otherwise. The PLEB summarized its proceedings as follows: The Board issued a summon to SPO1 Leonito Acuzar on May 03, 2000 informing him of the case filed against him. On May 4, 2000, the respondents wife Mrs. Arcella Acuzar made an informal letter addressed to the Chairman of the PLEB that the respondent cannot answer the summon because he was still in a critical condition in the hospital as alleged. After three days, May 9, 2000 the respondent through his legal counsel filed a motion for extension of time to submit counter affidavit. The Board received the sworn statement of the respondent on May 16, 2000. Subpoenas were sent to both parties informing them of the first hearing which was set on June 01, 2000; 8:00 a.m. at the SB session hall, New Corella, Davao del Norte. Then the Board set for a second hearing on June 15, 2000; 8:30 a.m. but the respondents counsel moved for a postponement because he was slated to appear before the Regional Trial Court Branch 1, Tagum City of the same date and time; the third hearing on June 21, 2000; 8:30 a.m.; the fourth hearing on July 13, 2000, 8:30 a.m.; the fifth hearing on July 19, 2000, 9:00 a.m.; [and] the sixth hearing on July 26, 2000 [were] postponed because the respondents counsel filed motions for postponement and to suspend proceedings pending resolution of criminal case before the regular court and the final hearing was set on August 03, 2000; 9:00 a.m. of the same place but the respondent walked out during the hearing because of the nonappearance of his legal counsel but the PLEB Members continued to hear the case without the respondent and legal counsels presence based on sworn affidavit in the hands of the PLEB Members.19 In administrative proceedings, procedural due process has been recognized to include the following: (1) the right to actual or constructive notice of the institution of proceedings which may affect a respondents legal rights; (2) a real opportunity to be heard personally or with the assistance of counsel, to present witnesses and evidence in ones favor, and to defend ones rights; (3) a tribunal vested with competent jurisdiction and so constituted as to afford a person charged administratively a reasonable guarantee of honesty as well as impartiality; and (4) a finding by said tribunal which is supported by substantial evidence submitted for consideration during the hearing or contained in the records or made known to the parties affected.20 In the instant case, petitioner was notified of the complaint against him and in fact, he had submitted his counter-affidavit and the affidavits of his witnesses. He attended the hearings together with his counsel and even asked for several postponements. Petitioner therefore cannot claim that he had been denied of due process. Due process in an administrative context does not require trial-type proceedings similar to those in courts of justice. Where opportunity to be heard either through oral arguments or through pleadings is accorded, there is no denial of due process. The requirements are satisfied where the parties are afforded fair and reasonable opportunity to explain their side of the controversy. In other words, it is not legally objectionable for being violative of due process for an administrative agency to resolve a case based solely on position papers, affidavits or documentary evidence submitted by the parties as affidavits of witnesses may take the place of direct testimony. Here, we note that petitioner had more than enough opportunity to present his side and adduce evidence in support of his defense; thus, he cannot claim that his right to due process has been violated.

WHEREFORE, the petition is DENIED. The Decision dated March 23, 2007 of the Court of Appeals in CA-G.R. SP No. 77110 is hereby AFFIRMED. Costs against petitioner. SO ORDERED. G.R. No. 168668 December 16, 2009 Philippine Economic Zone Authority (PEZA) and Philippine Economic Zone Authority Board, represented by its Director General Lilia B. de Lima, Petitioners, vs. Pearl City Manufacturing Coroporation, Bernardino Abala, Rogina Abala, Jovelyn Abellana, Catherine Agapay, Joseph Agapay, Rolando Agapay, Vivencia Alangilan, Conchita Albaracin, Leonor Amodia, Wilson Arcilla, Joan Aying, Ma. Rebecca Bayon, Mary Ann Besteis, Marifi Cabardo, Hazel Cala, Carmen Castil, Leonard Castil, Jicardo Castro, Esther Ceballos, Eusebio Ceniza, Gemma Ceniza, Merchu Chua, Leonarda Cueva, Victoria Dacay, Estrellita Deiparine, Dexter del Castillo, Maurino Devibar, Josephine Dizon, Ian Dizon, Lorna Dupit, Rizza Durano, Lucita Fernandez, Godofredo Gac-ang, Thelma Gallardo, Ma. Lourdes Git-gano, Sonny Go, Juliet Gutierrez, Samuel Gutierrez, Melba Hermosi-sima, Juvane Into, Josefina Isagan, Louie Isagan, Fe Jaron, Judy Jaron, Florencia Labiste, Josefina Lamanilao, Jimmy Latonio, Marifi Lavinna, Jonjon Layos, Lolit Libres, Renfel Almeda, Raul Barbosa, Alfie Durado, Noel Go, Lorena Lomactod, Sulpicio Mabug-at, Rodrigo Malazarte, Rosalina Mangubat, Dario Mansay, Arlene Mariot, Melchor Matos, Vergenia Matos, Ponsito Maturan, Robinson Mejos, Guadalupe Miao, Adoracion Opong, Roger Pagal, Zena Pantonial, Librada Pareja, Ariel Patalinghug, Teresa Patalinghug, Edesa Patigayon, Lucita Payac, Jona Pejana, Benjamin Pepito, Josephine Pepito, Flordelina Peres, Ramel Pogado, Anastacia Ponce, Yves Reyes, Ma. Dolores Rivera, Rubelita Rosacina, Michelle Rosaroso, Eleuterio Saberon, Jr., Zenaida Sague, Aida Satierra, Ma. Salome Senoc, Rhodelyn Senoc, Ma. Victoria Sususco, Jimmy Sy, Israel Tejero, Roger Tejero, Alcide Tuico, Franklin Ty, Larry Uy, Rodina Ybalane and Vilma Zapanta, Respondents. DECISION PERALTA, J.: This resolves the instant Petition for Review on Certiorari under Rule 45 of the Rules of Court praying for the reversal of the Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 00352 dated June 22, 2005. The challenged Decision of the CA reversed and set aside the Decision2 dated September 7, 2004 and Order3 issued on January 20, 2005 of the Office of the President (OP) in O.P. Case No. 04-G-324. The factual and procedural antecedents, as summarized by the CA, are as follows: Petitioner Corporation [herein respondent Pearl City Manufacturing Corporation] is a PEZAregistered Ecozone Export Enterprise located at the Mactan Economic Zone (MEZ) I in LapuLapu City, [province of Cebu] engaged in the business of recycling and processing, for export, of used clothing into wool, fiber, cotton fiber, polyester fiber, useable clothing and industrial rags. Individual petitioners are the employees of the petitioner Corporation.

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Sometime in March 2004, petitioner Corporation, along with two (2) other PEZA-registered companies importing used clothing, was informed of a physical inventory to be conducted by the PEZA officers in their respective zones on their businesses. After the completion of the physical inventory on the petitioner Corporation, PEZA officers discovered that it had an unaccounted importation of 8,259,645 kilograms of used clothing for the period of fifteen (15) months covering January 2003 up to March 2004. Petitioner Corporation was then instructed to submit its explanation regarding the said unaccounted shortage in its import-export liquidation. After submitting the required explanation, petitioner Corporation was subjected to a special audit conducted by PEZA to determine the amount of wastage generated by the company. On the basis of the results of the physical inventory and the special audit conducted on the petitioner Corporation, respondent [herein co-petitioner] PEZA Board passed a resolution [Resolution No. 04-236] canceling the PEZA Registration of petitioner Corporation as an Ecozone Export Enterprise at MEZ I.1avvphi1 An administrative appeal was filed by the petitioners to the Office of the President from the resolution canceling its registration. The case on appeal was docketed as O.P. Case No. 04G-324. On September 7, 2004, the Office of the President rendered a decision, the dispositive portion of which reads as follows: WHEREFORE premises considered, the Resolution sought to be revoked on appeal is hereby AFFIRMED in toto.4 Herein respondent, Pearl City Manufacturing Corporation (PCMC), filed a Motion for Reconsideration, but the OP denied it in its Order dated January 20, 2005. Aggrieved, PCMC filed a petition for review with the CA assailing the above-mentioned Decision and Order of the OP. On June 22, 2005, the CA rendered a Decision disposing as follows: WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us GRANTING the petition filed in this case. The Decision of the Office of the President dated September 7, 2004 in O.P. Case No. 04-G-324 and the Order dated January 20, 2005 are hereby REVERSED and SET ASIDE. The Board Resolution No. 04-236 of the Philippine Economic Zone Authority (PEZA) dated July 13, 2004 canceling petitioner corporation's PEZA Registration as an Ecozone Export Enterprise at MEZ I is hereby DECLARED NULL AND VOID. The respondents are further ORDERED to REINSTATE all the Ecozone privileges of the petitioner Corporation. SO ORDERED.5 Hence, the instant petition raising the following issues: 1. WHETHER OR NOT RESPONDENT PCMC WAS AFFORDED DUE PROCESS. 2. WHETHER OR NOT THERE IS SUBSTANTIAL EVIDENCE TO SUPPORT PEZA BOARD RESOLUTION NO. 04-236 AND THE OP DECISION AND ORDER. 3. WHETHER OR NOT THE CANCELLATION OF RESPONDENT PCMC'S PEZA ACCREDITATION IS PROPER.6 The Court finds the petition meritorious. The Court agrees with petitioners' contention in the first issue raised that respondent PCMC was afforded due process.

On May 11, 2004, Jimmy Sy, the General Manager of PCMC sent a letter7 to the Director General of PEZA explaining the discrepancy in its import and export liquidation. Subsequently, on May 25, 2004, Sy wrote to the Deputy Director General for Operations of the PEZA explaining PCMC's unaccounted shortage of imported used clothing which amounted to 8,259,645 kilograms between January 2003 and March 2004.8 Thereafter, Sy executed an Affidavit9 dated May 26, 2004, explaining the discrepancy and shortages in its import and export accounts. This affidavit was submitted to the PEZA, the receipt of which was duly acknowledged by the PEZA Deputy Director General for Operations in her letter dated June 11, 2004 addressed to Sy. On June 14, 2003, Sy again wrote a letter10 to the PEZA Deputy Director General for Operations reiterating the explanations they have earlier submitted and praying that their import permits be approved pending investigation of their unaccounted imported materials. In a letter11 dated July 5, 2004, the law firm representing PCMC wrote a letter addressed to the Group Manager, Legal Services Group of PEZA explaining in detail its supposed unaccounted shortage in its business of recycling used clothing. In the course of explaining its position, PCMC even secured letters,12 joint affidavits,13 and certifications14 from its plant manager and various persons to show that the supposed discrepancy in its import-export liquidations found by PEZA investigators represented part of the waste materials generated in its recycling business. It is settled that in administrative proceedings, a fair and reasonable opportunity to explain ones side suffices to meet the requirements of due process.15 The essence of procedural due process is embodied in the basic requirement of notice and a real opportunity to be heard.16 In the recent case of Pagayanan R. Hadji-Sirad v. Civil Service Commission,17 the Court had the opportunity to reiterate the following pronouncements, to wit: In administrative proceedings, such as in the case at bar, procedural due process simply means the opportunity to explain ones side or the opportunity to seek a reconsideration of the action or ruling complained of. "To be heard" does not mean only verbal arguments in court; one may be heard also thru pleadings. Where opportunity to be heard, either through oral arguments or pleadings, is accorded, there is no denial of procedural due process. In administrative proceedings, procedural due process has been recognized to include the following: (1) the right to actual or constructive notice of the institution of proceedings which may affect a respondents legal rights; (2) a real opportunity to be heard personally or with the assistance of counsel, to present witnesses and evidence in ones favor, and to defend ones rights; (3) a tribunal vested with competent jurisdiction and so constituted as to afford a person charged administratively a reasonable guarantee of honesty as well as impartiality; and (4) a finding by said tribunal which is supported by substantial evidence submitted for consideration during the hearing or contained in the records or made known to the parties affected.18 In the present case, since PCMC was properly informed of the supposed discrepancy in its import and export liquidations, that it was given ample opportunity by the PEZA management to be heard or to explain its side in relation to its unaccounted imported materials and that it was subsequently informed of the decision of the PEZA Board to cancel its registration on the basis of its assessment of the evidence presented or lack thereof, petitioners cannot claim that they were denied their right to due process of law.

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The Court cannot subscribe to the pronouncement of the CA that there should have been interrogations or inquiries conducted by the PEZA Board to give PCMC the opportunity to defend itself from any charge directed against it. The Court agrees with the petitioner's averment that the power and authority to conduct inquiries is lodged with the PEZA Director General and not with the PEZA Board. Thus, Section 14(g) of Republic Act (R.A.) No. 7916 provides: SEC. 14. Powers and Functions of the Director General. The director general shall be the overall coordinator of the policies, plans and programs of the ECOZONES. As such, he shall provide overall supervision over and general direction to the development and operations of these ECOZONES. He shall determine the structure and the staffing pattern and personnel complement of the PEZA and establish regional offices, when necessary, subject to the approval of the PEZA Board. In addition, he shall have the following specific powers and responsibilities: xxxx g) To acquire jurisdiction, as he may deem proper, over the protests, complaints and claims of the residents and enterprises in the ECOZONE concerning administrative matters; In consonance with the above-quoted authority, the PEZA Director General is also empowered, under Section 14(h) of the same law, to recommend to the PEZA Board the grant, approval, refusal, amendment or termination of the ECOZONE franchises, licenses, permits, contracts and agreements in accordance with the polices of the said Board. It necessarily follows from the foregoing that the primary authority to conduct inquiries and fact-finding investigations is bestowed upon the office of the PEZA Director General simply because no complaint, protest or claim can be properly addressed, and neither can any reasonable recommendation to the PEZA Board be made by the PEZA Director General without conducting any such inquiry or fact-finding. While nothing prohibits the PEZA Board to conduct its own inquiry on matters brought before it, it does not mean that the absence of such inquiry by the Board is a denial of due process on the part of the entity being investigated. In the present case, however, such inquiry, if conducted, would be a superfluity considering that a physical inventory and a full-blown audit was already made by a special team from the PEZA Head Office and the MEZ between March 2004 and June 2004. During the said inventory and audit, PCMC was given sufficient opportunity to explain whether it really incurred any shortage or whether the materials it imported were properly disposed of or withdrawn from the MEZ. The PEZA Board did not arbitrarily arrive at its decision to cancel the registration of PCMC. The results of the inventory and audit are precisely the bases upon which the cancellation was made. Stated differently, the audit and inventory conducted under the direction and authority of the PEZA Director General are sufficient for purposes of complying with the requirements of procedural due process. Conversely, the absence of formal proceedings conducted before the PEZA Board does not mean that the requirements of procedural due process were not complied with. The Court also finds it apropos to reiterate the well-settled rule that in administrative proceedings, technical rules of procedure and evidence are not strictly applied and administrative due process cannot be fully equated with due process in its strict judicial

sense.19 In fact, it is well settled that, in administrative cases, the requirement of notice and hearing does not connote full adversarial or trial type proceedings.20 Moreover, it is not legally objectionable for an administrative agency to resolve a case based solely on position papers, affidavits or documentary evidence submitted by the parties, as affidavits of witnesses may take the place of their direct testimonies.21 In the present case, the various letters of explanation, as well as certifications, joint affidavits and other documents, submitted by the PCMC constitute evidence to support its contentions and are sufficient bases for the PEZA Board to arrive at a sound decision with respect to the present case. In any event, the Court agrees with petitioners that any procedural defect in the proceedings before the PEZA Board was cured when the PCMC appealed PEZA Board Resolution No. 04236 before the OP. Petitioners were also able to move for the reconsideration of the adverse ruling of the OP. In Autencio v. Maara,22 the Court ruled that where the party has the opportunity to appeal or seek reconsideration of the action or ruling complained of, defects in procedural due process may be cured. Likewise, in Gonzales v. Civil Service Commission,23 the Court ruled that any seeming defect in the observance of due process is cured by the filing of a motion for reconsideration and that denial of due process cannot be successfully invoked by a party who has had the opportunity to be heard thereon. Respondents insist that the question of whether the PCMC was denied its right to due process of law is a question of fact which is not proper in a petition for review on certiorari. It is already a well-settled rule that the jurisdiction of this Court in cases brought before it from the Court of Appeals by virtue of Rule 45 of the Revised Rules of Court is limited to reviewing errors of law. Findings of fact of the CA are conclusive upon this Court. There are, however, recognized exceptions to the foregoing rule, namely: (1) when the findings are grounded entirely on speculation, surmises, or conjectures; (2) when the interference made is manifestly mistaken, absurd, or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of fact are conflicting; (6) when, in making its findings, the Court of Appeals went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; (7) when the findings are contrary to those of the trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by the respondent; and (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record.24 The present case falls under the seventh exception considering that the PEZA Board and the OP, on one hand, and the CA, on the other, arrived at conflicting findings of fact. This necessitates a review of the evidence on record which leads the Court to the conclusion, as earlier discussed, that the OP did not err in ruling that the PCMC was not denied its right to due process of law. Anent the second issue raised, the Court agrees with the petitioners' averment that the Resolution of the PEZA Board, which was affirmed by the Decision of the OP, is supported by substantial evidence. Petitioners correctly argue that the CA erred in holding that the PCMC was able to sufficiently explain the adverse findings of the PEZA in the audit and physical inventory that the PEZA conducted. The Court notes that the CA did not specify the reasons why it made such

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pronouncement. On the other hand, it is clear from the letter25 dated June 11, 2004 of the PEZA Deputy Director General for Operations addressed to Sy that the PEZA finds Sy's explanation of PCMCs shortage as inadequate, specifying therein the grounds for such finding. In the same manner, the Group Manager of the Legal Services Group of PEZA in a subsequent letter26 to Sy dated June 17, 2004, reiterated the findings of the PEZA Deputy Director General for Operations. He also specified the reasons why the PEZA Audit Team found the explanations of the PCMC's Plant Manager as unsatisfactory. Despite these letters directing the PCMC to submit all essential documents to substantiate its claims, PCMC still failed to do so. In this regard, the Court quotes with approval the disquisition made by the OP in resolving petitioners' Motion for Reconsideration of the Decision of the OP, dated September 7, 2004, to wit: In answer to the many requests of PEZA to submit affidavits and documents in support of its position, Petitioner submitted inadequate explanations. Its statements attributing the unaccountable shortages to an honest mistake [where the clerk assigned to record its importations in kilograms vis-a-vis pounds was new in his job and relatively inexperienced] and that it could not produce the required importation records because these were destroyed when heavy rains drenched their office, are at best, self-serving. Thus, the failure on the part of Petitioner to account for the importation shortages, as well as the proper disposal of waste, constitutes prima facie proof that the goods or merchandise were illegally sent out of the restricted areas.27 Settled is the rule that Courts will not interfere in matters which are addressed to the sound discretion of the government agency entrusted with the regulation of activities coming under the special and technical training and knowledge of such agency. 28 Administrative agencies are given wide latitude in the evaluation of evidence and in the exercise of their adjudicative functions, latitude which includes the authority to take judicial notice of facts within their special competence.29 Based on the foregoing discussions, the Court finds that the PEZA Board and the OP were correct in ruling that, based on the evidence presented, or the insufficiency thereof, the PCMC failed to account for the unexplained shortage in its imported materials between January 2003 and March 2004. Lastly, the Court agrees with petitioners that the cancellation of the PCMC's registration as an ECOZONE enterprise is warranted by the law. Section 8(c), Rule XXV, Part XI of the Rules and Regulations to Implement R.A. No. 7916 provides, thus: C. Cancellation/Revocation Registration, permit and/or franchise of an ECOZONE enterprise may be canceled for any of the following grounds: a. Failure to maintain the qualifications of registration/permit/franchise as required; b. Violation of any pertinent provisions of the Act/Code and/or Decree; and c. Violation of any of these Rules and Regulations, the corresponding implementing memoranda or circulars or any of the general and specific terms and conditions of the Registration Agreement between the PEZA and the ECOZONE enterprise or violation of the terms and conditions of the permit/franchise issued by PEZA. (emphasis supplied) xxxx In this respect, it is worthy to note that on May 18, 1999, the PEZA Board issued Resolution No. 99-134 imposing a fine of P377,890.00 on the PCMC for having illegally withdrawn from

its factory in MEZ 102 bales of used clothing, weighing approximately 5,000 kilograms, in violation of the provisions and implementing rules and regulations of R.A. No. 7916, otherwise known as the Special Economic Zone Act of 1995. The Resolution stated that the PCMC violated Section 3, Rule X, Part VI,30 in relation to Section 8, Rule XXV, Part XI of the Rules and Regulations Implementing R.A. No. 7916. The Resolution also contained a "final warning to the company that a similar violation in the future shall be dealt with most severely and shall constitute a sufficient ground for the automatic cancellation of its registration with [PEZA]." In the presently assailed PEZA Board Resolution, it is clearly stated therein that the PCMC's PEZA registration was canceled due to its failure to account for the shortage in its imported used clothing; failure to secure the required permits for the withdrawal of goods and merchandise from specified zones; and noncompliance with various EPZA/PEZA rules, procedures and guidelines on the disposition of scraps and/or excess materials, which are in violation of Section 2, Rule XI, Part VI 31 and, again, Section 3, Rule X, Part VI of the same Implementing Rules and Regulations. WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals is REVERSED and SET ASIDE. The Decision of the Office of the President, dated September 7, 2004, and its Order dated January 20, 2005 in O.P. Case No. 04-G-324, as well as Board Resolution No. 04-236 of the Philippine Economic Zone Authority, dated July 13, 2004, are hereby REINSTATED. SO ORDERED. G.R. No. 182267 August 28, 2009 PAGAYANAN R. HADJI-SIRAD, Petitioner, vs. CIVIL SERVICE COMMISSION, Respondent. DECISION CHICO-NAZARIO, J.: In this Petition for Review on Certiorari under Rule 45 of the 1997 Revised Rules of Civil Procedure, petitioner Pagayanan Hadji-Sirad is seeking the review and reversal of the Resolutions dated 18 January 20081 and 12 March 20082 of the Court of Appeals, dismissing her Petition for Certiorari in CA-G.R. SP No. 02103-MIN, for being the wrong mode of appeal, for her failure to state material dates as regards her Motion for Reconsideration before the Civil Service Commission (CSC), and for her failure to append a copy of said Motion for Reconsideration to her dismissed Petition. Petitioner intended to challenge in her Petition before the Court of Appeals (1) CSC Resolution No. 0708753 dated 7 May 2007, affirming the Decision dated 27 February 2006 of CSC Regional Office (CSCRO) No. XII, finding petitioner guilty of Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest of the Service, and dismissing petitioner from service; and (2) CSC Resolution No. 072196 4 dated 26 November 2007, denying petitioners Motion for Reconsideration. The factual and procedural antecedents of the instant Petition are as follows: On 4 February 2002, petitioner, an employee of the Commission on Audit (COA) in the Autonomous Region for Muslim Mindanao (ARMM), was formally charged by CSCRO No. XII with Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest of the Service. Pertinent portions of the Formal Charge against petitioner read:

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The result of the investigation established the following facts: 1. On November 10, 1994, Pagayanan R. Hadji-Sirad, formerly Pagayanan M. Romero accomplished a Personal Data Sheet; 2. The said Personal Data Sheet was submitted to the Civil Service Field Office-COA to support her appointment as State Auditor I; 3. In Item number 18 of the Personal data Sheet, particularly on civil service eligibility, HadjiSirad indicated that she possesses Career Service Professional Eligibility having passed the examination on October 17, 1993 at Iligan City with a rating of 88.31%; 4. Accordingly, the examination records of Hadji-Sirad were retrieved. The same were compared with the entries in her Personal Data Sheet. It is revealed that: 4.1 Applicant and examinee Hadji-Sirad took the same as shown by the picture attached to the application form and picture seat plan for Room 003 Administration Building, Iligan City National High School, Iligan City. In fact, it is apparent that these pictures were taken from a single shot; 4.2 Comparison, however of these pictures with that found in the Personal Data Sheet of Hadji-Sirad dated November 10, 1994 reveals that appointee bears no semblance with applicant or examinee Hadji Sirad; Examinee Hadji Sirad looks older than the true Hadji Sirad despite the fact that the examination was conducted in 1993 while the Personal Data Sheet was accomplished in 1994; 4.3 There exist differences in the strokes used in affixing the signature in the picture seat plan compared with that in the personal data sheet. The examinee Hadji-Sirad used slanting strokes in affixing her signature while the appointee Hadji-Sirad utilized vertical strokes. The foregoing facts and circumstances indicate that Pagayanan Romero Hadji-Sirad allowed another person to take the October 17, 1993 Career Service Professional Examination. This act undermines the integrity of civil service examinations and warrants the institution for administrative case against her for Dishonesty, Grave Misconduct and Conduct Prejudicial to the Best Interest of the Service. WHEREFORE, Pagayanan Romero Hadji-Sirad is hereby formally charged with Dishonesty, Grave Misconduct and Conduct Prejudicial to the Best Interest of the Service.5 A formal investigation was thereafter conducted. The first hearing of the administrative case against petitioner was repeatedly postponed, upon petitioners request, from the original date of 29 August 2002 to 16 October 2002, 20 December 2002, 14 January 2003, 20 March 2003, and 16 April 2003. During these instances, petitioner had been constantly warned that having utilized the allowable number of postponements, failure to attend the succeeding investigations could be taken as waiver of her right to present evidence. On 2 April 2003, petitioner filed a Motion for Change of Venue of hearing of the case from CSCRO No. XII in Cotabato City, to CSCRO No. X in Cagayan de Oro City, averring that her lawyer was reluctant to go to Cotabato City due to its distance from Iligan City, as well as the unfavorable peace and order condition in Cotabato City; and also arguing that the situs of petitioners alleged offense was in Iligan City, and not in Cotabato City. However, the CSC, in its Resolution No. 031139 dated 11 November 2003, denied petitioners Motion.6 The hearing of the case was again set on 19 February 2004. On said date, however, petitioner requested another postponement because she was attending an Echo-Seminar on Planning

in Cotabato City. Petitioner sought further postponement of the hearings scheduled for 17 March and 31 March 2004. Finally, petitioner and her counsel attended the hearings on 17 May 2004 and 23 September 2004, and the prosecution was able to present its evidence. The prosecution presented evidence establishing that petitioner previously took, and failed, the Career Service (CS) Professional Examination held on 29 November 1992 at Room 26, Iligan Capitol College, Iligan City. She allegedly again took the CS Professional Examination on 17 October 1993. The prosecution, however, claimed that, while petitioners pictures and signatures in her Application Form (AF) and Picture Seat Plan (PSP) for the CS Professional Examination on 29 November 1992 which she failed appeared similar to those in her PDS dated 10 November 1994, the pictures and signatures appearing in her AF and PSP for the CS Professional Examination on 17 October 1993 were different. The prosecution then rested after its formal offer of evidence. It was petitioners turn to present evidence in her defense. Petitioner herself took the witness stand on 25 November 2004. Petitioner admitted that she previously took the CS Professional Examination on 29 November 1992, but she failed the same. She again applied for and actually took the CS Professional Examination on 17 October 1993, which she passed. Petitioner insisted that the pictures and signatures appearing in the AF and PSP for the CS Professional Examination on 17 October 1993 were all hers. She confirmed knowing Adelaida L. Casanguan (Casanguan), one of her witnesses, who also took the CS Professional Examination on 17 October 1993 at Room 003, Administration Building of the Iligan City National High School. Casanguan, recounted that she took the CS Professional Examination on 17 October 1993 at Room 003, Administration Building of the Iligan City National High School, but she did not pass the same. She claimed that she knew petitioner, having seen the latter take the CS Professional Examination also on 17 October 1993 in the same room. Petitioners third and last witness was Dick U. Yasa (Yasa). Yasa, then Personnel Specialist II of CSCRO No. XII, testified that he personally got to know petitioner, an employee of COAARMM, and formerly Ms. Pagayanan Romero, since their offices previously shared the same building. Yasa was among those who assisted in the conduct of the CS Professional Examination held on 17 October 1993 in Iligan City. At around 7:00 to 7:30 in the morning of said date, Yasa alleged seeing petitioner in Room 003 of Iligan City National High School for the CS Professional Examination. CSCRO No. XII rendered its Decision on 27 February 2006, the dispositive portion of which reads: WHEREFORE, respondent Pagayanan Romero-Hadji Sirad is hereby found GUILTY of Dishonesty, Grave Misconduct and Conduct Prejudicial to the Best Interest of the Service. She is hereby meted the penalty of DISMISSAL from the service. The accessory penalties of forfeiture of retirement benefits, cancellation of eligibility, prohibition from entering the government service and disqualification from taking future government examinations are likewise imposed. Let copy of this Decision be furnished respondent and her counsel in their addresses on record; the Commission on Audit Autonomous Region in Muslim Mindanao (COA-ARMM), Cotabato City; the Office for Legal Affairs (OLA), Civil Service Commission, Quezon City; the

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Civil Service Commission Autonomous Region in Muslim Mindanao (CSC-ARMM), Cotabato City; the Government Service Insurance System (GSIS) Cotabato Branch; and the Examination Services Division and Policies and Systems Evaluation Division, this Office, for information and appropriate action.7 Petitioners Motion for Reconsideration was denied by CSCRO No. XII in a Resolution 8 dated 30 May 2006. Aggrieved, petitioner appealed to the CSC. In Resolution No. 070875 dated 7 May 2007, the CSC agreed in the findings of CSCRO No. XII, the fallo of which reads: WHEREFORE, the appeal of Pagayanan R. Hadji-Sirad is hereby DISMISSED. Accordingly, the Decisions of the Civil Service Commission Regional Office No. XII dated February 27, 2006 finding Hadji-Sirad guilty of Dishonesty, Grave Misconduct and Conduct Prejudicial to the Best Interest of the Service and imposing upon her the penalty of dismissal from the service and its accessory penalties of cancellation of eligibility, forfeiture of retirement benefits, disqualification from holding public office and bar from taking any Civil Service examinations, and dated March 30, 2006 denying her Motion for Reconsideration, respectively, are hereby AFFIRMED.9 The CSC denied petitioners Motion for Reconsideration in CSC Resolution No. 072196 dated 26 November 2007. According to said Resolution: The doctrine of res ipsa loquitur finds application in her case, as the evidence cannot lie. Worst, the [herein petitioner] did not present any controverting evidence sufficient enough to support her defense that indeed she was the same person appearing in the PSP and AF for the October 17, 1993 Career Service Professional Examination held in Iligan City and the one who actually took the said examination. The [petitioner] must remember that, although the very examination record in question was the October 17, 1993 Career Service Professional Examination, reference was made in the November 22, 1992 Career Service Professional Examination records when it was confirmed that she took the same examination. In the November 22, 1992 Career Service Professional Examination records, the pictures attached to the PSP and AF and the signatures affixed thereon are very much similar to the picture and signature in her PDS. The conclusion drawn from all these is that Hadji-Sirad took the November 22, 1992 Career Service Examination but she did not take the October 17, 1993 examinations. These are not mere inferences but are simple truth strongly supported by the evidence on record.10 The CSC, in the end, disposed: WHEREFORE, the motion for reconsideration of Pagayanan R. Hadji-Sirad [petitioner] is hereby DENIED. Accordingly, Civil Service Commission Resolution No. 070875 dated May 7, 2007 finding her guilty of Dishonesty, Grave Misconduct and Conduct Prejudicial to the Best Interest of the Service, STANDS.11 Unwavering, petitioner filed before the Court of Appeals a Petition for Certiorari 12 under Rule 65 of the 1997 Revised Rules of Civil Procedure on the ground that the CSC Resolutions dated 7 May 2007 and 26 November 2007 were issued with grave abuse of discretion amounting to lack or in excess of jurisdiction. The Petition was docketed as CA-G.R. SP No. 02103-MIN.

On 18 January 2008, the Court of Appeals issued a Resolution dismissing the Petition in CAG.R. SP No. 02103-MIN for being a wrong mode of appeal. Petitioner should have filed a petition for review under Rule 43, not a petition for certiorari under Rule 65 of the 1997 Revised Rules of Civil Procedure. The appellate court likewise dismissed the Petition for petitioners failure to indicate therein the material date of filing of her Motion for Reconsideration before the CSC, and to append thereto the said Motion for Reconsideration, in violation of the second and third paragraphs of Section 3, Rule 46 of the 1997 Revised Rules of Civil Procedure. Petitioners Motion for Reconsideration was denied by the Court of Appeals in a Resolution dated 12 March 2008. Petitioner comes before this Court via the present Petition for Review on Certiorari, posing the following issues for resolution: WHETHER OR NOT RULE 65 IS THE PROPER REMEDY WHETHER OR NOT THE COURT OF APPEALS IS CORRECT IN DISMISSING THE PETITION FOR CERTIORARI FILED BY PETITIONER BASED ON MERE TECHNICALITIES WHETHER OR NOT THE CIVIL SERVICE COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION BY IGNORING THE IMPORTANT PIECES OF EVIDENCE DULY PRESENTED BY THE PETITIONER. The Court of Appeals did not err in dismissing the Petition for Certiorari in CA-G.R. SP No. 02103-MIN for being the wrong mode of appeal and for non-compliance with several other procedural requirements. Section 50, Rule III of the Uniform Rules on Administrative Cases in the CSC13 plainly states that a party may elevate a decision of the Commission before the Court of Appeals by way of a petition for review under Rule 43 of the 1997 Revised Rules of Court.14 Sections 1 and 5, Rule 43 of the 1997 Revised Rules of Civil Procedure, as amended, provide that final orders or resolutions of the CSC are appealable to the Court of Appeals through a petition for review, to wit: SECTION 1. Scope. - This Rule shall apply to appeals from judgments or final orders of the Court of Tax Appeals and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of quasi judicial functions. Among these agencies are the Civil Service Commission, Central Board of Assessment Appeals, Securities and Exchange Commission, Office of the President, Land Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer, National Electrification Administration, Energy Regulatory Board, National Telecommunications Commission, Department of Agrarian Reform under Republic Act. No. 6657, Government Service Insurance System, Employees Compensation Commission, Agricultural Inventions Board, Insurance Commission, Philippine Atomic Energy Commission, Board of Investments, Construction Industry Arbitration Commission, and voluntary arbitrators authorized by law. SEC. 5. How appeal taken. Appeal shall be taken by filing a verified petition for review in seven (7) legible copies with the Court of Appeals, with proof of service of a copy thereof on the adverse party and on the court or agency a quo. The original copy of the petition intended for the Court of Appeals shall be indicated as such by the petitioner.

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Hence, in accordance with the foregoing rules, if petitioner indeed received a copy of CSC Resolution No. 072196 dated 26 November 2007, denying her Motion for Reconsideration, on 5 December 2007, she had 15 days thereafter, or until 20 December 2007, to file a petition for review with the Court of Appeals. However, petitioner filed instead a Petition for Certiorari on 27 December 2007, already 22 days after receipt of a copy of CSC Resolution No. 072196 dated 26 November 2007. As we have held in numerous cases, a special civil action for certiorari is not a substitute for a lost or lapsed remedy of appeal.15 We have often enough reminded members of the bench and bar that a special civil action for certiorari under Rule 65 of the 1997 Revised Rules of Civil Procedure lies only when there is no appeal or plain, speedy and adequate remedy in the ordinary course of law.16 Certiorari is not allowed when a party to a case fails to appeal a judgment or final order despite the availability of that remedy. The remedies of appeal and certiorari are mutually exclusive and not alternative or successive.17 In this case, petitioner utterly failed to provide any justification for her resort to a special civil action for certiorari, when the remedy of appeal by petition for review was clearly available. In addition to being the wrong mode of appeal, the Court of Appeals also dismissed the Petition for Certiorari in CA-G.R. SP No. 02103-MIN for petitioners failure to comply with the requirements for petitions under Rule 65 of the 1997 Revised Rules of Civil Procedure, particularly, the second and third paragraphs of Section 3, Rule 46, of the same rules, which read: SEC. 3. Contents and filing of petition; effect of non-compliance with requirements. xxxx In actions filed under Rule 65, the petition shall further indicate the material dates showing when notice of the judgment or final order or resolution subject thereof was received, when a motion for new trial or reconsideration, if any, was filed and when notice of the denial thereof was received. It shall be filed in seven (7) clearly legible copies together with proof of service thereof on the respondent with the original copy intended for the court indicated as such by the petitioner, and shall be accompanied by a clearly legible duplicate original or certified true copy of the judgment, order, resolution, or ruling subject thereof, such material portions of the record as referred to therein, and other documents relevant or pertinent thereto. The certification shall be accomplished by the proper clerk of court or by his duly authorized representative, or by the proper officer of the court, tribunal, agency or office involved or by his duly authorized representative. The other requisite number of copies of the petition shall be accompanied by clearly legible plain copies of all documents attached to the original. The consequence for non-compliance with any of such requirements is sheerly spelled out in the sixth paragraph of Rule 3, Section 46 of the 1997 Revised Rules of Civil Procedure, to be as follows: The failure of the petitioner to comply with any of the foregoing requirements shall be sufficient ground for the dismissal of the petition. (Emphasis supplied.) Petitioner failed to indicate in her Petition for Certiorari in CA-G.R. SP No. 02103-MIN the material date when she filed her Motion for Reconsideration of CSC Resolution No. 070875 dated 7 May 2007, and to append to the same Petition a certified true copy or duplicate

original of the said Motion for Reconsideration. Accordingly, the Court of Appeals dismissed the Petition. Rules of procedure are tools designed to promote efficiency and orderliness as well as to facilitate attainment of justice, such that strict adherence thereto is required.18 However, technical rules of procedure are not designed to frustrate the ends of justice. The Court is fully aware that procedural rules are not to be belittled or simply disregarded, for these prescribed procedures insure an orderly and speedy administration of justice. However, it is equally true that litigation is not merely a game of technicalities. Law and jurisprudence grant to courts the prerogative to relax compliance with procedural rules of even the most mandatory character, mindful of the duty to reconcile both the need to put an end to litigation speedily and the parties right to an opportunity to be heard.19 This is not to say that adherence to the Rules could be dispensed with. However, exigencies and situations might occasionally demand flexibility in their application. 20 In not a few instances, the Court relaxed the rigid application of the rules of procedure to afford the parties the opportunity to fully ventilate their cases on the merit. This is in line with the time-honored principle that cases should be decided only after giving all parties the chance to argue their causes and defenses. Technicality and procedural imperfection should, thus, not serve as basis of decisions. In that way, the ends of justice would be better served. For, indeed, the general objective of procedure is to facilitate the application of justice to the rival claims of contending parties, bearing always in mind that procedure is not to hinder but to promote the administration of justice.21 In Sanchez v. Court of Appeals,22 the Court restated the reasons that may provide justification for a court to suspend a strict adherence to procedural rules, such as: (a) matters of life, liberty, honor or property; (b) the existence of special or compelling circumstances; (c) the merits of the case; (d) a cause not entirely attributable to the fault or negligence of the party favored by the suspension of the rules; (e) a lack of any showing that the review sought is merely frivolous and dilatory; and (f) the other party will not be unjustly prejudiced thereby.23 Pointedly, even if we were to overlook petitioners procedural lapses and review her case on the merits, we find no reason to reverse her dismissal from service by the CSC. Firstly, petitioner was dismissed from service only after being accorded due process. In administrative proceedings, such as in the case at bar, procedural due process simply means the opportunity to explain ones side or the opportunity to seek a reconsideration of the action or ruling complained of.24 "To be heard" does not mean only verbal arguments in court; one may be heard also thru pleadings. Where opportunity to be heard, either through oral arguments or pleadings, is accorded, there is no denial of procedural due process.25 In administrative proceedings, procedural due process has been recognized to include the following: (1) the right to actual or constructive notice of the institution of proceedings, which may affect a respondents legal rights; (2) a real opportunity to be heard personally or with the assistance of counsel, to present witnesses and evidence in ones favor, and to defend ones rights; (3) a tribunal vested with competent jurisdiction and so constituted as to afford a person charged administratively a reasonable guarantee of honesty as well as impartiality; and (4) a finding by said tribunal which is supported by substantial evidence submitted for consideration during the hearing or contained in the records or made known to the parties affected.26

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Petitioner cannot claim denial of due process when records reveal that (1) petitioner was given sufficient notice of the Formal Charge against her and the setting of the hearings of her administrative case before CSCRO No. XII; (2) petitioner was formally charged after an initial investigation was conducted; (3) her several requests for postponement of the hearings were granted; (4) the prosecution only presented evidence during the hearings on 17 May 2004 and 23 September 2004, when petitioner and her counsel were present; (5) petitioner herself and her two witnesses, Casanguan and Yasa, got the opportunity to testify on 25 November 2004; (6) only after the parties had submitted their arguments and evidence did CSCRO No. XII render its Decision on 27 February 2006; (7) petitioner was able to file a Motion for Reconsideration with CSCRO No. XII, but it was denied; (8) petitioner sought recourse with the CSC by filing an appeal, as well as a Motion for Reconsideration of the unfavorable judgment subsequently rendered by the CSC; and (8) when her Petition for Certiorari was dismissed by the Court of Appeals, petitioner was able to file the instant Petition before us. All these establish that petitioner was able to avail herself of all procedural remedies available to her. Secondly, the Decision dated 27 February 2006 of CSCRO No. XII, affirmed by the CSC, which dismissed petitioner from service for Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest of the Service, is supported by competent and credible evidence. The law requires that the quantum of proof necessary for a finding of guilt in administrative cases is substantial evidence or such relevant evidence as a reasonable mind may accept as adequate to support a conclusion.27 Well-entrenched is the rule that substantial proof, and not clear and convincing evidence or proof beyond reasonable doubt, is sufficient basis for the imposition of any disciplinary action upon an employee. The standard of substantial evidence is satisfied where the employer has reasonable ground to believe that the employee is responsible for the misconduct, and his participation therein renders him unworthy of trust and confidence demanded by his position.28 There is such substantial evidence herein to prove petitioner guilty of the administrative offenses for which she was charged. Even only a cursory examination of petitioners pictures and signatures in her PDS dated 10 November 1994, and in the AF and PSP for the CS Professional Examination of 29 November 1992, on one hand; and petitioners purported pictures and signatures in the AF and PSP for the CSC Professional Examination of 17 October 1993, on the other, reveals their marked differences from one another. It can be observed by the naked eye that the pictures and signatures bear little resemblance/similitude, or none at all. The pictures could not have been those of the same individual, nor could the signatures have been made by the same person. This conclusion is strengthened by the CSCRO when it expostulates that: It is a different matter, however, upon evaluation of the examination records of respondent for the October 17, 1993 CS Professional Exam vis--vis her Personal Data Sheet as well as her examination records for the November 29, 1992 CS Professional Exam. It reveals that respondent Hadji Sirad is not the same person who took the October 17, 1993 CS exam. The facial features as well as the signatures of examinee and appointee Romero are glaringly different. Records clearly show that the person appearing in the picture for the November 1992 exam is the same person whose picture appears in the PDS that is appointee Hadji

Sirad. Examinee Romero (Hadji-Sirad) in the October 1993 exam, on the other hand, does not look like appointee Romero (Hadji-Sirad) as shown in the two documents. Most notable is the mole on the left side of the cheek of Romero which examinee does not have. This can be clearly observed in the scanned photos below: x x x.29 And reechoed by the CSC, thus: The Commission also made a careful examination and comparison of the picture attached to the PSP and AF for the Career Civil Service Professional Examination held on October 17, 1993 with those attached to the PSP and AF for the previous Career Service Professional Examination she took on November 29, 1992 on file with the Commission, and those attached to Hadji-Sirads PDS; it is convinced that another person took the Career Service Professional Examination held on October 17, 1993. While it is true that the pictures of Hadji-Sirad attached to the PSP and AF for the Career Service Professional Examination held on November 29, 1992 and to her PDS were not the same, the resemblance, however, in the facial features in said pictures are notable and unmistakably belong to one and the same person. Comparing these pictures to the pictures attached to the PSP and AF for the October 17, 1993 Career Service Professional Examination, the differences are so striking that one would conclude easily that the persons therein are two different individuals. As correctly observed by the CSCRO No. XII, the person appearing in the picture attached to the PSP and AF in October 17, 1993 Career Service Professional Examination looked quite older than the more recent picture of Hadji-Sirad attached to her PDS dated November 10, 1994. The Commission also noted a remarkable difference in the signatures of Hadji-Sirad appearing in the PSP and AF for the October 17, 1993 Career Service Professional Examination and those affixed in the PSP for the November 29, 1992 Career Service Professional Examination previously taken by her and in her PDS. The strokes used in the signature affixed in the PSP and AF of the October 17, 1993 Career Service Professional Examination were somewhat forcedly pressed and slanting, and the letters thereof were more prominent and defined while those affixed in other documents on file with the Commission were finer and were in an upright stroke and the letters were less defined. Even to the naked eye, the slants and strokes are very dissimilar and are clearly made by two (2) different persons. Based on the foregoing circumstances and on the substantial evidence on record, the Commission is convinced that Hadji-Sirad has allowed another person to apply and take the Career Service Professional Examination held on October 17, 1993 in her behalf to ensure her passing the said examination.30 As a general rule, the findings of fact of the CSC and the Court of Appeals are accorded great weight. In a plethora of cases, we have held that lower courts are in a better position to determine the truth of the matter in litigation, since the pieces of evidence are presented before them, and they are able to look into the credibility and the demeanor of the witnesses on the witness stand. Furthermore, quasi-judicial bodies like the CSC are better-equipped in handling cases involving the employment status of employees as those in the Civil Service since it is within the field of their expertise. Factual findings of administrative agencies are generally held to be binding and final so long as they are supported by substantial evidence in the record of the case. It is not the function of the Supreme Court to analyze or weigh all over

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again the evidence and credibility of witnesses presented before the lower court, tribunal or office. The Supreme Court is not a trier of facts. Its jurisdiction is limited to reviewing and revising errors of law imputed to the lower court, its findings of fact being conclusive and not reviewable by this Court.31 Petitioner attributes the difference in the way she looked in the pictures to the passage of time or difference in the "positioning" when the pictures were taken; and the variance in her signatures to her state of mind at the time she was actually signing and the kind of writing implement and paper she was using. We are unconvinced. Petitioners explanations would have accounted for small or few differences in the pictures and signatures; but not when they are on the whole strikingly dissimilar. Moreover, it would have been easy for petitioner to submit evidence such as pictures to show the gradual change in her appearance through the years, or samples of her signatures made when she was of a different state of mind or using other writing implements and papers; yet, petitioner failed to do so.lavvph!l We cannot even consider the possibility that the CSC officials who supervised the examinations committed a mistake in matching the pictures and signatures vis--vis the examinees, as the said CSC officials enjoy the presumption of regularity in the performance of their official duty. Besides, such a mix-up is highly unlikely due to the strict procedures followed during civil service examinations, described in detail in Cruz v. Civil Service Commission,32 to wit: It should be stressed that as a matter of procedure, the room examiners assigned to supervise the conduct of a Civil Service examination closely examine the pictures submitted and affixed on the Picture Seat Plan (CSC Resolution No. 95-3694, Obedencio, Jaime A.). The examiners carefully compare the appearance of each of the examinees with the person in the picture submitted and affixed on the PSP. In cases where the examinee does not look like the person in the picture submitted and attached on the PSP, the examiner will not allow the said person to take the examination (CSC Resolution No. 95-5195, Taguinay, Ma. Theresa). The only logical scenario is that another person, who matched the picture in the PSP, actually signed the AF and took the CS Professional Examination on 17 October 1993, in petitioners name. True, petitioner was able to present testimonial evidence supporting her allegation that she was at Room 003 of the Administration Building of Iligan City National High School on 17 October 1993, the day of the CS Professional Examination. But, despite said testimonies, both CSCRO No. XII and the CSC still gave the prosecutions evidence more credit and weight. On this point, we again pertinently quote the following observations in the decision of the Regional Director dated 27 February 2006 and in the Resolution denying the petitioners motion for reconsideration issued on 30 May 2006: Further, testimonies of witnesses Casanguan and Yasa do not stand conclusive of the fact that it was indeed respondent who took the said examination. Yasa only testified that he saw Romeros name at Room No. 003 of Iligan City National High School and that allegedly he saw respondent at around 7-7:30 a.m. in the examination center but he did not stay any longer at the said venue, hence he was not there anymore when the examination actually began and ended. Thus, Yasa could not claim that he actually saw respondent take the examination.

xxxx The testimony of respondent-movant and that of witness Casanguan are self-serving. The testimony of Yasa, on the other hand, negated his sworn statement that he actually saw Hadji Sirad take the October 1993 examination. On the witness stand, it was made clear that he only saw the name of Hadji Sirad in the list of examinees posted outside Room 003. Further, that the only time he saw Hadji Sirad was prior to the start of the examination. Clearly, he did not see Hadji Sirad actually take the exam nor hand in her examination papers after she finished the examination. Finally, it is stressed that the fact that Yasa is a long-time employee of the Commission does not render his statements relative to the conduct of the 1993 CS Professional examination in Iligan City as gospel truth. Given the foregoing, the Court finds that petitioner is, indeed, guilty of Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest of the Service. Dishonesty alone, being in the nature of a grave offense, carries the extreme penalty of dismissal from the service with forfeiture of retirement benefits, except accrued leave credits, and perpetual disqualification for reemployment in the government service.33 WHEREFORE, the instant Petition is hereby DENIED. The Resolutions dated 18 January 2008 and 12 March 2008 of the Court of Appeals in CA-G.R. SP No. 02103-MIN are AFFIRMED. Costs against the petitioner. SO ORDERED. G.R. No. 120223 March 13, 1996 DR. RAMON Y. ALBA, petitioner, vs. THE HONORABLE DEPUTY OMBUDSMAN CESAR Y. NITORREDA, ET AL., respondents. RESOLUTION FRANCISCO, J.:p The instant motion for reconsideration has its origin in an administrative case (OBM-MINADM-94-059) filed with the Office of the Ombudsman for Mindanao by private respondents Jesiela Antiporta and Aida Salmeo against petitioner Dr. Ramon Y. Alba in his capacity as Director III of the Department of Education Culture and Sports (DECS) accusing the latter of violating certain provisions of the Code of Conduct and Ethical Standards For Public Officials and Employees (R.A. 6713). The facts are as follows: Private respondents were among the twenty five (25) graduating students of the Arriesgado Institute of Medical Sciences Foundation, Inc. (AIMSFI) in Tagum, Davao who sought the intervention of petitioner in settling a dispute with the said school arising from the implementation of certain school policies. Acting on the request for intervention, petitioner scheduled a meeting with the students on March 20, 1994 at 8:30 in the morning. Thus, on the said date, private respondents and the other complaining students travelled all the way from Tagum, Davao to the DECS Office in Davao City. Their presence in the said office was duly noted by DECS Administrative Officer V, Aquilina Granada who advised them that petitioner will forthwith meet with them. However, instead of conferring with the aggrieved students,

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petitioner instead met with the Arriesgado spouses-owners of AIMSFI-who admittedly did not even have a previous appointment with petitioner with the result that the students were left waiting at the anteroom for several hours. In view of this apparent discrimination, the students contacted respondent Deputy Ombudsman for Mindanao, Cesar E. Nitorreda who was impelled to proceed to the DECS Office to admonish petitioner for not conferring with both parties at the same time in order to hear both sides of the controversy. Thereafter, petitioner presided over the conference between the Arriesgados and the aggrieved students. On March 29, 1994, petitioner submitted to the Office of the Ombudsman for Mindanao (Office of the Ombudsman), a report on the said conference wherein he claimed that he had succeeded in facilitating an amicable settlement between the parties. However, petitioner's claim of having settled the dispute between the Arriesgados and the complaining students is belied by private respondents' affidavit-complaint 1 attesting to the fact that as a result of the said dispute, they were barred from taking the, final examinations and participating. in the graduation rites. In the same affidavit-complaint, private respondents pointed out petitioner's evident bias and partiality in favor of the Arriesgados in the conduct of the conference held on March 20, 1994. Petitioner denied the said charges in his counter-affidavit 2 and justified his actuations by posturing that the reason why he decided to talk to the school owner first was "to thresh out the complaints of the students in order to have a complete view of the situation before talking jointly with the student and the owner of the school." 3 Petitioner also theorized that private respondents were not allowed to take the final examinations and participate in the graduation rites due, to their failure "to settle their obligations with the school and/or . . . pass their academic subjects . . .," 4 However, in a rejoinder filed by petitioner, he averred that after inquiry from AIMSFI, he was informed that private respondents' taking of the final examinations and their graduation were conditioned upon their withdrawal of the complaint filed against petitioner with the Office of the Ombudsman. 5 After both parties failed to attend the preliminary conference scheduled by the Graft Investigating Officer assigned to the case, a resolution dated April 28, 1995 was rendered by the Office of the Ombudsman finding petitioner guilty of violating Section 4(b), (c) and (e) of R.A. 6713 6 and holding as follows: There is no denying that respondent Director Alba was partial to the AIMSFI school owners and acted against the interest of the complainants. Complainants' averments were confirmed by the school itself, thru School Principal Ma. Clara Arriesgado, that the complaining students were not allowed to take the final examination until and unless they agree to the withdrawal of the case they filed in this Office against herein respondent Assistant Regional Director. Clearly, respondent and the school jointly coerced the students to submit to such an illegal, improper and immoral demand. Respondent did not comfort himself in accordance with justness, sincerity and professionalism required by the Code of Conduct and Ethical Standards of Public Officers and Employees R.A. 6713). 7 For such gross misconduct, petitioner was meted a suspension of thirty (30) days without pay and warned that any other instance of non-observance of the Code of Conduct will result in graver punishment. 8 When petitioner's motion for reconsideration of the foregoing resolution was denied, he filed an "Appeal Petition for Certiorari and/or Prohibition With Prayer for Temporary Restraining

Order and/or Writ of Preliminary Prohibitory Injunction" (petition) with this Court. In a Resolution dated June 27, 1995, the said petition was dismissed on the ground that it was moot and academic because the questioned suspension of petition a which was effective from May 26, 1995 to June 24, 1995 had already expired or become functus oficio on June 28, 1995 when the petition was filed. Alleging, first and foremost, a misreading of the correct date of filing of the petition, petitioner filed the instant motion for reconsideration of the dismissal of the said petition. A closer scrutiny of the records shows that the petition was indeed filed on June 2, 1995 and not on June 28 as initially deciphered by this Court from the misleading sequence of numbers on the stamp of receipt, that is "JUN 2 8 28 PM 95". Thus, as correctly averred by petitioner, at the time of the filing of the petition on June 2, 1995, there were still a good twenty two (22) days left of the suspension imposed on him. Consequently, we set aside our original finding that the petition is moot and academic. With that error rectified, it is now incumbent upon this Court to resolve the following issues raised in the petition to the end that the latter may be finally disposed of on its merits. A) Whether or not Section 27 of R.A. 6770 (otherwise known as the "Ombudsman Act of 1989") which states: xxx xxx xxx Findings of fact by the Office of the Ombudsman when supported by substantial evidence are conclusive. Any order, directive or decision imposing the penalty of public censure or reprimand, suspension of not more than one month's salary (sic) shall be final and unappealable. and Section 7, Rule III, of Administrative Order No. 07, dated April 10, 1990 (otherwise known as the "RULES OF PROCEDURE OF THE OFFICE OF THE OMBUDSMAN" . . .), which states: Sec. 7. Finality of decision. Where the respondent is absolved of the charged (sic) and in case of conviction where the penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine equivalent to one 1 month salary, the decision shall be final and unappealable. In all other cases, the decision shall become final after the expiration of ten (10) days from receipt thereof by the respondent, unless a motion for reconsideration or petition for certiorari shall have been filed by him as prescribed in Section 27 of RA 6770. are valid or constitutional, or constitute an undue curtailment or deprivation of Petitioner's right to DUE PROCESS and a denial of his constitutional right to property. 9 and (b) Whether or not the thirty (30)-day suspension of Petitioner, without pay and "unappealable", imposed by herein respondent DEPUTY OMBUDSMAN for MINDANAO, Cesar E. Nitorreda, was in accordance with a valid or constitutional law/legislation and/or in accordance with due process, supported by substantial evidence and is not arbitrary, whimsical and a grave abuse of discretion or authority on the part of said Nitorreda. 10 Petitioner assails the constitutionality of Section 27 of R.A. 6770 and Section 7, Rule III of Administrative Order No. 7 for their failure to provide for the right of appeal in certain cases from the decision of the Ombudsman, maintaining that the same is tantamount to a deprivation of property without due process of law. As regards this threshold matter, suffice it to say that this Court has consistently held that:

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The right to appeal is not a natural right nor a part of due process; it is merely a statutory privilege, and may be exercised only in the manner and in accordance with the provisions of the law. 11 Apparently, therefore, the constitutional requirement of due process may be satisfied notwithstanding the denial of the right to appeal for the essence of due process is simply the opportunity to be heard and to present evidence in support of one's case. 12 The Office of the Ombudsman is vested by law with the power to promulgate its own rules of procedure, 13 and a perusal of the said rules of procedure in administrative cases manifest sufficient compliance with the requirements of due process. Thus, Sec. 5 Administrative Adjudication; How Conducted a) If the complaint is not dismissed for any of the causes enumerated in Section 20 of Republic Act No. 6770, the respondent shall be furnished with copy of the affidavits and other evidences submitted by the complainant, and shall be ordered to file his counter-affidavits and other evidences in support of his defense, within ten (10) days from receipt thereof, together with proof of service of the same on the complainant who may file reply affidavits within ten (10) days from receipt of the counter-affidavits of the respondent. b) If, on the basis of the affidavits and other evidences submitted by the parties; the investigating officer finds no sufficient cause to warrant further proceedings, the complaint may be dismissed. Otherwise, he shall summon the parties to a preliminary conference to consider the following matters: 1) Whether the parties desire a formal investigation or are willing to submit the case for resolution on the basis of the evidence on record and such other evidences they will present at such conference; 2) Should the parties desire a formal investigation to determine the nature of the charge, stipulation of facts, a definition of the issues, identification and marking of exhibits, limitation of witness and such other matters as would expedite the proceedings; c) After the preliminary conference, the investigating officer shall issue an order reciting the matters take up during the conference, including the facts stipulated, the evidence marked and the issues involved. The contents of this order may not be deviated from unless amended to prevent manifest injustice. d) Should hearing be conducted, the parties shall be notified at least five (5) days before the date thereof. Failure of any or both of the parties to appear at the hearing is not necessarily a cause for the dismissal of the complaint. A party who appears may be allowed to present his evidence in the absence of the adverse party who was duly notified of the hearing; e) Only witnesses who have submitted affidavits, served on the adverse party at least five (5) days before the date of his being presented as a witness may be allowed to testify at the hearing. The affidavit of any witness shall constitute his direct testimony, subject to crossexamination re-direct examination and re-cross-examination; f) The parties shall be allowed the assistance of counsel and the right to the production of evidence thru the compulsory process of subpoena and subpoena duces tecum. Petitioner further assails the failure of the Graft Investigating Officer to call the parties to another preliminary conference after their failure to appear at the first one. He contends that the lack of any kind of hearing for evidence presentation resulted in "what may be termed, in the lingo of 'civil procedure', a 'judgment on the pleadings'" 14 . At the onset, it is worth pointing

out that petitioner was afforded ample opportunity to present his side at the scheduled preliminary conference. His non-appearance thereat is attributable to no one else but himself and he cannot be allowed to now pass the buck to the Graft Investigating Officer who had complied strictly with the above quoted procedure in the conduct of administrative investigations. Furthermore, undisputed is the fact that not only did the Office of the Ombudsman give due course and consideration to petitioner's counter-affidavit, but it also entertained and resolved his motion for reconsideration which is not ordinarily allowed in the adjudication of administrative cases where the penalty imposed is suspension of not more than one month. Thus, contrary to petitioner's claim, he was in fact given all opportunity to be heard, albeit through pleadings. In point is the case of Concerned Officials of the MWSS vs. Hon. Ombudsman Conrado Vasquez, 15 where this Court upheld the validity of an order issued by the Ombudsman without prior hearing, in this wise: The essence of due process is an opportunity to be heard, One may be heard, not solely by verbal presentation but also, and perhaps even many times more creditably and practicable than oral argument, through pleadings. In administrative proceedings, moreover, technical rules of procedure and evidence are not strictly applied; administrative due process cannot be fully equated to due process in its strict judicial sense.16 Hence, a formal or trial type hearing is not, at all times, necessary. So long as a party is afforded fair and reasonable opportunity to explain his side, the requirement of due process is complied with. 17 That the petitioner and all other public officials are deprived of a legal recourse in the event that the Ombudsman or his Deputy "hastily, arbitrarily, if not oppressively and/or inhumanly, acts to find him administratively liable for an imagined violation of Sec. 4 of R.A. 6713 . . ." 18 is belied by the fact that the remedy of filing a petition forcertiorari under Rule 65 of the Rules of Court is always available to an aggrieved public officials in such a case. The Rules of Court which apply suppletorily to the Rules of Procedure of the Office of the Ombudsman 19 provides that in the absence of an appeal or any other plain, speedy and adequate remedy in the ordinary course of law, a person aggrieved by any decision rendered in excess of jurisdiction or with grave abuse of discretion by a tribunal, board or officer exercising judicial functions, may file a petition for certiorari with this Court. 20 Petitioner's asseveration that his suspension is not substantiated by evidence is a mere desperate attempt to lure this Court into reviewing the factual findings of the Office of the Ombudsman. Squarely applicable to the findings of fact in the administrative proceedings against petitioner is the settled the rule that: . . . factual findings of administrative agencies are accorded not only respect but finality, because of the special knowledge and expertise gained by these quasi-judicial tribunals from handling specific matters falling under their jurisdiction. Courts cannot take cognizance of such factual issues. In reviewing administrative decisions, the reviewing court cannot reexamine the sufficiency of the evidence. . . . 21 Nonetheless, even a review of the evidence against the petitioner does not warrant a reversal of the findings of fact of the Office of the Ombudsman. Finally and as a last ditch effort, petitioner secured a joint-affidavit of desistance dated May 19, 1995 from private respondents in the hope that the Office of the Ombudsman will be

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persuaded into discontinuing the prosecution of the case against him. The joint-affidavit of desistance was executed by private respondents only after all evidence against petitioner had been documented and evaluated by the Office of the Ombudsman, and in fact, only after it had issued its resolution finding petitioner guilty of the administrative charges against him. The joint-affidavit of desistance is not binding on the Office of the Ombudsman and cannot prevail over the provision of law which categorically allows the Office of the Ombudsman to investigate and prosecute on its own any act or omission of a public officer or employee, office or agency which appears to be illegal, unjust, improper or inefficient. 22 Moreover, this Court has consistently refrained from interfering with the exercise by the Ombudsman of his constitutionally mandated investigatory and prosecutory powers. Otherwise stated, it is beyond the ambit of this Court to review the exercise of discretion of the Ombudsman in prosecuting or dismissing a complaint filed before it. 23 Such initiative and independence are inherent in the Ombudsman who, beholden to no one, acts as the champion of the people and preserver of the integrity of the public service. WHEREFORE, in view of the aforegoing reasons, the motion for reconsideration of the Resolution of this Court dated June 27, 1995 is hereby denied. SO ORDERED. Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Hermosisima, Jr. and Panganiban, JJ., concur. G.R. No. 101837 February 11, 1992 ROLITO GO y TAMBUNTING, petitioner, vs. THE COURT OF APPEALS, THE HON. BENJAMIN V. PELAYO, Presiding Judge, Branch 168, Regional Trial Court, NCJR Pasig, M.M., and PEOPLE OF THE PHILIPPINES, respondents. FELICIANO, J.: According to the findings of the San Juan Police in their Investigation Report, 1 on 2 July 1991, Eldon Maguan was driving his car along Wilson St., San Juan, Metro Manila, heading towards P. Guevarra St. Petitioner entered Wilson St., where it is a one-way street and started travelling in the opposite or "wrong" direction. At the corner of Wilson and J. Abad Santos Sts., petitioner's and Maguan's cars nearly bumped each other. Petitioner alighted from his car, walked over and shot Maguan inside his car. Petitioner then boarded his car and left the scene. A security guard at a nearby restaurant was able to take down petitioner's car plate number. The police arrived shortly thereafter at the scene of the shooting and there retrieved an empty shell and one round of live ammunition for a 9 mm caliber pistol. Verification at the Land Transportation Office showed that the car was registered to one Elsa Ang Go. The following day, the police returned to the scene of the shooting to find out where the suspect had come from; they were informed that petitioner had dined at Cravings Bake Shop shortly before the shooting. The police obtained a facsimile or impression of the credit card used by petitioner from the cashier of the bake shop. The security guard of the bake shop was shown a picture of petitioner and he positively identified him as the same person who had shot

Maguan. Having established that the assailant was probably the petitioner, the police launched a manhunt for petitioner. On 8 July 1991, petitioner presented himself before the San Juan Police Station to verify news reports that he was being hunted by the police; he was accompanied by two (2) lawyers. The police forthwith detained him. An eyewitness to the shooting, who was at the police station at that time, positively identified petitioner as the gunman. That same day, the police promptly filed a complaint for frustrated homicide 2 against petitioner with the Office of the Provincial Prosecutor of Rizal. First Assistant Provincial Prosecutor Dennis Villa Ignacio ("Prosecutor") informed petitioner, in the presence of his lawyers, that he could avail himself of his right to preliminary investigation but that he must first sign a waiver of the provisions of Article 125 of the Revised Penal Code. Petitioner refused to execute any such waiver. On 9 July 1991, while the complaint was still with the Prosecutor, and before an information could be filed in court, the victim, Eldon Maguan, died of his gunshot wound(s). Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for frustrated homicide, filed an information for murder 3 before the Regional Trial Court. No bail was recommended. At the bottom of the information, the Prosecutor certified that no preliminary investigation had been conducted because the accused did not execute and sign a waiver of the provisions of Article 125 of the Revised Penal Code. In the afternoon of the same day, 11 July 1991, counsel for petitioner filed with the Prosecutor an omnibus motion for immediate release and proper preliminary investigation, 4 alleging that the warrantless arrest of petitioner was unlawful and that no preliminary investigation had been conducted before the information was filed. Petitioner also prayed that he be released on recognizance or on bail. Provincial Prosecutor Mauro Castro, acting on the omnibus motion, wrote on the last page of the motion itself that he interposed no objection to petitioner being granted provisional liberty on a cash bond of P100,000.00. On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle 5 in order to expedite action on the Prosecutor's bail recommendation. The case was raffled to the sala of respondent Judge, who, on the same date, approved the cash bond 6 posted by petitioner and ordered his release. 7 Petitioner was in fact released that same day. On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for leave to conduct preliminary investigation 8 and prayed that in the meantime all proceedings in the court be suspended. He stated that petitioner had filed before the Office of the Provincial Prosecutor of Rizal an omnibus motion for immediate release and preliminary investigation, which motion had been granted by Provincial Prosecutor Mauro Castro, who also agreed to recommend cash bail of P100,000.00. The Prosecutor attached to the motion for leave a copy of petitioner's omnibus motion of 11 July 1991. Also on 16 July 1991, the trial court issued an Order 9 granting leave to conduct preliminary investigation and cancelling the arraignment set for 15 August 1991 until after the prosecution shall have concluded its preliminary investigation. On 17 July 1991, however, respondent Judge motu proprio issued an Order, 10 embodying the following: (1) the 12 July 1991 Order which granted bail was recalled; petitioner was given 48 hours from receipt of the Order to surrender himself; (2) the 16 July 1991 Order which granted leave to the prosecutor to conduct preliminary investigation was recalled and cancelled; (3)

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petitioner's omnibus motion for immediate release and preliminary investigation dated 11 July 1991 was treated as a petition for bail and set for hearing on 23 July 1991. On 19 July 1991, petitioner filed a petition for certiorari, prohibition and mandamus before the Supreme Court assailing the 17 July 1991 Order, contending that the information was null and void because no preliminary investigation had been previously conducted, in violation of his right to due process. Petitioner also moved for suspension of all proceedings in the case pending resolution by the Supreme Court of his petition; this motion was, however, denied by respondent Judge. On 23 July 1991, petitioner surrendered to the police. By a Resolution dated 24 July 1991, this Court remanded the petition for certiorari, prohibition and mandamus to the Court of Appeals. On 16 August 1991, respondent Judge issued an order in open court setting the arraignment of petitioner on 23 August 1991. On 19 August 1991, petitioner filed with the Court of Appeals a motion to restrain his arraignment. On 23 August 1991, respondent judge issued a Commitment Order directing the Provincial Warden of Rizal to admit petitioner into his custody at the Rizal Provincial Jail. On the same date, petitioner was arraigned. In view, however, of his refusal to enter a plea, the trial court entered for him a plea of not guilty. The Trial court then set the criminal case for continuous hearings on 19, 24 and 26 September; on 2, 3, 11 and 17 October; and on 7, 8, 14, 15, 21 and 22 November 1991. 11 On 27 August 1991, petitioner filed a petition for habeas corpus 12 in the Court of Appeals. He alleged that in view of public respondent's failure to join issues in the petition for certiorari earlier filed by him, after the lapse of more than a month, thus prolonging his detention, he was entitled to be released on habeas corpus. On 30 August 1991, the Court of Appeals issued the writ of habeas corpus. 13 The petition for certiorari, prohibition and mandamus, on the one hand, and the petition for habeas corpus, upon the other, were subsequently consolidated in the Court of Appeals. The Court of Appeals, on 2 September 1991, issued a resolution denying petitioner's motion to restrain his arraignment on the ground that that motion had become moot and academic. On 19 September 1991, trial of the criminal case commenced and the prosecution presented its first witness. On 23 September 1991, the Court of Appeals rendered a consolidated decision 14 dismissing the two (2) petitions, on the following grounds: a. Petitioner's warrantless arrest was valid because the offense for which he was arrested and charged had been "freshly committed." His identity had been established through investigation. At the time he showed up at the police station, there had been an existing manhunt for him. During the confrontation at the San Juan Police Station, one witness positively identified petitioner as the culprit. b. Petitioner's act of posting bail constituted waiver of any irregularity attending his arrest. He waived his right to preliminary investigation by not invoking it properly and seasonably under the Rules.

c. The trial court did not abuse its discretion when it issued the 17 July 1991 Order because the trial court had the inherent power to amend and control its processes so as to make them conformable to law and justice. d. Since there was a valid information for murder against petitioner and a valid commitment order (issued by the trial judge after petitioner surrendered to the authorities whereby petitioner was given to the custody of the Provincial Warden), the petition for habeas corpus could not be granted. On 3 October 1991, the prosecution presented three (3) more witnesses at the trial. Counsel for petitioner also filed a "Withdrawal of Appearance" 15 with the trial court, with petitioner's conformity. On 4 October 1991, the present Petition for Review on Certiorari was filed. On 14 October 1991, the Court issued a Resolution directing respondent Judge to hold in abeyance the hearing of the criminal case below until further orders from this Court. In this Petition for Review, two (2) principal issues need to be addressed: first, whether or not a lawful warrantless arrest had been effected by the San Juan Police in respect of petitioner Go; and second, whether petitioner had effectively waived his right to preliminary investigation. We consider these issues seriatim. In respect of the first issue, the Solicitor General argues that under the facts of the case, petitioner had been validly arrested without warrant. Since petitioner's identity as the gunman who had shot Eldon Maguan on 2 July 1991 had been sufficiently established by police work, petitioner was validly arrested six (6) days later at the San Juan Police Station. The Solicitor General invokes Nazareno v. Station Commander, etc., et al., 16 one of the seven (7) cases consolidated with In the Matter of the Petition for Habeas Corpus of Roberto Umil, etc., v. Ramos, et al. 17 where a majority of the Court upheld a warrantees arrest as valid although effected fourteen (14) days after the killing in connection with which Nazareno had been arrested. Accordingly, in the view of the Solicitor General, the provisions of Section 7, Rule 112 of the Rules of Court were applicable and because petitioner had declined to waive the provisions of Article 125 of the Revised Penal Code, the Prosecutor was legally justified in filing the information for murder even without preliminary investigation. On the other hand, petitioner argues that he was not lawfully arrested without warrant because he went to the police station six (6) days after the shooting which he had allegedly perpetrated. Thus, petitioner argues, the crime had not been "just committed" at the time that he was arrested. Moreover, none of the police officers who arrested him had been an eyewitness to the shooting of Maguan and accordingly none had the "personal knowledge" required for the lawfulness of a warrantees arrest. Since there had been no lawful warrantless arrest. Section 7, Rule 112 of the Rules of Court which establishes the only exception to the right to preliminary investigation, could not apply in respect of petitioner. The reliance of both petitioner and the Solicitor General upon Umil v. Ramos is, in the circumstances of this case, misplaced. In Umil v. Ramos, by an eight-to-six vote, the Court sustained the legality of the warrantless arrests of petitioners made from one (1) to fourteen days after the actual commission of the offenses, upon the ground that such offenses constituted "continuing crimes." Those offenses were subversion, membership in an outlawed organization like the New People's Army, etc. In the instant case, the offense for which petitioner was arrested was murder, an offense which was obviously commenced and

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completed at one definite location in time and space. No one had pretended that the fatal shooting of Maguan was a "continuing crime." Secondly, we do not believe that the warrantees "arrest" or detention of petitioner in the instant case falls within the terms of Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure which provides as follows: Sec. 5 Arrest without warrant; when lawful. A peace officer or a private person may, without warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceed against in accordance with Rule 112, Section 7. Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The "arresting" officers obviously were not present, within the meaning of Section 5(a), at the time petitioner had allegedly shot Maguan. Neither could the "arrest" effected six (6) days after the shooting be reasonably regarded as effected "when [the shooting had] in fact just been committed" within the meaning of Section 5(b). Moreover, none of the "arresting" officers had any "personal knowledge" of facts indicating that petitioner was the gunman who had shot Maguan. The information upon which the police acted had been derived from statements made by alleged eyewitnesses to the shooting one stated that petitioner was the gunman; another was able to take down the alleged gunman's car's plate number which turned out to be registered in petitioner's wife's name. That information did not, however, constitute "personal knowledge." 18 It is thus clear to the Court that there was no lawful warrantless arrest of petitioner within the meaning of Section 5 of Rule 113. It is clear too that Section 7 of Rule 112, which provides: Sec. 7 When accused lawfully arrested without warrant. When a person is lawfully arrested without a warrant for an offense cognizable by the Regional Trial Court the complaint or information may be filed by the offended party, peace officer or fiscal without a preliminary investigation having been first conducted, on the basis of the affidavit of the offended party or arresting office or person However, before the filing of such complaint or information, the person arrested may ask for a preliminary investigation by a proper officer in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, with the assistance of a lawyer and in case of non-availability of a lawyer, a responsible person of his choice. Notwithstanding such waiver, he may apply for bail as provided in the corresponding rule and the investigation must be terminated within fifteen (15) days from its inception. If the case has been filed in court without a preliminary investigation having been first conducted, the accused may within five (5) days from the time he learns of the filing of the

information, ask for a preliminary investigation with the same right to adduce evidence in his favor in the manner prescribed in this Rule. (Emphasis supplied) is also not applicable. Indeed, petitioner was not arrested at all. When he walked into San Juan Police Station, accompanied by two (2) lawyers, he in fact placed himself at the disposal of the police authorities. He did not state that he was "surrendering" himself, in all probability to avoid the implication he was admitting that he had slain Eldon Maguan or that he was otherwise guilty of a crime. When the police filed a complaint for frustrated homicide with the Prosecutor, the latter should have immediately scheduled a preliminary investigation to determine whether there was probable cause for charging petitioner in court for the killing of Eldon Maguan. Instead, as noted earlier, the Prosecutor proceed under the erroneous supposition that Section 7 of Rule 112 was applicable and required petitioner to waive the provisions of Article 125 of the Revised Penal Code as a condition for carrying out a preliminary investigation. This was substantive error, for petitioner was entitled to a preliminary investigation and that right should have been accorded him without any conditions. Moreover, since petitioner had not been arrested, with or without a warrant, he was also entitled to be released forthwith subject only to his appearing at the preliminary investigation. Turning to the second issue of whether or not petitioner had waived his right to preliminary investigation, we note that petitioner had from the very beginning demanded that a preliminary investigation be conducted. As earlier pointed out, on the same day that the information for murder was filed with the Regional Trial Court, petitioner filed with the Prosecutor an omnibus motion for immediate release and preliminary investigation. The Solicitor General contends that that omnibus motion should have been filed with the trial court and not with the Prosecutor, and that the petitioner should accordingly be held to have waived his right to preliminary investigation. We do not believe that waiver of petitioner's statutory right to preliminary investigation may be predicated on such a slim basis. The preliminary investigation was to be conducted by the Prosecutor, not by the Regional Trial Court. It is true that at the time of filing of petitioner's omnibus motion, the information for murder had already been filed with the Regional Trial Court: it is not clear from the record whether petitioner was aware of this fact at the time his omnibus motion was actually filed with the Prosecutor. In Crespo v. Mogul, 19 this Court held: The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists to warranting the prosecution of the accused is terminated upon the filing of the information in the proper court. In turn, as above stated, the filing of said information sets in motion the criminal action against the accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the case, at such stage, the permission of the Court must be secured. After such reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for appropriate action. While it is true that the fiscal has the quasi-judicial discretion to determine whether or not a criminal case should be filed in court or not, once the case had already been brought to Court whatever disposition the fiscal may feel should be proper in the case thereafter should be addressed for the consideration of the Court. The only qualification is that the action of the Court must not impair the substantial rights of the accused., or the right of the People to due process of law. xxx xxx xxx

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The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case [such] as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. . . . 20 (Citations omitted; emphasis supplied) Nonetheless, since petitioner in his omnibus motion was asking for preliminary investigation and not for a re-investigation (Crespo v. Mogul involved a re-investigation), and since the Prosecutor himself did file with the trial court, on the 5th day after filing the information for murder, a motion for leave to conduct preliminary investigation (attaching to his motion a copy of petitioner's omnibus motion), we conclude that petitioner's omnibus motion was in effect filed with the trial court. What was crystal clear was that petitioner did ask for a preliminary investigation on the very day that the information was filed without such preliminary investigation, and that the trial court was five (5) days later apprised of the desire of the petitioner for such preliminary investigation. Finally, the trial court did in fact grant the Prosecutor's prayer for leave to conduct preliminary investigation. Thus, even on the (mistaken) supposition apparently made by the Prosecutor that Section 7 of Rule 112 of the Revised Court was applicable, the 5-day reglementary period in Section 7, Rule 112 must be held to have been substantially complied with. We believe and so hold that petitioner did not waive his right to a preliminary investigation. While that right is statutory rather than constitutional in its fundament, since it has in fact been established by statute, it is a component part of due process in criminal justice. 21 The right to have a preliminary investigation conducted before being bound over to trial for a criminal offense and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right. The accused in a criminal trial is inevitably exposed to prolonged anxiety, aggravation, humiliation, not to speak of expense; the right to an opportunity to avoid a process painful to any one save, perhaps, to hardened criminals, is a valuable right. To deny petitioner's claim to a preliminary investigation would be to deprive him the full measure of his right to due process. The question may be raised whether petitioner still retains his right to a preliminary investigation in the instant case considering that he was already arraigned on 23 August 1991. The rule is that the right to preliminary investigation is waived when the accused fails to invoke it before or at the time of entering a plea at arraignment.22 In the instant case, petitioner Go had vigorously insisted on his right to preliminary investigation before his arraignment. At the time of his arraignment, petitioner was already before the Court of Appeals on certiorari, prohibition and mandamus precisely asking for a preliminary investigation before being forced to stand trial. Again, in the circumstances of this case, we do not believe that by posting bail petitioner had waived his right to preliminary investigation. In People v. Selfaison, 23 we did hold that appellants there had waived their right to preliminary investigation because immediately after their arrest, they filed bail and proceeded to trial "without previously claiming that they did not have the benefit of a preliminary investigation." 24 In the instant case, petitioner Go asked for release on recognizance or on bail and for preliminary investigation in one omnibus motion. He had thus claimed his right to preliminary investigation before respondent Judge approved

the cash bond posted by petitioner and ordered his release on 12 July 1991. Accordingly, we cannot reasonably imply waiver of preliminary investigation on the part of petitioner. In fact, when the Prosecutor filed a motion in court asking for leave to conduct preliminary investigation, he clearly if impliedly recognized that petitioner's claim to preliminary investigation was a legitimate one. We would clarify, however, that contrary to petitioner's contention the failure to accord preliminary investigation, while constituting a denial of the appropriate and full measure of the statutory process of criminal justice, did not impair the validity of the information for murder nor affect the jurisdiction of the trial court. 25 It must also be recalled that the Prosecutor had actually agreed that petitioner was entitled to bail. This was equivalent to an acknowledgment on the part of the Prosecutor that the evidence of guilt then in his hands was not strong. Accordingly, we consider that the 17 July 1991 order of respondent Judge recalling his own order granting bail and requiring petitioner to surrender himself within forty-eight (48) hours from notice, was plainly arbitrary considering that no evidence at all and certainly no new or additional evidence had been submitted to respondent Judge that could have justified the recall of his order issued just five (5) days before. It follows that petitioner was entitled to be released on bail as a matter of right. The final question which the Court must face is this: how does the fact that, in the instant case, trial on the merits has already commenced, the Prosecutor having already presented four (4) witnesses, impact upon, firstly, petitioner's right to a preliminary investigation and, secondly, petitioner's right to be released on bail? Does he continue to be entitled to have a preliminary investigation conducted in respect of the charge against him? Does petitioner remain entitled to be released on bail? Turning first to the matter of preliminary investigation, we consider that petitioner remains entitled to a preliminary investigation although trial on the merits has already began. Trial on the merits should be suspended or held in abeyance and a preliminary investigation forthwith accorded to petitioner. 26 It is true that the Prosecutor might, in view of the evidence that he may at this time have on hand, conclude that probable cause exists; upon the other hand, the Prosecutor conceivably could reach the conclusion that the evidence on hand does not warrant a finding of probable cause. In any event, the constitutional point is that petitioner was not accorded what he was entitled to by way of procedural due process. 27 Petitioner was forced to undergo arraignment and literally pushed to trial without preliminary investigation, with extraordinary haste, to the applause from the audience that filled the courtroom. If he submitted to arraignment at trial, petitioner did so "kicking and screaming," in a manner of speaking . During the proceedings held before the trial court on 23 August 1991, the date set for arraignment of petitioner, and just before arraignment, counsel made very clear petitioner's vigorous protest and objection to the arraignment precisely because of the denial of preliminary investigation. 28 So energetic and determined were petitioner's counsel's protests and objections that an obviously angered court and prosecutor dared him to withdraw or walkout, promising to replace him with counsel de oficio. During the trial, before the prosecution called its first witness, petitioner through counsel once again reiterated his objection to going to trial without preliminary investigation: petitioner's counsel made of record his "continuing objection." 29 Petitioner had promptly gone to the appellate court on certiorari and prohibition to challenge the lawfulness of the procedure he was being forced

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to undergo and the lawfulness of his detention. 30 If he did not walk out on the trial, and if he cross-examined the prosecution's witnesses, it was because he was extremely loath to be represented by counsel de oficio selected by the trial judge, and to run the risk of being held to have waived also his right to use what is frequently the only test of truth in the judicial process. In respect of the matter of bail, we similarly believe and so hold that petitioner remains entitled to be released on bail as a matter of right. Should the evidence already of record concerning petitioner's guilt be, in the reasonable belief of the Prosecutor, strong, the Prosecutor may move in the trial court for cancellation of petitioner's bail. It would then be up to the trial court, after a careful and objective assessment of the evidence on record, to grant or deny the motion for cancellation of bail. To reach any other conclusions here, that is, to hold that petitioner's rights to a preliminary investigation and to bail were effectively obliterated by evidence subsequently admitted into the record would be to legitimize the deprivation of due process and to permit the Government to benefit from its own wrong or culpable omission and effectively to dilute important rights of accused persons well-nigh to the vanishing point. It may be that to require the State to accord petitioner his rights to a preliminary investigation and to bail at this point, could turn out ultimately to be largely a ceremonial exercise. But the Court is not compelled to speculate. And, in any case, it would not be idle ceremony; rather, it would be a celebration by the State of the rights and liberties of its own people and a re-affirmation of its obligation and determination to respect those rights and liberties. ACCORDINGLY, the Court resolved to GRANT the Petition for Review on Certiorari. The Order of the trial court dated 17 July 1991 is hereby SET ASIDE and NULLIFIED, and the Decision of the Court of Appeals dated 23 September 1991 hereby REVERSED. The Office of the Provincial Prosecutor is hereby ORDERED to conduct forthwith a preliminary investigation of the charge of murder against petitioner Go, and to complete such preliminary investigation within a period of fifteen (15) days from commencement thereof. The trial on the merits of the criminal case in the Regional Trial Court shall be SUSPENDED to await the conclusion of the preliminary investigation. Meantime, petitioner is hereby ORDERED released forthwith upon posting of a cash bail bond of One Hundred Thousand Pesos (P100,000.00). This release shall be without prejudice to any lawful order that the trial court may issue, should the Office of the Provincial Prosecutor move for cancellation of bail at the conclusion of the preliminary investigation. No pronouncement as to costs. This Decision is immediately executory. SO ORDERED. Narvasa, C.J., Bidin, Medialdea, Romero and Nocon, JJ., concur. G.R. No. 148468 January 28, 2003 ATTY. EDWARD SERAPIO, petitioner, vs. SANDIGANBAYAN (THIRD DIVISION), PEOPLE OF THE PHILIPPINES, and PHILIPPINE NATIONAL POLICE DIRECTOR-GENERAL LEANDRO MENDOZA, respondents. x---------------------------------------------------------x G.R. No. 148769 January 28, 2003

EDWARD SERAPIO, petitioner, vs. HONORABLE SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents. x---------------------------------------------------------x G.R. No. 149116 January 28, 2003 EDWARD SERAPIO, petitioner, vs. HONORABLE SANDIGANBAYAN (THIRD DIVISION) and PEOPLE OF THE PHILIPPINES, respondents. CALLEJO, SR., J.: Before the Court are two petitions for certiorari filed by petitioner Edward Serapio, assailing the resolutions of the Third Division of the Sandiganbayan denying his petition for bail, motion for a reinvestigation and motion to quash, and a petition for habeas corpus, all in relation to Criminal Case No. 26558 for plunder wherein petitioner is one of the accused together with former President Joseph E. Estrada, Jose "Jinggoy" P. Estrada and several others. The records show that petitioner was a member of the Board of Trustees and the Legal Counsel of the Erap Muslim Youth Foundation, a non-stock, non-profit foundation established in February 2000 ostensibly for the purpose of providing educational opportunities for the poor and underprivileged but deserving Muslim youth and students, and support to research and advance studies of young Muslim educators and scientists. Sometime in April 2000, petitioner, as trustee of the Foundation, received on its behalf a donation in the amount of Two Hundred Million Pesos (P200 Million) from Ilocos Sur Governor Luis "Chavit" Singson through the latter's assistant Mrs. Yolanda Ricaforte. Petitioner received the donation and turned over the said amount to the Foundation's treasurer who later deposited it in the Foundation's account with the Equitable PCI Bank. In the latter part of the year 2000, Gov. Singson publicly accused then President Joseph E. Estrada and his cohorts of engaging in several illegal activities, including its operation on the illegal numbers game known asjueteng. This triggered the filing with the Office of the Ombudsman of several criminal complaints against Joseph Estrada, Jinggoy Estrada and petitioner, together with other persons. Among such complaints were: Volunteers Against Crime and Corruption, versus Joseph Ejercito Estrada, Edward Serapio, et al., docketed as OMB Crim. Case No. 0-00-1754; Graft Free Philippines Foundation, Inc., versus Joseph Ejercito Estrada, Edward Serapio, et al., docketed as OMB Crim. Case No. 0-00-1755; and Leonardo De Vera, Romeo T. Capulong and Dennis B. Funa, versus Joseph Estrada, Yolanda Ricaforte, Edward Serapio, Raul De Guzman, Danilo Reyes and Mila Reforma, docketed as OMB Crim. Case No. 0-00-1757. Subsequently, petitioner filed his Counter-Affidavit dated February 21, 2001. The other respondents likewise filed their respective counter-affidavits. The Office of the Ombudsman conducted a preliminary investigation of the complaints and on April 4, 2001, issued a joint resolution recommending, inter alia, that Joseph Estrada, petitioner and several others be charged with the criminal offense of plunder. On April 4, 2001, the Ombudsman filed with the Sandiganbayan several Informations against former President Estrada, who earlier had resigned from his post as President of the Republic

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of the Philippines. One of these Informations, docketed as Criminal Case No. 26558, charged Joseph Estrada with plunder. On April 18, 2001, the Ombudsman filed an amended Information in said case charging Estrada and several co-accused, including petitioner, with said crime. No bail was recommended for the provisional release of all the accused, including petitioner. The case was raffled to a special division which was subsequently created by the Supreme Court. The amended Information reads: "That during the period from June, 1998 to January, 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A PUBLIC OFFICER BEING THEN THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, CONNECTION OR INFLUENCE, did then and there wilfully, unlawfully and criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount OR TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS [P4,097,804,173.17], more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES through ANY OR A combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows: (a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connivance with co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING; (b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit public fund in the amount of ONE HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or less, representing a portion of the TWO HUNDRED MILLION PESOS [P200,000,000.00]) tobacco excise tax share allocated for the Province of Ilocos Sur under R.A. No. 7171, BY HIMSELF AND/OR in CONNIVANCE with co-accused Charlie 'Atong' Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES AND JANE DOES; (c) by directing, ordering and compelling FOR HIS PERSONAL GAIN AND BENEFIT, the Government Service Insurance System (GSIS) TO PURCHASE, 351,878,000 SHARES OF STOCKS, MORE OR LESS, and the Social Security System (SSS), 329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY CENTAVOS [P1,102,965,607.50] AND MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS [P744,612,450.00], RESPECTIVELY,

OR A TOTAL OR MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS [P1,847,578,057.50]; AND BY COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE DOES, COMMISSIONS OR PERCENTAGES OF SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS [189,700,000.00] MORE OR LESS, FROM THE BELLE CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME "JOSE VELARDE"; (d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBACKS OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, the amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS [P3,233,104,173.17] AND DEPOSITING THE SAME UNDER HIS ACCOUNT NAME "JOSE VELARDE" AT THE EQUITABLE-PCI BANK. CONTRARY TO LAW."1 On April 5, 2001, petitioner obtained a copy of the Ombudsman's Joint Resolution finding probable cause against him for plunder. The next day, April 6, 2001, he filed with the Office of the Ombudsman a Motion for Reconsideration and/or Reinvestigation.2 Petitioner likewise filed on said date, this time with the Sandiganbayan, an Urgent Omnibus Motion: (a) To Hold in Abeyance the Issuance of Warrant of Arrest and Further Proceedings; (b) To Conduct a Determination of Probable Cause; (c) For Leave to File Accused's Motion for Reconsideration and/or Reinvestigation; and (d) To Direct the Ombudsman to Conduct a Reinvestigation of the Charges against accused Edward Serapio.3 On April 10, 2001, the Ombudsman issued an order denying petitioner's motion for reconsideration and/or reinvestigation on the ground of lack of jurisdiction since the amended Information charging petitioner with plunder had already been filed with the Sandiganbayan.4 In a parallel development, the Sandiganbayan issued a Resolution on April 25, 2001 in Criminal Case No. 26558 finding probable cause to justify the issuance of warrants of arrest for the accused, including petitioner. Accordingly, the Sandiganbayan issued an Order on the same date for the arrest of petitioner.5 When apprised of said order, petitioner voluntarily surrendered at 9:45 p.m. on the same day to Philippine National Police Chief Gen. Leandro Mendoza. Petitioner has since been detained at Camp Crame for said charge. The Sandiganbayan set the arraignment of the accused, including petitioner, in Criminal Case No. 26558 on June 27, 2001. In the meantime, on April 27, 2001, petitioner filed with the Sandiganbayan an Urgent Petition for Bail which was set for hearing on May 4, 2001.6 For his part, petitioner's co-accused Jose "Jinggoy" Estrada filed on April 20, 2001 a Very Urgent Omnibus Motion alleging that he was entitled to bail as a matter of right. During the hearing on May 4, 2001 on petitioner's Urgent Petition for Bail, the prosecution moved for the resetting of the arraignment of the accused earlier than the June 27, 2001 schedule. However, the Sandiganbayan denied the motion of the prosecution and issued an order declaring that the petition for bail can and should be heardbefore petitioner's arraignment on June 27, 2001 and even before the other accused in Criminal Case No. 26558

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filed their respective petitions for bail. Accordingly, the Sandiganbayan set the hearing for the reception of evidence on petitioner's petition for bail on May 21 to 25, 2001. On May 17, 2001, four days before the hearing on petitioner's petition for bail, the Ombudsman filed an urgent motion for early arraignment of Joseph Estrada, Jinggoy Estrada and petitioner and a motion for joint bail hearings of Joseph Estrada, Jinggoy Estrada and petitioner. The following day, petitioner filed a manifestation questioning the propriety of including Joseph Estrada and Jinggoy Estrada in the hearing on his (petitioner's) petition for bail. The Sandiganbayan issued a Resolution on May 18, 2001 resetting the hearings on petitioner's petition for bail to June 18 to 28, 2001 to enable the court to resolve the prosecution's pending motions as well as petitioner's motion that his petition for bail be heard as early as possible, which motion the prosecution opposed. On May 31, 2001, the Sandiganbayan issued a Resolution denying petitioner's April 6, 2001 Urgent Omnibus Motion. The court ruled that the issues posed by petitioner had already been resolved in its April 25, 2001 Resolution finding probable cause to hold petitioner and his coaccused for trial.7 Petitioner filed a motion for reconsideration of the said May 31, 2001 Resolution. On June 1, 2001, the Sandiganbayan issued a resolution requiring the attendance of petitioner as well as all the other accused in Criminal Case No. 26558 during the hearings on the petitions for bail under pain of waiver of cross-examination. The Sandiganbayan, citing its inherent powers to proceed with the trial of the case in the manner it determines best conducive to orderly proceedings and speedy termination of the case, directed the other accused to participate in the said bail hearing considering that under Section 8, Rule 114 of the Revised Rules of Court, whatever evidence is adduced during the bail hearing shall be considered automatically reproduced at the trial.8 However, instead of proceeding with the bail hearing set by it on June 18, 2001, the Sandiganbayan issued an Order on June 15, 2001 canceling the said bail hearing due to pending incidents yet to be resolved and reset anew the hearing to June 26, 2001.9 On the eve of said hearing, the Sandiganbayan issued a resolution denying petitioner's motion for reconsideration of its May 31, 2001 Resolution. The bail hearing on June 26, 2001 did not again proceed because on said date petitioner filed with the Sandiganbayan a motion to quash the amended Information on the grounds that as against him, the amended Information does not allege a combination or series of overt or criminal acts constitutive of plunder; as against him, the amended Information does not allege a pattern of criminal acts indicative of an overall unlawful scheme or conspiracy; the money alleged in paragraph (a) of the amended Information to have been illegally received or collected does not constitute "ill-gotten wealth" as defined in Section 1(d) of Republic Act No. 7080; and the amended Information charges him of bribery and illegal gambling.10 By way of riposte, the prosecution objected to the holding of bail hearing until petitioner agreed to withdraw his motion to quash. The prosecution contended that petitioner's motion to quash the amended Information was antithetical to his petition for bail. The Sandiganbayan reset the arraignment of accused and the hearing on the petition for bail of petitioner in Criminal Case No. 26558 for July 10, 2001 to enable it to resolve the pending incidents and the motion to quash of petitioner. However, even before the Sandiganbayan

could resolve the pending motions of petitioner and the prosecution, petitioner filed with this Court on June 29, 2001 a Petition for Habeas Corpus and Certiorari,docketed as G.R. No. 148468, praying that the Court declare void the questioned orders, resolutions and actions of the Sandiganbayan on his claim that he was thereby effectively denied of his right to due process. Petitioner likewise prayed for the issuance of a writ of habeas corpus; that the People be declared to have waived their right to present evidence in opposition to his petition for bail; and, premised on the failure of the People to adduce strong evidence of petitioner's guilt of plunder, that he be granted provisional liberty on bail after due proceedings.11 Meanwhile, on June 28, 2001, Jose "Jinggoy" Estrada filed with the Sandiganbayan a motion praying that said court resolve his motion to fix his bail. On July 9, 2001, the Sandiganbayan issued a Resolution denying petitioner's motion to quash the amended Information. Petitioner, through counsel, received on said date a copy of said resolution.12 The motion to fix bail filed by Jose "Jinggoy" Estrada was also resolved by the Sandiganbayan. On July 10, 2001, just before his arraignment in Criminal Case No. 26558, petitioner manifested to the Sandiganbayan that he was going to file a motion for reconsideration of the July 9, 2001 Resolution denying his motion to quash and for the deferment of his arraignment. The Sandiganbayan, however, declared that there was no provision in the Rules of Court or in the Sandiganbayan's rules granting the right to petitioner to file a motion for the reconsideration of an interlocutory order issued by it and ordered petitioner to orally argue his motion for reconsideration. When petitioner refused, the Sandiganbayan proceeded with his arraignment. Petitioner refused to plead, impelling the court to enter a plea of not guilty for him. On July 20, 2001, petitioner filed with the Court a Petition for Certiorari, docketed as G.R. No. 148769, alleging that the Sandiganbayan acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing its July 9, 2001 Resolution denying his motion to quash, notwithstanding the fact that material inculpatory allegations of the amended Information against him do not constitute the crime of plunder; and that he is charged, under the said amended Information, for more than one offense. Jose "Jinggoy" Estrada likewise filed petition for certiorari with the Court docketed as G.R. No. 148965 for the nullification of a resolution of the Sandiganbayan denying his motion to fix bail. On August 9, 2001, petitioner filed with the Court another Petition for Certiorari, docketed as G.R. No. 149116, assailing the Sandiganbayan's Resolution dated 31 May 2001 which denied his April 6, 2001 Urgent Omnibus Motion and its June 25, 2001 Resolution denying his motion for reconsideration of its May 31, 2001 Resolution. Re: G.R. No. 148769 Petitioner avers that: THE SANDIGANBAYAN ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION, IN DENYING PETITIONER SERAPIO'SMOTION TO QUASH NOTWITHSTANDING THAT I THE FACTS ALLEGED IN THE AMENDED INFORMATION AS AGAINST PETITIONER SERAPIO DO NOT CONSTITUTE THE CRIME OF PLUNDER.

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A The Amended Information, as against petitioner Serapio, does not allege a combination or series of overt or criminal acts constitutive of plunder. B The Amended Information, as against petitioner Serapio, does not allege a pattern of criminal acts indicative of an overall unlawful scheme or conspiracy. C The money described in paragraph (a) of the Amended Information and alleged to have been illegally received or collected does not constitute 'ill-gotten wealth' as defined in Section 1(d), Republic Act No. 7080, as amended. II THE AMENDED INFORMATION CHARGES MORE THAN ONE OFFENSE."13 Petitioner asserts that, on the face of the amended Information, he is charged with plunder only in paragraph (a) which reads: "(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connivance with co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;"14 Petitioner asserts that there is no allegation in paragraph (a) of the amended Information of a "combination or series of overt or criminal acts" constituting plunder as described in Section 1(d) of R.A. 7080 as amended. Neither does the amended Information allege "a pattern of criminal acts." He avers that his single act of toleration or protection of illegal gambling impelled by a single criminal resolution does not constitute the requisite "combination or series of acts" for plunder. He further claims that the consideration consisting of gifts, percentages or kickbacks in furtherance of said resolution turned over to and received by former President Joseph E. Estrada "on several occasions" does not cure the defect in the amended information. Petitioner insists that on the face of the amended Information he is charged only with bribery or illegal gambling and not of plunder. Petitioner argues that the P540 million which forms part of the P4,097,804,173.17 amassed by former President Joseph E. Estrada in confabulation with his co-accused is not ill-gotten wealth as defined in Section 1(d) of R.A. 7080. We do not agree with petitioner. Section 6, Rule 110 of the Revised Rules of Criminal Procedure provides that: "Sec. 6 Sufficiency of complaint or information. A complaint or information is sufficient if it states the name of the accused, the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed. When the offense was committed by more than one person, all of them shall be included in the complaint or information."15 The acts or omissions complained or must be alleged in such form as is sufficient to enable a person of common understanding to know what offense is intended to be charged and enable the court to know the proper judgment. The Information must allege clearly and accurately the elements of the crime charged. What facts and circumstances are necessary to be included

therein must be determined by reference to the definition and elements of the specific crimes. The purpose of the requirement of alleging all the elements of the crime in the Information is to inform an accused of the nature of the accusation against him so as to enable him to suitably prepare for his defense.16 Another purpose is to enable accused, if found guilty, to plead his conviction in a subsequent prosecution for the same offense.17 The use of derivatives or synonyms or allegations of basic facts constituting the offense charged is sufficient.18 In this case, the amended Information specifically alleges that all the accused, including petitioner, connived and conspired with former President Joseph E. Estrada to commit plunder "through any or a combination or a series of overt or criminal acts or similar schemes or means." And in paragraph (a) of the amended Information, petitioner and his co-accused are charged with receiving or collecting, directly or indirectly, on several instances money in the aggregate amount of P545,000,000.00. In Jose "Jinggoy" Estrada vs. Sandiganbayan (Third Division), et al.,19we held that the word "series" is synonymous with the clause "on several instances"; it refers to a repetition of the same predicate act in any of the items in Section 1(d) of the law. We further held that the word "combination" contemplates the commission of at least any two different predicate acts in any of the said items. We ruled that "plainly, subparagraph (a) of the amended information charges accused therein, including petitioner, with plunder committed by a series of the same predicate act under Section 1(d)(2) of the law" and that: "x x x Sub-paragraph (a) alleged the predicate act of receiving, on several instances, money from illegal gambling, in consideration of toleration or protection of illegal gambling, and expressly names petitioner as one of those who conspired with former President Estrada in committing the offense. This predicate act corresponds with the offense described in item [2] of the enumeration in Section 1(d) of R.A. No. 7080. x x x."20 It is not necessary to allege in the amended Information a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy because as Section 3 of R.A. 7080 specifically provides, the same is evidentiary and the general rule is that matters of evidence need not be alleged in the Information.21 The Court also ruled in Jose "Jinggoy" Estrada vs. Sandiganbayan22 that the aggregate amount of P4,097,804,173.17 inclusive of the P545 million alleged in paragraph (a) of the amended information is ill-gotten wealth as contemplated in Section 1, paragraph 1(d) of Republic Act 7080, as amended, and that all the accused in paragraph (a) to (d) of the amended information conspired and confederated with former President Estrada to enable the latter to amass, accumulate or acquire ill-gotten wealth in the aggregate amount of P4,097,804,173.17. Under the amended Information, all the accused, including petitioner, are charged of having conspired and confabulated together in committing plunder. When two or more persons conspire to commit a crime, each is responsible for all the acts of others. In contemplation of law, the act of the conspirator is the act of each of them. 23 Conspirators are one man, they breathe one breath, they speak one voice, they wield one arm and the law says that the acts, words and declarations of each, while in the pursuit of the common design, are the acts, words and declarations of all.24

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Petitioner asserts that he is charged under the amended information of bribery and illegal gambling and others. The Sandiganbayan, for its part, held that petitioner is not charged with the predicate acts of bribery and illegal gambling but is charged only with one crime that of plunder: "THE ISSUE OF WHETHER OR NOT THE INFORMATION CHARGES MORE THAN ONE OFFENSE According to the accused Estradas and Edward Serapio the information charges more than one offense, namely, bribery (Article 210 of the Revised Penal Code), malversation of public funds or property (Article 217, Revised Penal Code) and violations of Sec. 3(e) of Republic Act (RA No. 3019) and Section 7(d) of RA 6713. This contention is patently unmeritorious. The acts alleged in the information are not charged as separate offenses but as predicate acts of the crime of plunder. It should be stressed that the Anti-Plunder law specifically Section 1(d) thereof does not make any express reference to any specific provision of laws, other than R.A. No. 7080, as amended, which coincidentally may penalize as a separate crime any of the overt or criminal acts enumerated therein. The said acts which form part of the combination or series of act are described in their generic sense. Thus, aside from 'malversation' of public funds, the law also uses the generic terms 'misappropriation', 'conversion' or 'misuse' of said fund. The fact that the acts involved may likewise be penalized under other laws is incidental. The said acts are mentioned only as predicate acts of the crime of plunder and the allegations relative thereto are not to be taken or to be understood as allegations charging separate criminal offenses punished under the Revised Penal Code, the Anti-Graft and Corrupt Practices Act and Code of Conduct and Ethical Standards for Public Officials and Employees."25 This Court agrees with the Sandiganbayan. It is clear on the face of the amended Information that petitioner and his co-accused are charged only with one crime of plunder and not with the predicate acts or crimes of plunder. It bears stressing that the predicate acts merely constitute acts of plunder and are not crimes separate and independent of the crime of plunder. Resultantly then, the petition is dismissed. Re: G.R. No. 149116 Petitioner assails the May 31, 2001 Joint Resolution of the Sandiganbayan denying his April 4, 2001 Urgent Omnibus Motion contending that: "GROUNDS FOR THE PETITION THE SANDIGANBAYAN ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN SUMMARILY DENYING PETITIONER SERAPIO'S URGENT OMNIBUS MOTION AND MOTION FOR RECONSIDERATION (RE: RESOLUTION DATED 31 MAY 2001), NOTWITHSTANDING THAT THE OMBUDSMAN HAD TOTALLY DISREGARDED EXCULPATORY EVIDENCE AND COMMITTED GRAVE AND MANIFEST ERRORS OF LAW SERIOUSLY PREJUDICIAL TO THE RIGHTS AND INTERESTS OF PETITIONER SERAPIO, AND THERE IS NO PROBABLE CAUSE TO SUPPORT AN INDICTMENT FOR PLUNDER AS AGAINST PETITIONER SERAPIO."26 Petitioner claims that the Sandiganbayan committed grave abuse of discretion in denying his omnibus motion to hold in abeyance the issuance of a warrant for his arrest as well as the proceedings in Criminal Case No. 26558; to conduct a determination of probable cause; and

to direct the Ombudsman to conduct a reinvestigation of the charges him. Petitioner asseverates that the Ombudsman had totally disregarded exculpatory evidence and committed grave abuse of discretion in charging him with plunder. He further argues that there exists no probable cause to support an indictment for plunder as against him.27 Petitioner points out that the joint resolution of the Ombudsman does not even mention him in relation to the collection and receipt of jueteng money which started in 199828 and that the Ombudsman inexplicably arrived at the conclusion that the Erap Muslim Youth Foundation was a money laundering front organization put up by Joseph Estrada, assisted by petitioner, even though the latter presented evidence that said Foundation is a bona fide and legitimate private foundation.29 More importantly, he claims, said joint resolution does not indicate that he knew that the P200 million he received for the Foundation came from jueteng.30 Petitioner insists that he cannot be charged with plunder since: (1) the P200 million he received does not constitute "ill-gotten wealth" as defined in Section 1(d) of R.A. No. 7080;31 (2) there is no evidence linking him to the collection and receipt of jueteng money;32 (3) there was no showing that petitioner participated in a pattern of criminal acts indicative of an overall unlawful scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, or that his act of receiving the P200 million constitutes an overt criminal act of plunder.33 Petitioner argues further that his motion for reinvestigation is premised on the absolute lack of evidence to support a finding of probable cause for plunder as against him,34 and hence he should be spared from the inconvenience, burden and expense of a public trial.35 Petitioner also avers that the discretion of government prosecutors is not beyond judicial scrutiny. He asserts that while this Court does not ordinarily look into the existence of probable cause to charge a person for an offense in a given case, it may do so in exceptional circumstances, which are present in this case: (1) to afford adequate protection to the constitutional rights of the accused; (2) for the orderly administration of justice or to avoid oppression; (3) when the acts of the officer are without or in excess of authority; and (4) where the charges are manifestly false and motivated by the lust for vengeance. 36 Petitioner claims that he raised proper grounds for a reinvestigation by asserting that in issuing the questioned joint resolution, the Ombudsman disregarded evidence exculpating petitioner from the charge of plunder and committed errors of law or irregularities which have been prejudicial to his interest.37 He also states that during the joint preliminary investigations for the various charges against Joseph Estrada and his associates, of which the plunder charge was only one of the eight charges against Estrada et al., he was not furnished with copies of the other complaints nor given the opportunity to refute the evidence presented in relation to the other seven cases, even though the evidence presented therein were also used against him, although he was only charged in the plunder case.38 The People maintain that the Sandiganbayan committed no grave abuse of discretion in denying petitioner's omnibus motion. They assert that since the Ombudsman found probable cause to charge petitioner with the crime of plunder, the Sandiganbayan is bound to assume jurisdiction over the case and to proceed to try the same. They further argue that "a finding of probable cause is merely preliminary and prefatory of the eventual determination of guilt or innocence of the accused," and that petitioner still has the chance to interpose his defenses in a full blown trial where his guilt or innocence may finally be determined.39

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The People also point out that the Sandiganbayan did not commit grave abuse of discretion in denying petitioner's omnibus motion asking for, among others, a reinvestigation by the Ombudsman, because his motion for reconsideration of the Ombudsman's joint resolution did not raise the grounds of either newly discovered evidence, or errors of law or irregularities, which under Republic Act No. 6770 are the only grounds upon which a motion for reconsideration may be filed.40 The People likewise insist that there exists probable cause to charge petitioner with plunder as a co-conspirator of Joseph Estrada.41 This Court does not agree with petitioner. Case law has it that the Court does not interfere with the Ombudsman's discretion in the conduct of preliminary investigations. Thus, in Raro vs. Sandiganbayan42 , the Court ruled: "x x x. In the performance of his task to determine probable cause, the Ombudsman's discretion is paramount. Thus, in Camanag vs. Guerrero, this Court said: 'x x x. (S)uffice it to state that this Court has adopted a policy of non-interference in the conduct of preliminary investigations, and leaves to the investigating prosecutor sufficient latitude of discretion in the exercise of determination of what constitutes sufficient evidence as will establish 'probable cause' for filing of information against the supposed offender." In Cruz, Jr. vs. People,43 the Court ruled thus: "Furthermore, the Ombudsman's findings are essentially factual in nature. Accordingly, in assailing said findings on the contention that the Ombudsman committed a grave abuse of discretion in holding that petitioner is liable for estafa through falsification of public documents, petitioner is clearly raising questions of fact here. His arguments are anchored on the propriety or error in the Ombudsman's appreciation of facts. Petitioner cannot be unaware that the Supreme Court is not a trier of facts, more so in the consideration of the extraordinary writ of certiorari where neither question of fact nor even of law are entertained, but only questions of lack or excess of jurisdiction or grave abuse of discretion. Insofar as the third issue is concerned, we find that no grave abuse of discretion has been committed by respondents which would warrant the granting of the writ of certiorari." Petitioner is burdened to allege and establish that the Sandiganbayan and the Ombudsman for that matter committed grave abuse of discretion in issuing their resolution and joint resolution, respectively. Petitioner failed to discharge his burden. Indeed, the Court finds no grave abuse of discretion on the part of the Sandiganbayan and the Ombudsman in finding probable cause against petitioner for plunder. Neither did the Sandiganbayan abuse its discretion in denying petitioner's motion for reinvestigation of the charges against him in the amended Information. In its Resolution of April 25, 2001, the Sandiganbayan affirmed the finding of the Ombudsman that probable cause exists against petitioner and his co-accused for the crime of plunder, thus: "In the light of the foregoing and considering the allegations of the Amended Information dated 18 April 2001 charging the accused with the offense of PLUNDER and examining carefully the evidence submitted in support thereof consisting of the affidavits and sworn statements and testimonies of prosecution witnesses and several other pieces of documentary evidence, as well as the respective counter-affidavits of accused former President Joseph Estrada dated March 20, 2001, Jose "Jinggoy" Pimentel Estrada dated February 20, 2001, Yolanda T. Ricaforte dated January 21, 2001 and Edward S. Serapio dated February 21, 2001, the Court

finds and so holds that probable cause for the offense of PLUNDER exists to justify issuance of warrants of arrest of accused former President Joseph Ejercito Estrada, Mayor Jose "Jinggoy" Estrada, Charlie "Atong" Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, John Doe a.k.a. Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a Delia Rajas."44 Likewise, in its Resolution dated May 31, 2001 of petitioner's omnibus motion, the Sandiganbayan noted that a preliminary investigation was fully conducted in accordance with Rule II, Administrative Order No. 7 of the Office of the Ombudsman, pursuant to Sections 18, 23 and 27 of Republic Act No. 6770 (The Ombudsman Act of 1989); and that all the basic complaints and evidence in support thereof were served upon all the accused.45 It was in light of such findings that the Sandiganbayan held that there was no basis for the allegation that accused therein (including petitioner) were deprived of the right to seek a reconsideration of the Ombudsman's Resolution dated April 4, 2001 finding probable cause to charge them with plunder after the conduct of preliminary investigation in connection therewith. In addition, the Sandiganbayan pointed out that petitioner filed a motion for reconsideration of the Ombudsman's resolution, but failed to show in his motion that there were newly discovered evidence, or that the preliminary investigation was tainted by errors of law or irregularities, which are the only grounds for which a reconsideration of the Ombudsman's resolution may be granted.46 It bears stressing that the right to a preliminary investigation is not a constitutional right, but is merely a right conferred by statute.47 The absence of a preliminary investigation does not impair the validity of the Information or otherwise render the same defective and neither does it affect the jurisdiction of the court over the case or constitute a ground for quashing the Information.48 If the lack of a preliminary investigation does not render the Information invalid nor affect the jurisdiction of the court over the case, with more reason can it be said that the denial of a motion for reinvestigation cannot invalidate the Information or oust the court of its jurisdiction over the case. Neither can it be said that petitioner had been deprived of due process. He was afforded the opportunity to refute the charges against him during the preliminary investigation. The purpose of a preliminary investigation is merely to determine whether a crime has been committed and whether there is probable cause to believe that the person accused of the crime is probably guilty thereof and should be held for trial.49 As the Court held in Webb vs. De Leon, "[a] finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspect. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt.''50 Absent any showing of arbitrariness on the part of the prosecutor or any other officer authorized to conduct preliminary investigation, courts as a rule must defer to said officer's finding and determination of probable cause, since the determination of the existence of probable cause is the function of the prosecutor.51 The Court agrees with the Sandiganbayan that petitioner failed to establish that the preliminary investigation conducted by the Ombudsman was tainted with irregularity or that its findings stated in the joint resolution dated April 4, 2001 are not supported by the facts, and that a reinvestigation was necessary.

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Certiorari will not lie to invalidate the Sandiganbayan's resolution denying petitioner's motion for reinvestigation since there is nothing to substantiate petitioner's claim that it gravely abused its discretion in ruling that there was no need to conduct a reinvestigation of the case.52 The ruling in Rolito Go vs. Court of Appeals53 that an accused shall not be deemed to have waived his right to ask for a preliminary investigation after he had been arraigned over his objection and despite his insistence on the conduct of said investigation prior to trial on the merits does not apply in the instant case because petitioner merely prayed for a reinvestigation on the ground of a newly-discovered evidence. Irrefragably, a preliminary investigation had been conducted by the Ombudsman prior to the filing of the amended Information, and that petitioner had participated therein by filing his counter-affidavit. Furthermore, the Sandiganbayan had already denied his motion for reinvestigation as well as his motion for reconsideration thereon prior to his arraignment.54In sum then, the petition is dismissed. Re: G.R. No. 148468 As synthesized by the Court from the petition and the pleadings of the parties, the issues for resolution are: (1) Whether or not petitioner should first be arraigned before hearings of his petition for bail may be conducted; (2) Whether petitioner may file a motion to quash the amended Information during the pendency of his petition for bail; (3) Whether a joint hearing of the petition for bail of petitioner and those of the other accused in Criminal Case No. 26558 is mandatory; (4) Whether the People waived their right to adduce evidence in opposition to the petition for bail of petitioner and failed to adduce strong evidence of guilt of petitioner for the crime charged; and (5) Whether petitioner was deprived of his right to due process in Criminal Case No. 26558 and should thus be released from detention via a writ of habeas corpus. On the first issue, petitioner contends that the Sandiganbayan committed a grave abuse of its discretion amounting to excess or lack of jurisdiction when it deferred the hearing of his petition for bail to July 10, 2001, arraigned him on said date and entered a plea of not guilty for him when he refused to be arraigned. He insists that the Rules on Criminal Procedure, as amended, does not require that he be arraigned first prior to the conduct of bail hearings since the latter can stand alone and must, of necessity, be heard immediately.55 Petitioner maintains that his arraignment before the bail hearings are set is not necessary since he would not plead guilty to the offense charged, as is evident in his earlier statements insisting on his innocence during the Senate investigation of the jueteng scandal and the preliminary investigation before the Ombudsman.56 Neither would the prosecution be prejudiced even if it would present all its evidence before his arraignment because, under the Revised Penal Code, a voluntary confession of guilt is mitigating only if made prior to the presentation of evidence for the prosecution,57 and petitioner admitted that he cannot repudiate the evidence or proceedings taken during the bail hearings because Rule 114, Section 8 of the Revised Rules of Court expressly provides that evidence present during bail hearings are automatically reproduced during the trial.58 Petitioner likewise assures the prosecution that he is willing to be arraigned prior to the posting of a bail bond should he be granted bail.59 The People insist that arraignment is necessary before bail hearings may be commenced, because it is only upon arraignment that the issues are joined. The People stress that it is only

when an accused pleads not guilty may he file a petition for bail and if he pleads guilty to the charge, there would be no more need for him to file said petition. Moreover, since it is during arraignment that the accused is first informed of the precise charge against him, he must be arraigned prior to the bail hearings to prevent him from later assailing the validity of the bail hearings on the ground that he was not properly informed of the charge against him, especially considering that, under Section 8, Rule 114 of the Revised Rules of Court, evidence presented during such proceedings are considered automatically reproduced at the trial.60 Likewise, the arraignment of accused prior to bail hearings diminishes the possibility of an accused's flight from the jurisdiction of the Sandiganbayan because trial in absentia may be had only if an accused escapes after he has been arraigned. 61 The People also contend that the conduct of bail hearings prior to arraignment would extend to an accused the undeserved privilege of being appraised of the prosecution's evidence before he pleads guilty for purposes of penalty reduction.62 Although petitioner had already been arraigned on July 10, 2001 and a plea of not guilty had been entered by the Sandiganbayan on his behalf, thereby rendering the issue as to whether an arraignment is necessary before the conduct of bail hearings in petitioner's case moot, the Court takes this opportunity to discuss the controlling precepts thereon pursuant to its symbolic function of educating the bench and bar.63 The contention of petitioner is well-taken. The arraignment of an accused is not a prerequisite to the conduct of hearings on his petition for bail. A person is allowed to petition for bail as soon as he is deprived of his liberty by virtue of his arrest or voluntary surrender. 64 An accused need not wait for his arraignment before filing a petition for bail. In Lavides vs. Court of Appeals,65 this Court ruled on the issue of whether an accused must first be arraigned before he may be granted bail. Lavides involved an accused charged with violation of Section 5(b) Republic Act No. 7610 (The Special Protection of Children Against Abuse, Exploitation and Discrimination Act), an offense punishable by reclusion temporal in its medium period to reclusion perpetua. The accused therein assailed, inter alia, the trial court's imposition of the condition that he should first be arraigned before he is allowed to post bail. We held therein that "in cases where it is authorized, bail should be granted before arraignment, otherwise the accused may be precluded from filing a motion to quash."66 However, the foregoing pronouncement should not be taken to mean that the hearing on a petition for bail should at all times precede arraignment, because the rule is that a person deprived of his liberty by virtue of his arrest or voluntary surrender may apply for bail as soon as he is deprived of his liberty, even before a complaint or information is filed against him.67 The Court's pronouncement in Lavides should be understood in light of the fact that the accused in said case filed a petition for bail as well as a motion to quash the informations filed against him. Hence, we explained therein that to condition the grant of bail to an accused on his arraignment would be to place him in a position where he has to choose between (1) filing a motion to quash and thus delay his release on bail because until his motion to quash can be resolved, his arraignment cannot be held, and (2) foregoing the filing of a motion to quash so that he can be arraigned at once and thereafter be released on bail. This would undermine his constitutional right not to be put on trial except upon a valid complaint or Information sufficient to charge him with a crime and his right to bail.68

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It is therefore not necessary that an accused be first arraigned before the conduct of hearings on his application for bail. For when bail is a matter of right, an accused may apply for and be granted bail even prior to arraignment. The ruling in Lavides also implies that an application for bail in a case involving an offense punishable by reclusion perpetua to death may also be heard even before an accused is arraigned. Further, if the court finds in such case that the accused is entitled to bail because the evidence against him is not strong, he may be granted provisional liberty even prior to arraignment; for in such a situation, bail would be "authorized" under the circumstances. In fine, the Sandiganbayan committed a grave abuse of its discretion amounting to excess of jurisdiction in ordering the arraignment of petitioner before proceeding with the hearing of his petition for bail. With respect to the second issue of whether petitioner may file a motion to quash during the pendency of his petition for bail, petitioner maintains that a motion to quash and a petition for bail are not inconsistent, and may proceed independently of each other. While he agrees with the prosecution that a motion to quash may in some instances result in the termination of the criminal proceedings and in the release of the accused therein, thus rendering the petition for bail moot and academic, he opines that such is not always the case; hence, an accused in detention cannot be forced to speculate on the outcome of a motion to quash and decide whether or not to file a petition for bail or to withdraw one that has been filed. 69 He also insists that the grant of a motion to quash does not automatically result in the discharge of an accused from detention nor render moot an application for bail under Rule 117, Section 5 of the Revised Rules of Court.70 The Court finds that no such inconsistency exists between an application of an accused for bail and his filing of a motion to quash. Bail is the security given for the release of a person in the custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions set forth under the Rules of Court. 71 Its purpose is to obtain the provisional liberty of a person charged with an offense until his conviction while at the same time securing his appearance at the trial.72 As stated earlier, a person may apply for bail from the moment that he is deprived of his liberty by virtue of his arrest or voluntary surrender.73 On the other hand, a motion to quash an Information is the mode by which an accused assails the validity of a criminal complaint or Information filed against him for insufficiency on its face in point of law, or for defects which are apparent in the face of the Information. 74 An accused may file a motion to quash the Information, as a general rule, before arraignment.75 These two reliefs have objectives which are not necessarily antithetical to each other. Certainly, the right of an accused right to seek provisional liberty when charged with an offense not punishable by death, reclusion perpetua or life imprisonment, or when charged with an offense punishable by such penalties but after due hearing, evidence of his guilt is found not to be strong, does not preclude his right to assail the validity of the Information charging him with such offense. It must be conceded, however, that if a motion to quash a criminal complaint or Information on the ground that the same does not charge any offense is granted and the case is dismissed and the accused is ordered released, the petition for bail of an accused may become moot and academic.

We now resolve the issue of whether or not it is mandatory that the hearings on the petitions for bail of petitioner and accused Jose "Jinggoy" Estrada in Criminal Case No. 26558 and the trial of the said case as against former President Joseph E. Estrada be heard jointly. Petitioner argues that the conduct of joint bail hearings would negate his right to have his petition for bail resolved in a summary proceeding since said hearings might be converted into a full blown trial on the merits by the prosecution.76 For their part, the People claim that joint bail hearings will save the court from having to hear the same witnesses and the parties from presenting the same evidence where it would allow separate bail hearings for the accused who are charged as co-conspirators in the crime of plunder.77 In issuing its June 1, 2001 Order directing all accused in Criminal Case No. 26558 to participate in the bail hearings, the Sandiganbayan explained that the directive was made was in the interest of the speedy disposition of the case. It stated: " x x x The obvious fact is, if the rest of the accused other than the accused Serapio were to be excused from participating in the hearing on the motion for bail of accused Serapio, under the pretext that the same does not concern them and that they will participate in any hearing where evidence is presented by the prosecution only if and when they will already have filed their petitions for bail, or should they decide not to file any, that they will participate only during the trial proper itself, then everybody will be faced with the daunting prospects of having to go through the process of introducing the same witness and pieces of evidence two times, three times or four times, as many times as there are petitions for bail filed. Obviously, such procedure is not conducive to the speedy termination of a case. Neither can such procedure be characterized as an orderly proceeding."78 There is no provision in the Revised Rules of Criminal Procedure or the Rules of Procedure of the Sandiganbayan governing the hearings of two or more petitions for bail filed by different accused or that a petition for bail of an accused be heard simultaneously with the trial of the case against the other accused. The matter of whether or not to conduct a joint hearing of two or more petitions for bail filed by two different accused or to conduct a hearing of said petition jointly with the trial against another accused is addressed to the sound discretion of the trial court. Unless grave abuse of discretion amounting to excess or lack of jurisdiction is shown, the Court will not interfere with the exercise by the Sandiganbayan of its discretion. It may be underscored that in the exercise of its discretion, the Sandiganbayan must take into account not only the convenience of the State, including the prosecution, but also that of the accused and the witnesses of both the prosecution and the accused and the right of accused to a speedy trial. The Sandiganbayan must also consider the complexities of the cases and of the factual and legal issues involving petitioner and the other accused. After all, if this Court may echo the observation of the United States Supreme Court, the State has a stake, with every citizen, in his being afforded our historic individual protections, including those surrounding criminal prosecutions. About them, this Court dares not become careless or complacent when that fashion has become rampant over the earth.79 It must be borne in mind that in Ocampo vs. Bernabe,80 this Court held that in a petition for bail hearing, the court is to conduct only a summary hearing, meaning such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of the hearing which is merely to determine the weight of evidence for purposes

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of bail. The court does not try the merits or enter into any inquiry as to the weight that ought to be given to the evidence against the accused, nor will it speculate on the outcome of the trial or on what further evidence may be offered therein. It may confine itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary thoroughness in the examination and cross-examination of witnesses, and reducing to a reasonable minimum the amount of corroboration particularly on details that are not essential to the purpose of the hearing. A joint hearing of two separate petitions for bail by two accused will of course avoid duplication of time and effort of both the prosecution and the courts and minimizes the prejudice to the accused, especially so if both movants for bail are charged of having conspired in the commission of the same crime and the prosecution adduces essentially the same evident against them. However, in the cases at bar, the joinder of the hearings of the petition for bail of petitioner with the trial of the case against former President Joseph E. Estrada is an entirely different matter. For, with the participation of the former president in the hearing of petitioner's petition for bail, the proceeding assumes a completely different dimension. The proceedings will no longer be summary. As against former President Joseph E. Estrada, the proceedings will be a full-blown trial which is antithetical to the nature of a bail hearing. Moreover, following our ruling in Jose Estrada vs. Sandiganbayan, supra where we stated that Jose "Jinggoy" Estrada can only be charged with conspiracy to commit the acts alleged in sub-paragraph (a) of the amended Information since it is not clear from the latter if the accused in sub-paragraphs (a) to (d) thereof conspired with each other to assist Joseph Estrada to amass ill-gotten wealth, we hold that petitioner can only be charged with having conspired with the other co-accused named in sub-paragraph (a) by "receiving or collecting, directly or indirectly, on several instances, money x x x from illegal gambling, x x x in consideration of toleration or protection of illegal gambling.81 Thus, with respect to petitioner, all that the prosecution needs to adduce to prove that the evidence against him for the charge of plunder is strong are those related to the alleged receipt or collection of money from illegal gambling as described in sub-paragraph (a) of the amended Information. With the joinder of the hearing of petitioner's petition for bail and the trial of the former President, the latter will have the right to cross-examine intensively and extensively the witnesses for the prosecution in opposition to the petition for bail of petitioner. If petitioner will adduce evidence in support of his petition after the prosecution shall have concluded its evidence, the former President may insist on cross-examining petitioner and his witnesses. The joinder of the hearing of petitioner's bail petition with the trial of former President Joseph E. Estrada will be prejudicial to petitioner as it will unduly delay the determination of the issue of the right of petitioner to obtain provisional liberty and seek relief from this Court if his petition is denied by the respondent court. The indispensability of the speedy resolution of an application for bail was succinctly explained by Cooley in his treatiseConstitutional Limitations, thus: "For, if there were any mode short of confinement which would with reasonable certainty insure the attendance of the accused to answer the accusation, it would not be justifiable to inflict upon him that indignity, when the effect is to subject him in a greater or lesser degree, to the punishment of a guilty person, while as yet it is not determined that he has not committed any crime."82

While the Sandiganbayan, as the court trying Criminal Case No. 26558, is empowered "to proceed with the trial of the case in the manner it determines best conducive to orderly proceedings and speedy termination of the case,"83 the Court finds that it gravely abused its discretion in ordering that the petition for bail of petitioner and the trial of former President Joseph E. Estrada be held jointly. It bears stressing that the Sandiganbayan itself acknowledged in its May 4, 2001 Order the "pre-eminent position and superiority of the rights of [petitioner] to have the matter of his provisional liberty resolved . . . without unnecessary delay,"84 only to make a volte face and declare that after all the hearing of petition for bail of petitioner and Jose "Jinggoy" Estrada and the trial as against former President Joseph E. Estrada should be held simultaneously. In ordering that petitioner's petition for bail to be heard jointly with the trial of the case against his co-accused former President Joseph E. Estrada, the Sandiganbayan in effect allowed further and unnecessary delay in the resolution thereof to the prejudice of petitioner. In fine then, the Sandiganbayan committed a grave abuse of its discretion in ordering a simultaneous hearing of petitioner's petition for bail with the trial of the case against former President Joseph E. Estrada on its merits. With respect to petitioner's allegations that the prosecution tried to delay the bail hearings by filing dilatory motions, the People aver that it is petitioner and his co-accused who caused the delay in the trial of Criminal Case No. 26558 by their filing of numerous manifestations and pleadings with the Sandiganbayan.85 They assert that they filed the motion for joint bail hearing and motion for earlier arraignment around the original schedule for the bail hearings which was on May 2125, 2001.86 They argue further that bail is not a matter of right in capital offenses.87 In support thereof, they cite Article III, Sec 13 of the Constitution, which states that "All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall before conviction be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpusis suspended. Excessive bail shall not be required."88 The People also cited Rule 114, Secs. 7 and 4 of the Revised Rules of Court which provide: "Sec. 7 Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal prosecution. Sec. 4 Bail, a matter of right, exception. All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or released on recognizance as prescribed by law or this Rule x x x (b) and before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment."89 Irrefragably, a person charged with a capital offense is not absolutely denied the opportunity to obtain provisional liberty on bail pending the judgment of his case. However, as to such person, bail is not a matter of right but is discretionary upon the court.90 Had the rule been otherwise, the Rules would not have provided for an application for bail by a person charged with a capital offense under Rule 114, Section 8 which states: "Sec. 8 Burden of proof in bail application. At the hearing of an application for bail filed by a person who is in custody for the commission of an offense punishable by death, reclusion

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perpetua, or life imprisonment, the prosecution has the burden of showing that the evidence of guilt is strong. The evidence presented during the bail hearing shall be considered automatically reproduced at the trial but, upon motion of either party, the court may recall any witness for additional examination unless the latter is dead, outside the Philippines, or otherwise unable to testify."91 Under the foregoing provision, there must be a showing that the evidence of guilt against a person charged with a capital offense is not strong for the court to grant him bail. Thus, upon an application for bail by the person charged with a capital offense, a hearing thereon must be conducted, where the prosecution must be accorded an opportunity to discharge its burden of proving that the evidence of guilt against an accused is strong.92 The prosecution shall be accorded the opportunity to present all the evidence it may deem necessary for this purpose.93 When it is satisfactorily demonstrated that the evidence of guilt is strong, it is the court's duty to deny the application for bail. However, when the evidence of guilt is not strong, bail becomes a matter of right.94 In this case, petitioner is not entitled to bail as a matter of right at this stage of the proceedings. Petitioner's claim that the prosecution had refused to present evidence to prove his guilt for purposes of his bail application and that the Sandiganbayan has refused to grant a hearing thereon is not borne by the records. The prosecution did not waive, expressly or even impliedly, its right to adduce evidence in opposition to the petition for bail of petitioner. It must be noted that the Sandiganbayan had already scheduled the hearing dates for petitioner's application for bail but the same were reset due to pending incidents raised in several motions filed by the parties, which incidents had to be resolved by the court prior to the bail hearings. The bail hearing was eventually scheduled by the Sandiganbayan on July 10, 2001 but the hearing did not push through due to the filing of this petition on June 29, 2001. The delay in the conduct of hearings on petitioner's application for bail is therefore not imputable solely to the Sandiganbayan or to the prosecution. Petitioner is also partly to blame therefor, as is evident from the following list of motions filed by him and by the prosecution: Motions filed by petitioner: Urgent Omnibus Motion, dated April 6, 2001, for (1) leave to file motion for reconsideration/reinvestigation and to direct ombudsman to conduct reinvestigation; (2) conduct a determination of probable cause as would suggest the issuance of house arrest; (3) hold in abeyance the issuance of warrant of arrest and other proceedings pending determination of probable cause; Motion for Early Resolution, dated May 24, 2001; Urgent Motion to Hold in Abeyance Implementation or Service of Warrant of Arrest for Immediate Grant of bail or For Release on Recognizance, dated April 25, 2001; Urgent Motion to allow Accused Serapio to Vote at Obando, Bulacan, dated May 11, 2001; Urgent Motion for Reconsideration, dated May 22, 2001, praying for Resolution of May 18, 2001 be set aside and bail hearings be set at the earliest possible time; Urgent Motion for Immediate Release on Bail or Recognizance, dated May 27, 2001; Motion for Reconsideration of denial of Urgent Omnibus Motion, dated June 13, 2001, praying that he be allowed to file a Motion for Reinvestigation; and Motion to Quash, dated June 26, 2001.95

Motions filed by the prosecution: Motion for Earlier Arraignment, dated May 8, 2001;96 Motion for Joint Bail Hearings of Accused Joseph Estrada, Jose "Jinggoy" Estrada and Edward Serapio, dated May 8, 2001;97 Opposition to the Urgent Motion for Reconsideration and Omnibus Motion to Adjust Earlier Arraignment, dated May 25, 2001;98 and Omnibus Motion for Examination, Testimony and Transcription in Filipino, dated June 19, 2001.99 The other accused in Criminal Case No. 26558 also contributed to the aforesaid delay by their filing of the following motions: Motion to Quash or Suspend, dated April 24, 2001, filed by Jinggoy Estrada, assailing the constitutionality of R.A. No. 7080 and praying that the Amended Information be quashed; Very Urgent Omnibus Motion, dated April 30, 2001, filed by Jinggoy Estrada, praying that he be (1)excluded from the Amended Information for lack of probable cause; (2) released from custody; or in the alternative, (3) be allowed to post bail; Urgent Ex-Parte Motion to Place on House Arrest, dated April 25, 2001, filed by Joseph and Jinggoy Estrada, praying that they be placed on house arrest during the pendency of the case; Position Paper [re: House Arrest], dated May 2, 2001, filed by Joseph and Jinggoy Estrada; Supplemental Position Paper [re: House Arrest], dated May 2, 2001, filed by Joseph and Jinggoy Estrada; Omnibus Motion, dated May 7, 2001, filed by Joseph Estrada, praying by reinvestigation of the case by the Ombudsman or the outright dismissal of the case; Urgent Ex-Parte Motion for Extension, dated May 2, 2001, filed by Jinggoy Estrada, requesting for five (5) days within which to respond to the Opposition to Motion to Quash in view of the holidays and election-related distractions; Opposition to Urgent Motion for Earlier Arraignment, dated May 10, 2001, filed by Joseph Estrada; Omnibus Manifestation on voting and custodial arrangement, dated May 11, 2001, filed by Joseph and Jinggoy Estrada, praying that they be placed on house arrest; Manifestation regarding house arrest, dated May 6, 2001, filed by Joseph and Jinggoy Estrada; Summation regarding house arrest, dated May 23, 2001, filed by Joseph and Jinggoy Estrada; Urgent Manifestation & Motion, dated May 6, 2001 filed by Jinggoy Estrada; Manifestation, dated May 28, 2001, filed by Joseph and Jinggoy Estrada, praying that they be allowed to be confined in Tanay; Motion to charge as Accused Luis "Chavit" Singson, filed by Joseph Estrada; Omnibus Motion, dated June 11, 2001, filed by Joseph and Jinggoy Estrada, seeking reconsideration of denial of requests for house arrest, for detention in Tanay or Camp Crame; motion for inhibition of Justice Badoy; Urgent Motion to Allow Accused to Clear His Desk as Mayor of San Juan, Metro Manila, dated June 28, 2001, filed by Jinggoy Estrada;

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 Motion for Reconsideration, dated June 9, 2001, filed by Joseph and Jinggoy Estrada, praying that the resolution compelling them to be present at petitioner Serapio's hearing for bail be reconsidered; Motion to Quash, dated June 7, 2001, filed by Joseph Estrada; Still Another Manifestation, dated June 14, 2001, filed by Joseph and Jinggoy Estrada stating that Bishop Teodoro Bacani favors their house arrest; Manifestation, dated June 15, 2001, filed by Joseph and Jinggoy Estrada, waiving their right to be present at the June 18 and 21, 2001 bail hearings and reserving their right to trial with assessors; Omnibus Motion for Instructions: 30-Day House Arrest; Production, Inspection and Copying of Documents; and Possible Trial with Assessors, dated June 19, 2001, filed by Joseph and Jinggoy Estrada; Urgent Motion for Additional Time to Wind Up Affairs, dated June 20, 2001, filed by Jinggoy Estrada; Manifestation, dated June 22, 2001, filed by Jinggoy Estrada, asking for free dates for parties, claiming that denial of bail is cruel and inhuman, reiterating request for gag order of prosecution witnesses, availing of production, inspection and copying of documents, requesting for status of alias case; and Compliance, dated June 25, 2001, filed by Jinggoy Estrada, requesting for permission to attend some municipal affairs in San Juan, Metro Manila.100 Furthermore, the Court has previously ruled that even in cases where the prosecution refuses to adduce evidence in opposition to an application for bail by an accused charged with a capital offense, the trial court is still under duty to conduct a hearing on said application. 101 The rationale for such requirement was explained in Narciso vs. Sta. Romana-Cruz (supra), citing Basco vs. Rapatalo:102 "When the grant of bail is discretionary, the prosecution has the burden of showing that the evidence of guilt against the accused is strong. However, the determination of whether or not the evidence of guilt is strong, being a matter of judicial discretion, remains with the judge. This discretion by the very nature of things, may rightly be exercised only after the evidence is submitted to the court at the hearing. Since the discretion is directed to the weight of the evidence and since evidence cannot properly be weighed if not duly exhibited or produced before the court, it is obvious that a proper exercise of judicial discretion requires that the evidence of guilt be submitted to the court, the petitioner having the right of cross-examination and to introduce his own evidence in rebuttal."103 Accordingly, petitioner cannot be released from detention until the Sandiganbayan conducts a hearing of his application for bail and resolve the same in his favor. Even then, there must first be a finding that the evidence against petitioner is not strong before he may be granted bail. Anent the issue of the propriety of the issuance of a writ of habeas corpus for petitioner, he contends that he is entitled to the issuance of said writ because the State, through the prosecution's refusal to present evidence and by the Sandiganbayan's refusal to grant a bail hearing, has failed to discharge its burden of proving that as against him, evidence of guilt for the capital offense of plunder is strong. Petitioner contends that the prosecution launched "a seemingly endless barrage of obstructive and dilatory moves" to prevent the conduct of bail hearings. Specifically, the prosecution moved for petitioner's arraignment before the

commencement of bail hearings and insisted on joint bail hearings for petitioner, Joseph Estrada and Jinggoy Estrada despite the fact that it was only petitioner who asked for a bail hearing; manifested that it would present its evidence as if it is the presentation of the evidence in chief, meaning that the bail hearings would be concluded only after the prosecution presented its entire case upon the accused; and argued that petitioner's motion to quash and his petition for bail are inconsistent, and therefore, petitioner should choose to pursue only one of these two remedies.104 He further claims that the Sandiganbayan, through its questioned orders and resolutions postponing the bail hearings effectively denied him of his right to bail and to due process of law.105 Petitioner also maintains that the issuance by the Sandiganbayan of new orders canceling the bail hearings which it had earlier set did not render moot and academic the petition for issuance of a writ of habeas corpus, since said orders have resulted in a continuing deprivation of petitioner's right to bail.106 He argues further that the fact that he was arrested and is detained pursuant to valid process does not by itself negate the efficacy of the remedy ofhabeas corpus. In support of his contention, petitioner cites Moncupa vs. Enrile,107 where the Court held thathabeas corpus extends to instances where the detention, while valid from its inception, has later become arbitrary.108 However, the People insist that habeas corpus is not proper because petitioner was arrested pursuant to the amended information which was earlier filed in court, 109 the warrant of arrest issuant pursuant thereto was valid, and petitioner voluntarily surrendered to the authorities.110 As a general rule, the writ of habeas corpus will not issue where the person alleged to be restrained of his liberty in custody of an officer under a process issued by the court which jurisdiction to do so.111 In exceptional circumstances, habeas corpus may be granted by the courts even when the person concerned is detained pursuant to a valid arrest or his voluntary surrender, for this writ of liberty is recognized as "the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action" due to "its ability to cut through barriers of form and procedural mazes."112 Thus, in previous cases, we issued the writ where the deprivation of liberty, while initially valid under the law, had later become invalid, 113 and even though the persons praying for its issuance were not completely deprived of their liberty.114 The Court finds no basis for the issuance of a writ of habeas corpus in favor of petitioner. The general rule thathabeas corpus does not lie where the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court which had jurisdiction to issue the same115 applies, because petitioner is under detention pursuant to the order of arrest issued by the Sandiganbayan on April 25, 2001 after the filing by the Ombudsman of the amended information for plunder against petitioner and his co-accused. Petitioner had in fact voluntarily surrendered himself to the authorities on April 25, 2001 upon learning that a warrant for his arrest had been issued. The ruling in Moncupa vs. Enrile116 that habeas corpus will lie where the deprivation of liberty which was initially valid has become arbitrary in view of subsequent developments finds no application in the present case because the hearing on petitioner's application for bail has yet to commence. As stated earlier, they delay in the hearing of petitioner's petition for bail cannot be pinned solely on the Sandiganbayan or on the prosecution for that matter. Petitioner himself is partly to be blamed. Moreover, a petition for habeas corpus is not the appropriate

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remedy for asserting one's right to bail.117 It cannot be availed of where accused is entitled to bail not as a matter of right but on the discretion of the court and the latter has not abused such discretion in refusing to grant bail,118 or has not even exercised said discretion. The proper recourse is to file an application for bail with the court where the criminal case is pending and to allow hearings thereon to proceed. The issuance of a writ of habeas corpus would not only be unjustified but would also preempt the Sandiganbayan's resolution of the pending application for bail of petitioner. The recourse of petitioner is to forthwith proceed with the hearing on his application for bail. IN THE LIGHT OF ALL THE FOREGOING, judgment is hereby rendered as follows: 1 In G.R. No. 148769 and G.R. No. 149116, the petitions are DISMISSED. The resolutions of respondent Sandiganbayan subject of said petitions are AFFIRMED; and 2 In G.R. No. 148468, the petition is PARTIALLY GRANTED. The resolution of respondent Sandiganbayan, Annex "L" of the petition, ordering a joint hearing of petitioner's petition for bail and the trial of Criminal Case No. 26558 as against former President Joseph E. Estrada is SET ASIDE; the arraignment of petitioner on July 10, 2001 is also SET ASIDE. No costs. SO ORDERED. G.R. No. 129978 May 12, 1999 FELICIDAD M, ROQUE and PRUDENCIO N. MABANGLO, petitioners, vs. OFFICE OF THE OMBUDSMAN; HON. OMBUDSMAN ANIANO DESIERTO; and HON. MARGARITO P. GERVACIO, JR., Deputy Ombudsman for Mindanao, respondents. PANGANIBAN, J.: Consistent with the rights of all persons to due process of law and to speedy trial, the Constitution commands the Office of the Ombudsman to act promptly on complaints filed against public officials. Thus, the failure of said office to resolve a complaint that has been pending for six years is clearly violative of this mandate and the public officials' rights. In such event, the aggrieved party is entitled to the dismissal of the complaint. The Case Filed before this Court is a Petition for Mandamus praying that the respondent public officers be directed to dismiss Ombudsman Case Nos. OMB-MIN-91-0201 and OMB-MIN-91-0203 and subsequently to issue the necessary clearance in petitioners' favor. The Facts The undisputed facts are narrated in, respondents' Memorandum 1 as follows: Petitioner Felicidad M. Roque was a Schools Division Superintendent of the Department of Education, Culture and Sports (DECS), assigned in Koronadal, South Cotabato, until her compulsory retirement on, May 17, 1991 (pp. 2-3, Petition). Petitioner Prudencio N. Mabanglo was likewise a Schools Division Superintendent of the DECS, assigned in Tagum, Davao Province, until his compulsory retirement on May 8, 1997 (ibid.). On January 14, 1991, Laura S. and Carmencita Eden T. Enriquez of the COA, by virtue of COA Regional Office Assignment Order No. 91-174 dated January 8, 1991, conducted an audit on the P9.36 million allotment released by the DECS Regional Office No. XI to its division offices (Annexes M and N, Petition).

As a result of the audit, auditors Soriano and Enriquez found some major deficiencies and violation of the Anti-Graft and Corrupt Practices Act (Republic Act No. 3019), violations of COA Circular Nos. 78-84 and 85-55A, DECS Order No. 100 and Section 88 of Presidential Decree No. 1445 (ibid.). Consequently, affidavits of complaint were filed before the Office of the OmbudsmanMindanao against several persons, including petitioner Mabanglo on May 7, 1991, and against petitioner Rogue on May 16, 1991 (ibid.). In an Order dated June 11, 1991, the Office of the Ombudsman-Mindanao found the complaints proper for a preliminary investigation. The case involving petitioner Mabanglo was docketed as OMB-MIN-91-0201 while that involving petitioner Roque was docketed as OMBMIN-91-0203 (Annex O, Petition). Thereafter, petitioners filed their respective counter-affidavits (p. 4, Petition). On March 18, 1997, OMB-MIN-91-0201, which involved petitioner Mabanglo, was resolved by the Office of the Ombudsman-Mindanao, finding that all the respondents [were] probably guilty of violation of Section 3 (e) and (g) of the Anti-Graft and Corrupt Practices Act (Republic Act 3019). The same was approved by respondent Ombudsman Desierto on September 19, 1997. An Information dated March 18, 1997, for Violation of Section 3 (g) of Republic Act 3019, as amended, was filed before the Sandiganbayan, Manila, against several respondents, among them, petitioner Prudencio N. Mabanglo. The same was docketed as Criminal Case No. 24229. On April 30, 1997, OMB-MIN-91-0203, which involved petitioner Roque, was resolved by the Office of the Ombudsman-Mindanao, recommending the filing [of cases] and prosecution of all the respondents for violation of Section 3 (e) and (g) of Republic Act 3019. The same was approved by respondent Ombudsman Desierto on August 22, 1997. Two Informations similarly dated April 30, 1997, for violation of Section 3 (g) of Republic Act 3019, as amended, and for Violation of Section 3 (e) of Republic 3019, as amended, were filed before the Sandiganbayan, Manila. The Informations charged several respondents, among whom was petitioner Roque. The cases were docketed as Criminal Case No. 24105 and Criminal Case No. 24106, respectively. On August 14, 1997, petitioners instituted the instant petition for mandamus premised on the allegation that "[a]fter the initial Orders finding the cases proper for preliminary investigation were issued on June[,] 1991 and the subsequent submission of their counter-affidavits, until the present[,] or, more than six (6) years, no resolution has been issued by the Public Respondent [and no] case [has] been filed with the appropriate court against the herein Petitioner" (par. 3, p. 4, Petition). On November 24, 1997, this Honorable Court issued a temporary restraining order directing respondents to cease and desist from further proceeding with the cases filed against petitioners. 2 On August 21, 1998, petitioners asked the Court to cite respondents in contempt, contending that a criminal information was filed in violation of the Temporary Restraining Order (TRO). In compliance with this Court's Resolution dated October 21, 1998, 3 the respondents filed their Comment to the respondents filed their Comment to the Petition for Contempt. 4 Issues In their Memorandum, 5 petitioners present before this Court the following issues:

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Whether or not there was undue and unjustifiable delay in resolving [the] complaints against petitioners (respondents therein) which violated their constitutional right to [a] speedy disposition of cases[; and] Whether or not, such undue and unjustifiable delay in resolving the complaints against petitioners, would warrant dismissal of said complaints. 6 In addition, we shall also discuss (1) the propriety of mandamus as a remedy and (2) the respondent's liability for contempt for allegedly violating the Temporary Restraining Order issued by this Court on November 24, 1997. THE COURT'S RULING The Court grants the Petition for Mandamus, but denies the prayer to cite respondents in contempt of court. Preliminary Issue: Propriety of Mandamus Respondents argue that petitioners cannot, by this special action for mandamus, compel the ombudsman to dismiss the criminal charges filed against them, since such dismissal involves a discretionary, not a ministerial, duty. The argument is not meritorious. As a general rule, the performance of an official act or duty, which necessarily involves the exercise of discretion or judgment, cannot be compelled by mandamus. This Court, however, has held that the rule does not apply "in cases where there is gross abuse of discretion, manifest injustice, or palpable excess of authority." 7 In First Philippine Holdings Corporation v. Sandiganbayan, the Court explained: Ordinarily, mandamus will not prosper to compel a discretionary act. But where there is "gross abuse of discretion, manifest injustice or palpable excess of authority" equivalent to denial of a settled right to which petitioner is entitled, and there is "no other plain, speedy and adequate remedy, the writ shall issue." 8 The Court gave a similar ruling in Kant Kwong v. Presidential Commission on Good Government. 9 Although as averred by respondents, "the recognized rule is that, in the performance of an official duty or act involving discretion, the corresponding official can only be directed by Mandamus to act but not to act one way or another, "yet it is not accurate to say that the writ will never issue to control his discretion. There is an exception to the rule if the case is otherwise proper, as in cases of gross abuse of discretion, manifest injustice, or palpable excess of authority." In Angchangco Jr. v. Ombudsman, 10 this Court likewise held: It is correct, as averred in the comment, that in the performance of an official duty or act involving discretion, the corresponding official can only be directed by mandamus to act, but not to act one way or the other. However, this rule admits of exceptions such as in cases where there is gross abuse of discretion, manifest injustice, or palpable excess of authority." 11 The exceptions cited apply to this case. It is undisputed that there has already been a long and unwarranted delay in the resolution of the graft charges against the two petitioners. The Complaint against Petitioner Mabanglo was filed with the Office of the Ombudsman in Mindanao way back on May 7, 1991, and that against Petitioner Roque on May 16, 1991. On June 11, 1991, the said Office found the Complaints sufficient for preliminary investigation. Signficantly, no action was taken until after the lapse of almost six years. For violation of

Section 3 (g) of RA 3019, the same Office recommended the filing of an Information against Petitioner Mabanglo only on March 18, 1997, and against Petitioner Roque only on April 30, 1997. Main Issue: Violation of Petitioners' Constitutional Rights Clearly, the delay of almost six years disregarded the ombudsman's duty, as mandated by the Constitution 12 and Republic Act No. 6770, 13 to act promptly on complaints before him. More important, it violated the petitioners' rights to due process and to a speedy disposition of the cases filed against them. Although respondents attempted to justify the six months needed by Ombudsman Desierto to review the recommendation of Deputy Ombudsman Gervasio, no explanation was given why it took almost six years for the latter to resolve the Complaints. 14 Thus, in Angchangco, Jr. v. Ombudsman, this Court dismissed a Complaint that had been pending before the Office of the Ombudsman for more than six years, ruling as follows: After a careful review of the facts and circumstances of the present case, the Court finds the inordinate delay of more than six years by the Ombudsman in resolving the criminal complaints against petitioner to be violative of his constitutionally guaranteed right to due process and a speedy disposition of the cases against him, thus warranting the dismissal of said criminal cases... 15 Similarly, in Tatad v. Sandiganbayan, 16 this Court dismissed the Complaints, which the then tanodbayan was able to resolve only after the lapse of three years since the cases had been submitted for disposition, viz.: We find the long delay in the termination of the preliminary investigation by the Tanodbayan in the instant case to be violative of the constitutional right of the accused to due process. Substantial adherence to the requirements of the law governing the conduct of preliminary investigation, including substantial compliance with the time limitation prescribed by the law for the resolution of the case by the prosecutor, is part of the procedural due process constitutionally guaranteed by the fundamental law. Not only under the broad umbrella of the due process clause, but under the constitutional guarantee of "speedy disposition" of cases as embodied in Section 16 of the Bill of Rights (both in the 1973 and the 1987 Constitutions), the inordinate delay is violative of the petitioner's constitutional rights. A delay of close to three (3) years cannot be deemed reasonable or justifiable in the light of the circumstances obtaining in the case at bar. We are not impressed by the attempt of the Sandiganbayan to sanitize the long delay by indulging in the speculative assumption that "delay may be due to a painstaking and grueling scrutiny by the Tanodbayan as to whether the evidence presented during the preliminary investigation merited prosecution of a former high-ranking government official." In the first place, such a statement suggests a double standard of treatment, which must be emphatically rejected. Secondly, three out of the five charges against the petitioner were for his alleged failure to file his sworn statement of assets and liabilities required by Republic Act 3019, which certainly did not involve complicated legal and factual issues necessitating such "painstaking and grueling scrutiny" as would justify a delay of almost three years in terminating the preliminary investigation. The other two charges relating to alleged bribery and alleged giving [of] unwarranted benefits to a relative, while presenting more substantial legal

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and factual issues, certainly do not warrant or justify the period of three years, which it took the Tanodbayan to resolve the case." (Emphasis supplied.) We are not persuaded by respondents' arguments that the Petition for Mandamus became moot and academic when the Complaints were resolved by the Office of the Ombudsman for Mindanao and the Informations were filed. The same contention was rejected in Tatad v. Sandiganbayan, wherein the Court declared that long and unexplained delay in the resolution of the criminal complaints against petitioners was not corrected by the eventual filing of the Informations. The Court ruled: It has been suggested that the long delay in terminating the preliminary investigation should not be deemed fatal, for even the complete absence of a preliminary investigation does not warrant dismissal of the information. True [for] the absence of a preliminary investigation can be corrected by giving the accused such investigation. But an undue delay in the conduct of a preliminary investigation cannot be corrected, for until now, man has not yet invented a device for setting back time. . . . the inordinate delay in terminating the preliminary investigation and filing the information in the instant case is violative of the constitutionally guaranteed right of the petitioner to due process and the speedy disposition of cases against him. Accordingly, the informations . . . should be dismissed . . .. 17 Although petitioners prayed only for the issuance of a ruling directing the dismissal of Ombudsman Case Nos. OMB-MIN-91-0201 and OMB-MIN-91-0203, this Court, in the interest of the speedy disposition of cases, resolves to dismiss the above cases directly. This ruling is in line with Angchangco, in which the Court dismissed the complaints outright, although petitioner therein sought merely to compel the ombudsman to do so. Additional Issue: No Contempt of Court Petitioner Mabanglo moves to have respondents and their agents cited in contempt of court for allegedly filing an Information against him in violation of the November 24, 1997 TRO issued by the Court, which ordered them to cease and desist from proceeding with the cases. The Petition to cite respondents in contempt is patently devoid of merit. In the first place, the Information against Petitioner Mabanglo was filed on September 25, 1997, before the issuance of the TRO on November 24, 1997. Hence, the TRO could not have been violated. In the second place, the said Petition for Contempt filed in contravention of Section 4 (2), Rule 71 of the 1997 Rules of Court, 18 which states that if a petition for contempt arises from or is related to a principal action pending in court, it "shall be docketed, heard and decided separately," unless the court orders that both the principal action and the petition for contempt be consolidated for joint hearing and decision. In the instant case, the Petition for Contempt, which arose from the Petition forMandamus, was filed as an integral part of the latter and under the same docket or case number. There is no showing that this Court has ordered their consolidation. WHEREFORE, the Petition for Mandamus is GRANTED and Ombudsman Case Nos. OMB91-0201 and OMB-91-O203 are accordingly DISMISSED. The Petition to declare respondents in contempt is hereby DENIED. No costs.1wphi1.nt SO ORDERED. Romero, Vitug, Purisima and Gonzaga-Reyes, JJ., concur.

G.R. No. L-46496 February 27, 1940 ANG TIBAY, represented by TORIBIO TEODORO, manager and propietor, and NATIONAL WORKERS BROTHERHOOD, petitioners, vs. THE COURT OF INDUSTRIAL RELATIONS and NATIONAL LABOR UNION, INC., respondents. Office of the Solicitor-General Ozaeta and Assistant Attorney Barcelona for the Court of Industrial Relations. Antonio D. Paguia for National Labor Unon. Claro M. Recto for petitioner "Ang Tibay". Jose M. Casal for National Workers' Brotherhood. LAUREL, J.: The Solicitor-General in behalf of the respondent Court of Industrial Relations in the aboveentitled case has filed a motion for reconsideration and moves that, for the reasons stated in his motion, we reconsider the following legal conclusions of the majority opinion of this Court: 1. Que un contrato de trabajo, asi individual como colectivo, sin termino fijo de duracion o que no sea para una determinada, termina o bien por voluntad de cualquiera de las partes o cada vez que ilega el plazo fijado para el pago de los salarios segun costumbre en la localidad o cunado se termine la obra; 2. Que los obreros de una empresa fabril, que han celebrado contrato, ya individual ya colectivamente, con ell, sin tiempo fijo, y que se han visto obligados a cesar en sus tarbajos por haberse declarando paro forzoso en la fabrica en la cual tarbajan, dejan de ser empleados u obreros de la misma; 3. Que un patrono o sociedad que ha celebrado un contrato colectivo de trabajo con sus osbreros sin tiempo fijo de duracion y sin ser para una obra determiminada y que se niega a readmitir a dichos obreros que cesaron como consecuencia de un paro forzoso, no es culpable de practica injusta in incurre en la sancion penal del articulo 5 de la Ley No. 213 del Commonwealth, aunque su negativa a readmitir se deba a que dichos obreros pertenecen a un determinado organismo obrero, puesto que tales ya han dejado deser empleados suyos por terminacion del contrato en virtud del paro. The respondent National Labor Union, Inc., on the other hand, prays for the vacation of the judgement rendered by the majority of this Court and the remanding of the case to the Court of Industrial Relations for a new trial, and avers: 1. That Toribio Teodoro's claim that on September 26, 1938, there was shortage of leather soles in ANG TIBAY making it necessary for him to temporarily lay off the members of the National Labor Union Inc., is entirely false and unsupported by the records of the Bureau of Customs and the Books of Accounts of native dealers in leather. 2. That the supposed lack of leather materials claimed by Toribio Teodoro was but a scheme to systematically prevent the forfeiture of this bond despite the breach of his CONTRACT with the Philippine Army. 3. That Toribio Teodoro's letter to the Philippine Army dated September 29, 1938, (re supposed delay of leather soles from the States) was but a scheme to systematically prevent the forfeiture of this bond despite the breach of his CONTRACT with the Philippine Army.

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4. That the National Worker's Brotherhood of ANG TIBAY is a company or employer union dominated by Toribio Teodoro, the existence and functions of which are illegal. (281 U.S., 548, petitioner's printed memorandum, p. 25.) 5. That in the exercise by the laborers of their rights to collective bargaining, majority rule and elective representation are highly essential and indispensable. (Sections 2 and 5, Commonwealth Act No. 213.) 6. That the century provisions of the Civil Code which had been (the) principal source of dissensions and continuous civil war in Spain cannot and should not be made applicable in interpreting and applying the salutary provisions of a modern labor legislation of American origin where the industrial peace has always been the rule. 7. That the employer Toribio Teodoro was guilty of unfair labor practice for discriminating against the National Labor Union, Inc., and unjustly favoring the National Workers' Brotherhood. 8. That the exhibits hereto attached are so inaccessible to the respondents that even with the exercise of due diligence they could not be expected to have obtained them and offered as evidence in the Court of Industrial Relations. 9. That the attached documents and exhibits are of such far-reaching importance and effect that their admission would necessarily mean the modification and reversal of the judgment rendered herein. The petitioner, Ang Tibay, has filed an opposition both to the motion for reconsideration of the respondent National Labor Union, Inc. In view of the conclusion reached by us and to be herein after stead with reference to the motion for a new trial of the respondent National Labor Union, Inc., we are of the opinion that it is not necessary to pass upon the motion for reconsideration of the Solicitor-General. We shall proceed to dispose of the motion for new trial of the respondent labor union. Before doing this, however, we deem it necessary, in the interest of orderly procedure in cases of this nature, in interest of orderly procedure in cases of this nature, to make several observations regarding the nature of the powers of the Court of Industrial Relations and emphasize certain guiding principles which should be observed in the trial of cases brought before it. We have re-examined the entire record of the proceedings had before the Court of Industrial Relations in this case, and we have found no substantial evidence that the exclusion of the 89 laborers here was due to their union affiliation or activity. The whole transcript taken contains what transpired during the hearing and is more of a record of contradictory and conflicting statements of opposing counsel, with sporadic conclusion drawn to suit their own views. It is evident that these statements and expressions of views of counsel have no evidentiary value. The Court of Industrial Relations is a special court whose functions are specifically stated in the law of its creation (Commonwealth Act No. 103). It is more an administrative than a part of the integrated judicial system of the nation. It is not intended to be a mere receptive organ of the Government. Unlike a court of justice which is essentially passive, acting only when its jurisdiction is invoked and deciding only cases that are presented to it by the parties litigant, the function of the Court of Industrial Relations, as will appear from perusal of its organic law, is more active, affirmative and dynamic. It not only exercises judicial or quasi-judicial functions in the determination of disputes between employers and employees but its functions in the determination of disputes between employers and employees but its functions are far more

comprehensive and expensive. It has jurisdiction over the entire Philippines, to consider, investigate, decide, and settle any question, matter controversy or dispute arising between, and/or affecting employers and employees or laborers, and regulate the relations between them, subject to, and in accordance with, the provisions of Commonwealth Act No. 103 (section 1). It shall take cognizance or purposes of prevention, arbitration, decision and settlement, of any industrial or agricultural dispute causing or likely to cause a strike or lockout, arising from differences as regards wages, shares or compensation, hours of labor or conditions of tenancy or employment, between landlords and tenants or farm-laborers, provided that the number of employees, laborers or tenants of farm-laborers involved exceeds thirty, and such industrial or agricultural dispute is submitted to the Court by the Secretary of Labor or by any or both of the parties to the controversy and certified by the Secretary of labor as existing and proper to be by the Secretary of Labor as existing and proper to be dealth with by the Court for the sake of public interest. (Section 4, ibid.) It shall, before hearing the dispute and in the course of such hearing, endeavor to reconcile the parties and induce them to settle the dispute by amicable agreement. (Paragraph 2, section 4, ibid.) When directed by the President of the Philippines, it shall investigate and study all industries established in a designated locality, with a view to determinating the necessity and fairness of fixing and adopting for such industry or locality a minimum wage or share of laborers or tenants, or a maximum "canon" or rental to be paid by the "inquilinos" or tenants or less to landowners. (Section 5, ibid.) In fine, it may appeal to voluntary arbitration in the settlement of industrial disputes; may employ mediation or conciliation for that purpose, or recur to the more effective system of official investigation and compulsory arbitration in order to determine specific controversies between labor and capital industry and in agriculture. There is in reality here a mingling of executive and judicial functions, which is a departure from the rigid doctrine of the separation of governmental powers. In the case of Goseco vs. Court of Industrial Relations et al., G.R. No. 46673, promulgated September 13, 1939, we had occasion to joint out that the Court of Industrial Relations et al., G. R. No. 46673, promulgated September 13, 1939, we had occasion to point out that the Court of Industrial Relations is not narrowly constrained by technical rules of procedure, and the Act requires it to "act according to justice and equity and substantial merits of the case, without regard to technicalities or legal forms and shall not be bound by any technicalities or legal forms and shall not be bound by any technical rules of legal evidence but may inform its mind in such manner as it may deem just and equitable." (Section 20, Commonwealth Act No. 103.) It shall not be restricted to the specific relief claimed or demands made by the parties to the industrial or agricultural dispute, but may include in the award, order or decision any matter or determination which may be deemed necessary or expedient for the purpose of settling the dispute or of preventing further industrial or agricultural disputes. (section 13, ibid.) And in the light of this legislative policy, appeals to this Court have been especially regulated by the rules recently promulgated by the rules recently promulgated by this Court to carry into the effect the avowed legislative purpose. The fact, however, that the Court of Industrial Relations may be said to be free from the rigidity of certain procedural requirements does not mean that it can, in justifiable cases before it, entirely ignore or disregard the fundamental and essential requirements of due process in trials and investigations of an administrative

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character. There are primary rights which must be respected even in proceedings of this character: (1) The first of these rights is the right to a hearing, which includes the right of the party interested or affected to present his own case and submit evidence in support thereof. In the language of Chief Hughes, in Morgan v. U.S., 304 U.S. 1, 58 S. Ct. 773, 999, 82 Law. ed. 1129, "the liberty and property of the citizen shall be protected by the rudimentary requirements of fair play. (2) Not only must the party be given an opportunity to present his case and to adduce evidence tending to establish the rights which he asserts but the tribunal must consider the evidence presented. (Chief Justice Hughes in Morgan v. U.S. 298 U.S. 468, 56 S. Ct. 906, 80 law. ed. 1288.) In the language of this court inEdwards vs. McCoy, 22 Phil., 598, "the right to adduce evidence, without the corresponding duty on the part of the board to consider it, is vain. Such right is conspicuously futile if the person or persons to whom the evidence is presented can thrust it aside without notice or consideration." (3) "While the duty to deliberate does not impose the obligation to decide right, it does imply a necessity which cannot be disregarded, namely, that of having something to support it is a nullity, a place when directly attached." (Edwards vs. McCoy, supra.) This principle emanates from the more fundamental is contrary to the vesting of unlimited power anywhere. Law is both a grant and a limitation upon power. (4) Not only must there be some evidence to support a finding or conclusion (City of Manila vs. Agustin, G.R. No. 45844, promulgated November 29, 1937, XXXVI O. G. 1335), but the evidence must be "substantial." (Washington, Virginia and Maryland Coach Co. v. national labor Relations Board, 301 U.S. 142, 147, 57 S. Ct. 648, 650, 81 Law. ed. 965.) It means such relevant evidence as a reasonable mind accept as adequate to support a conclusion." (Appalachian Electric Power v. National Labor Relations Board, 4 Cir., 93 F. 2d 985, 989; National Labor Relations Board v. Thompson Products, 6 Cir., 97 F. 2d 13, 15; BallstonStillwater Knitting Co. v. National Labor Relations Board, 2 Cir., 98 F. 2d 758, 760.) . . . The statute provides that "the rules of evidence prevailing in courts of law and equity shall not be controlling.' The obvious purpose of this and similar provisions is to free administrative boards from the compulsion of technical rules so that the mere admission of matter which would be deemed incompetent inn judicial proceedings would not invalidate the administrative order. (Interstate Commerce Commission v. Baird, 194 U.S. 25, 44, 24 S. Ct. 563, 568, 48 Law. ed. 860; Interstate Commerce Commission v. Louisville and Nashville R. Co., 227 U.S. 88, 93 33 S. Ct. 185, 187, 57 Law. ed. 431; United States v. Abilene and Southern Ry. Co. S. Ct. 220, 225, 74 Law. ed. 624.) But this assurance of a desirable flexibility in administrative procedure does not go far as to justify orders without a basis in evidence having rational probative force. Mere uncorroborated hearsay or rumor does not constitute substantial evidence. (Consolidated Edison Co. v. National Labor Relations Board, 59 S. Ct. 206, 83 Law. ed. No. 4, Adv. Op., p. 131.)" (5) 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 Commence 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 right to know and meet the case against them. It should not, however,

detract from their duty actively to see that the law is enforced, and for that purpose, to use the authorized legal methods of securing evidence and informing itself of facts material and relevant to the controversy. Boards of inquiry may be appointed for the purpose of investigating and determining the facts in any given case, but their report and decision are only advisory. (Section 9, Commonwealth Act No. 103.) The Court of Industrial Relations may refer any industrial or agricultural dispute or any matter under its consideration or advisement to a local board of inquiry, a provincial fiscal. a justice of the peace or any public official in any part of the Philippines for investigation, report and recommendation, and may delegate to such board or public official such powers and functions as the said Court of Industrial Relations may deem necessary, but such delegation shall not affect the exercise of the Court itself of any of its powers. (Section 10, ibid.) (6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision. It may be that the volume of work is such that it is literally Relations personally to decide all controversies coming before them. In the United States the difficulty is solved with the enactment of statutory authority authorizing examiners or other subordinates to render final decision, with the right to appeal to board or commission, but in our case there is no such statutory authority. (7) The Court of Industrial Relations should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved, and the reasons for the decision rendered. The performance of this duty is inseparable from the authority conferred upon it. In the right of the foregoing fundamental principles, it is sufficient to observe here that, except as to the alleged agreement between the Ang Tibay and the National Worker's Brotherhood (appendix A), the record is barren and does not satisfy the thirst for a factual basis upon which to predicate, in a national way, a conclusion of law. This result, however, does not now preclude the concession of a new trial prayed for the by respondent National Labor Union, Inc., it is alleged that "the supposed lack of material claimed by Toribio Teodoro was but a scheme adopted to systematically discharged all the members of the National Labor Union Inc., from work" and this avernment is desired to be proved by the petitioner with the "records of the Bureau of Customs and the Books of Accounts of native dealers in leather"; that "the National Workers Brotherhood Union of Ang Tibay is a company or employer union dominated by Toribio Teodoro, the existence and functions of which are illegal." Petitioner further alleges under oath that the exhibits attached to the petition to prove his substantial avernments" are so inaccessible to the respondents that even within the exercise of due diligence they could not be expected to have obtained them and offered as evidence in the Court of Industrial Relations", and that the documents attached to the petition "are of such far reaching importance and effect that their admission would necessarily mean the modification and reversal of the judgment rendered herein." We have considered the reply of Ang Tibay and its arguments against the petition. By and large, after considerable discussions, we have come to the conclusion that the interest of justice would be better served if the movant is given opportunity to present at the hearing the documents referred to in his motion and such other evidence as may be relevant to the main issue involved. The legislation which created the Court of Industrial Relations and under which it acts is new. The

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failure to grasp the fundamental issue involved is not entirely attributable to the parties adversely affected by the result. Accordingly, the motion for a new trial should be and the same is hereby granted, and the entire record of this case shall be remanded to the Court of Industrial Relations, with instruction that it reopen the case, receive all such evidence as may be relevant and otherwise proceed in accordance with the requirements set forth hereinabove. So ordered. Avancea, C. J., Villa-Real, Imperial, Diaz, Concepcion and Moran, JJ., concur. G.R. No. 150540 October 28, 2003 DIMALUB P. NAMIL, ABDULNASSER TIMAN, TERESITA G. AKOB, MALIGA AMILUDIN and EPAS GUIAMEL,petitioners, vs. COMMISSION ON ELECTIONS, public respondent. JOENIME B. KAPINA, MONIB B. WALINGWALING, MAULANA G. KARNAIN, ABDULGAPHAR M. MUSTAPHA, ABDULRAKMAN TALIKOP and WILSON SABIWANG, private respondents. DECISION CALLEJO, SR., J.: This is a special civil action for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, to set aside the November 6, 2001 Resolution No. 4615,1 promulgated by the Commission on Elections (COMELEC) en banc2 installing the private respondents as members of the Sangguniang Bayan of Palimbang, Sultan Kudarat, although the petitioners had already taken their respective oaths and assumed offices in the same elective positions. The antecedents are as follows: On May 14, 2001, the election for the members of the Sangguniang Bayan was held in Palimbang, Sultan Kudarat. On May 20, 2001, the Municipal Board of Canvassers of Palimbang issued Certificate of Canvass of Votes and Proclamation (COCVP) No. 80311083 which contained, inter alia, the petitioners and the Sangguniang Bayan winning candidates: 1. NOREN B. APIL 2. MALOD B. MOSADI 3. DIMALUB P. NAMIL 4. ABDULNASSER A. TIMAN 5. TERESITA G. AKOB 6. MABANING P. SAMAMA 7. EPAS T. GUIAMEL 8. MALIGA M. AMILUDIN The above-named candidates took their oath, and assumed their offices on June 30, 20014 as members of the Sangguniang Bayan of Palimbang. The next day, May 21, 2001, the Municipal Board of Canvassers of Palimbang issued COCVP No. 8031109 which listed the private respondents as winners, namely: 1. JOENIME B. KAPINA 2. MONIB B. WALINGWALING 3. MAULANA G. KARNAIN

4. ABDULGAPHAR M. MUSATAPHA 5. MALOD B. MOSADI 6. ABDULRAKMAN A. TALIKOP 7. WILSON K. SABIWANG 8. MABANING P. SAMAMA Thereafter, private respondent Joenime B. Kapina wrote the COMELEC requesting that she and the others who were proclaimed as winners on May 21, 2001 be recognized as the winning candidates and the new members of the Sangguniang Bayan of Palimbang, Sultan Kudarat. Appended to said letter was a certification issued by Regional Election Director Clarita N. Callar, Region XII, Cotabato City, that the private respondents named in the COCVP No. 8031109, issued on May 21, 2001, were duly proclaimed as the winning candidates for the said municipality. When apprised of the said letter, the Commissioner-inCharge for Region XII, Mehol K. Sadain, conducted an investigation on the matter of having two (2) sets of winning candidates as members of the Sangguniang Bayan for Palimbang. He issued Memorandum No. 2001-09-005 requiring the Law Department, the Regional Election Registrar and the Provincial Election Supervisor to submit their respective reports/comments on the letter. The said officers submitted their respective memorandum, thus: 1. Memo dated September 11, 2001 of Atty. Jose Balbuena, Director Law Department, to the effect that, "our Comelec field officials in Region XII who directly participated in the canvassing who were named in (Memo No. 2001-09-001) could best provide the needed explanation and information" on the double proclamation of Sangguniang Bayan winners in Palimbang, Sultan Kudarat. 2. Memo dated September 6, 2001 of Atty. Clarita Callar, Regional Election Director, Region XII, to the effect that the Election Assistant Amy Laguda who issued the certification on the proclamation based on Certificate No. 8031109 dated May 21, 2001 verified the genuineness of her signature on the said certification, and further said that at the time she issued the certification the PES had not yet received a copy of Certificate No. 8031108 dated May 20, 2001. Further, Atty. Callar referred to the verification of Ms. Celia Romero that per records of the RSD, "the names appearing as elected members of the Sangguniang Bayan for the Municipality of Sultan Kudarat ... are those proclaimed in Certificate of Canvass of Votes & Proclamation No. 8031109." Incidentally, Ms. Romero also issued a certification that the serial numbers of the Certificates of Canvass of Votes and Proclamation were 8031108 for Lambayong, SK and 8031109 for Palimbang, SK. 3. Memo filed on September 6, 2001 by Atty. Lintang H. Bedol, PES, Sultan Kudarat, recommending that the parties should file the appropriate case/s before the Commission, instead of coursing their redress through the PES of Sultan Kudarat or the RED of Region XII. 4. A confidential certification of EO Malic Sansarona dated September 12, 2001 to the effect that "the Certificate of Canvass of Votes and Proclamation ... No. 8031109 dated June 21, 2001 is [the] genuine and valid proclamation of elected Municipal Officials of the Municipality of Palimbang, Sultan Kudarat," and that the other proclamation [No. 8031108] "is fictitious and falsified. Acting on the said Memoranda, Commissioner Sadain submitted his Recommendation 5 to the COMELEC, thus:

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1. Finds that there was a VALID PROCLAMATION of the winning candidates for positions of Members of the Sangguniang Bayan of Palimbang, Sultan Kudarat as contained in Certificate of Canvass of Votes and Proclamation No. 8031109; 2. That there being a VALID PROCLAMATION, there is NO NEED for adjudication on this matter; and therefore 3. Respectfully RECOMMENDS to the Commission En Banc, the adoption of the following recommendation [Annex "D"] of Atty. Jose P. Balbuena, Dir., Law Department and Atty. Gregorio T. Saraos, Attorney II, IPD, Law Department. PREMISES CONSIDERED, the Law Department RECOMMENDS to issue an Order for the immediate installation of the winning members of the Sangguniang Bayan [of Palimbang, Sultan Kudarat], namely: JOENIME B. KAPINA, MONIB B. WALINGWALING, MAULANA G. KARNAIN, ABDULGAPHAR M. MUSTAPHA, MALOD B. MOSADI, ABDULRAKMAN A. TALIKOP, WILSON K. SABIWANG, AND MABANING P. SAMAMA... and for said purpose, to direct the Brigade Commander, 60 1st Brigade Pulutana of General Santos City, Saranggani Province, to effect and enforce the said Order and to submit his compliance within five (5) days from notice hereof. Acting on the recommendation of Commissioner Sadain, the public respondent issued on November 6, 2001 the assailed Resolution No. 4615. The dispositive portion reads: WHEREFORE, in view of the foregoing, the Commission RESOLVED, as it hereby RESOLVES, (1) that the proclamation of the winning candidates contained in Certificate of Canvass of Votes and Proclamation No. 8031109 is a valid proclamation; (2) to adopt the recommendation of the Law Department which is in accordance with the result of the investigation conducted by the Commissioner-in-Charge; and herein orders the immediate installation of JOENIME B. KAPINA, MONIB B. WALINGWALING, MAULANA G. KARNAIN, ABDULGAPHAR M. MUSTAPHA, MALOD B. MOSADI, ABDULRAKMAN A. TALIKOP, WILSON K. SABIWANG, AND MABANING P. SAMAMA as the duly elected members of the Sangguniang Bayan of Palimbang, Sultan Kudarat.6 The petitioners contend that the public respondents Resolution No. 4615 is null and void since it was issued without according them due notice and hearing, contrary to the enshrined principle of due process. The public respondent thus committed a grave abuse of discretion amounting to lack or excess of jurisdiction. The petitioners allege that they were never accorded the chance to present their side in connection with the investigation that was purportedly conducted by Commissioner Sadain and on the memoranda/report of the public respondents officers. The public respondent simply approved the recommendation of Commissioner Sadain. The petitioners were kept in the dark, learned about the controversy only when they were notified of the assailed resolution of the public respondent.1awphi1.nt The public respondent, through the Office of the Solicitor General, as well as the private respondents, asserts that the petitioners failed to file a motion for reconsideration of the assailed decision before instituting this action with this Court; hence, the petition is premature. It is pointed out that the public respondent has broad powers to enforce all election laws, it has the power to control and supervise the proceedings of the board of canvassers, and the power to suspend or annul proclamation. When it learned about the two (2) sets of winning candidates as members of Sangguniang Bayan of Palimbang, Sultan Kudarat, the public

respondent required an investigation to be conducted by one of the commissioners, who required the election officers in the place concerned to submit their reports on the matter. After a study of the various reports, it was ascertained that COCVP (C.E Form No. 25) No. 8031108 was null and void, fictitious and falsified. The public respondent made a finding that the genuine COCVP was that one bearing Serial No. 8031109, intended for the Municipality of Palimbang, Sultan Kudarat. It was thus incumbent upon the public respondent to order the immediate installation of the winning candidates on the basis of the genuine COCVP to give effect to the will of the electorate, conformably to its mandate under Section 242 of the Omnibus Election Code and the ruling of this Court in Aguam vs. Commission on Elections.7 The public respondent further asserts that the twin requirement of notice and hearing in annulment of proclamation is not applicable when the proclamation is null and void, citing Utto vs. Commission on Elections.8 The petition is meritorious. While it is true that the COMELEC is vested with a broad power to enforce all election laws, the same is subject to the right of the parties to due process. In this case, the petitioners had been proclaimed as the winning candidates and had assumed their office. Since then, they had been exercising their rights and performing their duties as members of the Sangguniang Bayan of Palimbang, Sultan Kudarat. Their proclamation on May 20, 2001 enjoys the presumption of regularity and validity since no contest or protest was even filed assailing the same. The petitioners cannot be removed from office without due process of law. Due process in the proceedings before the public respondent exercising its quasi-judicial functions, requires due notice and hearing, among others. Thus, although the COMELEC possesses, in appropriate cases, the power to annul or suspend the proclamation of any candidate, we also ruled in Farias vs. Commission on Elections, Reyes vs. Commission on Elections and Gallardo vs. Commission on Elections that the COMELEC is without power to partially or totally annul a proclamation or suspend the effects of a proclamation without notice and hearing.9 In this case, the public respondent nullified the proclamation of the petitioners and ousted them from their office as members of the Sangguniang Bayan of Palimbang, based solely on the recommendations of its law department and of Commissioner Sadain, and on the memoranda of its officers. The petitioners were not accorded a chance to be heard on the said recommendations and the memorandum of Regional Election Director Clarita Callar, certification of Celia Romero, and certification of Election Officer Malic Sansarona dated September 12, 2001 before it issued the assailed resolution. The conclusion of the public respondent that the basis of the petitioners proclamation was a fictitious and falsified document was grounded, inter alia, on a "confidential certification" of Election Officer Malic Sansarona dated September 12, 2001.10 However, it appears that a certification11 was earlier issued by the same election officer on June 25, 2001, stating that the petitioners whose names were listed as winning candidates as Sangguniang Bayan members in the COCVP (C.E. Form No. 25) No. 8031108, the very certificate declared by the public respondent in its Resolution No. 4615 as fictitious and falsified document, won in the elections. In the case of Caruncho III vs. Commission on Elections,12 this Court has held that due process in quasi-judicial proceedings before the COMELEC requires due notice and hearing.

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The proclamation of a winning candidate cannot be annulled if he has not been notified of any motion to set aside his proclamation. This Court also ruled inSandoval vs. Commission on Elections13 that: ... Although the COMELEC is clothed with jurisdiction over the subject matter and issue of SPC No. 98-143 and SPC No. 98-206, we find the exercise of its jurisdiction tainted with illegality. We hold that its order to set aside the proclamation of petitioner is invalid for having been rendered without due process of law. Procedural due process demands prior notice and hearing. Then after the hearing, it is also necessary that the tribunal show substantial evidence to support its ruling. In other words, due process requires that a party be given an opportunity to adduce his evidence to support his side of the case and that the evidence should be considered in the adjudication of the case. The facts show that COMELEC set aside the proclamation of petitioner without the benefit of prior notice and hearing and it rendered the questioned order based solely on private respondents allegations. We held in Bince, Jr. vs. COMELEC: Petitioner cannot be deprived of his office without due process of law. Although public office is not property under Section 1 of the Bill of Rights of the Constitution, and one cannot acquire a vested right to public office, it is, nevertheless, a protected right. Due process in proceedings before the COMELEC, exercising its quasi-judicial functions, requires due notice and hearing, among others. Thus, although the COMELEC possesses, in appropriate cases, the power to annul or suspend the proclamation of any candidate, We had ruled in Farinas vs. Commission on Elections, Reyes vs. Commission on Elections and Gallardo vs. Commission on Elections that the COMELEC is without power to partially or totally annul a proclamation or suspend the effects of a proclamation without notice and hearing. The public respondents reliance on the ruling of this Court in Utto vs. Commission on Elections14 is misplaced. The Court, in that case, held that the twin-requirement of notice and hearing in an annulment of proclamation is not applicable because of the illegality of petitioners proclamation.15 The factual circumstances in the instant petition are far different from those obtaining in Utto. In the Utto case, a notice of appeal was filed questioning the ruling of the board of canvassers but, the latter proceeded in proclaiming Utto as the winning candidate. This made the proclamation illegal. In the present case, nobody questioned the petitioners proclamation. We rule that the petition in this case was not prematurely filed. Generally, a motion for reconsideration is a pre-requisite to the viability of a special civil action for certiorari. However, there are exceptions to the rule. The aggrieved party is not obliged to first file a motion for reconsideration of the assailed resolution before filing a petition under Rule 65 of the Rules of Court, as amended where, as in this case, (1) the question is purely legal, (2) judicial intervention is urgent; (3) its application may cause great and irreparable damage; and (4) the controverted acts violate due process.16 The private respondents cannot invoke Section 242 of the Omnibus Election Code to fortify their cause, because the said law specifically refers to pre-proclamation controversies, thus: Sec. 242. Commissions exclusive jurisdiction of all pre-proclamation controversies. The Commission shall have exclusive jurisdiction of all pre-proclamation controversies. It may motu proprio or upon written petition, and after due notice and hearing, order the partial or total suspension of the proclamation of any candidate-elect or annul partially or totally any

proclamation, if one has been made, as the evidence shall warrant in accordance with the succeeding section.17 Even the fact that the public respondent initiated the proceedings for the partial or total annulment of an illegal proclamation would not dispense with the requirements of notice and hearing. This was made clear in Sandoval vs. Commission on Elections:18 Citing Section 242 of the Omnibus Election Code, private respondent argues that the COMELEC is authorized to annul an illegal proclamation even without notice and hearing because the law states that it may motu proprio order a partial or total suspension of the proclamation of any candidate-elect or annul partially or totally any proclamation, if one has been made. ... ... The phrase "motu proprio" does not refer to the annulment of proclamation but to the manner of initiating the proceedings to annul a proclamation made by the board of canvassers. The law provides two ways by which annulment proceedings may be initiated. It may be at the own initiative of the COMELEC (motu proprio) or by written petition. In either case, notice and hearing is required. This is clear from the language of the law.19 IN THE LIGHT OF THE FOREGOING, the petition is GRANTED. The assailed Resolution No. 4615 of the public respondent COMELEC en banc dated November 6, 2001, is hereby REVERSED and SET ASIDE. SO ORDERED. Davide, Jr., C.J., Bellosillo, Puno, Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, and Tinga, JJ., concur. Vitug, J., in the result. Ynares-Santiago, J. on leave. G.R. No. L-45685 November 16, 1937 THE PEOPLE OF THE PHILIPPINE ISLANDS and HONGKONG & SHANGHAI BANKING CORPORATION,petitioners, vs. JOSE O. VERA, Judge . of the Court of First Instance of Manila, and MARIANO CU UNJIENG, respondents. Office of the Solicitor General Tuason and City Fiscal Diaz for the Government. De Witt, Perkins and Ponce Enrile for the Hongkong and Shanghai Banking Corporation. Vicente J. Francisco, Feria and La O, Orense and Belmonte, and Gibbs and McDonough for respondent Cu Unjieng. No appearance for respondent Judge. LAUREL, J.: This is an original action instituted in this court on August 19, 1937, for the issuance of the writ of certiorariand of prohibition to the Court of First Instance of Manila so that this court may review the actuations of the aforesaid Court of First Instance in criminal case No. 42649 entitled "The People of the Philippine Islands vs. Mariano Cu Unjieng, et al.", more particularly the application of the defendant Mariano Cu Unjieng therein for probation under the provisions

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of Act No. 4221, and thereafter prohibit the said Court of First Instance from taking any further action or entertaining further the aforementioned application for probation, to the end that the defendant Mariano Cu Unjieng may be forthwith committed to prison in accordance with the final judgment of conviction rendered by this court in said case (G. R. No. 41200). 1 Petitioners herein, the People of the Philippine and the Hongkong and Shanghai Banking Corporation, are respectively the plaintiff and the offended party, and the respondent herein Mariano Cu Unjieng is one of the defendants, in the criminal case entitled "The People of the Philippine Islands vs. Mariano Cu Unjieng, et al.", criminal case No. 42649 of the Court of First Instance of Manila and G.R. No. 41200 of this court. Respondent herein, Hon. Jose O. Vera, is the Judge ad interim of the seventh branch of the Court of First Instance of Manila, who heard the application of the defendant Mariano Cu Unjieng for probation in the aforesaid criminal case. The information in the aforesaid criminal case was filed with the Court of First Instance of Manila on October 15, 1931, petitioner herein Hongkong and Shanghai Banking Corporation intervening in the case as private prosecutor. After a protracted trial unparalleled in the annals of Philippine jurisprudence both in the length of time spent by the court as well as in the volume in the testimony and the bulk of the exhibits presented, the Court of First Instance of Manila, on January 8, 1934, rendered a judgment of conviction sentencing the defendant Mariano Cu Unjieng to indeterminate penalty ranging from four years and two months of prision correccional to eight years of prision mayor, to pay the costs and with reservation of civil action to the offended party, the Hongkong and Shanghai Banking Corporation. Upon appeal, the court, on March 26, 1935, modified the sentence to an indeterminate penalty of from five years and six months of prision correccional to seven years, six months and twenty-seven days of prision mayor, but affirmed the judgment in all other respects. Mariano Cu Unjieng filed a motion for reconsideration and four successive motions for new trial which were denied on December 17, 1935, and final judgment was accordingly entered on December 18, 1935. The defendant thereupon sought to have the case elevated on certiorari to the Supreme Court of the United States but the latter denied the petition forcertiorari in November, 1936. This court, on November 24, 1936, denied the petition subsequently filed by the defendant for leave to file a second alternative motion for reconsideration or new trial and thereafter remanded the case to the court of origin for execution of the judgment. The instant proceedings have to do with the application for probation filed by the herein respondent Mariano Cu Unjieng on November 27, 1936, before the trial court, under the provisions of Act No. 4221 of the defunct Philippine Legislature. Herein respondent Mariano Cu Unjieng states in his petition, inter alia, that he is innocent of the crime of which he was convicted, that he has no criminal record and that he would observe good conduct in the future. The Court of First Instance of Manila, Judge Pedro Tuason presiding, referred the application for probation of the Insular Probation Office which recommended denial of the same June 18, 1937. Thereafter, the Court of First Instance of Manila, seventh branch, Judge Jose O. Vera presiding, set the petition for hearing on April 5, 1937. On April 2, 1937, the Fiscal of the City of Manila filed an opposition to the granting of probation to the herein respondent Mariano Cu Unjieng. The private prosecution also filed an opposition on April 5, 1937, alleging, among other things, that Act No. 4221, assuming that it

has not been repealed by section 2 of Article XV of the Constitution, is nevertheless violative of section 1, subsection (1), Article III of the Constitution guaranteeing equal protection of the laws for the reason that its applicability is not uniform throughout the Islands and because section 11 of the said Act endows the provincial boards with the power to make said law effective or otherwise in their respective or otherwise in their respective provinces. The private prosecution also filed a supplementary opposition on April 19, 1937, elaborating on the alleged unconstitutionality on Act No. 4221, as an undue delegation of legislative power to the provincial boards of several provinces (sec. 1, Art. VI, Constitution). The City Fiscal concurred in the opposition of the private prosecution except with respect to the questions raised concerning the constitutionality of Act No. 4221. On June 28, 1937, herein respondent Judge Jose O. Vera promulgated a resolution with a finding that "las pruebas no han establecido de unamanera concluyente la culpabilidad del peticionario y que todos los hechos probados no son inconsistentes o incongrentes con su inocencia" and concludes that the herein respondent Mariano Cu Unjieng "es inocente por duda racional" of the crime of which he stands convicted by this court in G.R. No. 41200, but denying the latter's petition for probation for the reason that: . . . Si este Juzgado concediera la poblacion solicitada por las circunstancias y la historia social que se han expuesto en el cuerpo de esta resolucion, que hacen al peticionario acreedor de la misma, una parte de la opinion publica, atizada por los recelos y las suspicacias, podria levantarse indignada contra un sistema de probacion que permite atisbar en los procedimientos ordinarios de una causa criminal perturbando la quietud y la eficacia de las decisiones ya recaidas al traer a la superficie conclusiones enteramente differentes, en menoscabo del interes publico que demanda el respeto de las leyes y del veredicto judicial. On July 3, 1937, counsel for the herein respondent Mariano Cu Unjieng filed an exception to the resolution denying probation and a notice of intention to file a motion for reconsideration. An alternative motion for reconsideration or new trial was filed by counsel on July 13, 1937. This was supplemented by an additional motion for reconsideration submitted on July 14, 1937. The aforesaid motions were set for hearing on July 31, 1937, but said hearing was postponed at the petition of counsel for the respondent Mariano Cu Unjieng because a motion for leave to intervene in the case as amici curiae signed by thirty-three (thirty-four) attorneys had just been filed with the trial court. Attorney Eulalio Chaves whose signature appears in the aforesaid motion subsequently filed a petition for leave to withdraw his appearance as amicus curiae on the ground that the motion for leave to intervene as amici curiae was circulated at a banquet given by counsel for Mariano Cu Unjieng on the evening of July 30, 1937, and that he signed the same "without mature deliberation and purely as a matter of courtesy to the person who invited me (him)." On August 6, 1937, the Fiscal of the City of Manila filed a motion with the trial court for the issuance of an order of execution of the judgment of this court in said case and forthwith to commit the herein respondent Mariano Cu Unjieng to jail in obedience to said judgment. On August 7, 1937, the private prosecution filed its opposition to the motion for leave to intervene as amici curiae aforementioned, asking that a date be set for a hearing of the same and that, at all events, said motion should be denied with respect to certain attorneys signing the same who were members of the legal staff of the several counsel for Mariano Cu Unjieng. On August 10, 1937, herein respondent Judge Jose O. Vera issued an order requiring all

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parties including the movants for intervention as amici curiae to appear before the court on August 14, 1937. On the last-mentioned date, the Fiscal of the City of Manila moved for the hearing of his motion for execution of judgment in preference to the motion for leave to intervene as amici curiae but, upon objection of counsel for Mariano Cu Unjieng, he moved for the postponement of the hearing of both motions. The respondent judge thereupon set the hearing of the motion for execution on August 21, 1937, but proceeded to consider the motion for leave to intervene as amici curiae as in order. Evidence as to the circumstances under which said motion for leave to intervene as amici curiae was signed and submitted to court was to have been heard on August 19, 1937. But at this juncture, herein petitioners came to this court on extraordinary legal process to put an end to what they alleged was an interminable proceeding in the Court of First Instance of Manila which fostered "the campaign of the defendant Mariano Cu Unjieng for delay in the execution of the sentence imposed by this Honorable Court on him, exposing the courts to criticism and ridicule because of the apparent inability of the judicial machinery to make effective a final judgment of this court imposed on the defendant Mariano Cu Unjieng." The scheduled hearing before the trial court was accordingly suspended upon the issuance of a temporary restraining order by this court on August 21, 1937. To support their petition for the issuance of the extraordinary writs of certiorari and prohibition, herein petitioners allege that the respondent judge has acted without jurisdiction or in excess of his jurisdiction: I. Because said respondent judge lacks the power to place respondent Mariano Cu Unjieng under probation for the following reason: (1) Under section 11 of Act No. 4221, the said of the Philippine Legislature is made to apply only to the provinces of the Philippines; it nowhere states that it is to be made applicable to chartered cities like the City of Manila. (2) While section 37 of the Administrative Code contains a proviso to the effect that in the absence of a special provision, the term "province" may be construed to include the City of Manila for the purpose of giving effect to laws of general application, it is also true that Act No. 4221 is not a law of general application because it is made to apply only to those provinces in which the respective provincial boards shall have provided for the salary of a probation officer. (3) Even if the City of Manila were considered to be a province, still, Act No. 4221 would not be applicable to it because it has provided for the salary of a probation officer as required by section 11 thereof; it being immaterial that there is an Insular Probation Officer willing to act for the City of Manila, said Probation Officer provided for in section 10 of Act No. 4221 being different and distinct from the Probation Officer provided for in section 11 of the same Act. II. Because even if the respondent judge originally had jurisdiction to entertain the application for probation of the respondent Mariano Cu Unjieng, he nevertheless acted without jurisdiction or in excess thereof in continuing to entertain the motion for reconsideration and by failing to commit Mariano Cu Unjieng to prison after he had promulgated his resolution of June 28, 1937, denying Mariano Cu Unjieng's application for probation, for the reason that: (1) His jurisdiction and power in probation proceedings is limited by Act No. 4221 to the granting or denying of applications for probation. (2) After he had issued the order denying Mariano Cu Unjieng's petition for probation on June 28, 1937, it became final and executory at the moment of its rendition.

(3) No right on appeal exists in such cases. (4) The respondent judge lacks the power to grant a rehearing of said order or to modify or change the same. III. Because the respondent judge made a finding that Mariano Cu Unjieng is innocent of the crime for which he was convicted by final judgment of this court, which finding is not only presumptuous but without foundation in fact and in law, and is furthermore in contempt of this court and a violation of the respondent's oath of office as ad interim judge of first instance. IV. Because the respondent judge has violated and continues to violate his duty, which became imperative when he issued his order of June 28, 1937, denying the application for probation, to commit his co-respondent to jail. Petitioners also avers that they have no other plain, speedy and adequate remedy in the ordinary course of law. In a supplementary petition filed on September 9, 1937, the petitioner Hongkong and Shanghai Banking Corporation further contends that Act No. 4221 of the Philippine Legislature providing for a system of probation for persons eighteen years of age or over who are convicted of crime, is unconstitutional because it is violative of section 1, subsection (1), Article III, of the Constitution of the Philippines guaranteeing equal protection of the laws because it confers upon the provincial board of its province the absolute discretion to make said law operative or otherwise in their respective provinces, because it constitutes an unlawful and improper delegation to the provincial boards of the several provinces of the legislative power lodged by the Jones Law (section 8) in the Philippine Legislature and by the Constitution (section 1, Art. VI) in the National Assembly; and for the further reason that it gives the provincial boards, in contravention of the Constitution (section 2, Art. VIII) and the Jones Law (section 28), the authority to enlarge the powers of the Court of First Instance of different provinces without uniformity. In another supplementary petition dated September 14, 1937, the Fiscal of the City of Manila, in behalf of one of the petitioners, the People of the Philippine Islands, concurs for the first time with the issues raised by other petitioner regarding the constitutionality of Act No. 4221, and on the oral argument held on October 6, 1937, further elaborated on the theory that probation is a form of reprieve and therefore Act. No. 4221 is an encroachment on the exclusive power of the Chief Executive to grant pardons and reprieves. On October 7, 1937, the City Fiscal filed two memorandums in which he contended that Act No. 4221 not only encroaches upon the pardoning power to the executive, but also constitute an unwarranted delegation of legislative power and a denial of the equal protection of the laws. On October 9, 1937, two memorandums, signed jointly by the City Fiscal and the Solicitor-General, acting in behalf of the People of the Philippine Islands, and by counsel for the petitioner, the Hongkong and Shanghai Banking Corporation, one sustaining the power of the state to impugn the validity of its own laws and the other contending that Act No. 4221 constitutes an unwarranted delegation of legislative power, were presented. Another joint memorandum was filed by the same persons on the same day, October 9, 1937, alleging that Act No. 4221 is unconstitutional because it denies the equal protection of the laws and constitutes an unlawful delegation of legislative power and, further, that the whole Act is void: that the Commonwealth is not estopped from questioning the validity of its laws; that the private prosecution may intervene in probation proceedings and may attack the probation law

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as unconstitutional; and that this court may pass upon the constitutional question in prohibition proceedings. Respondents in their answer dated August 31, 1937, as well as in their oral argument and memorandums, challenge each and every one of the foregoing proposition raised by the petitioners. As special defenses, respondents allege: (1) That the present petition does not state facts sufficient in law to warrant the issuance of the writ of certiorari or of prohibition. (2) That the aforesaid petition is premature because the remedy sought by the petitioners is the very same remedy prayed for by them before the trial court and was still pending resolution before the trial court when the present petition was filed with this court. (3) That the petitioners having themselves raised the question as to the execution of judgment before the trial court, said trial court has acquired exclusive jurisdiction to resolve the same under the theory that its resolution denying probation is unappealable. (4) That upon the hypothesis that this court has concurrent jurisdiction with the Court of First Instance to decide the question as to whether or not the execution will lie, this court nevertheless cannot exercise said jurisdiction while the Court of First Instance has assumed jurisdiction over the same upon motion of herein petitioners themselves. (5) That upon the procedure followed by the herein petitioners in seeking to deprive the trial court of its jurisdiction over the case and elevate the proceedings to this court, should not be tolerated because it impairs the authority and dignity of the trial court which court while sitting in the probation cases is "a court of limited jurisdiction but of great dignity." (6) That under the supposition that this court has jurisdiction to resolve the question submitted to and pending resolution by the trial court, the present action would not lie because the resolution of the trial court denying probation is appealable; for although the Probation Law does not specifically provide that an applicant for probation may appeal from a resolution of the Court of First Instance denying probation, still it is a general rule in this jurisdiction that a final order, resolution or decision of an inferior court is appealable to the superior court. (7) That the resolution of the trial court denying probation of herein respondent Mariano Cu Unjieng being appealable, the same had not become final and executory for the reason that the said respondent had filed an alternative motion for reconsideration and new trial within the requisite period of fifteen days, which motion the trial court was able to resolve in view of the restraining order improvidently and erroneously issued by this court.lawphi1.net (8) That the Fiscal of the City of Manila had by implication admitted that the resolution of the trial court denying probation is not final and unappealable when he presented his answer to the motion for reconsideration and agreed to the postponement of the hearing of the said motion. (9) That under the supposition that the order of the trial court denying probation is not appealable, it is incumbent upon the accused to file an action for the issuance of the writ ofcertiorari with mandamus, it appearing that the trial court, although it believed that the accused was entitled to probation, nevertheless denied probation for fear of criticism because the accused is a rich man; and that, before a petition for certiorari grounded on an irregular exercise of jurisdiction by the trial court could lie, it is incumbent upon the petitioner to file a

motion for reconsideration specifying the error committed so that the trial court could have an opportunity to correct or cure the same. (10) That on hypothesis that the resolution of this court is not appealable, the trial court retains its jurisdiction within a reasonable time to correct or modify it in accordance with law and justice; that this power to alter or modify an order or resolution is inherent in the courts and may be exercise either motu proprio or upon petition of the proper party, the petition in the latter case taking the form of a motion for reconsideration. (11) That on the hypothesis that the resolution of the trial court is appealable as respondent allege, said court cannot order execution of the same while it is on appeal, for then the appeal would not be availing because the doors of probation will be closed from the moment the accused commences to serve his sentence (Act No. 4221, sec. 1; U.S. vs. Cook, 19 Fed. [2d], 827). In their memorandums filed on October 23, 1937, counsel for the respondents maintain that Act No. 4221 is constitutional because, contrary to the allegations of the petitioners, it does not constitute an undue delegation of legislative power, does not infringe the equal protection clause of the Constitution, and does not encroach upon the pardoning power of the Executive. In an additional memorandum filed on the same date, counsel for the respondents reiterate the view that section 11 of Act No. 4221 is free from constitutional objections and contend, in addition, that the private prosecution may not intervene in probation proceedings, much less question the validity of Act No. 4221; that both the City Fiscal and the SolicitorGeneral are estopped from questioning the validity of the Act; that the validity of Act cannot be attacked for the first time before this court; that probation in unavailable; and that, in any event, section 11 of the Act No. 4221 is separable from the rest of the Act. The last memorandum for the respondent Mariano Cu Unjieng was denied for having been filed out of time but was admitted by resolution of this court and filed anew on November 5, 1937. This memorandum elaborates on some of the points raised by the respondents and refutes those brought up by the petitioners. In the scrutiny of the pleadings and examination of the various aspects of the present case, we noted that the court below, in passing upon the merits of the application of the respondent Mariano Cu Unjieng and in denying said application assumed the task not only of considering the merits of the application, but of passing upon the culpability of the applicant, notwithstanding the final pronouncement of guilt by this court. (G.R. No. 41200.) Probation implies guilt be final judgment. While a probation case may look into the circumstances attending the commission of the offense, this does not authorize it to reverse the findings and conclusive of this court, either directly or indirectly, especially wherefrom its own admission reliance was merely had on the printed briefs, averments, and pleadings of the parties. As already observed by this court in Shioji vs. Harvey ([1922], 43 Phil., 333, 337), and reiterated in subsequent cases, "if each and every Court of First Instance could enjoy the privilege of overruling decisions of the Supreme Court, there would be no end to litigation, and judicial chaos would result." A becoming modesty of inferior courts demands conscious realization of the position that they occupy in the interrelation and operation of the intergrated judicial system of the nation. After threshing carefully the multifarious issues raised by both counsel for the petitioners and the respondents, this court prefers to cut the Gordian knot and take up at once

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the two fundamental questions presented, namely, (1) whether or not the constitutionality of Act No. 4221 has been properly raised in these proceedings; and (2) in the affirmative, whether or not said Act is constitutional. Considerations of these issues will involve a discussion of certain incidental questions raised by the parties. To arrive at a correct conclusion on the first question, resort to certain guiding principles is necessary. It is a well-settled rule that the constitutionality of an act of the legislature will not be determined by the courts unless that question is properly raised and presented inappropriate cases and is necessary to a determination of the case; i.e., the issue of constitutionality must be the very lis mota presented. (McGirr vs. Hamilton and Abreu [1915], 30 Phil., 563, 568; 6 R. C. L., pp. 76, 77; 12 C. J., pp. 780-782, 783.) The question of the constitutionality of an act of the legislature is frequently raised in ordinary actions. Nevertheless, resort may be made to extraordinary legal remedies, particularly where the remedies in the ordinary course of law even if available, are not plain, speedy and adequate. Thus, in Cu Unjieng vs. Patstone ([1922]), 42 Phil., 818), this court held that the question of the constitutionality of a statute may be raised by the petitioner inmandamus proceedings (see, also, 12 C. J., p. 783); and in Government of the Philippine Islands vs. Springer([1927], 50 Phil., 259 [affirmed in Springer vs. Government of the Philippine Islands (1928), 277 U. S., 189; 72 Law. ed., 845]), this court declared an act of the legislature unconstitutional in an action of quo warranto brought in the name of the Government of the Philippines. It has also been held that the constitutionality of a statute may be questioned in habeas corpus proceedings (12 C. J., p. 783; Bailey on Habeas Corpus, Vol. I, pp. 97, 117), although there are authorities to the contrary; on an application for injunction to restrain action under the challenged statute (mandatory, see Cruz vs. Youngberg [1931], 56 Phil., 234); and even on an application for preliminary injunction where the determination of the constitutional question is necessary to a decision of the case. (12 C. J., p. 783.) The same may be said as regards prohibition and certiorari.(Yu Cong Eng vs. Trinidad [1925], 47 Phil., 385; [1926], 271 U. S., 500; 70 Law. ed., 1059; Bell vs. First Judicial District Court [1905], 28 Nev., 280; 81 Pac., 875; 113 A. S. R., 854; 6 Ann. Cas., 982; 1 L. R. A. [N. S], 843, and cases cited). The case of Yu Cong Eng vs. Trinidad, supra, decided by this court twelve years ago was, like the present one, an original action forcertiorari and prohibition. The constitutionality of Act No. 2972, popularly known as the Chinese Bookkeeping Law, was there challenged by the petitioners, and the constitutional issue was not met squarely by the respondent in a demurrer. A point was raised "relating to the propriety of the constitutional question being decided in original proceedings in prohibition." This court decided to take up the constitutional question and, with two justices dissenting, held that Act No. 2972 was constitutional. The case was elevated on writ of certiorari to the Supreme Court of the United States which reversed the judgment of this court and held that the Act was invalid. (271 U. S., 500; 70 Law. ed., 1059.) On the question of jurisdiction, however, the Federal Supreme Court, though its Chief Justice, said: By the Code of Civil Procedure of the Philippine Islands, section 516, the Philippine supreme court is granted concurrent jurisdiction in prohibition with courts of first instance over inferior tribunals or persons, and original jurisdiction over courts of first instance, when such courts are exercising functions without or in excess of their jurisdiction. It has been held by that court that the question of the validity of the criminal statute must usually be raised by a

defendant in the trial court and be carried regularly in review to the Supreme Court. (Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192). But in this case where a new act seriously affected numerous persons and extensive property rights, and was likely to cause a multiplicity of actions, the Supreme Court exercised its discretion to bring the issue to the act's validity promptly before it and decide in the interest of the orderly administration of justice. The court relied by analogy upon the cases of Ex parte Young (209 U. S., 123;52 Law ed., 714; 13 L. R. A. [N. S.] 932; 28 Sup. Ct. Rep., 441; 14 Ann. Ca., 764; Traux vs. Raich, 239 U. S., 33; 60 Law. ed., 131; L. R. A. 1916D, 545; 36 Sup. Ct. Rep., 7; Ann. Cas., 1917B, 283; and Wilson vs. New, 243 U. S., 332; 61 Law. ed., 755; L. R. A. 1917E, 938; 37 Sup. Ct. Rep., 298; Ann. Cas. 1918A, 1024). Although objection to the jurisdiction was raise by demurrer to the petition, this is now disclaimed on behalf of the respondents, and both parties ask a decision on the merits. In view of the broad powers in prohibition granted to that court under the Island Code, we acquiesce in the desire of the parties. The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior jurisdiction and directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is not legally vested. (High, Extraordinary Legal Remedies, p. 705.) The general rule, although there is a conflict in the cases, is that the merit of prohibition will not lie whether the inferior court has jurisdiction independent of the statute the constitutionality of which is questioned, because in such cases the interior court having jurisdiction may itself determine the constitutionality of the statute, and its decision may be subject to review, and consequently the complainant in such cases ordinarily has adequate remedy by appeal without resort to the writ of prohibition. But where the inferior court or tribunal derives its jurisdiction exclusively from an unconstitutional statute, it may be prevented by the writ of prohibition from enforcing that statute. (50 C. J., 670; Ex parte Round tree [1874, 51 Ala., 42; In re Macfarland, 30 App. [D. C.], 365; Curtis vs. Cornish [1912], 109 Me., 384; 84 A., 799; Pennington vs. Woolfolk [1880], 79 Ky., 13; State vs. Godfrey [1903], 54 W. Va., 54; 46 S. E., 185; Arnold vs. Shields [1837], 5 Dana, 19; 30 Am. Dec., 669.) Courts of First Instance sitting in probation proceedings derived their jurisdiction solely from Act No. 4221 which prescribes in detailed manner the procedure for granting probation to accused persons after their conviction has become final and before they have served their sentence. It is true that at common law the authority of the courts to suspend temporarily the execution of the sentence is recognized and, according to a number of state courts, including those of Massachusetts, Michigan, New York, and Ohio, the power is inherent in the courts (Commonwealth vs. Dowdican's Bail [1874], 115 Mass., 133; People vs. Stickel [1909], 156 Mich., 557; 121 N. W., 497; People ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288; Weber vs. State [1898], 58 Ohio St., 616). But, in the leading case of Ex parte United States ([1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A., 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355), the Supreme Court of the United States expressed the opinion that under the common law the power of the court was limited to temporary suspension, and brushed aside the contention as to inherent judicial power saying, through Chief Justice White: Indisputably under our constitutional system the right to try offenses against the criminal laws and upon conviction to impose the punishment provided by law is judicial, and it is equally to be conceded that, in exerting the powers vested in them on such subject, courts inherently possess ample right to exercise reasonable, that is, judicial, discretion to enable

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them to wisely exert their authority. But these concessions afford no ground for the contention as to power here made, since it must rest upon the proposition that the power to enforce begets inherently a discretion to permanently refuse to do so. And the effect of the proposition urged upon the distribution of powers made by the Constitution will become apparent when it is observed that indisputable also is it that the authority to define and fix the punishment for crime is legislative and includes the right in advance to bring within judicial discretion, for the purpose of executing the statute, elements of consideration which would be otherwise beyond the scope of judicial authority, and that the right to relieve from the punishment, fixed by law and ascertained according to the methods by it provided belongs to the executive department. Justice Carson, in his illuminating concurring opinion in the case of Director of Prisons vs. Judge of First Instance of Cavite (29 Phil., 265), decided by this court in 1915, also reached the conclusion that the power to suspend the execution of sentences pronounced in criminal cases is not inherent in the judicial function. "All are agreed", he said, "that in the absence of statutory authority, it does not lie within the power of the courts to grant such suspensions." (at p. 278.) Both petitioner and respondents are correct, therefore, when they argue that a Court of First Instance sitting in probation proceedings is a court of limited jurisdiction. Its jurisdiction in such proceedings is conferred exclusively by Act No. 4221 of the Philippine Legislature. It is, of course, true that the constitutionality of a statute will not be considered on application for prohibition where the question has not been properly brought to the attention of the court by objection of some kind (Hill vs. Tarver [1901], 130 Ala., 592; 30 S., 499; State ex rel. Kelly vs. Kirby [1914], 260 Mo., 120; 168 S. W., 746). In the case at bar, it is unquestionable that the constitutional issue has been squarely presented not only before this court by the petitioners but also before the trial court by the private prosecution. The respondent, Hon. Jose O Vera, however, acting as judge of the court below, declined to pass upon the question on the ground that the private prosecutor, not being a party whose rights are affected by the statute, may not raise said question. The respondent judge cited Cooley on Constitutional Limitations (Vol. I, p. 339; 12 C. J., sec. 177, pp. 760 and 762), and McGlue vs. Essex County ([1916], 225 Mass., 59; 113 N. E., 742, 743), as authority for the proposition that a court will not consider any attack made on the constitutionality of a statute by one who has no interest in defeating it because his rights are not affected by its operation. The respondent judge further stated that it may not motu proprio take up the constitutional question and, agreeing with Cooley that "the power to declare a legislative enactment void is one which the judge, conscious of the fallibility of the human judgment, will shrink from exercising in any case where he can conscientiously and with due regard to duty and official oath decline the responsibility" (Constitutional Limitations, 8th ed., Vol. I, p. 332), proceeded on the assumption that Act No. 4221 is constitutional. While therefore, the court a quo admits that the constitutional question was raised before it, it refused to consider the question solely because it was not raised by a proper party. Respondents herein reiterates this view. The argument is advanced that the private prosecution has no personality to appear in the hearing of the application for probation of defendant Mariano Cu Unjieng in criminal case No. 42648 of the Court of First Instance of Manila, and hence the issue of constitutionality was not properly raised in the lower court. Although, as a general rule, only those who are parties to a suit may question the constitutionality of a statute involved in a judicial decision, it has been held that

since the decree pronounced by a court without jurisdiction is void, where the jurisdiction of the court depends on the validity of the statute in question, the issue of the constitutionality will be considered on its being brought to the attention of the court by persons interested in the effect to be given the statute.(12 C. J., sec. 184, p. 766.) And, even if we were to concede that the issue was not properly raised in the court below by the proper party, it does not follow that the issue may not be here raised in an original action of certiorari and prohibitions. It is true that, as a general rule, the question of constitutionality must be raised at the earliest opportunity, so that if not raised by the pleadings, ordinarily it may not be raised at the trial, and if not raised in the trial court, it will not considered on appeal. (12 C. J., p. 786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that the general rule admits of exceptions. Courts, in the exercise of sounds discretion, may determine the time when a question affecting the constitutionality of a statute should be presented. (In re Woolsey [1884], 95 N. Y., 135, 144.) Thus, in criminal cases, although there is a very sharp conflict of authorities, it is said that the question may be raised for the first time at any stage of the proceedings, either in the trial court or on appeal. (12 C. J., p. 786.) Even in civil cases, it has been held that it is the duty of a court to pass on the constitutional question, though raised for the first time on appeal, if it appears that a determination of the question is necessary to a decision of the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co., [1910], 136 ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis Cordage Co. [1908], 214 Mo., 685; 113 S. W. 1108; Carmody vs. St. Louis Transit Co., [1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a constitutional question will be considered by an appellate court at any time, where it involves the jurisdiction of the court below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to the power of this court to consider the constitutional question raised for the first time before this court in these proceedings, we turn again and point with emphasis to the case of Yu Cong Eng vs. Trinidad, supra. And on the hypotheses that the Hongkong & Shanghai Banking Corporation, represented by the private prosecution, is not the proper party to raise the constitutional question here a point we do not now have to decide we are of the opinion that the People of the Philippines, represented by the SolicitorGeneral and the Fiscal of the City of Manila, is such a proper party in the present proceedings. The unchallenged rule is that the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustained, direct injury as a result of its enforcement. It goes without saying that if Act No. 4221 really violates the constitution, the People of the Philippines, in whose name the present action is brought, has a substantial interest in having it set aside. Of grater import than the damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by the enforcement of an invalid statute. Hence, the well-settled rule that the state can challenge the validity of its own laws. In Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in Springer vs. Government of the Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared an act of the legislature unconstitutional in an action instituted in behalf of the Government of the Philippines. In Attorney General vs. Perkins ([1889], 73 Mich., 303, 311, 312; 41 N. W. 426, 428, 429), the State of Michigan, through its Attorney General, instituted quo warranto proceedings to test the right of the respondents to renew a mining corporation, alleging that the statute under which the respondents base their right was unconstitutional because it impaired the obligation

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of contracts. The capacity of the chief law officer of the state to question the constitutionality of the statute was though, as a general rule, only those who are parties to a suit may question the constitutionality of a statute involved in a judicial decision, it has been held that since the decree pronounced by a court without jurisdiction in void, where the jurisdiction of the court depends on the validity of the statute in question, the issue of constitutionality will be considered on its being brought to the attention of the court by persons interested in the effect to begin the statute. (12 C.J., sec. 184, p. 766.) And, even if we were to concede that the issue was not properly raised in the court below by the proper party, it does not follow that the issue may not be here raised in an original action of certiorari and prohibition. It is true that, as a general rule, the question of constitutionality must be raised at the earliest opportunity, so that if not raised by the pleadings, ordinarily it may not be raised a the trial, and if not raised in the trial court, it will not be considered on appeal. (12 C.J., p. 786. See, also, CadwalladerGibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193-195.) But we must state that the general rule admits of exceptions. Courts, in the exercise of sound discretion, may determine the time when a question affecting the constitutionality of a statute should be presented. (In re Woolsey [19884], 95 N.Y., 135, 144.) Thus, in criminal cases, although there is a very sharp conflict of authorities, it is said that the question may be raised for the first time at any state of the proceedings, either in the trial court or on appeal. (12 C.J., p. 786.) Even in civil cases, it has been held that it is the duty of a court to pass on the constitutional question, though raised for first time on appeal, if it appears that a determination of the question is necessary to a decision of the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co. [1910], 136 Ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis, Cordage Co. [1908], 214 Mo. 685; 113 S. W., 1108; Carmody vs. St. Louis Transit Co. [1905], 188 Mo., 572; 87 S. W., 913.) And it has been held that a constitutional question will be considered by an appellate court at any time, where it involves the jurisdiction of the court below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to the power of this court to consider the constitutional question raised for the first time before this court in these proceedings, we turn again and point with emphasis to the case of Yu Cong Eng. vs. Trinidad, supra. And on the hypothesis that the Hongkong & Shanghai Banking Corporation, represented by the private prosecution, is not the proper party to raise the constitutional question here a point we do not now have to decide we are of the opinion that the People of the Philippines, represented by the Solicitor-General and the Fiscal of the City of Manila, is such a proper party in the present proceedings. The unchallenged rule is that the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement. It goes without saying that if Act No. 4221 really violates the Constitution, the People of the Philippines, in whose name the present action is brought, has a substantial interest in having it set aside. Of greater import than the damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by the enforcement of an invalid statute. Hence, the well-settled rule that the state can challenge the validity of its own laws. In Government of the Philippine Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in Springer vs. Government of the Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court declared an act of the legislature unconstitutional in an action instituted in behalf of the Government of the Philippines. In Attorney General vs. Perkings([1889], 73 Mich., 303, 311, 312; 41 N.W., 426, 428, 429), the State of Michigan,

through its Attorney General, instituted quo warranto proceedings to test the right of the respondents to renew a mining corporation, alleging that the statute under which the respondents base their right was unconstitutional because it impaired the obligation of contracts. The capacity of the chief law officer of the state to question the constitutionality of the statute was itself questioned. Said the Supreme Court of Michigan, through Champlin, J.: . . . The idea seems to be that the people are estopped from questioning the validity of a law enacted by their representatives; that to an accusation by the people of Michigan of usurpation their government, a statute enacted by the people of Michigan is an adequate answer. The last proposition is true, but, if the statute relied on in justification is unconstitutional, it is statute only in form, and lacks the force of law, and is of no more saving effect to justify action under it than if it had never been enacted. The constitution is the supreme law, and to its behests the courts, the legislature, and the people must bow . . . The legislature and the respondents are not the only parties in interest upon such constitutional questions. As was remarked by Mr. Justice Story, in speaking of an acquiescence by a party affected by an unconstitutional act of the legislature: "The people have a deep and vested interest in maintaining all the constitutional limitations upon the exercise of legislative powers." (Allen vs. Mckeen, 1 Sum., 314.) In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an original action (mandamus) was brought by the Attorney-General of Kansas to test the constitutionality of a statute of the state. In disposing of the question whether or not the state may bring the action, the Supreme Court of Kansas said: . . . the state is a proper party indeed, the proper party to bring this action. The state is always interested where the integrity of its Constitution or statutes is involved. "It has an interest in seeing that the will of the Legislature is not disregarded, and need not, as an individual plaintiff must, show grounds of fearing more specific injury. (State vs. Kansas City 60 Kan., 518 [57 Pac., 118])." (State vs. Lawrence, 80 Kan., 707; 103 Pac., 839.) Where the constitutionality of a statute is in doubt the state's law officer, its AttorneyGeneral, or county attorney, may exercise his bet judgment as to what sort of action he will bring to have the matter determined, either by quo warranto to challenge its validity (State vs. Johnson, 61 Kan., 803; 60 Pac., 1068; 49 L.R.A., 662), by mandamus to compel obedience to its terms (State vs. Dolley, 82 Kan., 533; 108 Pac., 846), or by injunction to restrain proceedings under its questionable provisions (State ex rel. vs. City of Neodesha, 3 Kan. App., 319; 45 Pac., 122). Other courts have reached the same conclusion (See State vs. St. Louis S. W. Ry. Co. [1917], 197 S. W., 1006; State vs. S.H. Kress & Co. [1934], 155 S., 823; State vs. Walmsley [1935], 181 La., 597; 160 S., 91; State vs. Board of County Comr's [1934], 39 Pac. [2d], 286; First Const. Co. of Brooklyn vs. State [1917], 211 N.Y., 295; 116 N.E., 1020; Bush vs. State {1918], 187 Ind., 339; 119 N.E., 417; State vs. Watkins [1933], 176 La., 837; 147 S., 8, 10, 11). In the case last cited, the Supreme Court of Luisiana said: It is contended by counsel for Herbert Watkins that a district attorney, being charged with the duty of enforcing the laws, has no right to plead that a law is unconstitutional. In support of the argument three decisions are cited, viz.: State ex rel. Hall, District Attorney, vs. Judge of Tenth Judicial District (33 La. Ann., 1222); State ex rel. Nicholls, Governor vs. Shakespeare, Mayor of New Orleans (41 Ann., 156; 6 So., 592); and State ex rel., Banking

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Co., etc. vs. Heard, Auditor (47 La. Ann., 1679; 18 So., 746; 47 L. R. A., 512). These decisions do not forbid a district attorney to plead that a statute is unconstitutional if he finds if in conflict with one which it is his duty to enforce. In State ex rel. Hall, District Attorney, vs. Judge, etc., the ruling was the judge should not, merely because he believed a certain statute to be unconstitutional forbid the district attorney to file a bill of information charging a person with a violation of the statute. In other words, a judge should not judicially declare a statute unconstitutional until the question of constitutionality is tendered for decision, and unless it must be decided in order to determine the right of a party litigant. Stateex rel. Nicholls, Governor, etc., is authority for the proposition merely that an officer on whom a statute imposes the duty of enforcing its provisions cannot avoid the duty upon the ground that he considers the statute unconstitutional, and hence in enforcing the statute he is immune from responsibility if the statute be unconstitutional. State ex rel. Banking Co., etc., is authority for the proposition merely that executive officers, e.g., the state auditor and state treasurer, should not decline to perform ministerial duties imposed upon them by a statute, on the ground that they believe the statute is unconstitutional. It is the duty of a district attorney to enforce the criminal laws of the state, and, above all, to support the Constitution of the state. If, in the performance of his duty he finds two statutes in conflict with each other, or one which repeals another, and if, in his judgment, one of the two statutes is unconstitutional, it is his duty to enforce the other; and, in order to do so, he is compelled to submit to the court, by way of a plea, that one of the statutes is unconstitutional. If it were not so, the power of the Legislature would be free from constitutional limitations in the enactment of criminal laws. The respondents do not seem to doubt seriously the correctness of the general proposition that the state may impugn the validity of its laws. They have not cited any authority running clearly in the opposite direction. In fact, they appear to have proceeded on the assumption that the rule as stated is sound but that it has no application in the present case, nor may it be invoked by the City Fiscal in behalf of the People of the Philippines, one of the petitioners herein, the principal reasons being that the validity before this court, that the City Fiscal is estopped from attacking the validity of the Act and, not authorized challenge the validity of the Act in its application outside said city. (Additional memorandum of respondents, October 23, 1937, pp. 8,. 10, 17 and 23.) The mere fact that the Probation Act has been repeatedly relied upon the past and all that time has not been attacked as unconstitutional by the Fiscal of Manila but, on the contrary, has been impliedly regarded by him as constitutional, is no reason for considering the People of the Philippines estopped from nor assailing its validity. For courts will pass upon a constitutional questions only when presented before it in bona fide cases for determination, and the fact that the question has not been raised before is not a valid reason for refusing to allow it to be raised later. The fiscal and all others are justified in relying upon the statute and treating it as valid until it is held void by the courts in proper cases. It remains to consider whether the determination of the constitutionality of Act No. 4221 is necessary to the resolution of the instant case. For, ". . . while the court will meet the question with firmness, where its decision is indispensable, it is the part of wisdom, and just respect for the legislature, renders it proper, to waive it, if the case in which it arises, can be decided on other points." (Ex parte Randolph [1833], 20 F. Cas. No. 11, 558; 2 Brock., 447.

Vide, also Hoover vs. wood [1857], 9 Ind., 286, 287.) It has been held that the determination of a constitutional question is necessary whenever it is essential to the decision of the case (12 C. J., p. 782, citing Long Sault Dev. Co. vs. Kennedy [1913], 158 App. Div., 398; 143 N. Y. Supp., 454 [aff. 212 N.Y., 1: 105 N. E., 849; Ann. Cas. 1915D, 56; and app dism 242 U.S., 272]; Hesse vs. Ledesma, 7 Porto Rico Fed., 520; Cowan vs. Doddridge, 22 Gratt [63 Va.], 458; Union Line Co., vs. Wisconsin R. Commn., 146 Wis., 523; 129 N. W., 605), as where the right of a party is founded solely on a statute the validity of which is attacked. (12 C.J., p. 782, citing Central Glass Co. vs. Niagrara F. Ins. Co., 131 La., 513; 59 S., 972; Cheney vs. Beverly, 188 Mass., 81; 74 N.E., 306). There is no doubt that the respondent Cu Unjieng draws his privilege to probation solely from Act No. 4221 now being assailed. Apart from the foregoing considerations, that court will also take cognizance of the fact that the Probation Act is a new addition to our statute books and its validity has never before been passed upon by the courts; that may persons accused and convicted of crime in the City of Manila have applied for probation; that some of them are already on probation; that more people will likely take advantage of the Probation Act in the future; and that the respondent Mariano Cu Unjieng has been at large for a period of about four years since his first conviction. All wait the decision of this court on the constitutional question. Considering, therefore, the importance which the instant case has assumed and to prevent multiplicity of suits, strong reasons of public policy demand that the constitutionality of Act No. 4221 be now resolved. (Yu Cong Eng vs. Trinidad [1925], 47 Phil., 385; [1926], 271 U.S., 500; 70 Law. ed., 1059. See 6 R.C.L., pp. 77, 78; People vs. Kennedy [1913], 207 N.Y., 533; 101 N.E., 442, 444; Ann. Cas. 1914C, 616; Borginis vs. Falk Co. [1911], 147 Wis., 327; 133 N.W., 209, 211; 37 L.R.A. [N.S.] 489; Dimayuga and Fajardo vs. Fernandez [1922], 43 Phil., 304.) In Yu Cong Eng vs. Trinidad, supra, an analogous situation confronted us. We said: "Inasmuch as the property and personal rights of nearly twelve thousand merchants are affected by these proceedings, and inasmuch as Act No. 2972 is a new law not yet interpreted by the courts, in the interest of the public welfare and for the advancement of public policy, we have determined to overrule the defense of want of jurisdiction in order that we may decide the main issue. We have here an extraordinary situation which calls for a relaxation of the general rule." Our ruling on this point was sustained by the Supreme Court of the United States. A more binding authority in support of the view we have taken can not be found. We have reached the conclusion that the question of the constitutionality of Act No. 4221 has been properly raised. Now for the main inquiry: Is the Act unconstitutional? Under a doctrine peculiarly American, it is the office and duty of the judiciary to enforce the Constitution. This court, by clear implication from the provisions of section 2, subsection 1, and section 10, of Article VIII of the Constitution, may declare an act of the national legislature invalid because in conflict with the fundamental lay. It will not shirk from its sworn duty to enforce the Constitution. And, in clear cases, it will not hesitate to give effect to the supreme law by setting aside a statute in conflict therewith. This is of the essence of judicial duty. This court is not unmindful of the fundamental criteria in cases of this nature that all reasonable doubts should be resolved in favor of the constitutionality of a statute. An act of the legislature approved by the executive, is presumed to be within constitutional limitations. The responsibility of upholding the Constitution rests not on the courts alone but on the legislature as well. "The question of the validity of every statute is first determined by the

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legislative department of the government itself." (U.S. vs. Ten Yu [1912], 24 Phil., 1, 10; Case vs. Board of Health and Heiser [1913], 24 Phil., 250, 276; U.S. vs. Joson [1913], 26 Phil., 1.) And a statute finally comes before the courts sustained by the sanction of the executive. The members of the Legislature and the Chief Executive have taken an oath to support the Constitution and it must be presumed that they have been true to this oath and that in enacting and sanctioning a particular law they did not intend to violate the Constitution. The courts cannot but cautiously exercise its power to overturn the solemn declarations of two of the three grand departments of the governments. (6 R.C.L., p. 101.) Then, there is that peculiar political philosophy which bids the judiciary to reflect the wisdom of the people as expressed through an elective Legislature and an elective Chief Executive. It follows, therefore, that the courts will not set aside a law as violative of the Constitution except in a clear case. This is a proposition too plain to require a citation of authorities. One of the counsel for respondents, in the course of his impassioned argument, called attention to the fact that the President of the Philippines had already expressed his opinion against the constitutionality of the Probation Act, adverting that as to the Executive the resolution of this question was a foregone conclusion. Counsel, however, reiterated his confidence in the integrity and independence of this court. We take notice of the fact that the President in his message dated September 1, 1937, recommended to the National Assembly the immediate repeal of the Probation Act (No. 4221); that this message resulted in the approval of Bill No. 2417 of the Nationality Assembly repealing the probation Act, subject to certain conditions therein mentioned; but that said bill was vetoed by the President on September 13, 1937, much against his wish, "to have stricken out from the statute books of the Commonwealth a law . . . unfair and very likely unconstitutional." It is sufficient to observe in this connection that, in vetoing the bill referred to, the President exercised his constitutional prerogative. He may express the reasons which he may deem proper for taking such a step, but his reasons are not binding upon us in the determination of actual controversies submitted for our determination. Whether or not the Executive should express or in any manner insinuate his opinion on a matter encompassed within his broad constitutional power of veto but which happens to be at the same time pending determination in this court is a question of propriety for him exclusively to decide or determine. Whatever opinion is expressed by him under these circumstances, however, cannot sway our judgment on way or another and prevent us from taking what in our opinion is the proper course of action to take in a given case. It if is ever necessary for us to make any vehement affirmance during this formative period of our political history, it is that we are independent of the Executive no less than of the Legislative department of our government independent in the performance of our functions, undeterred by any consideration, free from politics, indifferent to popularity, and unafraid of criticism in the accomplishment of our sworn duty as we see it and as we understand it. The constitutionality of Act No. 4221 is challenged on three principal grounds: (1) That said Act encroaches upon the pardoning power of the Executive; (2) that its constitutes an undue delegation of legislative power and (3) that it denies the equal protection of the laws. 1. Section 21 of the Act of Congress of August 29, 1916, commonly known as the Jones Law, in force at the time of the approval of Act No. 4221, otherwise known as the Probation Act, vests in the Governor-General of the Philippines "the exclusive power to grant pardons and reprieves and remit fines and forfeitures". This power is now vested in the President of the

Philippines. (Art. VII, sec. 11, subsec. 6.) The provisions of the Jones Law and the Constitution differ in some respects. The adjective "exclusive" found in the Jones Law has been omitted from the Constitution. Under the Jones Law, as at common law, pardon could be granted any time after the commission of the offense, either before or after conviction (Vide Constitution of the United States, Art. II, sec. 2; In re Lontok [1922], 43 Phil., 293). The Governor-General of the Philippines was thus empowered, like the President of the United States, to pardon a person before the facts of the case were fully brought to light. The framers of our Constitution thought this undesirable and, following most of the state constitutions, provided that the pardoning power can only be exercised "after conviction". So, too, under the new Constitution, the pardoning power does not extend to "cases of impeachment". This is also the rule generally followed in the United States (Vide Constitution of the United States, Art. II, sec. 2). The rule in England is different. There, a royal pardon can not be pleaded in bar of an impeachment; "but," says Blackstone, "after the impeachment has been solemnly heard and determined, it is not understood that the king's royal grace is further restrained or abridged." (Vide, Ex parte Wells [1856], 18 How., 307; 15 Law. ed., 421; Com. vs. Lockwood [1872], 109 Mass., 323; 12 Am. Rep., 699; Sterling vs. Drake [1876], 29 Ohio St., 457; 23 am. Rep., 762.) The reason for the distinction is obvious. In England, Judgment on impeachment is not confined to mere "removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the Government" (Art. IX, sec. 4, Constitution of the Philippines) but extends to the whole punishment attached by law to the offense committed. The House of Lords, on a conviction may, by its sentence, inflict capital punishment, perpetual banishment, perpetual banishment, fine or imprisonment, depending upon the gravity of the offense committed, together with removal from office and incapacity to hold office. (Com. vs. Lockwood, supra.) Our Constitution also makes specific mention of "commutation" and of the power of the executive to impose, in the pardons he may grant, such conditions, restrictions and limitations as he may deem proper. Amnesty may be granted by the President under the Constitution but only with the concurrence of the National Assembly. We need not dwell at length on the significance of these fundamental changes. It is sufficient for our purposes to state that the pardoning power has remained essentially the same. The question is: Has the pardoning power of the Chief Executive under the Jones Law been impaired by the Probation Act? As already stated, the Jones Law vests the pardoning power exclusively in the Chief Executive. The exercise of the power may not, therefore, be vested in anyone else. ". . . The benign prerogative of mercy reposed in the executive cannot be taken away nor fettered by any legislative restrictions, nor can like power be given by the legislature to any other officer or authority. The coordinate departments of government have nothing to do with the pardoning power, since no person properly belonging to one of the departments can exercise any powers appertaining to either of the others except in cases expressly provided for by the constitution." (20 R.C.L., pp., , and cases cited.) " . . . where the pardoning power is conferred on the executive without express or implied limitations, the grant is exclusive, and the legislature can neither exercise such power itself nor delegate it elsewhere, nor interfere with or control the proper exercise thereof, . . ." (12 C.J., pp. 838, 839, and cases cited.) If Act No. 4221, then, confers any pardoning power upon the courts it is for that reason unconstitutional and void. But does it?

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In the famous Killitts decision involving an embezzlement case, the Supreme Court of the United States ruled in 1916 that an order indefinitely suspending sentenced was void. (Ex parte United States [1916], 242 U.S., 27; 61 Law. ed., 129; L.R.A. 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355.) Chief Justice White, after an exhaustive review of the authorities, expressed the opinion of the court that under the common law the power of the court was limited to temporary suspension and that the right to suspend sentenced absolutely and permanently was vested in the executive branch of the government and not in the judiciary. But, the right of Congress to establish probation by statute was conceded. Said the court through its Chief Justice: ". . . and so far as the future is concerned, that is, the causing of the imposition of penalties as fixed to be subject, by probation legislation or such other means as the legislative mind may devise, to such judicial discretion as may be adequate to enable courts to meet by the exercise of an enlarged but wise discretion the infinite variations which may be presented to them for judgment, recourse must be had Congress whose legislative power on the subject is in the very nature of things adequately complete." (Quoted in Riggs vs. United States [1926], 14 F. [2d], 5, 6.) This decision led the National Probation Association and others to agitate for the enactment by Congress of a federal probation law. Such action was finally taken on March 4, 1925 (chap. 521, 43 Stat. L. 159, U.S.C. title 18, sec. 724). This was followed by an appropriation to defray the salaries and expenses of a certain number of probation officers chosen by civil service. (Johnson, Probation for Juveniles and Adults, p. 14.) In United States vs. Murray ([1925], 275 U.S., 347; 48 Sup. Ct. Rep., 146; 72 Law. ed., 309), the Supreme Court of the United States, through Chief Justice Taft, held that when a person sentenced to imprisonment by a district court has begun to serve his sentence, that court has no power under the Probation Act of March 4, 1925 to grant him probation even though the term at which sentence was imposed had not yet expired. In this case of Murray, the constitutionality of the probation Act was not considered but was assumed. The court traced the history of the Act and quoted from the report of the Committee on the Judiciary of the United States House of Representatives (Report No. 1377, 68th Congress, 2 Session) the following statement: Prior to the so-called Killitts case, rendered in December, 1916, the district courts exercised a form of probation either, by suspending sentence or by placing the defendants under state probation officers or volunteers. In this case, however (Ex parte United States, 242 U.S., 27; 61 L. Ed., 129; L.R.A., 1917E, 1178; 37 Sup. Ct. Rep., 72 Ann. Cas. 1917B, 355), the Supreme Court denied the right of the district courts to suspend sentenced. In the same opinion the court pointed out the necessity for action by Congress if the courts were to exercise probation powers in the future . . . Since this decision was rendered, two attempts have been made to enact probation legislation. In 1917, a bill was favorably reported by the Judiciary Committee and passed the House. In 1920, the judiciary Committee again favorably reported a probation bill to the House, but it was never reached for definite action. If this bill is enacted into law, it will bring the policy of the Federal government with reference to its treatment of those convicted of violations of its criminal laws in harmony with that of the states of the Union. At the present time every state has a probation law, and in all

but twelve states the law applies both to adult and juvenile offenders. (see, also, Johnson, Probation for Juveniles and Adults [1928], Chap. I.) The constitutionality of the federal probation law has been sustained by inferior federal courts. In Riggs vs. United States supra, the Circuit Court of Appeals of the Fourth Circuit said: Since the passage of the Probation Act of March 4, 1925, the questions under consideration have been reviewed by the Circuit Court of Appeals of the Ninth Circuit (7 F. [2d], 590), and the constitutionality of the act fully sustained, and the same held in no manner to encroach upon the pardoning power of the President. This case will be found to contain an able and comprehensive review of the law applicable here. It arose under the act we have to consider, and to it and the authorities cited therein special reference is made (Nix vs. James, 7 F. [2d], 590, 594), as is also to a decision of the Circuit Court of Appeals of the Seventh Circuit (Kriebel vs. U.S., 10 F. [2d], 762), likewise construing the Probation Act. We have seen that in 1916 the Supreme Court of the United States; in plain and unequivocal language, pointed to Congress as possessing the requisite power to enact probation laws, that a federal probation law as actually enacted in 1925, and that the constitutionality of the Act has been assumed by the Supreme Court of the United States in 1928 and consistently sustained by the inferior federal courts in a number of earlier cases. We are fully convinced that the Philippine Legislature, like the Congress of the United States, may legally enact a probation law under its broad power to fix the punishment of any and all penal offenses. This conclusion is supported by other authorities. In Ex parte Bates ([1915], 20 N. M., 542; L.R.A. 1916A, 1285; 151 Pac., 698, the court said: "It is clearly within the province of the Legislature to denominate and define all classes of crime, and to prescribe for each a minimum and maximum punishment." And in State vs. Abbott ([1910], 87 S.C., 466; 33 L.R.A. [N. S.], 112; 70 S. E., 6; Ann. Cas. 1912B, 1189), the court said: "The legislative power to set punishment for crime is very broad, and in the exercise of this power the general assembly may confer on trial judges, if it sees fit, the largest discretion as to the sentence to be imposed, as to the beginning and end of the punishment and whether it should be certain or indeterminate or conditional." (Quoted in State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69.) Indeed, the Philippine Legislature has defined all crimes and fixed the penalties for their violation. Invariably, the legislature has demonstrated the desire to vest in the courts particularly the trial courts large discretion in imposing the penalties which the law prescribes in particular cases. It is believed that justice can best be served by vesting this power in the courts, they being in a position to best determine the penalties which an individual convict, peculiarly circumstanced, should suffer. Thus, while courts are not allowed to refrain from imposing a sentence merely because, taking into consideration the degree of malice and the injury caused by the offense, the penalty provided by law is clearly excessive, the courts being allowed in such case to submit to the Chief Executive, through the Department of Justice, such statement as it may deem proper (see art. 5, Revised Penal Code), in cases where both mitigating and aggravating circumstances are attendant in the commission of a crime and the law provides for a penalty composed of two indivisible penalties, the courts may allow such circumstances to offset one another in consideration of their number and importance, and to apply the penalty according to the result of such compensation. (Art. 63, rule 4, Revised Penal Code; U.S. vs. Reguera and Asuategui [1921],

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41 Phil., 506.) Again, article 64, paragraph 7, of the Revised Penal Code empowers the courts to determine, within the limits of each periods, in case the penalty prescribed by law contains three periods, the extent of the evil produced by the crime. In the imposition of fines, the courts are allowed to fix any amount within the limits established by law, considering not only the mitigating and aggravating circumstances, but more particularly the wealth or means of the culprit. (Art. 66, Revised Penal Code.) Article 68, paragraph 1, of the same Code provides that "a discretionary penalty shall be imposed" upon a person under fifteen but over nine years of age, who has not acted without discernment, but always lower by two degrees at least than that prescribed by law for the crime which he has committed. Article 69 of the same Code provides that in case of "incomplete self-defense", i.e., when the crime committed is not wholly excusable by reason of the lack of some of the conditions required to justify the same or to exempt from criminal liability in the several cases mentioned in article 11 and 12 of the Code, "the courts shall impose the penalty in the period which may be deemed proper, in view of the number and nature of the conditions of exemption present or lacking." And, in case the commission of what are known as "impossible" crimes, "the court, having in mind the social danger and the degree of criminality shown by the offender," shall impose upon him either arresto mayor or a fine ranging from 200 to 500 pesos. (Art. 59, Revised Penal Code.) Under our Revised Penal Code, also, one-half of the period of preventive imprisonment is deducted form the entire term of imprisonment, except in certain cases expressly mentioned (art. 29); the death penalty is not imposed when the guilty person is more than seventy years of age, or where upon appeal or revision of the case by the Supreme Court, all the members thereof are not unanimous in their voting as to the propriety of the imposition of the death penalty (art. 47, see also, sec. 133, Revised Administrative Code, as amended by Commonwealth Act No. 3); the death sentence is not to be inflicted upon a woman within the three years next following the date of the sentence or while she is pregnant, or upon any person over seventy years of age (art. 83); and when a convict shall become insane or an imbecile after final sentence has been pronounced, or while he is serving his sentenced, the execution of said sentence shall be suspended with regard to the personal penalty during the period of such insanity or imbecility (art. 79). But the desire of the legislature to relax what might result in the undue harshness of the penal laws is more clearly demonstrated in various other enactments, including the probation Act. There is the Indeterminate Sentence Law enacted in 1933 as Act No. 4103 and subsequently amended by Act No. 4225, establishing a system of parole (secs. 5 to 100 and granting the courts large discretion in imposing the penalties of the law. Section 1 of the law as amended provides; "hereafter, in imposing a prison sentence for an offenses punished by the Revised Penal Code, or its amendments, the court shall sentence the accused to an indeterminate sentence the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and to a minimum which shall be within the range of the penalty next lower to that prescribed by the Code for the offense; and if the offense is punished by any other law, the court shall sentence the accused to an indeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by the same." Certain classes of convicts are, by section 2 of the law, excluded from the operation thereof. The Legislature has also enacted the Juvenile Delinquency Law

(Act No. 3203) which was subsequently amended by Act No. 3559. Section 7 of the original Act and section 1 of the amendatory Act have become article 80 of the Revised Penal Code, amended by Act No. 4117 of the Philippine Legislature and recently reamended by Commonwealth Act No. 99 of the National Assembly. In this Act is again manifested the intention of the legislature to "humanize" the penal laws. It allows, in effect, the modification in particular cases of the penalties prescribed by law by permitting the suspension of the execution of the judgment in the discretion of the trial court, after due hearing and after investigation of the particular circumstances of the offenses, the criminal record, if any, of the convict, and his social history. The Legislature has in reality decreed that in certain cases no punishment at all shall be suffered by the convict as long as the conditions of probation are faithfully observed. It this be so, then, it cannot be said that the Probation Act comes in conflict with the power of the Chief Executive to grant pardons and reprieves, because, to use the language of the Supreme Court of New Mexico, "the element of punishment or the penalty for the commission of a wrong, while to be declared by the courts as a judicial function under and within the limits of law as announced by legislative acts, concerns solely the procedure and conduct of criminal causes, with which the executive can have nothing to do." (Ex parte Bates, supra.) In Williams vs. State ([1926], 162 Ga., 327; 133 S.E., 843), the court upheld the constitutionality of the Georgia probation statute against the contention that it attempted to delegate to the courts the pardoning power lodged by the constitution in the governor alone is vested with the power to pardon after final sentence has been imposed by the courts, the power of the courts to imposed any penalty which may be from time to time prescribed by law and in such manner as may be defined cannot be questioned." We realize, of course, the conflict which the American cases disclose. Some cases hold it unlawful for the legislature to vest in the courts the power to suspend the operation of a sentenced, by probation or otherwise, as to do so would encroach upon the pardoning power of the executive. (In re Webb [1895], 89 Wis., 354; 27 L.R.A., 356; 46 Am. St. Rep., 846; 62 N.W., 177; 9 Am. Crim., Rep., 702; State ex rel. Summerfield vs. Moran [1919], 43 Nev., 150; 182 Pac., 927; Ex parte Clendenning [1908], 22 Okla., 108; 1 Okla. Crim. Rep., 227; 19 L.R.A. [N.S.], 1041; 132 Am. St. Rep., 628; 97 Pac., 650; People vs. Barrett [1903], 202 Ill, 287; 67 N.E., 23; 63 L.R.A., 82; 95 Am. St. Rep., 230; Snodgrass vs. State [1912], 67 Tex. Crim. Rep., 615; 41 L. R. A. [N. S.], 1144; 150 S. W., 162;Ex parte Shelor [1910], 33 Nev., 361;111 Pac., 291; Neal vs. State [1898], 104 Ga., 509; 42 L. R. A., 190; 69 Am. St. Rep., 175; 30 S. E. 858; State ex rel. Payne vs. Anderson [1921], 43 S. D., 630; 181 N. W., 839; People vs. Brown, 54 Mich., 15; 19 N. W., 571; States vs. Dalton [1903], 109 Tenn., 544; 72 S. W., 456.) Other cases, however, hold contra. (Nix vs. James [1925; C. C. A., 9th], 7 F. [2d], 590; Archer vs. Snook [1926; D. C.], 10 F. [2d], 567; Riggs. vs. United States [1926; C. C. A. 4th], 14]) [2d], 5; Murphy vs. States [1926], 171 Ark., 620; 286 S. W., 871; 48 A. L. R., 1189; Re Giannini [1912], 18 Cal. App., 166; 122 Pac., 831; Re Nachnaber [1928], 89 Cal. App., 530; 265 Pac., 392; Ex parte De Voe [1931], 114 Cal. App., 730; 300 Pac., 874; People vs. Patrick [1897], 118 Cal., 332; 50 Pac., 425; Martin vs. People [1917], 69 Colo., 60; 168 Pac., 1171; Belden vs. Hugo [1914], 88 Conn., 50; 91 A., 369, 370, 371; Williams vs. State [1926], 162 Ga., 327; 133 S. E., 843; People vs. Heise [1913], 257 Ill., 443; 100 N. E., 1000; Parker vs. State [1893], 135 Ind., 534; 35 N. E., 179; 23 L. R. A., 859; St. Hillarie, Petitioner [1906], 101 Me., 522; 64 Atl., 882; People vs. Stickle [1909], 156 Mich., 557; 121 N. W., 497; State vs.

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Fjolander [1914], 125 Minn., 529; State ex rel. Bottomnly vs. District Court [1925], 73 Mont., 541; 237 Pac., 525; State vs. Everitt [1913], 164 N. C., 399; 79 S. E., 274; 47 L. R. A. [N. S.], 848; Stateex rel. Buckley vs. Drew [1909], 75 N. H., 402; 74 Atl., 875; State vs. Osborne [1911], 79 N. J. Eq., 430; 82 Atl. 424; Ex parte Bates [1915], 20 N. M., 542; L. R. A., 1916 A. 1285; 151 Pac., 698; People vs. ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288; 23 L. R. A., 856; 36 N. E., 386; 15 Am. Crim. Rep., 675; People ex rel. Sullivan vs. Flynn [1907], 55 Misc., 639; 106 N. Y. Supp., 928; People vs. Goodrich [1914], 149 N. Y. Supp., 406; Moore vs. Thorn [1935], 245 App. Div., 180; 281 N. Y. Supp., 49; Re Hart [1914], 29 N. D., 38; L. R. A., 1915C, 1169; 149 N. W., 568; Ex parte Eaton [1925], 29 Okla., Crim. Rep., 275; 233 P., 781; State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69; State vs. Abbot [1910], 87 S. C., 466; 33 L.R.A., [N. S.], 112; 70 S. E., 6; Ann. Cas., 1912B, 1189; Fults vs. States [1854],34 Tenn., 232; Woods vs. State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs. State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs. State [1913],70 Tex., Crim. Rep., 618; 158 S. W., 998; Cook vs. State [1914], 73 Tex. Crim. Rep., 548; 165 S. W., 573; King vs. State [1914], 72 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 211; 54 S. W. [2d], 127; Re Hall [1927], 100 Vt., 197; 136 A., 24; Richardson vs. Com. [1921], 131 Va., 802; 109 S.E., 460; State vs. Mallahan [1911], 65 Wash., 287; 118 Pac., 42; State ex rel. Tingstand vs. Starwich [1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393; 396.) We elect to follow this long catena of authorities holding that the courts may be legally authorized by the legislature to suspend sentence by the establishment of a system of probation however characterized. State ex rel. Tingstand vs. Starwich ([1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393), deserved particular mention. In that case, a statute enacted in 1921 which provided for the suspension of the execution of a sentence until otherwise ordered by the court, and required that the convicted person be placed under the charge of a parole or peace officer during the term of such suspension, on such terms as the court may determine, was held constitutional and as not giving the court a power in violation of the constitutional provision vesting the pardoning power in the chief executive of the state. (Vide, also, Re Giannini [1912], 18 Cal App., 166; 122 Pac., 831.) Probation and pardon are not coterminous; nor are they the same. They are actually district and different from each other, both in origin and in nature. In People ex rel. Forsyth vs. Court of Sessions ([1894], 141 N. Y., 288, 294; 36 N. E., 386, 388; 23 L. R. A., 856; 15 Am. Crim. Rep., 675), the Court of Appeals of New York said: . . . The power to suspend sentence and the power to grant reprieves and pardons, as understood when the constitution was adopted, are totally distinct and different in their nature. The former was always a part of the judicial power; the latter was always a part of the executive power. The suspension of the sentence simply postpones the judgment of the court temporarily or indefinitely, but the conviction and liability following it, and the civil disabilities, remain and become operative when judgment is rendered. A pardon reaches both the punishment prescribed for the offense and the guilt of the offender. It releases the punishment, and blots out of existence the guilt, so that in the eye of the law, the offender is as innocent as if he had never committed the offense. It removes the penalties and disabilities, and restores him to all his civil rights. It makes him, as it were, a new man, and gives him a new credit and capacity. (Ex parte Garland, 71 U. S., 4 Wall., 333; 18 Law. ed.,

366; U. S. vs. Klein, 80 U. S., 13 Wall., 128; 20 Law. ed., 519; Knote vs. U. S., 95 U. S., 149; 24 Law. ed., 442.) The framers of the federal and the state constitutions were perfectly familiar with the principles governing the power to grant pardons, and it was conferred by these instruments upon the executive with full knowledge of the law upon the subject, and the words of the constitution were used to express the authority formerly exercised by the English crown, or by its representatives in the colonies. (Ex parte Wells, 59 U. S., 18 How., 307; 15 Law. ed., 421.) As this power was understood, it did not comprehend any part of the judicial functions to suspend sentence, and it was never intended that the authority to grant reprieves and pardons should abrogate, or in any degree restrict, the exercise of that power in regard to its own judgments, that criminal courts has so long maintained. The two powers, so distinct and different in their nature and character, were still left separate and distinct, the one to be exercised by the executive, and the other by the judicial department. We therefore conclude that a statute which, in terms, authorizes courts of criminal jurisdiction to suspend sentence in certain cases after conviction, a power inherent in such courts at common law, which was understood when the constitution was adopted to be an ordinary judicial function, and which, ever since its adoption, has been exercised of legislative power under the constitution. It does not encroach, in any just sense, upon the powers of the executive, as they have been understood and practiced from the earliest times. (Quoted with approval in Directors of Prisons vs. Judge of First Instance of Cavite [1915], 29 Phil., 265, Carson, J., concurring, at pp. 294, 295.) In probation, the probationer is in no true sense, as in pardon, a free man. He is not finally and completely exonerated. He is not exempt from the entire punishment which the law inflicts. Under the Probation Act, the probationer's case is not terminated by the mere fact that he is placed on probation. Section 4 of the Act provides that the probation may be definitely terminated and the probationer finally discharged from supervision only after the period of probation shall have been terminated and the probation officer shall have submitted a report, and the court shall have found that the probationer has complied with the conditions of probation. The probationer, then, during the period of probation, remains in legal custody subject to the control of the probation officer and of the court; and, he may be rearrested upon the non-fulfillment of the conditions of probation and, when rearrested, may be committed to prison to serve the sentence originally imposed upon him. (Secs. 2, 3, 5 and 6, Act No. 4221.) The probation described in the act is not pardon. It is not complete liberty, and may be far from it. It is really a new mode of punishment, to be applied by the judge in a proper case, in substitution of the imprisonment and find prescribed by the criminal laws. For this reason its application is as purely a judicial act as any other sentence carrying out the law deemed applicable to the offense. The executive act of pardon, on the contrary, is against the criminal law, which binds and directs the judges, or rather is outside of and above it. There is thus no conflict with the pardoning power, and no possible unconstitutionality of the Probation Act for this cause. (Archer vs. Snook [1926], 10 F. [2d], 567, 569.) Probation should also be distinguished from reprieve and from commutation of the sentence. Snodgrass vs. State ([1912], 67 Tex. Crim. Rep., 615;41 L. R. A. [N. S.], 1144; 150 S. W., 162), is relied upon most strongly by the petitioners as authority in support of their contention that the power to grant pardons and reprieves, having been vested exclusively

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upon the Chief Executive by the Jones Law, may not be conferred by the legislature upon the courts by means of probation law authorizing the indefinite judicial suspension of sentence. We have examined that case and found that although the Court of Criminal Appeals of Texas held that the probation statute of the state in terms conferred on the district courts the power to grant pardons to persons convicted of crime, it also distinguished between suspensions sentence on the one hand, and reprieve and commutation of sentence on the other. Said the court, through Harper, J.: That the power to suspend the sentence does not conflict with the power of the Governor to grant reprieves is settled by the decisions of the various courts; it being held that the distinction between a "reprieve" and a suspension of sentence is that a reprieve postpones the execution of the sentence to a day certain, whereas a suspension is for an indefinite time. (Carnal vs. People, 1 Parker, Cr. R., 262; In re Buchanan, 146 N. Y., 264; 40 N. E., 883), and cases cited in 7 Words & Phrases, pp. 6115, 6116. This law cannot be hold in conflict with the power confiding in the Governor to grant commutations of punishment, for a commutations is not but to change the punishment assessed to a less punishment. In State ex rel. Bottomnly vs. District Court ([1925], 73 Mont., 541; 237 Pac., 525), the Supreme Court of Montana had under consideration the validity of the adult probation law of the state enacted in 1913, now found in sections 12078-12086, Revised Codes of 1921. The court held the law valid as not impinging upon the pardoning power of the executive. In a unanimous decision penned by Justice Holloway, the court said: . . . . the term "pardon", "commutation", and "respite" each had a well understood meaning at the time our Constitution was adopted, and no one of them was intended to comprehend the suspension of the execution of the judgment as that phrase is employed in sections 12078-12086. A "pardon" is an act of grace, proceeding from the power intrusted with the execution of the laws which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed (United States vs. Wilson, 7 Pet., 150; 8 Law. ed., 640); It is a remission of guilt (State vs. Lewis, 111 La., 693; 35 So., 816), a forgiveness of the offense (Cook vs. Middlesex County, 26 N. J. Law, 326; Ex parte Powell, 73 Ala., 517; 49 Am. Rep., 71). "Commutation" is a remission of a part of the punishment; a substitution of a less penalty for the one originally imposed (Lee vs. Murphy, 22 Grat. [Va.] 789; 12 Am. Rep., 563; Rich vs. Chamberlain, 107 Mich., 381; 65 N. W., 235). A "reprieve" or "respite" is the withholding of the sentence for an interval of time (4 Blackstone's Commentaries, 394), a postponement of execution (Carnal vs. People, 1 Parker, Cr. R. [N. Y.], 272), a temporary suspension of execution (Butler vs. State, 97 Ind., 373). Few adjudicated cases are to be found in which the validity of a statute similar to our section 12078 has been determined; but the same objections have been urged against parole statutes which vest the power to parole in persons other than those to whom the power of pardon is granted, and these statutes have been upheld quite uniformly, as a reference to the numerous cases cited in the notes to Woods vs. State (130 Tenn., 100; 169 S. W.,558, reported in L. R. A., 1915F, 531), will disclose. (See, also, 20 R. C. L., 524.) We conclude that the Probation Act does not conflict with the pardoning power of the Executive. The pardoning power, in respect to those serving their probationary sentences, remains as full and complete as if the Probation Law had never been enacted. The President may yet pardon the probationer and thus place it beyond the power of the court to order his

rearrest and imprisonment. (Riggs vs. United States [1926], 14 F. [2d], 5, 7.) 2. But while the Probation Law does not encroach upon the pardoning power of the executive and is not for that reason void, does section 11 thereof constitute, as contended, an undue delegation of legislative power? Under the constitutional system, the powers of government are distributed among three coordinate and substantially independent organs: the legislative, the executive and the judicial. Each of these departments of the government derives its authority from the Constitution which, in turn, is the highest expression of popular will. Each has exclusive cognizance of the matters within its jurisdiction, and is supreme within its own sphere. The power to make laws the legislative power is vested in a bicameral Legislature by the Jones Law (sec. 12) and in a unicamiral National Assembly by the Constitution (Act. VI, sec. 1, Constitution of the Philippines). The Philippine Legislature or the National Assembly may not escape its duties and responsibilities by delegating that power to any other body or authority. Any attempt to abdicate the power is unconstitutional and void, on the principle that potestas delegata non delegare potest. This principle is said to have originated with the glossators, was introduced into English law through a misreading of Bracton, there developed as a principle of agency, was established by Lord Coke in the English public law in decisions forbidding the delegation of judicial power, and found its way into America as an enlightened principle of free government. It has since become an accepted corollary of the principle of separation of powers. (5 Encyc. of the Social Sciences, p. 66.) The classic statement of the rule is that of Locke, namely: "The legislative neither must nor can transfer the power of making laws to anybody else, or place it anywhere but where the people have." (Locke on Civil Government, sec. 142.) Judge Cooley enunciates the doctrine in the following oft-quoted language: "One of the settled maxims in constitutional law is, that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the state has located the authority, there it must remain; and by the constitutional agency alone the laws must be made until the Constitution itself is charged. The power to whose judgment, wisdom, and patriotism this high prerogative has been intrusted cannot relieve itself of the responsibilities by choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust." (Cooley on Constitutional Limitations, 8th ed., Vol. I, p. 224. Quoted with approval in U. S. vs. Barrias [1908], 11 Phil., 327.) This court posits the doctrine "on the ethical principle that such a delegated power constitutes not only a right but a duty to be performed by the delegate by the instrumentality of his own judgment acting immediately upon the matter of legislation and not through the intervening mind of another. (U. S. vs. Barrias, supra, at p. 330.) The rule, however, which forbids the delegation of legislative power is not absolute and inflexible. It admits of exceptions. An exceptions sanctioned by immemorial practice permits the central legislative body to delegate legislative powers to local authorities. (Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660; U. S. vs. Salaveria [1918], 39 Phil., 102; Stoutenburgh vs. Hennick [1889], 129 U. S., 141; 32 Law. ed., 637; 9 Sup. Ct. Rep., 256; State vs. Noyes [1855], 30 N. H., 279.) "It is a cardinal principle of our system of government, that local affairs shall be managed by local authorities, and general affairs by the central

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authorities; and hence while the rule is also fundamental that the power to make laws cannot be delegated, the creation of the municipalities exercising local self government has never been held to trench upon that rule. Such legislation is not regarded as a transfer of general legislative power, but rather as the grant of the authority to prescribed local regulations, according to immemorial practice, subject of course to the interposition of the superior in cases of necessity." (Stoutenburgh vs. Hennick, supra.) On quite the same principle, Congress is powered to delegate legislative power to such agencies in the territories of the United States as it may select. A territory stands in the same relation to Congress as a municipality or city to the state government. (United States vs. Heinszen [1907], 206 U. S., 370; 27 Sup. Ct. Rep., 742; 51 L. ed., 1098; 11 Ann. Cas., 688; Dorr vs. United States [1904], 195 U.S., 138; 24 Sup. Ct. Rep., 808; 49 Law. ed., 128; 1 Ann. Cas., 697.) Courts have also sustained the delegation of legislative power to the people at large. Some authorities maintain that this may not be done (12 C. J., pp. 841, 842; 6 R. C. L., p. 164, citing People vs. Kennedy [1913], 207 N. Y., 533; 101 N. E., 442; Ann. Cas., 1914C, 616). However, the question of whether or not a state has ceased to be republican in form because of its adoption of the initiative and referendum has been held not to be a judicial but a political question (Pacific States Tel. & Tel. Co. vs. Oregon [1912], 223 U. S., 118; 56 Law. ed., 377; 32 Sup. Cet. Rep., 224), and as the constitutionality of such laws has been looked upon with favor by certain progressive courts, the sting of the decisions of the more conservative courts has been pretty well drawn. (Opinions of the Justices [1894], 160 Mass., 586; 36 N. E., 488; 23 L. R. A., 113; Kiernan vs. Portland [1910], 57 Ore., 454; 111 Pac., 379; 1132 Pac., 402; 37 L. R. A. [N. S.], 332; Pacific States Tel. & Tel. Co. vs. Oregon, supra.) Doubtless, also, legislative power may be delegated by the Constitution itself. Section 14, paragraph 2, of article VI of the Constitution of the Philippines provides that "The National Assembly may by law authorize the President, subject to such limitations and restrictions as it may impose, to fix within specified limits, tariff rates, import or export quotas, and tonnage and wharfage dues." And section 16 of the same article of the Constitution provides that "In times of war or other national emergency, the National Assembly may by law authorize the President, for a limited period and subject to such restrictions as it may prescribed, to promulgate rules and regulations to carry out a declared national policy." It is beyond the scope of this decision to determine whether or not, in the absence of the foregoing constitutional provisions, the President could be authorized to exercise the powers thereby vested in him. Upon the other hand, whatever doubt may have existed has been removed by the Constitution itself. The case before us does not fall under any of the exceptions hereinabove mentioned. The challenged section of Act No. 4221 in section 11 which reads as follows: This Act shall apply only in those provinces in which the respective provincial boards have provided for the salary of a probation officer at rates not lower than those now provided for provincial fiscals. Said probation officer shall be appointed by the Secretary of Justice and shall be subject to the direction of the Probation Office. (Emphasis ours.) In testing whether a statute constitute an undue delegation of legislative power or not, it is usual to inquire whether the statute was complete in all its terms and provisions when it left the hands of the legislature so that nothing was left to the judgment of any other appointee or delegate of the legislature. (6 R. C. L., p. 165.) In the United States vs. Ang Tang Ho ([1922], 43 Phil., 1), this court adhered to the foregoing rule when it held an act of the legislature void

in so far as it undertook to authorize the Governor-General, in his discretion, to issue a proclamation fixing the price of rice and to make the sale of it in violation of the proclamation a crime. (See and cf. Compaia General de Tabacos vs. Board of Public Utility Commissioners [1916], 34 Phil., 136.) The general rule, however, is limited by another rule that to a certain extent matters of detail may be left to be filled in by rules and regulations to be adopted or promulgated by executive officers and administrative boards. (6 R. C. L., pp. 177-179.) For the purpose of Probation Act, the provincial boards may be regarded as administrative bodies endowed with power to determine when the Act should take effect in their respective provinces. They are the agents or delegates of the legislature in this respect. The rules governing delegation of legislative power to administrative and executive officers are applicable or are at least indicative of the rule which should be here adopted. An examination of a variety of cases on delegation of power to administrative bodies will show that the ratio decidendiis at variance but, it can be broadly asserted that the rationale revolves around the presence or absence of a standard or rule of action or the sufficiency thereof in the statute, to aid the delegate in exercising the granted discretion. In some cases, it is held that the standard is sufficient; in others that is insufficient; and in still others that it is entirely lacking. As a rule, an act of the legislature is incomplete and hence invalid if it does not lay down any rule or definite standard by which the administrative officer or board may be guided in the exercise of the discretionary powers delegated to it. (See Schecter vs. United States [1925], 295 U. S., 495; 79 L. ed., 1570; 55 Sup. Ct. Rep., 837; 97 A.L.R., 947; People ex rel. Rice vs. Wilson Oil Co. [1936], 364 Ill., 406; 4 N. E. [2d], 847; 107 A.L.R., 1500 and cases cited. See also R. C. L., title "Constitutional Law", sec 174.) In the case at bar, what rules are to guide the provincial boards in the exercise of their discretionary power to determine whether or not the Probation Act shall apply in their respective provinces? What standards are fixed by the Act? We do not find any and none has been pointed to us by the respondents. The probation Act does not, by the force of any of its provisions, fix and impose upon the provincial boards any standard or guide in the exercise of their discretionary power. What is granted, if we may use the language of Justice Cardozo in the recent case of Schecter, supra, is a "roving commission" which enables the provincial boards to exercise arbitrary discretion. By section 11 if the Act, the legislature does not seemingly on its own authority extend the benefits of the Probation Act to the provinces but in reality leaves the entire matter for the various provincial boards to determine. In other words, the provincial boards of the various provinces are to determine for themselves, whether the Probation Law shall apply to their provinces or not at all. The applicability and application of the Probation Act are entirely placed in the hands of the provincial boards. If the provincial board does not wish to have the Act applied in its province, all that it has to do is to decline to appropriate the needed amount for the salary of a probation officer. The plain language of the Act is not susceptible of any other interpretation. This, to our minds, is a virtual surrender of legislative power to the provincial boards. "The true distinction", says Judge Ranney, "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 latter no valid objection can be made." (Cincinnati, W. & Z. R. Co. vs. Clinton County Comrs. [1852]; 1 Ohio St., 77, 88. See also, Sutherland on Statutory

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Construction, sec 68.) To the same effect are the decision of this court in Municipality of Cardona vs. Municipality of Binangonan ([1917], 36 Phil., 547); Rubi vs. Provincial Board of Mindoro ([1919],39 Phil., 660) andCruz vs. Youngberg ([1931], 56 Phil., 234). In the first of these cases, this court sustained the validity of the law conferring upon the Governor-General authority to adjust provincial and municipal boundaries. In the second case, this court held it lawful for the legislature to direct non-Christian inhabitants to take up their habitation on unoccupied lands to be selected by the provincial governor and approved by the provincial board. In the third case, it was held proper for the legislature to vest in the Governor-General authority to suspend or not, at his discretion, the prohibition of the importation of the foreign cattle, such prohibition to be raised "if the conditions of the country make this advisable or if deceased among foreign cattle has ceased to be a menace to the agriculture and livestock of the lands." It should be observed that in the case at bar we are not concerned with the simple transference of details of execution or the promulgation by executive or administrative officials of rules and regulations to carry into effect the provisions of a law. If we were, recurrence to our own decisions would be sufficient. (U. S. vs. Barrias [1908], 11 Phil., 327; U.S. vs. Molina [1914], 29 Phil., 119; Alegre vs. Collector of Customs [1929], 53 Phil., 394; Cebu Autobus Co. vs. De Jesus [1931], 56 Phil., 446; U. S. vs. Gomez [1915], 31 Phil., 218; Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660.) It is connected, however, that a legislative act may be made to the effect as law after it leaves the hands of the legislature. It is true that laws may be made effective on certain contingencies, as by proclamation of the executive or the adoption by the people of a particular community (6 R. C. L., 116, 170-172; Cooley, Constitutional Limitations, 8th ed., Vol. I, p. 227). In Wayman vs. Southard ([1825], 10 Wheat. 1; 6 Law. ed., 253), the Supreme Court of the United State ruled that the legislature may delegate a power not legislative which it may itself rightfully exercise.(Vide, also, Dowling vs. Lancashire Ins. Co. [1896], 92 Wis., 63; 65 N. W., 738; 31 L. R. A., 112.) The power to ascertain facts is such a power which may be delegated. There is nothing essentially legislative in ascertaining the existence of facts or conditions as the basis of the taking into effect of a law. That is a mental process common to all branches of the government. (Dowling vs. Lancashire Ins. Co., supra; In re Village of North Milwaukee [1896], 93 Wis., 616; 97 N.W., 1033; 33 L.R.A., 938; Nash vs. Fries [1906], 129 Wis., 120; 108 N.W., 210; Field vs. Clark [1892], 143 U.S., 649; 12 Sup. Ct., 495; 36 Law. ed., 294.) Notwithstanding the apparent tendency, however, to relax the rule prohibiting delegation of legislative authority on account of the complexity arising from social and economic forces at work in this modern industrial age (Pfiffner, Public Administration [1936] ch. XX; Laski, "The Mother of Parliaments", foreign Affairs, July, 1931, Vol. IX, No. 4, pp. 569-579; Beard, "SquirtGun Politics", in Harper's Monthly Magazine, July, 1930, Vol. CLXI, pp. 147, 152), the orthodox pronouncement of Judge Cooley in his work on Constitutional Limitations finds restatement in Prof. Willoughby's treatise on the Constitution of the United States in the following language speaking of declaration of legislative power to administrative agencies: "The principle which permits the legislature to provide that the administrative agent may determine when the circumstances are such as require the application of a law is defended upon the ground that at the time this authority is granted, the rule of public policy, which is the essence of the legislative act, is determined by the legislature. In other words, the legislature,

as it its duty to do, determines that, under given circumstances, certain executive or administrative action is to be taken, and that, under other circumstances, different of no action at all is to be taken. What is thus left to the administrative official is not the legislative determination of what public policy demands, but simply the ascertainment of what the facts of the case require to be done according to the terms of the law by which he is governed." (Willoughby on the Constitution of the United States, 2nd ed., Vol. II, p. 1637.) In Miller vs. Mayer, etc., of New York [1883], 109 U.S., 3 Sup. Ct. Rep., 228; 27 Law. ed., 971, 974), it was said: "The efficiency of an Act as a declaration of legislative will must, of course, come from Congress, but the ascertainment of the contingency upon which the Act shall take effect may be left to such agencies as it may designate." (See, also, 12 C.J., p. 864; State vs. Parker [1854], 26 Vt., 357; Blanding vs. Burr [1859], 13 Cal., 343, 258.) The legislature, then may provide that a contingencies leaving to some other person or body the power to determine when the specified contingencies has arisen. But, in the case at bar, the legislature has not made the operation of the Prohibition Act contingent upon specified facts or conditions to be ascertained by the provincial board. It leaves, as we have already said, the entire operation or non-operation of the law upon the provincial board. the discretion vested is arbitrary because it is absolute and unlimited. A provincial board need not investigate conditions or find any fact, or await the happening of any specified contingency. It is bound by no rule, limited by no principle of expendiency announced by the legislature. It may take into consideration certain facts or conditions; and, again, it may not. It may have any purpose or no purpose at all. It need not give any reason whatsoever for refusing or failing to appropriate any funds for the salary of a probation officer. This is a matter which rest entirely at its pleasure. The fact that at some future time we cannot say when the provincial boards may appropriate funds for the salaries of probation officers and thus put the law into operation in the various provinces will not save the statute. The time of its taking into effect, we reiterate, would yet be based solely upon the will of the provincial boards and not upon the happening of a certain specified contingency, or upon the ascertainment of certain facts or conditions by a person or body other than legislature itself. The various provincial boards are, in practical effect, endowed with the power of suspending the operation of the Probation Law in their respective provinces. In some jurisdiction, constitutions provided that laws may be suspended only by the legislature or by its authority. Thus, section 28, article I of the Constitution of Texas provides that "No power of suspending laws in this state shall be exercised except by the legislature"; and section 26, article I of the Constitution of Indiana provides "That the operation of the laws shall never be suspended, except by authority of the General Assembly." Yet, even provisions of this sort do not confer absolute power of suspension upon the legislature. While it may be undoubted that the legislature may suspend a law, or the execution or operation of a law, a law may not be suspended as to certain individuals only, leaving the law to be enjoyed by others. The suspension must be general, and cannot be made for individual cases or for particular localities. In Holden vs. James ([1814], 11 Mass., 396; 6 Am. Dec., 174, 177, 178), it was said: By the twentieth article of the declaration of rights in the constitution of this commonwealth, it is declared that the power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or by authority derived from it, to be exercised in such particular cases only as the legislature shall expressly provide for. Many of

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the articles in that declaration of rights were adopted from the Magna Charta of England, and from the bill of rights passed in the reign of William and Mary. The bill of rights contains an enumeration of the oppressive acts of James II, tending to subvert and extirpate the protestant religion, and the laws and liberties of the kingdom; and the first of them is the assuming and exercising a power of dispensing with and suspending the laws, and the execution of the laws without consent of parliament. The first article in the claim or declaration of rights contained in the statute is, that the exercise of such power, by legal authority without consent of parliament, is illegal. In the tenth section of the same statute it is further declared and enacted, that "No dispensation by non obstante of or to any statute, or part thereof, should be allowed; but the same should be held void and of no effect, except a dispensation be allowed of in such statute." There is an implied reservation of authority in the parliament to exercise the power here mentioned; because, according to the theory of the English Constitution, "that absolute despotic power, which must in all governments reside somewhere," is intrusted to the parliament: 1 Bl. Com., 160. The principles of our government are widely different in this particular. Here the sovereign and absolute power resides in the people; and the legislature can only exercise what is delegated to them according to the constitution. It is obvious that the exercise of the power in question would be equally oppressive to the subject, and subversive of his right to protection, "according to standing laws," whether exercised by one man or by a number of men. It cannot be supposed that the people when adopting this general principle from the English bill of rights and inserting it in our constitution, intended to bestow by implication on the general court one of the most odious and oppressive prerogatives of the ancient kings of England. It is manifestly contrary to the first principles of civil liberty and natural justice, and to the spirit of our constitution and laws, that any one citizen should enjoy privileges and advantages which are denied to all others under like circumstances; or that ant one should be subject to losses, damages, suits, or actions from which all others under like circumstances are exempted. To illustrate the principle: A section of a statute relative to dogs made the owner of any dog liable to the owner of domestic animals wounded by it for the damages without proving a knowledge of it vicious disposition. By a provision of the act, power was given to the board of supervisors to determine whether or not during the current year their county should be governed by the provisions of the act of which that section constituted a part. It was held that the legislature could not confer that power. The court observed that it could no more confer such a power than to authorize the board of supervisors of a county to abolish in such county the days of grace on commercial paper, or to suspend the statute of limitations. (Slinger vs. Henneman [1875], 38 Wis., 504.) A similar statute in Missouri was held void for the same reason in State vs. Field ([1853, 17 Mo., 529;59 Am. Dec., 275.) In that case a general statute formulating a road system contained a provision that "if the county court of any county should be of opinion that the provisions of the act should not be enforced, they might, in their discretion, suspend the operation of the same for any specified length of time, and thereupon the act should become inoperative in such county for the period specified in such order; and thereupon order the roads to be opened and kept in good repair, under the laws theretofore in force." Said the court: ". . . this act, by its own provisions, repeals the inconsistent provisions of a former act, and yet it is left to the county court to say which act shall be enforce in their

county. The act does not submit the question to the county court as an original question, to be decided by that tribunal, whether the act shall commence its operation within the county; but it became by its own terms a law in every county not excepted by name in the act. It did not, then, require the county court to do any act in order to give it effect. But being the law in the county, and having by its provisions superseded and abrogated the inconsistent provisions of previous laws, the county court is . . . empowered, to suspend this act and revive the repealed provisions of the former act. When the question is before the county court for that tribunal to determine which law shall be in force, it is urge before us that the power then to be exercised by the court is strictly legislative power, which under our constitution, cannot be delegated to that tribunal or to any other body of men in the state. In the present case, the question is not presented in the abstract; for the county court of Saline county, after the act had been for several months in force in that county, did by order suspend its operation; and during that suspension the offense was committed which is the subject of the present indictment . . . ." (See Mitchell vs. State [1901], 134 Ala., 392; 32 S., 687.) True, the legislature may enact laws for a particular locality different from those applicable to other localities and, while recognizing the force of the principle hereinabove expressed, courts in may jurisdiction have sustained the constitutionality of the submission of option laws to the vote of the people. (6 R.C.L., p. 171.) But option laws thus sustained treat of subjects purely local in character which should receive different treatment in different localities placed under different circumstances. "They relate to subjects which, like the retailing of intoxicating drinks, or the running at large of cattle in the highways, may be differently regarded in different localities, and they are sustained on what seems to us the impregnable ground, that the subject, though not embraced within the ordinary powers of municipalities to make by-laws and ordinances, is nevertheless within the class of public regulations, in respect to which it is proper that the local judgment should control." (Cooley on Constitutional Limitations, 5th ed., p. 148.) So that, while we do not deny the right of local self-government and the propriety of leaving matters of purely local concern in the hands of local authorities or for the people of small communities to pass upon, we believe that in matters of general of general legislation like that which treats of criminals in general, and as regards the general subject of probation, discretion may not be vested in a manner so unqualified and absolute as provided in Act No. 4221. True, the statute does not expressly state that the provincial boards may suspend the operation of the Probation Act in particular provinces but, considering that, in being vested with the authority to appropriate or not the necessary funds for the salaries of probation officers, they thereby are given absolute discretion to determine whether or not the law should take effect or operate in their respective provinces, the provincial boards are in reality empowered by the legislature to suspend the operation of the Probation Act in particular provinces, the Act to be held in abeyance until the provincial boards should decide otherwise by appropriating the necessary funds. The validity of a law is not tested by what has been done but by what may be done under its provisions. (Walter E. Olsen & Co. vs. Aldanese and Trinidad [1922], 43 Phil., 259; 12 C. J., p. 786.) It in conceded that a great deal of latitude should be granted to the legislature not only in the expression of what may be termed legislative policy but in the elaboration and execution thereof. "Without this power, legislation would become oppressive and yet imbecile." (People vs. Reynolds, 5 Gilman, 1.) It has been said that popular government lives because of the

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inexhaustible reservoir of power behind it. It is unquestionable that the mass of powers of government is vested in the representatives of the people and that these representatives are no further restrained under our system than by the express language of the instrument imposing the restraint, or by particular provisions which by clear intendment, have that effect. (Angara vs. Electoral Commission [1936], 35 Off. Ga., 23; Schneckenburger vs. Moran [1936], 35 Off. Gaz., 1317.) But, it should be borne in mind that a constitution is both a grant and a limitation of power and one of these time-honored limitations is that, subject to certain exceptions, legislative power shall not be delegated. We conclude that section 11 of Act No. 4221 constitutes an improper and unlawful delegation of legislative authority to the provincial boards and is, for this reason, unconstitutional and void. 3. It is also contended that the Probation Act violates the provisions of our Bill of Rights which prohibits the denial to any person of the equal protection of the laws (Act. III, sec. 1 subsec. 1. Constitution of the Philippines.) This basic individual right sheltered by the Constitution is a restraint on all the tree grand departments of our government and on the subordinate instrumentalities and subdivision thereof, and on many constitutional power, like the police power, taxation and eminent domain. The equal protection of laws, sententiously observes the Supreme Court of the United States, "is a pledge of the protection of equal laws." (Yick Wo vs. Hopkins [1886], 118 U. S., 356; 30 Law. ed., 220; 6 Sup. Ct. Rep., 10464; Perley vs. North Carolina, 249 U. S., 510; 39 Sup. Ct. Rep., 357; 63 Law. ed., 735.) Of course, what may be regarded as a denial of the equal protection of the laws in a question not always easily determined. No rule that will cover every case can be formulated. (Connolly vs. Union Sewer Pipe Co. [1902], 184, U. S., 540; 22 Sup. Ct., Rep., 431; 46 Law. ed., 679.) Class legislation discriminating against some and favoring others in prohibited. But classification on a reasonable basis, and nor made arbitrarily or capriciously, is permitted. (Finely vs. California [1911], 222 U. S., 28; 56 Law. ed., 75; 32 Sup. Ct. Rep., 13; Gulf. C. & S. F. Ry Co. vs. Ellis [1897], 165 U. S., 150; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255; Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) The classification, however, to be reasonable must be based on substantial distinctions which make real differences; it must be germane to the purposes of the law; it must not be limited to existing conditions only, and must apply equally to each member of the class. (Borgnis vs. Falk. Co. [1911], 147 Wis., 327, 353; 133 N. W., 209; 3 N. C. C. A., 649; 37 L. R. A. [N. S.], 489; State vs. Cooley, 56 Minn., 540; 530-552; 58 N. W., 150; Lindsley vs. Natural Carbonic Gas Co.[1911], 220 U. S., 61, 79, 55 Law. ed., 369, 377; 31 Sup. Ct. Rep., 337; Ann. Cas., 1912C, 160; Lake Shore & M. S. R. Co. vs. Clough [1917], 242 U.S., 375; 37 Sup. Ct. Rep., 144; 61 Law. ed., 374; Southern Ry. Co. vs. Greene [1910], 216 U. S., 400; 30 Sup. Ct. Rep., 287; 54 Law. ed., 536; 17 Ann. Cas., 1247; Truax vs. Corrigan [1921], 257 U. S., 312; 12 C. J., pp. 1148, 1149.) In the case at bar, however, the resultant inequality may be said to flow from the unwarranted delegation of legislative power, although perhaps this is not necessarily the result in every case. Adopting the example given by one of the counsel for the petitioners in the course of his oral argument, one province may appropriate the necessary fund to defray the salary of a probation officer, while another province may refuse or fail to do so. In such a case, the Probation Act would be in operation in the former province but not in the latter. This means

that a person otherwise coming within the purview of the law would be liable to enjoy the benefits of probation in one province while another person similarly situated in another province would be denied those same benefits. This is obnoxious discrimination. Contrariwise, it is also possible for all the provincial boards to appropriate the necessary funds for the salaries of the probation officers in their respective provinces, in which case no inequality would result for the obvious reason that probation would be in operation in each and every province by the affirmative action of appropriation by all the provincial boards. On that hypothesis, every person coming within the purview of the Probation Act would be entitled to avail of the benefits of the Act. Neither will there be any resulting inequality if no province, through its provincial board, should appropriate any amount for the salary of the probation officer which is the situation now and, also, if we accept the contention that, for the purpose of the Probation Act, the City of Manila should be considered as a province and that the municipal board of said city has not made any appropriation for the salary of the probation officer. These different situations suggested show, indeed, that while inequality may result in the application of the law and in the conferment of the benefits therein provided, inequality is not in all cases the necessary result. But whatever may be the case, it is clear that in section 11 of the Probation Act creates a situation in which discrimination and inequality are permitted or allowed. There are, to be sure, abundant authorities requiring actual denial of the equal protection of the law before court should assume the task of setting aside a law vulnerable on that score, but premises and circumstances considered, we are of the opinion that section 11 of Act No. 4221 permits of the denial of the equal protection of the law and is on that account bad. We see no difference between a law which permits of such denial. A law may appear to be fair on its face and impartial in appearance, yet, if it permits of unjust and illegal discrimination, it is within the constitutional prohibitions. (By analogy, Chy Lung vs. Freeman [1876], 292 U. S., 275; 23 Law. ed., 550; Henderson vs. Mayor [1876], 92 U. S., 259; 23 Law. ed., 543; Ex parte Virginia [1880], 100 U. S., 339; 25 Law. ed., 676; Neal vs. Delaware [1881], 103 U. S., 370; 26 Law. ed., 567; Soon Hing vs. Crowley [1885], 113 U. S., 703; 28 Law. ed., 1145, Yick Wo vs. Hopkins [1886],118 U. S., 356; 30 Law. ed., 220; Williams vs. Mississippi [1897], 170 U. S., 218; 18 Sup. Ct. Rep., 583; 42 Law. ed., 1012; Bailey vs. Alabama [1911], 219 U. S., 219; 31 Sup. Ct. Rep. 145; 55 Law. ed., Sunday Lake Iron Co. vs. Wakefield [1918], 247 U. S., 450; 38 Sup. Ct. Rep., 495; 62 Law. ed., 1154.) In other words, statutes may be adjudged unconstitutional because of their effect in operation (General Oil Co. vs. Clain [1907], 209 U. S., 211; 28 Sup. Ct. Rep., 475; 52 Law. ed., 754; State vs. Clement Nat. Bank [1911], 84 Vt., 167; 78 Atl., 944; Ann. Cas., 1912D, 22). If the law has the effect of denying the equal protection of the law it is unconstitutional. (6 R. C. L. p. 372; Civil Rights Cases, 109 U. S., 3; 3 Sup. Ct. Rep., 18; 27 Law. ed., 835; Yick Wo vs. Hopkins, supra; State vs. Montgomery, 94 Me., 192; 47 Atl., 165; 80 A. S. R., 386; State vs. Dering, 84 Wis., 585; 54 N. W., 1104; 36 A. S. R., 948; 19 L. R. A., 858.) Under section 11 of the Probation Act, not only may said Act be in force in one or several provinces and not be in force in other provinces, but one province may appropriate for the salary of the probation officer of a given year and have probation during that year and thereafter decline to make further appropriation, and have no probation is subsequent years. While this situation goes rather to the abuse of discretion which delegation implies, it is here indicated to show that the Probation Act sanctions a situation which is intolerable in a government of laws, and to prove how easy

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it is, under the Act, to make the guaranty of the equality clause but "a rope of sand". (Brewer, J. Gulf C. & S. F. Ry. Co. vs. Ellis [1897], 165 U. S., 150 154; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255.)lawph!1.net Great reliance is placed by counsel for the respondents on the case of Ocampo vs. United States ([1914], 234 U. S., 91; 58 Law. ed., 1231). In that case, the Supreme Court of the United States affirmed the decision of this court (18 Phil., 1) by declining to uphold the contention that there was a denial of the equal protection of the laws because, as held in Missouri vs. Lewis (Bowman vs. Lewis) decided in 1880 (101 U. S., 220; 25 Law. ed., 991), the guaranty of the equality clause does not require territorial uniformity. It should be observed, however, that this case concerns the right to preliminary investigations in criminal cases originally granted by General Orders No. 58. No question of legislative authority was involved and the alleged denial of the equal protection of the laws was the result of the subsequent enactment of Act No. 612, amending the charter of the City of Manila (Act No. 813) and providing in section 2 thereof that "in cases triable only in the court of first instance of the City of Manila, the defendant . . . shall not be entitled as of right to a preliminary examination in any case where the prosecuting attorney, after a due investigation of the facts . . . shall have presented an information against him in proper form . . . ." Upon the other hand, an analysis of the arguments and the decision indicates that the investigation by the prosecuting attorney although not in the form had in the provinces was considered a reasonable substitute for the City of Manila, considering the peculiar conditions of the city as found and taken into account by the legislature itself. Reliance is also placed on the case of Missouri vs. Lewis, supra. That case has reference to a situation where the constitution of Missouri permits appeals to the Supreme Court of the state from final judgments of any circuit court, except those in certain counties for which counties the constitution establishes a separate court of appeals called St. Louis Court of Appeals. The provision complained of, then, is found in the constitution itself and it is the constitution that makes the apportionment of territorial jurisdiction. We are of the opinion that section 11 of the Probation Act is unconstitutional and void because it is also repugnant to equal-protection clause of our Constitution. Section 11 of the Probation Act being unconstitutional and void for the reasons already stated, the next inquiry is whether or not the entire Act should be avoided. In seeking the legislative intent, the presumption is against any mutilation of a statute, and the courts will resort to elimination only where an unconstitutional provision is interjected into a statute otherwise valid, and is so independent and separable that its removal will leave the constitutional features and purposes of the act substantially unaffected by the process. (Riccio vs. Hoboken, 69 N. J. Law., 649, 662; 63 L. R. A., 485; 55 Atl., 1109, quoted in Williams vs. Standard Oil Co. [1929], 278 U.S., 235, 240; 73 Law. ed., 287, 309; 49 Sup. Ct. Rep., 115; 60 A. L. R., 596.) In Barrameda vs. Moir ([1913], 25 Phil., 44, 47), this court stated the well-established rule concerning partial invalidity of statutes in the following language: . . . where part of the a statute is void, as repugnant to the Organic Law, while another part is valid, the valid portion, if separable from the valid, may stand and be enforced. But in order to do this, the valid portion must be in so far independent of the invalid portion that it is fair to presume that the Legislative would have enacted it by itself if they had supposed that they could not constitutionally enact the other. (Mutual Loan Co. vs. Martell, 200 Mass., 482;

86 N. E., 916; 128 A. S. R., 446; Supervisors of Holmes Co. vs. Black Creek Drainage District, 99 Miss., 739; 55 Sou., 963.) Enough must remain to make a complete, intelligible, and valid statute, which carries out the legislative intent. (Pearson vs. Bass. 132 Ga., 117; 63 S. E., 798.) The void provisions must be eliminated without causing results affecting the main purpose of the Act, in a manner contrary to the intention of the Legislature. (State vs. A. C. L. R., Co., 56 Fla., 617, 642; 47 Sou., 969; Harper vs. Galloway, 58 Fla., 255; 51 Sou., 226; 26 L. R. A., N. S., 794; Connolly vs. Union Sewer Pipe Co., 184 U. S., 540, 565; People vs. Strassheim, 240 Ill., 279, 300; 88 N. E., 821; 22 L. R. A., N. S., 1135; State vs. Cognevich, 124 La., 414; 50 Sou., 439.) The language used in the invalid part of a statute can have no legal force or efficacy for any purpose whatever, and what remains must express the legislative will, independently of the void part, since the court has no power to legislate. (State vs. Junkin, 85 Neb., 1; 122 N. W., 473; 23 L. R. A., N. S., 839; Vide, also,. U. S., vs. Rodriguez [1918], 38 Phil., 759; Pollock vs. Farmers' Loan and Trust Co. [1895], 158 U. S., 601, 635; 39 Law. ed., 1108, 1125; 15 Sup. Ct. Rep., 912; 6 R.C.L., 121.) It is contended that even if section 11, which makes the Probation Act applicable only in those provinces in which the respective provincial boards provided for the salaries of probation officers were inoperative on constitutional grounds, the remainder of the Act would still be valid and may be enforced. We should be inclined to accept the suggestions but for the fact that said section is, in our opinion, is inseparably linked with the other portions of the Act that with the elimination of the section what would be left is the bare idealism of the system, devoid of any practical benefit to a large number of people who may be deserving of the intended beneficial result of that system. The clear policy of the law, as may be gleaned from a careful examination of the whole context, is to make the application of the system dependent entirely upon the affirmative action of the different provincial boards through appropriation of the salaries for probation officers at rates not lower than those provided for provincial fiscals. Without such action on the part of the various boards, no probation officers would be appointed by the Secretary of Justice to act in the provinces. The Philippines is divided or subdivided into provinces and it needs no argument to show that if not one of the provinces and this is the actual situation now appropriate the necessary fund for the salary of a probation officer, probation under Act No. 4221 would be illusory. There can be no probation without a probation officer. Neither can there be a probation officer without the probation system. Section 2 of the Acts provides that the probation officer shall supervise and visit the probationer. Every probation officer is given, as to the person placed in probation under his care, the powers of the police officer. It is the duty of the probation officer to see that the conditions which are imposed by the court upon the probationer under his care are complied with. Among those conditions, the following are enumerated in section 3 of the Act: That the probationer (a) shall indulge in no injurious or vicious habits; (b) Shall avoid places or persons of disreputable or harmful character; (c) Shall report to the probation officer as directed by the court or probation officers; (d) Shall permit the probation officer to visit him at reasonable times at his place of abode or elsewhere;

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(e) Shall truthfully answer any reasonable inquiries on the part of the probation officer concerning his conduct or condition; "(f) Shall endeavor to be employed regularly; "(g) Shall remain or reside within a specified place or locality; (f) Shall make reparation or restitution to the aggrieved parties for actual damages or losses caused by his offense; (g) Shall comply with such orders as the court may from time to time make; and (h) Shall refrain from violating any law, statute, ordinance, or any by-law or regulation, promulgated in accordance with law. The court is required to notify the probation officer in writing of the period and terms of probation. Under section 4, it is only after the period of probation, the submission of a report of the probation officer and appropriate finding of the court that the probationer has complied with the conditions of probation that probation may be definitely terminated and the probationer finally discharged from supervision. Under section 5, if the court finds that there is non-compliance with said conditions, as reported by the probation officer, it may issue a warrant for the arrest of the probationer and said probationer may be committed with or without bail. Upon arraignment and after an opportunity to be heard, the court may revoke, continue or modify the probation, and if revoked, the court shall order the execution of the sentence originally imposed. Section 6 prescribes the duties of probation officers: "It shall be the duty of every probation officer to furnish to all persons placed on probation under his supervision a statement of the period and conditions of their probation, and to instruct them concerning the same; to keep informed concerning their conduct and condition; to aid and encourage them by friendly advice and admonition, and by such other measures, not inconsistent with the conditions imposed by court as may seem most suitable, to bring about improvement in their conduct and condition; to report in writing to the court having jurisdiction over said probationers at least once every two months concerning their conduct and condition; to keep records of their work; make such report as are necessary for the information of the Secretary of Justice and as the latter may require; and to perform such other duties as are consistent with the functions of the probation officer and as the court or judge may direct. The probation officers provided for in this Act may act as parole officers for any penal or reformatory institution for adults when so requested by the authorities thereof, and, when designated by the Secretary of Justice shall act as parole officer of persons released on parole under Act Number Forty-one Hundred and Three, without additional compensation." It is argued, however, that even without section 11 probation officers maybe appointed in the provinces under section 10 of Act which provides as follows: There is hereby created in the Department of Justice and subject to its supervision and control, a Probation Office under the direction of a Chief Probation Officer to be appointed by the Governor-General with the advise and consent of the Senate who shall receive a salary of four eight hundred pesos per annum. To carry out this Act there is hereby appropriated out of any funds in the Insular Treasury not otherwise appropriated, the sum of fifty thousand pesos to be disbursed by the Secretary of Justice, who is hereby authorized to appoint probation officers and the administrative personnel of the probation officer under civil service regulations from among those who possess the qualifications, training and experience prescribed by the Bureau of Civil Service, and shall fix the compensation of such probation officers and

administrative personnel until such positions shall have been included in the Appropriation Act. But the probation officers and the administrative personnel referred to in the foregoing section are clearly not those probation officers required to be appointed for the provinces under section 11. It may be said, reddendo singula singulis, that the probation officers referred to in section 10 above-quoted are to act as such, not in the various provinces, but in the central office known as the Probation Office established in the Department of Justice, under the supervision of the Chief Probation Officer. When the law provides that "the probation officer" shall investigate and make reports to the court (secs. 1 and 4); that "the probation officer" shall supervise and visit the probationer (sec. 2; sec. 6, par. d); that the probationer shall report to the "probationer officer" (sec. 3, par. c.), shall allow "the probationer officer" to visit him (sec. 3, par. d), shall truthfully answer any reasonable inquiries on the part of "the probation officer" concerning his conduct or condition (sec. 3, par. 4); that the court shall notify "the probation officer" in writing of the period and terms of probation (sec. 3, last par.), it means the probation officer who is in charge of a particular probationer in a particular province. It never could have been intention of the legislature, for instance, to require the probationer in Batanes, to report to a probationer officer in the City of Manila, or to require a probation officer in Manila to visit the probationer in the said province of Batanes, to place him under his care, to supervise his conduct, to instruct him concerning the conditions of his probation or to perform such other functions as are assigned to him by law. That under section 10 the Secretary of Justice may appoint as many probation officers as there are provinces or groups of provinces is, of course possible. But this would be arguing on what the law may be or should be and not on what the law is. Between is and ought there is a far cry. The wisdom and propriety of legislation is not for us to pass upon. We may think a law better otherwise than it is. But much as has been said regarding progressive interpretation and judicial legislation we decline to amend the law. We are not permitted to read into the law matters and provisions which are not there. Not for any purpose not even to save a statute from the doom of invalidity. Upon the other hand, the clear intention and policy of the law is not to make the Insular Government defray the salaries of probation officers in the provinces but to make the provinces defray them should they desire to have the Probation Act apply thereto. The sum of P50,000, appropriated "to carry out the purposes of this Act", is to be applied, among other things, for the salaries of probation officers in the central office at Manila. These probation officers are to receive such compensations as the Secretary of Justice may fix "until such positions shall have been included in the Appropriation Act". It was the intention of the legislature to empower the Secretary of Justice to fix the salaries of the probation officers in the provinces or later on to include said salaries in an appropriation act. Considering, further, that the sum of P50,000 appropriated in section 10 is to cover, among other things, the salaries of the administrative personnel of the Probation Office, what would be left of the amount can hardly be said to be sufficient to pay even nominal salaries to probation officers in the provinces. We take judicial notice of the fact that there are 48 provinces in the Philippines and we do not think it is seriously contended that, with the fifty thousand pesos appropriated for the central office, there can be in each province, as intended, a probation officer with a salary not lower than that of a provincial fiscal. If this a correct, the contention that without

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section 11 of Act No. 4221 said act is complete is an impracticable thing under the remainder of the Act, unless it is conceded that in our case there can be a system of probation in the provinces without probation officers. Probation as a development of a modern penology is a commendable system. Probation laws have been enacted, here and in other countries, to permit what modern criminologist call the "individualization of the punishment", the adjustment of the penalty to the character of the criminal and the circumstances of his particular case. It provides a period of grace in order to aid in the rehabilitation of a penitent offender. It is believed that, in any cases, convicts may be reformed and their development into hardened criminals aborted. It, therefore, takes advantage of an opportunity for reformation and avoids imprisonment so long as the convicts gives promise of reform. (United States vs. Murray [1925], 275 U. S., 347 357, 358; 72 Law. ed., 309; 312, 313; 48 Sup. Ct. Rep., 146; Kaplan vs. Hecht, 24 F. [2d], 664, 665.) The Welfare of society is its chief end and aim. The benefit to the individual convict is merely incidental. But while we believe that probation is commendable as a system and its implantation into the Philippines should be welcomed, we are forced by our inescapable duty to set the law aside because of the repugnancy to our fundamental law. In arriving at this conclusion, we have endeavored to consider the different aspects presented by able counsel for both parties, as well in their memorandums as in their oral argument. We have examined the cases brought to our attention, and others we have been able to reach in the short time at our command for the study and deliberation of this case. In the examination of the cases and in then analysis of the legal principles involved we have inclined to adopt the line of action which in our opinion, is supported better reasoned authorities and is more conducive to the general welfare. (Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) Realizing the conflict of authorities, we have declined to be bound by certain adjudicated cases brought to our attention, except where the point or principle is settled directly or by clear implication by the more authoritative pronouncements of the Supreme Court of the United States. This line of approach is justified because: (a) The constitutional relations between the Federal and the State governments of the United States and the dual character of the American Government is a situation which does not obtain in the Philippines; (b) The situation of s state of the American Union of the District of Columbia with reference to the Federal Government of the United States is not the situation of the province with respect to the Insular Government (Art. I, sec. 8 cl. 17 and 10th Amendment, Constitution of the United States; Sims vs. Rives, 84 Fed. [2d], 871), (c) The distinct federal and the state judicial organizations of the United States do not embrace the integrated judicial system of the Philippines (Schneckenburger vs. Moran [1936], 35 Off. Gaz., p. 1317); (d) "General propositions do not decide concrete cases" (Justice Holmes in Lochner vs. New York [1904], 198 U. S., 45, 76; 49 Law. ed., 937, 949) and, "to keep pace with . . . new developments of times and circumstances" (Chief Justice Waite in Pensacola Tel. Co. vs. Western Union Tel. Co. [1899], 96 U. S., 1, 9; 24 Law. ed., 708; Yale Law Journal, Vol. XXIX, No. 2, Dec. 1919, 141, 142), fundamental principles should be interpreted having in view existing local conditions and environment.

Act No. 4221 is hereby declared unconstitutional and void and the writ of prohibition is, accordingly, granted. Without any pronouncement regarding costs. So ordered. Avancea, C.J., Imperial, Diaz and Concepcion, JJ., concur. Villa-real and Abad Santos, JJ., concur in the result. G.R. No. 105371 November 11, 1993 THE PHILIPPINE JUDGES ASSOCIATION, duly rep. by its President, BERNARDO P. ABESAMIS, Vice-President for Legal Affairs, MARIANO M. UMALI, Director for Pasig, Makati, and Pasay, Metro Manila, ALFREDO C. FLORES, and Chairman of the Committee on Legal Aid, JESUS G. BERSAMIRA, Presiding Judges of the Regional Trial Court, Branch 85, Quezon City and Branches 160, 167 and 166, Pasig, Metro Manila, respectively: the NATIONAL CONFEDERATION OF THE JUDGES ASSOCIATION OF THE PHILIPPINES, composed of the METROPOLITAN TRIAL COURT JUDGES ASSOCIATION rep. by its President. REINATO QUILALA of the MUNICIPAL TRIAL CIRCUIT COURT, Manila; THE MUNICIPAL JUDGES LEAGUE OF THE PHILIPPINES rep. by its President, TOMAS G. TALAVERA; by themselves and in behalf of all the Judges of the Regional Trial and Shari'a Courts, Metropolitan Trial Courts and Municipal Courts throughout the Country, petitioners, vs. HON. PETE PRADO, in his capacity as Secretary of the Department of Transportation and Communications, JORGE V. SARMIENTO, in his capacity as Postmaster General, and the PHILIPPINE POSTAL CORP., respondents. CRUZ, J.: The basic issue raised in this petition is the independence of the Judiciary. It is asserted by the petitioners that this hallmark of republicanism is impaired by the statute and circular they are here challenging. The Supreme Court is itself affected by these measures and is thus an interested party that should ordinarily not also be a judge at the same time. Under our system of government, however, it cannot inhibit itself and must rule upon the challenge, because no other office has the authority to do so. We shall therefore act upon this matter not with officiousness but in the discharge of an unavoidable duty and, as always, with detachment and fairness. The main target of this petition is Section 35 of R.A. No. 7354 as implemented by the Philippine Postal Corporation through its Circular No. 92-28. These measures withdraw the franking privilege from the Supreme Court, the Court of Appeals, the Regional Trial Courts, the Metropolitan Trial Courts, the Municipal Trial Courts, and the Land Registration Commission and its Registers of Deeds, along with certain other government offices. The petitioners are members of the lower courts who feel that their official functions as judges will be prejudiced by the above-named measures. The National Land Registration Authority has taken common cause with them insofar as its own activities, such as sending of requisite notices in registration cases, affect judicial proceedings. On its motion, it has been allowed to intervene.

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The petition assails the constitutionality of R.A. No. 7354 on the grounds that: (1) its title embraces more than one subject and does not express its purposes; (2) it did not pass the required readings in both Houses of Congress and printed copies of the bill in its final form were not distributed among the members before its passage; and (3) it is discriminatory and encroaches on the independence of the Judiciary. We approach these issues with one important principle in mind, to wit, the presumption of the constitutionality of statutes. The theory is that as the joint act of the Legislature and the Executive, every statute is supposed to have first been carefully studied and determined to be constitutional before it was finally enacted. Hence, unless it is clearly shown that it is constitutionally flawed, the attack against its validity must be rejected and the law itself upheld. To doubt is to sustain. I We consider first the objection based on Article VI, Sec. 26(l), of the Constitution providing that "Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof." The purposes of this rule are: (1) to prevent hodge-podge or "log-rolling" legislation; (2) to prevent surprise or fraud upon the legislature by means of provisions in bills of which the title gives no intimation, and which might therefore be overlooked and carelessly and unintentionally adopted; and (3) to fairly apprise the people, through such publication of legislative proceedings as is usually made, of the subject of legislation that is being considered, in order that they may have opportunity of being heard thereon, by petition or otherwise, if they shall so desire. 1 It is the submission of the petitioners that Section 35 of R.A. No. 7354 which withdrew the franking privilege from the Judiciary is not expressed in the title of the law, nor does it reflect its purposes. R.A. No. 7354 is entitled "An Act Creating the Philippine Postal Corporation, Defining its Powers, Functions and Responsibilities, Providing for Regulation of the Industry and for Other Purposes Connected Therewith." The objectives of the law are enumerated in Section 3, which provides: The State shall pursue the following objectives of a nationwide postal system: a) to enable the economical and speedy transfer of mail and other postal matters, from sender to addressee, with full recognition of their privacy or confidentiality; b) to promote international interchange, cooperation and understanding through the unhampered flow or exchange of postal matters between nations; c) to cause or effect a wide range of postal services to cater to different users and changing needs, including but not limited to, philately, transfer of monies and valuables, and the like; d) to ensure that sufficient revenues are generated by and within the industry to finance the overall cost of providing the varied range of postal delivery and messengerial services as well as the expansion and continuous upgrading of service standards by the same. Sec. 35 of R.A. No. 7354, which is the principal target of the petition, reads as follows: Sec. 35. Repealing Clause. All acts, decrees, orders, executive orders, instructions, rules and regulations or parts thereof inconsistent with the provisions of this Act are repealed or modified accordingly.

All franking privileges authorized by law are hereby repealed, except those provided for under Commonwealth Act No. 265, Republic Acts Numbered 69, 180, 1414, 2087 and 5059. The Corporation may continue the franking privilege under Circular No. 35 dated October 24, 1977 and that of the Vice President, under such arrangements and conditions as may obviate abuse or unauthorized use thereof. The petitioners' contention is untenable. We do not agree that the title of the challenged act violates the Constitution. The title of the bill is not required to be an index to the body of the act, or to be as comprehensive as to cover every single detail of the measure. It has been held that if the title fairly indicates the general subject, and reasonably covers all the provisions of the act, and is not calculated to mislead the legislature or the people, there is sufficient compliance with the constitutional requirement. 2 To require every end and means necessary for the accomplishment of the general objectives of the statute to be expressed in its title would not only be unreasonable but would actually render legislation impossible. 3 As has been correctly explained: The details of a legislative act need not be specifically stated in its title, but matter germane to the subject as expressed in the title, and adopted to the accomplishment of the object in view, may properly be included in the act. Thus, it is proper to create in the same act the machinery by which the act is to be enforced, to prescribe the penalties for its infraction, and to remove obstacles in the way of its execution. If such matters are properly connected with the subject as expressed in the title, it is unnecessary that they should also have special mention in the title (Southern Pac. Co. v. Bartine, 170 Fed. 725). This is particularly true of the repealing clause, on which Cooley writes: "The repeal of a statute on a given subject is properly connected with the subject matter of a new statute on the same subject; and therefore a repealing section in the new statute is valid, notwithstanding that the title is silent on the subject. It would be difficult to conceive of a matter more germane to an act and to the object to be accomplished thereby than the repeal of previous legislations connected therewith." 4 The reason is that where a statute repeals a former law, such repeal is the effect and not the subject of the statute; and it is the subject, not the effect of a law, which is required to be briefly expressed in its title. 5 As observed in one case, 6 if the title of an act embraces only one subject, we apprehend it was never claimed that every other act which repeals it or alters by implication must be mentioned in the title of the new act. Any such rule would be neither within the reason of the Constitution, nor practicable. We are convinced that the withdrawal of the franking privilege from some agencies is germane to the accomplishment of the principal objective of R.A. No. 7354, which is the creation of a more efficient and effective postal service system. Our ruling is that, by virtue of its nature as a repealing clause, Section 35 did not have to be expressly included in the title of the said law. II The petitioners maintain that the second paragraph of Sec. 35 covering the repeal of the franking privilege from the petitioners and this Court under E.O. 207, PD 1882 and PD 26 was not included in the original version of Senate Bill No. 720 or House Bill No. 4200. As this

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paragraph appeared only in the Conference Committee Report, its addition, violates Article VI, Sec. 26(2) of the Constitution, reading as follows: (2) No bill passed by either House shall become a law unless it has passed three readings on separate days, and printed copies thereof in its final form have been distributed to its Members three days before its passage, except when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall be allowed, and the vote thereon shall be taken immediately thereafter, and the yeasand nays entered in the Journal. The petitioners also invoke Sec. 74 of the Rules of the House of Representatives, requiring that amendment to any bill when the House and the Senate shall have differences thereon may be settled by a conference committee of both chambers. They stress that Sec. 35 was never a subject of any disagreement between both Houses and so the second paragraph could not have been validly added as an amendment. These argument are unacceptable. While it is true that a conference committee is the mechanism for compromising differences between the Senate and the House, it is not limited in its jurisdiction to this question. Its broader function is described thus: A conference committee may, deal generally with the subject matter or it may be limited to resolving the precise differences between the two houses. Even where the conference committee is not by rule limited in its jurisdiction, legislative custom severely limits the freedom with which new subject matter can be inserted into the conference bill. But occasionally a conference committee produces unexpected results, results beyond its mandate, These excursions occur even where the rules impose strict limitations on conference committee jurisdiction. This is symptomatic of the authoritarian power of conference committee (Davies, Legislative Law and Process: In a Nutshell, 1986 Ed., p.81). It is a matter of record that the conference Committee Report on the bill in question was returned to and duly approved by both the Senate and the House of Representatives. Thereafter, the bill was enrolled with its certification by Senate President Neptali A. Gonzales and Speaker Ramon V. Mitra of the House of Representatives as having been duly passed by both Houses of Congress. It was then presented to and approved by President Corazon C. Aquino on April 3, 1992. Under the doctrine of separation powers, the Court may not inquire beyond the certification of the approval of a bill from the presiding officers of Congress. Casco Philippine Chemical Co. v. Gimenez 7 laid down the rule that the enrolled bill, is conclusive upon the Judiciary (except in matters that have to be entered in the journals like theyeas and nays on the final reading of the bill). 8 The journals are themselves also binding on the Supreme Court, as we held in the old (but still valid) case of U.S. vs. Pons, 9 where we explained the reason thus: To inquire into the veracity of the journals of the Philippine legislature when they are, as we have said, clear and explicit, would be to violate both the, letter and spirit of the organic laws by which the Philippine Government was brought into existence, to invade a coordinate and independent department of the Government, and to interfere with the legitimate powers and functions, of the Legislature.

Applying these principles, we shall decline to look into the petitioners' charges that an amendment was made upon the last reading of the bill that eventually became R.A. No. 7354 and that copies thereof in its final form were not distributed among the members of each House. Both the enrolled bill and the legislative journals certify that the measure was duly enacted i.e., in accordance with Article VI, Sec. 26(2) of the Constitution. We are bound by such official assurances from a coordinate department of the government, to which we owe, at the very least, a becoming courtesy. III The third and most serious challenge of the petitioners is based on the equal protection clause. It is alleged that R.A. No. 7354 is discriminatory because while withdrawing the franking privilege from the Judiciary, it retains the same for the President of the Philippines, the Vice President of the Philippines; Senators and Members of the House of Representatives, the Commission on Elections; former Presidents of the Philippines; the National Census and Statistics Office; and the general public in the filing of complaints against public offices and officers. 10 The respondents counter that there is no discrimination because the law is based on a valid classification in accordance with the equal protection clause. In fact, the franking privilege has been withdrawn not only from the Judiciary but also the Office of Adult Education, the Institute of National Language; the Telecommunications Office; the Philippine Deposit Insurance Corporation; the National Historical Commission; the Armed Forces of the Philippines; the Armed Forces of the Philippines Ladies Steering Committee; the City and Provincial Prosecutors; the Tanodbayan (Office of Special Prosecutor); the Kabataang Barangay; the Commission on the Filipino Language; the Provincial and City Assessors; and the National Council for the Welfare of Disabled Persons. 11 The equal protection of the laws is embraced in the concept of due process, as every unfair discrimination offends the requirements of justice and fair play. It has nonetheless been embodied in a separate clause in Article III Sec. 1., of the Constitution to provide for a more, specific guaranty against any form of undue favoritism or hostility from the government. Arbitrariness in general may be challenged on the basis of the due process clause. But if the particular act assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal protection clause. According to a long line of decisions, equal protection simply requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed, 12 Similar subjects, in other words, should not be treated differently, so as to give undue favor to some and unjustly discriminate against others. The equal protection clause does not require the universal application of the laws on all persons or things without distinction. This might in fact sometimes result in unequal protection, as where, for example, a law prohibiting mature books to all persons, regardless of age, would benefit the morals of the youth but violate the liberty of adults. What the clause requires is equality among equals as determined according to a valid classification. By classification is meant the grouping of persons or things similar to each other in certain particulars and different from all others in these same particulars. 13

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What is the reason for the grant of the franking privilege in the first place? Is the franking privilege extended to the President of the Philippines or the Commission on Elections or to former Presidents of the Philippines purely as acourtesy from the lawmaking body? Is it offered because of the importance or status of the grantee or because of its need for the privilege? Or have the grantees been chosen pell-mell, as it were, without any basis at all for the selection? We reject outright the last conjecture as there is no doubt that the statute as a whole was carefully deliberated upon, by the political departments before it was finally enacted. There is reason to suspect, however, that not enough care or attention was given to its repealing clause, resulting in the unwitting withdrawal of the franking privilege from the Judiciary. We also do not believe that the basis of the classification was mere courtesy, for it is unimaginable that the political departments would have intended this serious slight to the Judiciary as the third of the major and equal departments the government. The same observations are made if the importance or status of the grantee was the criterion used for the extension of the franking privilege, which is enjoyed by the National Census and Statistics Office and even some private individuals but not the courts of justice. In our view, the only acceptable reason for the grant of the franking privilege was the perceived need of the grantee for the accommodation, which would justify a waiver of substantial revenue by the Corporation in the interest of providing for a smoother flow of communication between the government and the people. Assuming that basis, we cannot understand why, of all the departments of the government, it is the Judiciary, that has been denied the franking privilege. There is no question that if there is any major branch of the government that needs the privilege, it is the Judicial Department, as the respondents themselves point out. Curiously, the respondents would justify the distinction on the basis precisely of this need and, on this basis, deny the Judiciary the franking privilege while extending it to others less deserving. In their Comment, the respondents point out that available data from the Postal Service Office show that from January 1988 to June 1992, the total volume of frank mails amounted to P90,424,175.00. Of this amount, frank mails from the Judiciary and other agencies whose functions include the service of judicial processes, such as the intervenor, the Department of Justice and the Office of the Ombudsman, amounted to P86,481,759. Frank mails coming fromthe Judiciary amounted to P73,574,864.00, and those coming from the petitioners reached the total amount of P60,991,431.00. The respondents' conclusion is that because of this considerable volume of mail from the Judiciary, the franking privilege must be withdrawn from it. The argument is self-defeating. The respondents are in effect saying that the franking privilege should be extended only to those who do not need it very much, if at all, (like the widows of former Presidents) but not to those who need it badly (especially the courts of justice). It is like saying that a person may be allowed cosmetic surgery although it is not really necessary but not an operation that can save his life. If the problem of the respondents is the loss of revenues from the franking privilege, the remedy, it seems to us, is to withdraw it altogether from all agencies of government, including those who do not need it. The problem is not solved by retaining it for some and withdrawing it from others, especially where there is no substantial distinction between those favored, which

may or may not need it at all, and the Judiciary, which definitely needs it. The problem is not solved by violating the Constitution. In lumping the Judiciary with the other offices from which the franking privilege has been withdrawn, Section 35 has placed the courts of justice in a category to which it does not belong. If it recognizes the need of the President of the Philippines and the members of Congress for the franking privilege, there is no reason why it should not recognize a similar and in fact greater need on the part of the Judiciary for such privilege. While we may appreciate the withdrawal of the franking privilege from the Armed Forces of the Philippines Ladies Steering Committee, we fail to understand why the Supreme Court should be similarly treated as that Committee. And while we may concede the need of the National Census and Statistics Office for the franking privilege, we are intrigued that a similar if not greater need is not recognized in the courts of justice. (On second thought, there does not seem to be any justifiable need for withdrawing the privilege from the Armed Forces of the Philippines Ladies Steering Committee, which, like former Presidents of the Philippines or their widows, does not send as much frank mail as the Judiciary.) It is worth observing that the Philippine Postal Corporation, as a government-controlled corporation, was created and is expected to operate for the purpose of promoting the public service. While it may have been established primarily for private gain, it cannot excuse itself from performing certain functions for the benefit of the public in exchange for the franchise extended to it by the government and the many advantages it enjoys under its charter.14 Among the services it should be prepared to extend is free carriage of mail for certain offices of the government that need the franking privilege in the discharge of their own public functions. We also note that under Section 9 of the law, the Corporation is capitalized at P10 billion pesos, 55% of which is supplied by the Government, and that it derives substantial revenues from the sources enumerated in Section 10, on top of the exemptions it enjoys. It is not likely that the retention of the franking privilege of the Judiciary will cripple the Corporation. At this time when the Judiciary is being faulted for the delay in the administration of justice, the withdrawal from it of the franking privilege can only further deepen this serious problem. The volume of judicial mail, as emphasized by the respondents themselves, should stress the dependence of the courts of justice on the postal service for communicating with lawyers and litigants as part of the judicial process. The Judiciary has the lowest appropriation in the national budget compared to the Legislative and Executive Departments; of the P309 billion budgeted for 1993, only .84%, or less than 1%, is alloted for the judiciary. It should not be hard to imagine the increased difficulties of our courts if they have to affix a purchased stamp to every process they send in the discharge of their judicial functions. We are unable to agree with the respondents that Section 35 of R.A. No. 7354 represents a valid exercise of discretion by the Legislature under the police power. On the contrary, we find its repealing clause to be a discriminatory provision that denies the Judiciary the equal protection of the laws guaranteed for all persons or things similarly situated. The distinction made by the law is superficial. It is not based on substantial distinctions that make real differences between the Judiciary and the grantees of the franking privilege.

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This is not a question of wisdom or power into which the Judiciary may not intrude. It is a matter of arbitrariness that this Court has the duty and power to correct. IV In sum, we sustain R.A. No. 7354 against the attack that its subject is not expressed in its title and that it was not passed in accordance with the prescribed procedure. However, we annul Section 35 of the law as violative of Article 3, Sec. 1, of the Constitution providing that no person shall "be deprived of the equal protection of laws." We arrive at these conclusions with a full awareness of the criticism it is certain to provoke. While ruling against the discrimination in this case, we may ourselves be accused of similar discrimination through the exercise of our ultimate power in our own favor. This is inevitable. Criticism of judicial conduct, however undeserved, is a fact of life in the political system that we are prepared to accept.. As judges, we cannot debate with our detractors. We can only decide the cases before us as law imposes on us the duty to be fair and our own conscience gives us the light to be right. ACCORDINGLY, the petition is partially GRANTED and Section 35 of R.A. No. 7354 is declared UNCONSTITUTIONAL. Circular No. 92-28 is SET ASIDE insofar as it withdraws the franking privilege from the Supreme Court, the Court of Appeals, the Regional trail Courts, the Municipal trial Courts, and the National Land Registration Authority and its Register of Deeds to all of which offices the said privilege shall be RESTORED. The temporary restraining order dated June 2, 1992, is made permanent. SO ORDERED. Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Nocon, Melo, Quiason, Puno and Vitug, JJ., concur. Bellosillo, J., is on leave. G.R. No. 109289 October 3, 1994 RUFINO R. TAN, petitioner, vs. RAMON R. DEL ROSARIO, JR., as SECRETARY OF FINANCE & JOSE U. ONG, as COMMISSIONER OF INTERNAL REVENUE, respondents. G.R. No. 109446 October 3, 1994 CARAG, CABALLES, JAMORA AND SOMERA LAW OFFICES, CARLO A. CARAG, MANUELITO O. CABALLES, ELPIDIO C. JAMORA, JR. and BENJAMIN A. SOMERA, JR., petitioners, vs. RAMON R. DEL ROSARIO, in his capacity as SECRETARY OF FINANCE and JOSE U. ONG, in his capacity as COMMISSIONER OF INTERNAL REVENUE, respondents. Rufino R. Tan for and in his own behalf. Carag, Caballes, Jamora & Zomera Law Offices for petitioners in G.R. 109446. VITUG, J.:

These two consolidated special civil actions for prohibition challenge, in G.R. No. 109289, the constitutionality of Republic Act No. 7496, also commonly known as the Simplified Net Income Taxation Scheme ("SNIT"), amending certain provisions of the National Internal Revenue Code and, in G.R. No. 109446, the validity of Section 6, Revenue Regulations No. 2-93, promulgated by public respondents pursuant to said law. Petitioners claim to be taxpayers adversely affected by the continued implementation of the amendatory legislation. In G.R. No. 109289, it is asserted that the enactment of Republic Act No. 7496 violates the following provisions of the Constitution: Article VI, Section 26(1) Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof. Article VI, Section 28(1) The rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive system of taxation. Article III, Section 1 No person shall be deprived of . . . property without due process of law, nor shall any person be denied the equal protection of the laws. In G.R. No. 109446, petitioners, assailing Section 6 of Revenue Regulations No. 2-93, argue that public respondents have exceeded their rule-making authority in applying SNIT to general professional partnerships. The Solicitor General espouses the position taken by public respondents. The Court has given due course to both petitions. The parties, in compliance with the Court's directive, have filed their respective memoranda. G.R. No. 109289 Petitioner contends that the title of House Bill No. 34314, progenitor of Republic Act No. 7496, is a misnomer or, at least, deficient for being merely entitled, "Simplified Net Income Taxation Scheme for the Self-Employed and Professionals Engaged in the Practice of their Profession" (Petition in G.R. No. 109289). The full text of the title actually reads: An Act Adopting the Simplified Net Income Taxation Scheme For The Self-Employed and Professionals Engaged In The Practice of Their Profession, Amending Sections 21 and 29 of the National Internal Revenue Code, as Amended. The pertinent provisions of Sections 21 and 29, so referred to, of the National Internal Revenue Code, as now amended, provide: Sec. 21. Tax on citizens or residents. xxx xxx xxx (f) Simplified Net Income Tax for the Self-Employed and/or Professionals Engaged in the Practice of Profession. A tax is hereby imposed upon the taxable net income as determined in Section 27 received during each taxable year from all sources, other than income covered by paragraphs (b), (c), (d) and (e) of this section by every individual whether a citizen of the Philippines or an alien residing in the Philippines who is self-employed or practices his profession herein, determined in accordance with the following schedule: Not over P10,000 3% Over P10,000 P300 + 9% but not over P30,000 of excess over P10,000

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Over P30,000 P2,100 + 15% but not over P120,00 of excess over P30,000 Over P120,000 P15,600 + 20% but not over P350,000 of excess over P120,000 Over P350,000 P61,600 + 30% of excess over P350,000 Sec. 29. Deductions from gross income. In computing taxable income subject to tax under Sections 21(a), 24(a), (b) and (c); and 25 (a)(1), there shall be allowed as deductions the items specified in paragraphs (a) to (i) of this section: Provided, however, That in computing taxable income subject to tax under Section 21 (f) in the case of individuals engaged in business or practice of profession, only the following direct costs shall be allowed as deductions: (a) Raw materials, supplies and direct labor; (b) Salaries of employees directly engaged in activities in the course of or pursuant to the business or practice of their profession; (c) Telecommunications, electricity, fuel, light and water; (d) Business rentals; (e) Depreciation; (f) Contributions made to the Government and accredited relief organizations for the rehabilitation of calamity stricken areas declared by the President; and (g) Interest paid or accrued within a taxable year on loans contracted from accredited financial institutions which must be proven to have been incurred in connection with the conduct of a taxpayer's profession, trade or business. For individuals whose cost of goods sold and direct costs are difficult to determine, a maximum of forty per cent (40%) of their gross receipts shall be allowed as deductions to answer for business or professional expenses as the case may be. On the basis of the above language of the law, it would be difficult to accept petitioner's view that the amendatory law should be considered as having now adopted a gross income, instead of as having still retained the netincome, taxation scheme. The allowance for deductible items, it is true, may have significantly been reduced by the questioned law in comparison with that which has prevailed prior to the amendment; limiting, however, allowable deductions from gross income is neither discordant with, nor opposed to, the net income tax concept. The fact of the matter is still that various deductions, which are by no means inconsequential, continue to be well provided under the new law. Article VI, Section 26(1), of the Constitution has been envisioned so as (a) to prevent logrolling legislation intended to unite the members of the legislature who favor any one of unrelated subjects in support of the whole act, (b) to avoid surprises or even fraud upon the legislature, and (c) to fairly apprise the people, through such publications of its proceedings as are usually made, of the subjects of legislation. 1 The above objectives of the fundamental law appear to us to have been sufficiently met. Anything else would be to require a virtual compendium of the law which could not have been the intendment of the constitutional mandate. Petitioner intimates that Republic Act No. 7496 desecrates the constitutional requirement that taxation "shall be uniform and equitable" in that the law would now attempt to tax single

proprietorships and professionals differently from the manner it imposes the tax on corporations and partnerships. The contention clearly forgets, however, that such a system of income taxation has long been the prevailing rule even prior to Republic Act No. 7496. Uniformity of taxation, like the kindred concept of equal protection, merely requires that all subjects or objects of taxation, similarly situated, are to be treated alike both in privileges and liabilities (Juan Luna Subdivision vs. Sarmiento, 91 Phil. 371). Uniformity does not forfend classification as long as: (1) the standards that are used therefor are substantial and not arbitrary, (2) the categorization is germane to achieve the legislative purpose, (3) the law applies, all things being equal, to both present and future conditions, and (4) the classification applies equally well to all those belonging to the same class (Pepsi Cola vs. City of Butuan, 24 SCRA 3; Basco vs. PAGCOR, 197 SCRA 52). What may instead be perceived to be apparent from the amendatory law is the legislative intent to increasingly shift the income tax system towards the schedular approach 2 in the income taxation of individual taxpayers and to maintain, by and large, the present global treatment 3 on taxable corporations. We certainly do not view this classification to be arbitrary and inappropriate. Petitioner gives a fairly extensive discussion on the merits of the law, illustrating, in the process, what he believes to be an imbalance between the tax liabilities of those covered by the amendatory law and those who are not. With the legislature primarily lies the discretion to determine the nature (kind), object (purpose), extent (rate), coverage (subjects) and situs (place) of taxation. This court cannot freely delve into those matters which, by constitutional fiat, rightly rest on legislative judgment. Of course, where a tax measure becomes so unconscionable and unjust as to amount to confiscation of property, courts will not hesitate to strike it down, for, despite all its plenitude, the power to tax cannot override constitutional proscriptions. This stage, however, has not been demonstrated to have been reached within any appreciable distance in this controversy before us. Having arrived at this conclusion, the plea of petitioner to have the law declared unconstitutional for being violative of due process must perforce fail. The due process clause may correctly be invoked only when there is a clear contravention of inherent or constitutional limitations in the exercise of the tax power. No such transgression is so evident to us. G.R. No. 109446 The several propositions advanced by petitioners revolve around the question of whether or not public respondents have exceeded their authority in promulgating Section 6, Revenue Regulations No. 2-93, to carry out Republic Act No. 7496. The questioned regulation reads: Sec. 6. General Professional Partnership The general professional partnership (GPP) and the partners comprising the GPP are covered by R. A. No. 7496. Thus, in determining the net profit of the partnership, only the direct costs mentioned in said law are to be deducted from partnership income. Also, the expenses paid or incurred by partners in their individual capacities in the practice of their profession which are not reimbursed or paid by the partnership but are not considered as direct cost, are not deductible from his gross income. The real objection of petitioners is focused on the administrative interpretation of public respondents that would apply SNIT to partners in general professional partnerships. Petitioners cite the pertinent deliberations in Congress during its enactment of Republic Act

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No. 7496, also quoted by the Honorable Hernando B. Perez, minority floor leader of the House of Representatives, in the latter's privilege speech by way of commenting on the questioned implementing regulation of public respondents following the effectivity of the law, thusly: MR. ALBANO, Now Mr. Speaker, I would like to get the correct impression of this bill. Do we speak here of individuals who are earning, I mean, who earn through business enterprises and therefore, should file an income tax return? MR. PEREZ. That is correct, Mr. Speaker. This does not apply to corporations. It applies only to individuals. (See Deliberations on H. B. No. 34314, August 6, 1991, 6:15 P.M.; Emphasis ours). Other deliberations support this position, to wit: MR. ABAYA . . . Now, Mr. Speaker, did I hear the Gentleman from Batangas say that this bill is intended to increase collections as far as individuals are concerned and to make collection of taxes equitable? MR. PEREZ. That is correct, Mr. Speaker. (Id. at 6:40 P.M.; Emphasis ours). In fact, in the sponsorship speech of Senator Mamintal Tamano on the Senate version of the SNITS, it is categorically stated, thus: This bill, Mr. President, is not applicable to business corporations or to partnerships; it is only with respect to individuals and professionals. (Emphasis ours) The Court, first of all, should like to correct the apparent misconception that general professional partnerships are subject to the payment of income tax or that there is a difference in the tax treatment between individuals engaged in business or in the practice of their respective professions and partners in general professional partnerships. The fact of the matter is that a general professional partnership, unlike an ordinary business partnership (which is treated as a corporation for income tax purposes and so subject to the corporate income tax), is not itself an income taxpayer. The income tax is imposed not on the professional partnership, which is tax exempt, but on the partners themselves in their individual capacity computed on their distributive shares of partnership profits. Section 23 of the Tax Code, which has not been amended at all by Republic Act 7496, is explicit: Sec. 23. Tax liability of members of general professional partnerships. (a) Persons exercising a common profession in general partnership shall be liable for income tax only in their individual capacity, and the share in the net profits of the general professional partnership to which any taxable partner would be entitled whether distributed or otherwise, shall be returned for taxation and the tax paid in accordance with the provisions of this Title. (b) In determining his distributive share in the net income of the partnership, each partner (1) Shall take into account separately his distributive share of the partnership's income, gain, loss, deduction, or credit to the extent provided by the pertinent provisions of this Code, and (2) Shall be deemed to have elected the itemized deductions, unless he declares his distributive share of the gross income undiminished by his share of the deductions. There is, then and now, no distinction in income tax liability between a person who practices his profession alone or individually and one who does it through partnership (whether registered or not) with others in the exercise of a common profession. Indeed, outside of the gross compensation income tax and the final tax on passive investment income, under the

present income tax system all individuals deriving income from any source whatsoever are treated in almost invariably the same manner and under a common set of rules. We can well appreciate the concern taken by petitioners if perhaps we were to consider Republic Act No. 7496 as an entirely independent, not merely as an amendatory, piece of legislation. The view can easily become myopic, however, when the law is understood, as it should be, as only forming part of, and subject to, the whole income tax concept and precepts long obtaining under the National Internal Revenue Code. To elaborate a little, the phrase "income taxpayers" is an all embracing term used in the Tax Code, and it practically covers all persons who derive taxable income. The law, in levying the tax, adopts the most comprehensive tax situs of nationality and residence of the taxpayer (that renders citizens, regardless of residence, and resident aliens subject to income tax liability on their income from all sources) and of the generally accepted and internationally recognized income taxable base (that can subject non-resident aliens and foreign corporations to income tax on their income from Philippine sources). In the process, the Code classifies taxpayers into four main groups, namely: (1) Individuals, (2) Corporations, (3) Estates under Judicial Settlement and (4) Irrevocable Trusts (irrevocable both as to corpus and as to income). Partnerships are, under the Code, either "taxable partnerships" or "exempt partnerships." Ordinarily, partnerships, no matter how created or organized, are subject to income tax (and thus alluded to as "taxable partnerships") which, for purposes of the above categorization, are by law assimilated to be within the context of, and so legally contemplated as, corporations. Except for few variances, such as in the application of the "constructive receipt rule" in the derivation of income, the income tax approach is alike to both juridical persons. Obviously, SNIT is not intended or envisioned, as so correctly pointed out in the discussions in Congress during its deliberations on Republic Act 7496, aforequoted, to cover corporations and partnerships which are independently subject to the payment of income tax. "Exempt partnerships," upon the other hand, are not similarly identified as corporations nor even considered as independent taxable entities for income tax purposes. A general professional partnership is such an example. 4Here, the partners themselves, not the partnership (although it is still obligated to file an income tax return [mainly for administration and data]), are liable for the payment of income tax in their individual capacity computed on their respective and distributive shares of profits. In the determination of the tax liability, a partner does so as anindividual, and there is no choice on the matter. In fine, under the Tax Code on income taxation, the general professional partnership is deemed to be no more than a mere mechanism or a flow-through entity in the generation of income by, and the ultimate distribution of such income to, respectively, each of the individual partners. Section 6 of Revenue Regulation No. 2-93 did not alter, but merely confirmed, the above standing rule as now so modified by Republic Act No. 7496 on basically the extent of allowable deductions applicable to all individual income taxpayers on their non-compensation income. There is no evident intention of the law, either before or after the amendatory legislation, to place in an unequal footing or in significant variance the income tax treatment of professionals who practice their respective professions individually and of those who do it through a general professional partnership. WHEREFORE, the petitions are DISMISSED. No special pronouncement on costs. SO ORDERED.

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Narvasa, C.J., Cruz, Feliciano, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Kapunan and Mendoza, JJ., concur. Padilla and Bidin, JJ., are on leave. G.R. No. L-30026 January 30, 1971 MARIO GUMABON, BLAS BAGOLBAGOL, GAUDENCIO AGAPITO, EPIFANIO PADUA and PATERNO PALMARES, petitioners, vs. THE DIRECTOR OF THE BUREAU OF PRISONS, respondent. Jose W. Diokno for petitioners. Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Antonio A. Torres and Solicitor Eduardo C. Abaya for respondent. FERNANDO, J.: Habeas corpus, the great writ of liberty, is relied upon by petitioners, five in number, for their release from imprisonment. Meted out life terms for the complex crime of rebellion with murder and other crimes, they would invoke the People v. Hernandez 1 doctrine, negating the existence of such an offense, a ruling that unfortunately for them was not handed down until after their convictions had become final. Nor is this the first instance, a proceeding of this character was instituted, as in Pomeroy v. Director of Prisons,2 likewise a petition for habeas corpus, a similar question was presented. The answer given was in the negative. Petitioners plead for a new look on the matter. They would premise their stand on the denial of equal protection if their plea would not be granted. Moreover they did invoke the codal provision that judicial decisions shall form part of the legal system of the Philippines,3 necessarily resulting in the conclusion that the Hernandez decision once promulgated calls for a retroactive effect under the explicit mandate of the Revised Penal Code as to penal laws having such character even if at the time of their application a final sentence has been rendered "and the convict is serving the same."4These arguments carry considerable persuasion. Accordingly we find for petitioners, without going so far as to overrule Pomeroy. Petitioner Mario Gumabon, after pleading guilty, was sentenced on May 5, 1953 to suffer reclusion perpetua for the complex crime of rebellion with multiple murder, robbery, arson and kidnapping. Petitioners Gaudencio Agapito, Paterno Palmares and Epifanio Padua, likewise pleaded guilty to the complex crime of rebellion with multiple murder and other offenses, and were similarly made to suffer the same penalty in decisions rendered, as to the first two, on March 8, 1954 and, as to the third, on December 15, 1955. The last petitioner, Blas Bagolbagol, stood trial also for the complex crime of rebellion with multiple murder and other offenses and on January 12, 1954 penalized with reclusion perpetua. Each of the petitioners has been since then imprisoned by virtue of the above convictions. Each of them has served more than 13 years.5 Subsequently, in People v. Hernandez, 6 as above noted, this Court ruled that the information against the accused in that case for rebellion complexed with murder, arson and robbery was not warranted under Article 134 of the Revised Penal Code, there being no such complex offense.7 In the recently-decided case of People vs. Lava,8 we expressly reaffirmed the ruling in the Hernandez case rejecting the plea of the Solicitor General for the abandonment of such

doctrine. It is the contention of each of the petitioners that he has served, in the light of the above, more than the maximum penalty that could have been imposed upon him. He is thus entitled to freedom, his continued detention being illegal.9 The fear that the Pomeroy ruling stands as an obstacle to their release on a habeas corpus proceeding prompted petitioners, as had been mentioned, to ask that it be appraised anew and, if necessary, discarded. We can resolve the present petition without doing so. The plea there made was unconvincing, there being a failure to invoke the contentions now pressed vigorously by their counsel, Attorney Jose W. Diokno, as to the existence of a denial of a constitutional right that would suffice to raise a serious jurisdictional question and the retroactive effect to be given a judicial decision favorable to one already sentenced to a final judgment under Art. 22 of the Revised Penal Code. To repeat, these two grounds carry weight. We have to grant this petition. 1. The fundamental issue, to repeat, is the availability of the writ of habeas corpus under the circumstances disclosed. Its latitudinarian scope to assure that illegality of restraint and detention be avoided is one of the truisms of the law. It is not known as the writ of liberty for nothing. The writ imposes on judges the grave responsibility of ascertaining whether there is any legal justification for a deprivation of physical freedom. Unless there be such a showing, the confinement must thereby cease. If there be a valid sentence it cannot, even for a moment, be extended beyond the period provided for by law. Any deviation from the legal norms call for the termination of the imprisonment. Rightly then could Chafee refer to the writ as "the most important human rights provision" in the fundamental law.10 Nor is such praise unique. Cooley spoke of it as "one of the principal safeguards to personal liberty." 11 For Willoughby, it is "the greatest of the safeguards erected by the civil law against arbitrary and illegal imprisonment by whomsoever detention may be exercised or ordered." 12 Burdick echoed a similar sentiment, referring to it as "one of the most important bulwarks of liberty." 13 Fraenkel made it unanimous, for to him, "without it much else would be of no avail." 14 Thereby the rule of law is assured. A full awareness of the potentialities of the writ of habeas corpus in the defense of liberty coupled with its limitations may be detected in the opinions of former Chief Justices Arellano, 15 Avancea, 16 Abad Santos, 17Paras, 18 Bengzon, 19 and the present Chief Justice. 20 It fell to Justice Malcolm's lot, however to emphasize quite a few times the breadth of its amplitude and of its reach. In Villavicencio v. Lukban, 21 the remedy came in handy to challenge the validity of the order of the then respondent Mayor of Manila who, for the best of reasons but without legal justification, ordered the transportation of more than 150 inmates of houses of ill-repute to Davao. After referring to the writ of habeas corpus as having been devised and existing "as a speedy and effectual remedy to relieve persons from unlawful restraint" the opinion of Justice Malcolm continued: "The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude freedom of action is sufficient." 22 The liberality with which the judiciary is to construe habeas corpus petitions even if presented in pleadings on their face devoid of merit was demonstrated in Ganaway v. Quilen, 23 where this Court, again through Justice Malcolm, stated: "As standing alone the petition for habeas corpus was fatally defective in its allegations, this court, on its motion, ordered before it the

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record of the lower court in the case entitled Thomas Casey, et al. v. George Ganaway." 24 It is to Justice Malcolm likewise in Conde v. Rivera, 25 to whom is traceable the doctrine, one that broadens the field of the operation of the writ, that a disregard of the constitutional right to speedy trial ousts the court of jurisdiction and entitles the accused if "restrained of his liberty, by habeas corpus to obtain his freedom." 26 So it is in the United States. An 1830 decision 27 of Chief Justice Marshall put the matter thus: "The writ of habeas corpus is a high prerogative writ, known to the common law, the great object of which is the liberation of those who may be imprisoned without sufficient cause." Then there is this affirmation from an 1869 decision 28 of the then Chief Justice Chase: "The great writ of habeas corpus has been for centuries esteemed the best and only sufficient defense of personal freedom." The passing of the years has only served to confirm its primacy as a weapon on in the cause of liberty. Only the other year, Justice Fortas spoke for the United States Supreme Court thus: "The writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action. ... The scope and flexibility of the writ its capacity to reach all manner of illegal detention its ability to cut through barriers of form and procedural mazes have always been emphasized and jealously guarded by courts and lawmakers. The very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected." 29 Justice Fortas explicitly made reference to Blackstone, who spoke of it as "the great and efficacious writ, in all manner of illegal confinement." Implicit in his just estimate of its pre-eminent role is his adoption of Holmes' famous dissent in Frank v. Mangum: 30 "But habeas corpus cuts through all forms and goes to the very tissue of the structure." 2. Where, however, the detention complained of finds its origin in what has been judicially ordained, the range of inquiry in a habeas corpus proceeding is considerably narrowed. For if "the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order," the writ does not lie. 31 That principle dates back to 1902, 32 when this Court announced that habeas corpus was unavailing where the person detained was in the custody of an officer under process issued by a court or magistrate. This is understandable, as during the time the Philippines was under American rule, there was necessarily an adherence to authoritative doctrines of constitutional law there followed. One such principle is the requirement that there be a finding of jurisdictional defect. As summarized by Justice Bradley in Ex parte Siebold, an 1880 decision: "The only ground on which this court, or any court, without some special statute authorizing it, will give relief on habeas corpus to a prisoner under conviction and sentence of another court is the want of jurisdiction in such court over the person or the cause, or some other matter rendering its proceedings void." 33 There is the fundamental exception though, that must ever be kept in mind. Once a deprivation of a constitutional right is shown to exist, the court that rendered the judgment is deemed ousted of jurisdiction and habeas corpus is the appropriate remedy to assail the legality of the detention. 34

3. Petitioners precisely assert a deprivation of a constitutional right, namely, the denial of equal protection. According to their petition: "In the case at bar, the petitioners were convicted by Courts of First Instance for the very same rebellion for which Hernandez, Geronimo, and others were convicted. The law under which they were convicted is the very same law under which the latter were convicted. It had not and has not been changed. For the same crime, committed under the same law, how can we, in conscience, allow petitioners to suffer life imprisonment, while others can suffer only prision mayor?" 35 They would thus stress that, contrary to the mandate of equal protection, people similarly situated were not similarly dealt with. What is required under this required constitutional guarantee is the uniform operation of legal norms so that all persons under similar circumstances would be accorded the same treatment both in the privileges conferred and the liabilities imposed. As was noted in a recent decision: "Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances, which if not identical are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest." 36 The argument of petitioners thus possesses a persuasive ring. The continued incarceration after the twelve-year period when such is the maximum length of imprisonment in accordance with our controlling doctrine, when others similarly convicted have been freed, is fraught with implications at war with equal protection. That is not to give it life. On the contrary, it would render it nugatory. Otherwise, what would happen is that for an identical offense, the only distinction lying in the finality of the conviction of one being before the Hernandez ruling and the other after, a person duly sentenced for the same crime would be made to suffer different penalties. Moreover, as noted in the petition before us, after our ruling in People v. Lava, petitioners who were mere followers would be made to languish in jail for perhaps the rest of their natural lives when the leaders had been duly considered as having paid their penalty to society, and freed. Such a deplorable result is to be avoided. 4. Petitioners likewise, as was made mention at the outset, would rely on Article 22 of the Revised Penal Code which requires that penal judgment be given a retroactive effect. In support of their contention, petitioners cite U.S. v. Macasaet, 37 U.S. vs.Parrone, 38 U.S. v. Almencion, 39 People v. Moran, 40 and People v. Parel. 41 While reference in the above provision is made not to judicial decisions but to legislative acts, petitioners entertain the view that it would be merely an exaltation of the literal to deny its application to a case like the present. Such a belief has a firmer foundation. As was previously noted, the Civil Code provides that judicial decisions applying or interpreting the Constitution, as well as legislation, form part of our legal system. Petitioners would even find support in the well-known dictum of Bishop Hoadley: "Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the law-giver to all intents and purposes, and not the person who first thought or spoke them." It is to be admitted that constitutional law scholars, notably Frankfurter, 42 Powell, 43 and Thayer, 44 in discussing judicial review as well as the jurist John Chipman Gray, were much impressed with the truth and the soundness of the above observations. We do not have to go that far though. Enough for present purposes that both

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the Civil Code and the Revised Penal Code allow, if they do not call for, a retroactive application. It being undeniable that if the Hernandez ruling were to be given a retroactive effect petitioners had served the full term for which they could have been legally committed, is habeas corpus the appropriate remedy? The answer cannot be in doubt. As far back as 1910 the prevailing doctrine was announced in Cruz v. Director of Prisons. 45Thus: "The courts uniformly hold that where a sentence imposes punishment in excess of the power of the court to impose, such sentence is void as to the excess, and some of the courts hold that the sentence is void in toto; but the weight of authority sustains the proposition that such a sentence is void only as to the excess imposed in case the parts are separable, the rule being that the petitioner is not entitled to his discharge on a writ of habeas corpus unless he has served out so much of the sentence as was valid." 46 There is a reiteration of such a principle in Director v. Director of Prisons 47 where it was explicitly announced by this Court "that the only means of giving retroactive effect to a penal provision favorable to the accused ... is the writ of habeas corpus." 48 While the above decision speaks of a trial judge losing jurisdiction over the case, insofar as the remedy of habeas corpus is concerned, the emphatic affirmation that it is the only means of benefiting the accused by the retroactive character of a favorable decision holds true. Petitioners clearly have thus successfully sustained the burden of justifying their release. WHEREFORE, the petition for habeas corpus is granted, and it is ordered that petitioners be forthwith set at liberty. Dizon and Zaldivar, JJ., concur. Concepcion, C.J., concurs in the result. Castro and Makasiar, JJ., took no part. G.R. Nos. L-50581-50617 January 30, 1982 RUFINO V. NUEZ petitioner, vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents. FERNANDO, C.J.: In categorical and explicit language, the Constitution provided for but did not create a special Court, the Sandiganbayan with "jurisdiction over criminal and civil cases involving graft and corrupt practices and such other offenses committed by public officers and employees, including those in government-owned or controlled corporations, in relation to their office as may be determined by law." 1 It came into existence with the issuance in 1978 of a Presidential Decree. 2 Even under the 1935 Constitution, to be precise, in 1955, an anti-graft statute was passed, 3 to be supplemented five years later by another act, 4 the validity of which was upheld in Morfe v. Mutuc, 5 a 1968 decision. As set forth in the opinion of the Court: "Nothing can be clearer therefore than that the AntiGraft Act of 1960 like the earlier statute was precisely aimed at curtailing and minimizing the opportunities for official corruption and maintaining a standard of honesty in the public service. It is intended to further promote morality in public administration. A public office must indeed be a public trust. Nobody can cavil at its objective; the goal to be pursued commands the assent of all. The conditions then

prevailing called for norms of such character. The times demanded such a remedial device." 6 It should occasion no surprise, therefore, why the 1971 Constitutional Convention, with full awareness of the continuity need to combat the evils of graft and corruption, included the above-cited provision. Petitioner in this certiorari and prohibition proceeding assails the validity of the Presidential Decree creating the Sandiganbayan, He was accused before such respondent Court of estafa through falsification of public and commercial documents committed in connivance with his other co-accused, all public officials, in several cases. 7 The informations were filed respectively on February 21 and March 26, 1979. Thereafter, on May 15 of that year, upon being arraigned, he filed a motion to quash on constitutional and jurisdictional grounds. 8 A week later. respondent Court denied such motion. 9There was a motion for reconsideration filed the next day; it met the same fate. 10 Hence this petition for certiorari and prohibition It is the claim of petitioner that Presidential Decree No. 1486, as amended, creating the respondent Court is violative of the due process, 11 equal protection, 12 and ex post facto 13 clauses of the Constitution. 14 The overriding concern, made manifest in the Constitution itself, to cope more effectively with dishonesty and abuse of trust in the public service whether committed by government officials or not, with the essential cooperation of the private citizens with whom they deal, cannot of itself justify any departure from or disregard of constitutional rights. That is beyond question. With due recognition, however, of the vigor and persistence of counsel of petitioner 15 in his pleadings butressed by scholarly and diligent research, the Court, equally aided in the study of the issues raised by the exhaustive memorandum of the Solicitor General, 16 is of the view that the invalidity of Presidential Decree No, 1486 as amended, creating respondent Court has not been demonstrated. The petition then cannot be granted. The unconstitutionality of such Decree cannot be adjudged. 1. It is to be made clear that the power of the then President and Prime Minister Ferdinand E. Marcos to create the Sandiganbayan in 1978 is not challenged in this proceeding. While such competence under the 1973 Constitution contemplated that such an act should come from the National Assembly, the 1976 Amendments made clear that he as incumbent President "shall continue to exercise legislative powers until martial law shall have been lifted. " 17 Thus, there is an affirmation of the ruling of this Court in Aquino Jr. v. Commission on Elections 18 decided in 1975. In the language of the ponente, Justice Makasiar, it dissipated "all doubts as to the legality of such law-making authority by the President during the period of Martial Law, ... . 19 As the opinion went on to state: "It is not a grant of authority to legislate, but a recognition of such power as already existing in favor of the incumbent President during the period of Martial Law. " 20 2. Petitioner in his memorandum invokes the guarantee of equal protection in seeking to nullify Presidential Decree No. 1486. What does it signify? To quote from J. M. Tuason & Co. v. Land Tenure Administration: 21 "The Ideal situation is for the law's benefits to be available to all, that none be placed outside the sphere of its coverage. Only thus could chance and favor be excluded and the affairs of men governed by that serene and impartial uniformity which is of the very essence of the Idea of law." 22 There is recognition, however, in the opinion that what in fact exists "cannot approximate the Ideal. Nor is the law susceptible to the reproach

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that it does not take into account the realities of the situation. The constitutional guarantee then is not to be given a meaning that disregards what is, what does in fact exist .To assure that the general welfare be promoted, which is the end of law, a regulatory measure may cut into the rights to liberty and property. Those adversely affected may under such circumstances invoke the equal protection clause only if they can show that the governmental act assailed, far from being inspired by the attainment of the common weal was prompted by the spirit of hostility, or at the very least, discrimination that finds no support in reason. "23 Classification is thus not ruled out, it being sufficient to quote from the Tuason decision anew "that the laws operate equally and uniformly on all persons under similar circumstances or that all persons must be treated in the same manner, the conditions not being different, both in the privileges conferred and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances which, if not Identical, are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest." 24 3. The premise underlying petitioner's contention on this point is set forth in his memorandum thus: " 1. The Sandiganbayan proceedings violates petitioner's right to equal protection, because - appeal as a matter of right became minimized into a mere matter of discretion; appeal likewise was shrunk and limited only to questions of law, excluding a review of the facts and trial evidence; and - there is only one chance to appeal conviction, by certiorari to the Supreme Court, instead of the traditional two chances; while all other estafa indictees are entitled to appeal as a matter of right covering both law and facts and to two appellate courts, i.e., first to the Court of Appeals and thereafter to the Supreme Court." 25 ,that is hardly convincing, considering that the classification satisfies the test announced by this Court through Justice Laurel in People v. Vera 26 requiring that it "must be based on substantial distinctions which make real differences; it must be germane to the purposes of the law; it must not be limited to existing conditions only, and must apply equally to each member of the class. 27 To repeat, the Constitution specifically makes mention of the creation of a special court, the Sandiganbayan 4 precisely in response to a problem, the urgency of which cannot be denied, namely, dishonesty in the public service. It follows that those who may thereafter be tried by such court ought to have been aware as far back as January 17, 1973, when the present Constitution came into force, that a different procedure for the accused therein, whether a private citizen as petitioner is or a public official, is not necessarily offensive to the equal protection clause of the Constitution. Petitioner, moreover, cannot be unaware of the ruling of this Court in Co Chiong v. Cuaderno 28 a 1949 decision, that the general guarantees of the Bill of Rights, included among which are the due process of law and equal protection clauses must "give way to [a] specific provision, " in that decision, one reserving to "Filipino citizens of the operation of public services or utilities." 29 The scope of such a principle is not to be constricted. It is certainly broad enough to cover the instant situation. 4. The contention that the challenged Presidential Decree is contrary to the ex post facto provision of the Constitution is similarly premised on the allegation that "petitioner's right of appeal is being diluted or eroded efficacy wise ... ." 30 A more searching scrutiny of its rationale would demonstrate the lack of permisiveness of such an argument. The Kay Villegas Kami 31 decision promulgated in 1970, cited by petitioner, supplies the most recent and

binding pronouncement on the matter. To quote from the ponencia of Justice Makasiar: "An ex post facto law is one which: (1) makes criminal an act done before the passage of the law and which was innocent when done, and punishes such an act; (2) aggravates a crime, or makes it greater than it was, when committed; (3) changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed; (4) alters the legal rules of evidences, and authorizes conviction upon less or different testimony . than the law required at the time of the commission to regulate civil rights and remedies only, in effect imposes penalty or deprivation of a right for something which when done was lawful, and (6) deprives a person accused of a crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty." 32 Even the most careful scrutiny of the above definition fails to sustain the claim of petitioner. The "lawful protection" to which an accused "has become entitled" is qualified, not given a broad scope. It hardly can be argued that the mode of procedure provided for in the statutory right to appeal is therein embraced. This is hardly a controversial matter. This Court has spoken in no uncertain terms. In People v. Vilo 33 a 1949 decision, speaking through the then Justice, later Chief Justice Paras, it made clear that seven of the nine Justices then composing this Court, excepting only the ponente himself and the late Justice Perfecto, were of the opinion that Section 9 of the Judiciary Act of 1948, doing away with the requirement of unanimity under Article 47 of the Revised Penal Code with eight votes sufficing for the imposition of the death sentence, does not suffer from any constitutional infirmity. For them its applicability to crimes committed before its enactment would not make the law ex post facto. 5. It may not be amiss to pursue the subject further. The first authoritative exposition of what is prohibited by the ex post facto clause is found in Mekin v. Wolfe, 34 decided in 1903. Thus: "An ex post facto law has been defined as one - (a) Which makes an action done before the passing of the law and which was innocent when done criminal, and punishes such action; or (b) Which aggravates a crime or makes it greater than it was when committed; or (c) Which changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was committed; or (d) Which alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the defendant. " 35 There is relevance to the next paragraph of the opinion of Justice Cooper: "The case clearly does not come within this definition, nor can it be seen in what way the act in question alters the situation of petitioner to his disadvantage. It gives him, as well as the Government, the benefit of the appeal, and is intended First Instance may commit error in his favor and wrongfully discharge him appears to be the only foundation for the claim. A person can have no vested right in such a possibility. 36 6. Mekin v. Wolfe is traceable to Calder v. Bull, 37 a 1798 decision of the United States Supreme Court. Even the very language as to what falls with the category of this provision is well-nigh Identical. Thus: "I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. Ist. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission

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of the offense, in order to convict the offender. All these, and similar laws, are manifestly unjust and oppressive." 38 The opinion of Justice Chase who spoke for the United States Supreme Court went on to state: "The expressions 'ex post facto laws,' are technical, they had been in use long before the Revolution, and had acquired an appropriate meaning, by legislators, lawyers, and authors. The celebrated and judicious Sir William Blackstone in his commentaries, considers an ex post facto law precisely in the same light I have done. His opinion is confirmed by his successor, Mr. Wooddeson and by the author of the Federalist, who I esteem superior to both, for his extensive and accurate knowledge of the true principle of government. " 39 7. Petitioner relies on Thompson v. Utaha. 40 As it was decided by the American Supreme Court in April of 1898 - the very same year when the Treaty of Paris, by virtue of which, American sovereignty over the Philippines was acquired - it is understandable why he did so. Certainly, the exhaustive opinion of the first Justice Harlan, as was mentioned by an author, has a cutting edge, but it cuts both ways. It also renders clear why the obstacles to declaring unconstitutional the challenged Presidential Decree are well-nigh insuperable. After a review of the previous pronouncements of the American Supreme Court on this subject, Justice Harlan made this realistic appraisal: "The difficulty is not so much as to the soundness of the general rule that an accused has no vested right in particular modes of procedure as in determining whether particular statutes by their operation take from an accused any right that was regarded, at the time of the adoption of the constitution, as vital for the protection of life and liberty, and which he enjoyed at the time of the commission of the offense charged against him."41 An 1894 decision of the American Supreme Court, Duncan v. Missouri 42 was also cited by petitioner, The opinion of the then Chief Justice Fuller, speaking for the Court, is to the same effect. It was categorically stated that "the prescribing of different modes of procedure and the abolition of courts and the creation of new ones, leaving untouched all the substantial protections with which the existing laws surrounds the person accused of crime, are not considered within the constitutional inhibition." 43 8. Even from the standpoint then of the American decisions relied upon, it cannot be successfully argued that there is a dilution of the right to appeal. Admittedly under Presidential Decree No. 1486, there is no recourse to the Court of Appeals, the review coming from this Court. The test as to whether the ex post facto clause is disregarded, in the language of Justice Harlan in the just-citedThompson v. Utah decision taking "from an accused any right that was regarded, at the time of the adoption of the constitution as vital for the protection of life and liberty, and which he enjoyed at the time of the commission of the offense charged against him." The crucial words are "vital for the protection of life and liberty" of a defendant in a criminal case. Would the omission of the Court of Appeals as an intermediate tribunal deprive petitioner of a right vital to the protection of his liberty? The answer must be in the negative. In the first place, his innocence or guilt is passed upon by the three-judge court of a division of respondent Court. Moreover, a unanimous vote is required, failing which "the Presiding Justice shall designate two other justices from among the members of the Court to sit temporarily with them, forming a division of five justices, and the concurrence of a majority of such division shall be necessary for rendering judgment. " 44 Then if convicted, this Court has the duty if he seeks a review to see whether any error of law was committed to justify a reversal of the judgment. Petitioner makes much, perhaps excessively so as is the wont of

advocates, of the fact that there is no review of the facts. What Cannot be too sufficiently stressed is that this Court in determining whether or not to give due course to the petition for review must be convinced that the constitutional presumption of innocence 45 has been overcome. In that sense, it cannot be said that on the appellate level there is no way of scrutinizing whether the quantum of evidence required for a finding of guilt has been satisfied. The standard as to when there is proof of such weight to justify a conviction is set forth in People v. Dramayo. 46 Thus: "Accusation is not, according to the fundamental law, as synonymous with guilt. It is incumbent on the prosecution to demonstrate that culpability lies. Appellants were not even called upon then to offer evidence on their behalf. Their freedom is forfeit only if the requisite quantum of proof necessary for conviction be in existence. Their guilt must be shown beyond reasonable doubt. To such a standard, this Court has always been committed. There is need, therefore, for the most careful scrutiny of the testimony of the state, both oral and documentary, independently of whatever defense, is offered by the accused. Only if the judge below and thereafter the appellate tribunal could arrive at a conclusion that the crime had been committed precisely by the person on trial under such an exacting test should the sentence be one of conviction. It is thus required that every circumstance favoring his innocence be duly taken into account. The proof against him must survive the test of reason; the strongest suspicion must not be permitted to sway judgment. The conscience must be satisfied that on the defendant could be laid the responsibility for the offense charged: that not only did he perpetrate the act but that it amounted to a crime. What is required then is moral certainty." 47 This Court has repeatedly reversed convictions on a showing that this fundamental and basic right to De presumed innocent has been disregarded. 48 It does seem farfetched and highly unrealistic to conclude that the omission of the Court of Appeals as a reviewing authority results in the loss "vital protection" of liberty. 9. The argument based on denial of due process has much less to recommend it. In the exhaustive forty-two page memorandum of petitioner, only four and a half pages were devoted to its discussion. There is the allegation of lack of fairness. Much is made of what is characterized as "the tenor and thrust" of the leading American Supreme Court decision, Snyder v. Massachusetts. 49 Again this citation cuts both ways. With his usual felicitous choice of words, Justice Cardozo, who penned the opinion, emphasized: "The law, as we have seen, is sedulous in maintaining for a defendant charged with crime whatever forms of procedure are of the essence of an opportunity to defend. Privileges so fundamental as to be inherent in every concept of a fair trial that could be acceptable to the thought of reasonable men will be kept inviolate and inviolable, however crushing may be the pressure of incriminating proof. But justice, though due to the accused, is due to the accuser also, The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true." 50 What is required for compliance with the due process mandate in criminal proceedings? In Arnault v. Pecson, 51 this Court with Justice Tuason as ponente, succinctly Identified it with "a fair and impartial trial and reasonable opportunity for the preparation of defense." 52 In criminal proceedings then, due process is satisfied if the accused is "informed as to why he is proceeded against and what charge he has to meet, with his conviction being made to rest on evidence that is not tainted with falsity after full opportunity for him to rebut it and the sentence being imposed in accordance with a valid law. It is assumed, of course, that the court that rendered the decision is one of competent jurisdiction." 53 The above formulation is a

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reiteration of what was decided by the American Supreme Court in a case of Philippine origin, Ong Chang Wing v. United States 54 decided during the period of American rule, 1910 to be precise. Thus: "This court has had frequent occasion to consider the requirements of due process of law as applied to criminal procedure, and, generally speaking, it may be said that if an accused has been heard in a court of competent jurisdiction, and proceeded against under the orderly processes of law, and only punished after inquiry and investigation, upon notice to him, with an opportunity to be heard, and a judgment awarded within the authority of a constitutional law, then he has had due process of law." 55 10. This Court holds that petitioner has been unable to make a case calling for a declaration of unconstitutionality of Presidential Decree No. 1486 as amended by Presidential Decree No. 1606. The decision does not go as far as passing on any question not affecting the right of petitioner to a trial with all the safeguards of the Constitution. It is true that other Sections of the Decree could have been worded to avoid any constitutional objection. As of now, however, no ruling is called for. The view is given expression in the concurring and dissenting opinion of Justice Makasiar that in such a case to save the Decree from the dire fate of invalidity, they must be construed in such a way as preclude any possible erosion on the powers vested in this Court by the Constitution. That is a proposition too plain to be contested. It commends itself for approval. Nor should there be any doubt either that a review by certiorari of a decision of conviction by the Sandiganbayan calls for strict observance of the constitutional presumption of innocence. WHEREFORE, the petition is dismissed. No costs. Aquino, Guerrero, Abad Santos, Melencio-Herrera, Plana and Escolin, JJ., concur. Concepcion, Jr. and Ericta, JJ., took no part. Fernandez, J., concurs and dissent G.R. No. L-52245 January 22, 1980 PATRICIO DUMLAO, ROMEO B. IGOT, and ALFREDO SALAPANTAN, JR., petitioners, vs. COMMISSION ON ELECTIONS, respondent. Raul M. Gonzales for petitioners Office of the Solicitor General for respondent. MELENCIO-HERRERA, J: This is a Petition for Prohibition with Preliminary Injunction and/or Restraining Order filed by petitioners, in their own behalf and all others allegedly similarly situated, seeking to enjoin respondent Commission on Elections (COMELEC) from implementing certain provisions of Batas Pambansa Big. 51, 52, and 53 for being unconstitutional. The Petition alleges that petitioner, Patricio Dumlao, is a former Governor of Nueva Vizcaya, who has filed his certificate of candidacy for said position of Governor in the forthcoming elections of January 30, 1980. Petitioner, Romeo B. Igot, is a taxpayer, a qualified voter and a member of the Bar who, as such, has taken his oath to support the Constitution and obey the laws of the land. Petitioner, Alfredo Salapantan, Jr., is also a taxpayer, a qualified voter, and a resident of San Miguel, Iloilo.

Petitioner Dumlao specifically questions the constitutionality of section 4 of Batas Pambansa Blg. 52 as discriminatory and contrary to the equal protection and due process guarantees of the Constitution. Said Section 4 provides: Sec. 4. Special Disqualification in addition to violation of section 10 of Art. XI I-C of the Constitution and disqualification mentioned in existing laws, which are hereby declared as disqualification for any of the elective officials enumerated in section 1 hereof. Any retired elective provincial city or municipal official who has received payment of the retirement benefits to which he is entitled under the law, and who shall have been 6,5 years of age at the commencement of the term of office to which he seeks to be elected shall not be qualified to run for the same elective local office from which he has retired (Emphasis supplied) Petitioner Dumlao alleges that the aforecited provision is directed insidiously against him, and that the classification provided therein is based on "purely arbitrary grounds and, therefore, class legislation." For their part, petitioners igot and Salapantan, Jr. assail the validity of the following statutory provisions: Sec 7. Terms of Office Unless sooner removed for cause, all local elective officials hereinabove mentioned shall hold office for a term of six (6) years, which shall commence on the first Monday of March 1980. .... (Batas Pambansa Blg. 51) Sec. 4. Sec. 4. ... Any person who has committed any act of disloyalty to the State, including acts amounting to subversion, insurrection, rebellion or other similar crimes, shall not be qualified to be a candidate for any of the offices covered by this Act, or to participate in any partisan political activity therein: provided that a judgment of conviction for any of the aforementioned crimes shall be conclusive evidence of such fact and the filing of charges for the commission of such crimes before a civil court or military tribunal after preliminary investigation shall be prima fascie evidence of such fact. ... (Batas Pambansa Big. 52) (Paragraphing and Emphasis supplied). Section 1. Election of certain Local Officials ... The election shall be held on January 30, 1980. (Batas Pambansa, Blg. 52) Section 6. Election and Campaign Period The election period shall be fixed by the Commission on Elections in accordance with Section 6, Art. XII-C of the Constitution. The period of campaign shall commence on December 29, 1979 and terminate on January 28, 1980. (ibid.) In addition to the above-cited provisions, petitioners Igot and Salapantan, Jr. also question the accreditation of some political parties by respondent COMELEC, as authorized by Batas Pambansa Blg. 53, on the ground that it is contrary to section 9(1)Art. XIIC of the Constitution, which provides that a "bona fide candidate for any public office shall be it. from any form of harassment and discrimination. "The question of accreditation will not be taken up in this case but in that of Bacalso, et als. vs. COMELEC et als. No. L-52232) where the issue has been squarely raised,

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Petitioners then pray that the statutory provisions they have challenged be declared null and void for being violative of the Constitution. I . The procedural Aspect At the outset, it should be stated that this Petition suffers from basic procedural infirmities, hence, traditionally unacceptable for judicial resolution. For one, there is a misjoinder of parties and actions. Petitioner Dumlao's interest is alien to that of petitioners Igot and Salapantan Petitioner Dumlao does not join petitioners Igot and Salapantan in the burden of their complaint, nor do the latter join Dumlao in his. The respectively contest completely different statutory provisions. Petitioner Dumlao has joined this suit in his individual capacity as a candidate. The action of petitioners Igot and Salapantan is more in the nature of a taxpayer's suit. Although petitioners plead nine constraints as the reason of their joint Petition, it would have required only a modicum more of effort tor petitioner Dumlao, on one hand said petitioners lgot and Salapantan, on the other, to have filed separate suits, in the interest of orderly procedure. For another, there are standards that have to be followed inthe exercise of the function of judicial review, namely (1) the existence of an appropriate case:, (2) an interest personal and substantial by the party raising the constitutional question: (3) the plea that the function be exercised at the earliest opportunity and (4) the necessity that the constiutional question be passed upon in order to decide the case (People vs. Vera 65 Phil. 56 [1937]). It may be conceded that the third requisite has been complied with, which is, that the parties have raised the issue of constitutionality early enough in their pleadings. This Petition, however, has fallen far short of the other three criteria. A. Actual case and controversy. It is basic that the power of judicial review is limited to the determination of actual cases and controversies. Petitioner Dumlao assails the constitutionality of the first paragraph of section 4 of Batas Pambansa Blg. 52, quoted earlier, as being contrary to the equal protection clause guaranteed by the Constitution, and seeks to prohibit respondent COMELEC from implementing said provision. Yet, Dumlao has not been adversely affected by the application of that provision. No petition seeking Dumlao's disqualification has been filed before the COMELEC. There is no ruling of that constitutional body on the matter, which this Court is being asked to review on Certiorari. His is a question posed in the abstract, a hypothetical issue, and in effect, a petition for an advisory opinion from this Court to be rendered without the benefit of a detailed factual record Petitioner Dumlao's case is clearly within the primary jurisdiction (see concurring Opinion of now Chief Justice Fernando in Peralta vs. Comelec, 82 SCRA 30, 96 [1978]) of respondent COMELEC as provided for in section 2, Art. XII-C, for the Constitution the pertinent portion of which reads: "Section 2. The Commission on Elections shall have the following power and functions: 1) xxx 2) Be the sole judge of all contests relating to the elections, returns and qualifications of all members of the National Assembly and elective provincial and city officials. (Emphasis supplied) The aforequoted provision must also be related to section 11 of Art. XII-C, which provides:

Section 11. Any decision, order, or ruling of the Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from his receipt of a copy thereof. B. Proper party. The long-standing rule has been that "the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement" (People vs. Vera, supra). In the case of petitioners Igot and Salapantan, it was only during the hearing, not in their Petition, that Igot is said to be a candidate for Councilor. Even then, it cannot be denied that neither one has been convicted nor charged with acts of disloyalty to the State, nor disqualified from being candidates for local elective positions. Neither one of them has been calle ed to have been adversely affected by the operation of the statutory provisions they assail as unconstitutional Theirs is a generated grievance. They have no personal nor substantial interest at stake. In the absence of any litigate interest, they can claim no locus standi in seeking judicial redress. It is true that petitioners Igot and Salapantan have instituted this case as a taxpayer's suit, and that the rule enunciated in People vs. Vera, above stated, has been relaxed in Pascual vs. The Secretary of Public Works (110 Phil. 331 [1960], thus: ... it is well settled that the validity of a statute may be contested only by one who will sustain a direct injury in consequence of its enforcement. Yet, there are many decisions nullifying at the instance of taxpayers, laws providing for the disbursement of public funds, upon the theory that "the expenditure of public funds, by an officer of the State for the purpose of administering an unconstitutional act constitutes a misapplication of such funds," which may be enjoined at the request of a taxpayer. In the same vein, it has been held: In the determination of the degree of interest essential to give the requisite standing to attack the constitutionality of a statute, the general rule is that not only persons individually affected, but also taxpayers have sufficient interest in preventing the illegal expenditure of moneys raised by taxation and they may, therefore, question the constitutionality of statutes requiring expenditure of public moneys. (Philippine Constitution Association, Inc., et als., vs. Gimenez, et als., 15 SCRA 479 [1965]). However, the statutory provisions questioned in this case, namely, sec. 7, BP Blg. 51, and sections 4, 1, and 6 BP Blg. 52, do not directly involve the disbursement of public funds. While, concededly, the elections to be held involve the expenditure of public moneys, nowhere in their Petition do said petitioners allege that their tax money is "being extracted and spent in violation of specific constitutional protections against abuses of legislative power" (Flast v. Cohen, 392 U.S., 83 [1960]), or that there is a misapplication of such funds by respondent COMELEC (see Pascual vs. Secretary of Public Works, 110 Phil. 331 [1960]), or that public money is being deflected to any improper purpose. Neither do petitioners seek to restrain respondent from wasting public funds through the enforcement of an invalid or unconstitutional law. (Philippine Constitution Association vs. Mathay, 18 SCRA 300 [1966]), citing Philippine Constitution Association vs. Gimenez, 15 SCRA 479 [1965]). Besides, the institution of a taxpayer's suit, per se is no assurance of judicial review. As held by this Court in Tan vs. Macapagal (43 SCRA 677 [1972]), speaking through our present Chief Justice, this Court is vested with discretion as to whether or not a taxpayer's suit should be entertained.

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C. Unavoidability of constitutional question. Again upon the authority of People vs. Vera, "it is a wellsettled rule that the constitutionality of an act of the legislature will not be determined by the courts unless that question is properly raised and presented in appropriate cases and is necessary to a determination of the case; i.e., the issue of constitutionality must be the very lis mota presented." We have already stated that, by the standards set forth in People vs. Vera, the present is not an "appropriate case" for either petitioner Dumlao or for petitioners Igot and Salapantan. They are actually without cause of action. It follows that the necessity for resolving the issue of constitutionality is absent, and procedural regularity would require that this suit be dismissed. II. The substantive viewpoint. We have resolved, however, to rule squarely on two of the challenged provisions, the Courts not being entirely without discretion in the matter. Thus, adherence to the strict procedural standard was relaxed in Tinio vs. Mina(26 SCRA 512 [1968]); Edu vs. Ericta (35 SCRA 481 [1970]); and in Gonzalez vs. Comelec (27 SCRA 835 [1969]), the Opinion in the Tinio and Gonzalez cases having been penned by our present Chief Justice. The reasons which have impelled us are the paramount public interest involved and the proximity of the elections which will be held only a few days hence. Petitioner Dumlao's contention that section 4 of BP Blg. 52 is discriminatory against him personally is belied by the fact that several petitions for the disqualification of other candidates for local positions based on the challenged provision have already been filed with the COMELEC (as listed in p. 15, respondent's Comment). This tellingly overthrows Dumlao's contention of intentional or purposeful discrimination. The assertion that Section 4 of BP Blg. 52 is contrary to the safer guard of equal protection is neither well taken. The constitutional guarantee of equal protection of the laws is subject to rational classification. If the groupings are based on reasonable and real differentiations, one class can be treated and regulated differently from another class. For purposes of public service, employees 65 years of age, have been validly classified differently from younger employees. Employees attaining that age are subject to compulsory retirement, while those of younger ages are not so compulsorily retirable. In respect of election to provincial, city, or municipal positions, to require that candidates should not be more than 65 years of age at the time they assume office, if applicable to everyone, might or might not be a reasonable classification although, as the Solicitor General has intimated, a good policy of the law would be to promote the emergence of younger blood in our political elective echelons. On the other hand, it might be that persons more than 65 years old may also be good elective local officials. Coming now to the case of retirees. Retirement from government service may or may not be a reasonable disqualification for elective local officials. For one thing, there can also be retirees from government service at ages, say below 65. It may neither be reasonable to disqualify retirees, aged 65, for a 65 year old retiree could be a good local official just like one, aged 65, who is not a retiree. But, in the case of a 65-year old elective local official, who has retired from a provincial, city or municipal office, there is reason to disqualify him from running for the same office from which he had retired, as provided for in the challenged provision. The need for new blood assumes relevance. The tiredness of the retiree for government work is present, and what is

emphatically significant is that the retired employee has already declared himself tired and unavailable for the same government work, but, which, by virtue of a change of mind, he would like to assume again. It is for this very reason that inequality will neither result from the application of the challenged provision. Just as that provision does not deny equal protection neither does it permit of such denial (see People vs. Vera, 65 Phil. 56 [1933]). Persons similarly situated are sinlilarly treated. In fine, it bears reiteration that the equal protection clause does not forbid all legal classification. What is proscribes is a classification which is arbitrary and unreasonable. That constitutional guarantee is not violated by a reasonable classification based upon substantial distinctions, where the classification is germane to the purpose of the law and applies to all Chose belonging to the same class (Peralta vs. Comelec, 82 SCRA 30 [1978] citing Felwa vs. Salas, 18 SCRA 606 [1966]; Rafael v. Embroidery and Apparel Control and Inspection Board, 21 SCRA 336 [1967]; Inchong etc., et al. vs. Hernandez 101 Phil. 1155 [1957]). The purpose of the law is to allow the emergence of younger blood in local governments. The classification in question being pursuant to that purpose, it cannot be considered invalid "even it at times, it may be susceptible to the objection that it is marred by theoretical inconsistencies" (Chief Justice Fernando, The Constitution of the Philippines, 1977 ed., p. 547). There is an additional consideration. Absent herein is a showing of the clear invalidity of the questioned provision. Well accepted is the rule that to justify the nullification of a law, there must be a clear and unequivocal breach of the Constitution, not a doubtful and equivocal breach. Courts are practically unanimous in the pronouncement that laws shall not be declared invalid unless the conflict with the Constitution is clear beyond reasonable doubt (Peralta vs. COMELEC, 82 SCRA 55 [1978], citing Cooper vs. Telfair 4 Dall 14; Dodd, Cases on Constitutional Law, 3rd ed. 1942, 56). Lastly, it is within the compentence of the legislature to prescribe qualifications for one who desires to become a candidate for office provided they are reasonable, as in this case. In so far as the petition of Igot and Salapantan are concerned, the second paragraph of section 4 of Batas Pambansa Blg. 52, quoted in full earlier, and which they challenge, may be divided in two parts. The first provides: a. judgment of conviction jor any of the aforementioned crimes shall be conclusive evidence of such fact ... The supremacy of the Constitution stands out as the cardinal principle. We are aware of the presumption of validity that attaches to a challenged statute, of the well-settled principle that "all reasonable doubts should be resolved in favor of constitutionality," and that Courts will not set aside a statute as constitutionally defective "except in a clear case." (People vs. Vera, supra). We are constrained to hold that this is one such clear case. Explicit is the constitutional provision that, in all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel (Article IV, section 19, 1973 Constitution). An accusation, according to the fundamental law, is not synonymous with guilt. The challenged proviso contravenes the constitutional presumption of innocence, as a candidate is disqualified from running for public office on the ground alone that charges have been filed against him before a civil or military tribunal. It condemns before one is fully heard. In ultimate effect, except as to the degree of proof, no distinction is made between a person convicted of acts of dislotalty and one against

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whom charges have been filed for such acts, as both of them would be ineligible to run for public office. A person disqualified to run for public office on the ground that charges have been filed against him is virtually placed in the same category as a person already convicted of a crime with the penalty of arresto, which carries with it the accessory penalty of suspension of the right to hold office during the term of the sentence (Art. 44, Revised Penal Code). And although the filing of charges is considered as but prima facie evidence, and therefore, may be rebutted, yet. there is "clear and present danger" that because of the proximity of the elections, time constraints will prevent one charged with acts of disloyalty from offering contrary proof to overcome the prima facie evidence against him. Additionally, it is best that evidence pro and con of acts of disloyalty be aired before the Courts rather than before an administrative body such as the COMELEC. A highly possible conflict of findings between two government bodies, to the extreme detriment of a person charged, will thereby be avoided. Furthermore, a legislative/administrative determination of guilt should not be allowed to be substituted for a judicial determination. Being infected with constitutional infirmity, a partial declaration of nullity of only that objectionable portion is mandated. It is separable from the first portion of the second paragraph of section 4 of Batas Pambansa Big. 52 which can stand by itself. WHEREFORE, 1) the first paragraph of section 4 of Batas pambansa Bilang 52 is hereby declared valid. Said paragraph reads: SEC. 4. Special disqualification. In addition to violation of Section 10 of Article XII(C) of the Constitution and disqualifications mentioned in existing laws which are hereby declared as disqualification for any of the elective officials enumerated in Section 1 hereof, any retired elective provincial, city or municipal official, who has received payment of the retirement benefits to which he is entitled under the law and who shall have been 65 years of age at the commencement of the term of office to which he seeks to be elected, shall not be qualified to run for the same elective local office from which he has retired. 2) That portion of the second paragraph of section 4 of Batas Pambansa Bilang 52 providing that "... the filing of charges for the commission of such crimes before a civil court or military tribunal after preliminary investigation shall be prima facie evidence of such fact", is hereby declared null and void, for being violative of the constitutional presumption of innocence guaranteed to an accused. SO ORDERED. Makasiar, Antonio, Concepcion, Jr., Fernandez and Guerrero, JJ., concur. Fernando, C.J., concurs and submits a brief separate opinion. De Castro, J., abstain as far as petitioner Dumlao is concerned. G.R. No. 81958 June 30, 1988 PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS, INC., petitioner, vs. HON. FRANKLIN M. DRILON as Secretary of Labor and Employment, and TOMAS D. ACHACOSO, as Administrator of the Philippine Overseas Employment Administration, respondents. Gutierrez & Alo Law Offices for petitioner.

SARMIENTO, J.: The petitioner, Philippine Association of Service Exporters, Inc. (PASEI, for short), a firm "engaged principally in the recruitment of Filipino workers, male and female, for overseas placement," 1 challenges the Constitutional validity of Department Order No. 1, Series of 1988, of the Department of Labor and Employment, in the character of "GUIDELINES GOVERNING THE TEMPORARY SUSPENSION OF DEPLOYMENT OF FILIPINO DOMESTIC AND HOUSEHOLD WORKERS," in this petition for certiorari and prohibition. Specifically, the measure is assailed for "discrimination against males or females;" 2 that it "does not apply to all Filipino workers but only to domestic helpers and females with similar skills;" 3 and that it is violative of the right to travel. It is held likewise to be an invalid exercise of the lawmaking power, police power being legislative, and not executive, in character. In its supplement to the petition, PASEI invokes Section 3, of Article XIII, of the Constitution, providing for worker participation "in policy and decision-making processes affecting their rights and benefits as may be provided by law." 4 Department Order No. 1, it is contended, was passed in the absence of prior consultations. It is claimed, finally, to be in violation of the Charter's non-impairment clause, in addition to the "great and irreparable injury" that PASEI members face should the Order be further enforced. On May 25, 1988, the Solicitor General, on behalf of the respondents Secretary of Labor and Administrator of the Philippine Overseas Employment Administration, filed a Comment informing the Court that on March 8, 1988, the respondent Labor Secretary lifted the deployment ban in the states of Iraq, Jordan, Qatar, Canada, Hongkong, United States, Italy, Norway, Austria, and Switzerland. * In submitting the validity of the challenged "guidelines," the Solicitor General invokes the police power of the Philippine State. It is admitted that Department Order No. 1 is in the nature of a police power measure. The only question is whether or not it is valid under the Constitution. The concept of police power is well-established in this jurisdiction. It has been defined as the "state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare." 5 As defined, it consists of (1) an imposition of restraint upon liberty or property, (2) in order to foster the common good. It is not capable of an exact definition but has been, purposely, veiled in general terms to underscore its all-comprehensive embrace. "Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future where it could be done, provides enough room for an efficient and flexible response to conditions and circumstances thus assuring the greatest benefits." 6 It finds no specific Constitutional grant for the plain reason that it does not owe its origin to the Charter. Along with the taxing power and eminent domain, it is inborn in the very fact of statehood and sovereignty. It is a fundamental attribute of government that has enabled it to perform the most vital functions of governance. Marshall, to whom the expression has been credited, 7 refers to it succinctly as the plenary power of the State "to govern its citizens."8 "The police power of the State ... is a power coextensive with self- protection, and it is not inaptly termed the "law of overwhelming 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." 9

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It constitutes an implied limitation on the Bill of Rights. According to Fernando, it is "rooted in the conception that men in organizing the state and imposing upon its government limitations to safeguard constitutional rights did not intend thereby to enable an individual citizen or a group of citizens to obstruct unreasonably the enactment of such salutary measures calculated to ensure communal peace, safety, good order, and welfare." 10 Significantly, the Bill of Rights itself does not purport to be an absolute guaranty of individual rights and liberties "Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's will." 11 It is subject to the far more overriding demands and requirements of the greater number. Notwithstanding its extensive sweep, police power is not without its own limitations. For all its awesome consequences, it may not be exercised arbitrarily or unreasonably. Otherwise, and in that event, it defeats the purpose for which it is exercised, that is, to advance the public good. Thus, when the power is used to further private interests at the expense of the citizenry, there is a clear misuse of the power. 12 In the light of the foregoing, the petition must be dismissed. As a general rule, official acts enjoy a presumed vahdity. 13 In the absence of clear and convincing evidence to the contrary, the presumption logically stands. The petitioner has shown no satisfactory reason why the contested measure should be nullified. There is no question that Department Order No. 1 applies only to "female contract workers," 14 but it does not thereby make an undue discrimination between the sexes. It is well-settled that "equality before the law" under the Constitution 15does not import a perfect Identity of rights among all men and women. It admits of classifications, provided that (1) such classifications rest on substantial distinctions; (2) they are germane to the purposes of the law; (3) they are not confined to existing conditions; and (4) they apply equally to all members of the same class. 16 The Court is satisfied that the classification made-the preference for female workers rests on substantial distinctions. As a matter of judicial notice, the Court is well aware of the unhappy plight that has befallen our female labor force abroad, especially domestic servants, amid exploitative working conditions marked by, in not a few cases, physical and personal abuse. The sordid tales of maltreatment suffered by migrant Filipina workers, even rape and various forms of torture, confirmed by testimonies of returning workers, are compelling motives for urgent Government action. As precisely the caretaker of Constitutional rights, the Court is called upon to protect victims of exploitation. In fulfilling that duty, the Court sustains the Government's efforts. The same, however, cannot be said of our male workers. In the first place, there is no evidence that, except perhaps for isolated instances, our men abroad have been afflicted with an Identical predicament. The petitioner has proffered no argument that the Government should act similarly with respect to male workers. The Court, of course, is not impressing some male chauvinistic notion that men are superior to women. What the Court is saying is that it was largely a matter of evidence (that women domestic workers are being ill-treated abroad in massive instances) and not upon some fanciful or arbitrary yardstick that the Government acted in this case. It is evidence capable indeed of unquestionable demonstration and evidence this Court accepts. The Court cannot, however, say the same thing as far as men are concerned. There is simply no evidence to justify such an inference.

Suffice it to state, then, that insofar as classifications are concerned, this Court is content that distinctions are borne by the evidence. Discrimination in this case is justified. As we have furthermore indicated, executive determinations are generally final on the Court. Under a republican regime, it is the executive branch that enforces policy. For their part, the courts decide, in the proper cases, whether that policy, or the manner by which it is implemented, agrees with the Constitution or the laws, but it is not for them to question its wisdom. As a co-equal body, the judiciary has great respect for determinations of the Chief Executive or his subalterns, especially when the legislature itself has specifically given them enough room on how the law should be effectively enforced. In the case at bar, there is no gainsaying the fact, and the Court will deal with this at greater length shortly, that Department Order No. 1 implements the rule-making powers granted by the Labor Code. But what should be noted is the fact that in spite of such a fiction of finality, the Court is on its own persuaded that prevailing conditions indeed call for a deployment ban. There is likewise no doubt that such a classification is germane to the purpose behind the measure. Unquestionably, it is the avowed objective of Department Order No. 1 to "enhance the protection for Filipino female overseas workers" 17 this Court has no quarrel that in the midst of the terrible mistreatment Filipina workers have suffered abroad, a ban on deployment will be for their own good and welfare. The Order does not narrowly apply to existing conditions. Rather, it is intended to apply indefinitely so long as those conditions exist. This is clear from the Order itself ("Pending review of the administrative and legal measures, in the Philippines and in the host countries . . ." 18), meaning to say that should the authorities arrive at a means impressed with a greater degree of permanency, the ban shall be lifted. As a stop-gap measure, it is possessed of a necessary malleability, depending on the circumstances of each case. Accordingly, it provides: 9. LIFTING OF SUSPENSION. The Secretary of Labor and Employment (DOLE) may, upon recommendation of the Philippine Overseas Employment Administration (POEA), lift the suspension in countries where there are: 1. Bilateral agreements or understanding with the Philippines, and/or, 2. Existing mechanisms providing for sufficient safeguards to ensure the welfare and protection of Filipino workers. 19 The Court finds, finally, the impugned guidelines to be applicable to all female domestic overseas workers. That it does not apply to "all Filipina workers" 20 is not an argument for unconstitutionality. Had the ban been given universal applicability, then it would have been unreasonable and arbitrary. For obvious reasons, not all of them are similarly circumstanced. What the Constitution prohibits is the singling out of a select person or group of persons within an existing class, to the prejudice of such a person or group or resulting in an unfair advantage to another person or group of persons. To apply the ban, say exclusively to workers deployed by A, but not to those recruited by B, would obviously clash with the equal protection clause of the Charter. It would be a classic case of what Chase refers to as a law that "takes property from A and gives it to B." 21 It would be an unlawful invasion of property rights and freedom of contract and needless to state, an invalid act. 22 (Fernando says: "Where the classification is based on such distinctions that make a real difference as infancy, sex, and stage of civilization of minority groups, the better rule, it would seem, is to recognize

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its validity only if the young, the women, and the cultural minorities are singled out for favorable treatment. There would be an element of unreasonableness if on the contrary their status that calls for the law ministering to their needs is made the basis of discriminatory legislation against them. If such be the case, it would be difficult to refute the assertion of denial of equal protection." 23 In the case at bar, the assailed Order clearly accords protection to certain women workers, and not the contrary.) It is incorrect to say that Department Order No. 1 prescribes a total ban on overseas deployment. From scattered provisions of the Order, it is evident that such a total ban has hot been contemplated. We quote: 5. AUTHORIZED DEPLOYMENT-The deployment of domestic helpers and workers of similar skills defined herein to the following [sic] are authorized under these guidelines and are exempted from the suspension. 5.1 Hirings by immediate members of the family of Heads of State and Government; 5.2 Hirings by Minister, Deputy Minister and the other senior government officials; and 5.3 Hirings by senior officials of the diplomatic corps and duly accredited international organizations. 5.4 Hirings by employers in countries with whom the Philippines have [sic] bilateral labor agreements or understanding. xxx xxx xxx 7. VACATIONING DOMESTIC HELPERS AND WORKERS OF SIMILAR SKILLS-Vacationing domestic helpers and/or workers of similar skills shall be allowed to process with the POEA and leave for worksite only if they are returning to the same employer to finish an existing or partially served employment contract. Those workers returning to worksite to serve a new employer shall be covered by the suspension and the provision of these guidelines. xxx xxx xxx 9. LIFTING OF SUSPENSION-The Secretary of Labor and Employment (DOLE) may, upon recommendation of the Philippine Overseas Employment Administration (POEA), lift the suspension in countries where there are: 1. Bilateral agreements or understanding with the Philippines, and/or, 2. Existing mechanisms providing for sufficient safeguards to ensure the welfare and protection of Filipino workers. 24 xxx xxx xxx The consequence the deployment ban has on the right to travel does not impair the right. The right to travel is subject, among other things, to the requirements of "public safety," "as may be provided by law." 25 Department Order No. 1 is a valid implementation of the Labor Code, in particular, its basic policy to "afford protection to labor," 26 pursuant to the respondent Department of Labor's rule-making authority vested in it by the Labor Code.27 The petitioner assumes that it is unreasonable simply because of its impact on the right to travel, but as we have stated, the right itself is not absolute. The disputed Order is a valid qualification thereto. Neither is there merit in the contention that Department Order No. 1 constitutes an invalid exercise of legislative power. It is true that police power is the domain of the legislature, but it does not mean that such an authority may not be lawfully delegated. As we have mentioned, the Labor Code itself vests the Department of Labor and Employment with rulemaking powers in the enforcement whereof. 28

The petitioners's reliance on the Constitutional guaranty of worker participation "in policy and decision-making processes affecting their rights and benefits" 29 is not well-taken. The right granted by this provision, again, must submit to the demands and necessities of the State's power of regulation. The Constitution declares that: Sec. 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all. 30 "Protection to labor" does not signify the promotion of employment alone. What concerns the Constitution more paramountly is that such an employment be above all, decent, just, and humane. It is bad enough that the country has to send its sons and daughters to strange lands because it cannot satisfy their employment needs at home. Under these circumstances, the Government is duty-bound to insure that our toiling expatriates have adequate protection, personally and economically, while away from home. In this case, the Government has evidence, an evidence the petitioner cannot seriously dispute, of the lack or inadequacy of such protection, and as part of its duty, it has precisely ordered an indefinite ban on deployment. The Court finds furthermore that the Government has not indiscriminately made use of its authority. It is not contested that it has in fact removed the prohibition with respect to certain countries as manifested by the Solicitor General. The non-impairment clause of the Constitution, invoked by the petitioner, must yield to the loftier purposes targetted by the Government. 31 Freedom of contract and enterprise, like all other freedoms, is not free from restrictions, more so in this jurisdiction, where laissez faire has never been fully accepted as a controlling economic way of life. This Court understands the grave implications the questioned Order has on the business of recruitment. The concern of the Government, however, is not necessarily to maintain profits of business firms. In the ordinary sequence of events, it is profits that suffer as a result of Government regulation. The interest of the State is to provide a decent living to its citizens. The Government has convinced the Court in this case that this is its intent. We do not find the impugned Order to be tainted with a grave abuse of discretion to warrant the extraordinary relief prayed for. WHEREFORE, the petition is DISMISSED. No costs. SO ORDERED. Yap, C.J., Fernan, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Cortes and Grio-Aquino, JJ., concur. Gutierrez, Jr. and Medialdea, JJ., are on leave. G.R. No. 113811 October 7, 1994 ISHMAEL HIMAGAN, petitioner, vs. PEOPLE OF THE PHILIPPINES and HON. JUDGE HILARIO MAPAYO, RTC, Br. 11, Davao City, respondents. Victorio S. Advincula for petitioner. KAPUNAN, J.:

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Petitioner, a policeman assigned with the medical company of the Philippine National Police Regional Headquarters at Camp Catitigan, Davao City, was implicated in the killing of Benjamin Machitar, Jr. and the attempted murder of Bernabe Machitar. After the informations for murder 1 and attempted murder 2 were filed with the Regional Trial Court, Branch 11, Davao City, on September 16, 1992, the trial court issued an Order suspending petitioner until the termination of the case on the basis of Section 47, R.A. 6975, otherwise known as Department of Interior and Local Government Act of 1990, which provides: Sec. 47. Preventive Suspension Pending Criminal Case. Upon the filing of a complaint or information sufficient in form and substance against a member of the PNP for grave felonies where the penalty imposed by law is six (6) years and one (1) day or more, the court shall immediately suspend the accused from office until the case is terminated. Such case shall be subject to continuous trial and shall be terminated within ninety (90) days from arraignment of the accused (Emphasis ours). On October 11, 1993, petitioner filed a motion to lift the order for his suspension, 3 relying on Section 42 of P.D. 807 of the Civil Service Decree, that his suspension should be limited to ninety (90) days and, also, on our ruling in Deloso v. Sandiganbayan, 4 and Layno v. Sandiganbayan. 5 In his order dated December 14, 1993 6respondent judge denied the motion pointing out that under Section 47 of R.A. 6975, the accused shall be suspended from office until his case is terminated. The motion for reconsideration of the order of denial was, likewise, denied. 7 Hence, the petition for certiorari and mandamus to set aside the orders of respondent Judge and to command him to lift petitioner's preventive suspension. We find the petition devoid of merit. There is no question that the case of petitioner who is charged with murder and attempted murder under the Revised Penal Code falls squarely under Sec. 47 of RA 6975 which specifically applies to members of the PNP. In dispute however, is whether the provision limits the period of suspension to 90 days, considering that while the first sentence of Sec. 47 provides that the accused who is charged with grave felonies where the penalty imposed is six (6) years and one (1) day shall be suspended from office "until the case is terminated", the second sentence of the same section mandates that the case, which shall be subject to continuous trial, shall be terminated within 90 days from the arraignment of the accused. Petitioner posits that as a member of the Philippine National Police, under Sec. 91 of RA 6975 which reads: Sec. 91. The Civil Service Law and its implementing rules and regulations shall apply to all personnel of the Department. he is covered by the Civil Service Law, particularly Sec. 42 of PD 807 of the Civil Service Decree, which limits the maximum period of suspension to ninety (90) days, thus: Sec. 42. Lifting of Preventive Suspension Pending Administrative Investigation. When the administrative case against the officer or employee under preventive suspension is not finally decided by the disciplining authority within the period of ninety (90) days after the date of suspension of the respondent who is not a presidential appointee, the respondent shall be automatically reinstated in the service; Provided, That when the delay in the disposition of the case is due to the fault, negligence or petition of the respondent, the period of delay shall not be counted in computing the period of suspension herein provided.

He claims that an imposition of preventive suspension of over 90 days is contrary to the Civil Service Law and would be a violation of his constitutional right to equal protection of laws. He further asserts that the requirements in Sec. 47 of R.A. 6975 that "the court shall immediately suspend the accused from office until the case is terminated" and the succeeding sentence, "Such case shall be subject to continuous trial and shall be terminated within ninety (90) days from arraignment of the accused" are both substantive and should be taken together to mean that if the case is not terminated within 90 days, the period of preventive suspension must be lifted because of the command that the trial must be terminated within ninety (90) days from arraignment. We disagree. First. The language of the first sentence of Sec. 47 of R.A. 6975 is clear, plain and free from ambiguity. It gives no other meaning than that the suspension from office of the member of the PNP charged with grave offense where the penalty is six years and one day or more shall last until the termination of the case. The suspension cannot be lifted before the termination of the case. The second sentence of the same Section providing that the trial must be terminated within ninety (90) days from arraignment does not qualify or limit the first sentence. The two can stand independently of each other. The first refers to the period of suspension. The second deals with the time frame within which the trial should be finished. Suppose the trial is not terminated within ninety days from arraignment, should the suspension of accused be lifted? The answer is certainly no. While the law uses the mandatory word "shall" before the phrase "be terminated within ninety (90) days", there is nothing in R.A. 6975 that suggests that the preventive suspension of the accused will be lifted if the trial is not terminated within that period. Nonetheless, the Judge who fails to decide the case within the period without justifiable reason may be subject to administrative sanctions and, in appropriate cases where the facts so warrant, to criminal 8 or civil liability. 9 If the trial is unreasonably delayed without fault of the accused such that he is deprived of his right to a speedy trial, he is not without a remedy. He may ask for the dismissal of the case. Should the court refuse to dismiss the case, the accused can compel its dismissal bycertiorari, prohibition or mandamus, or secure his liberty by habeas corpus. 10 Second. Petitioner misapplies Sec. 42 of PD 807. A meticulous reading of the section clearly shows that it refers to the lifting of preventive suspension in pending administrative investigation, not in criminal cases, as here. What is more, Section 42 expressly limits the period of preventive suspension to ninety (90) days. Sec. 91 of R.A. 6975 which states that "The Civil Service Law and its implementing rules shall apply to all personnel of the Department" simply means that the provisions of the Civil Service Law and its implementing rules and regulations are applicable to members of the Philippine National Police insofar as the provisions, rules and regulations are not inconsistent with R.A. 6975. Certainly, Section 42 of the Civil Service Decree which limits the preventive suspension to ninety (90) days cannot apply to members of the PNP because Sec. 47 of R.A. 6995 provides differently, that is, the suspension where the penalty imposed by law exceeds six (6) years shall continue until the case is terminated. Third. Petitioner's reliance on Layno and Deloso is misplaced. These cases all stemmed from charges in violation of R.A. 3019 (1060), otherwise known as the Anti-Graft and Corrupt Practices Act which, unlike

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R.A. 6975, is silent on the duration of the preventive suspension. Sec. 13 of R.A. 3019 reads as follows: Suspension and loss of benefits. Any public officer against whom any criminal prosecution under a valid information under this Act or under the provisions of the Revised Penal Code on bribery is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him. In the case of Layno, the duly elected mayor of Lianga, Surigao del Sur, was preventively suspended after an information was filed against him for offenses under R.A. 3019 (1060), the Anti-Graft Corrupt Practices Act. He had been suspended for four (4) months at the time he filed a motion to lift his preventive suspension. We held that his indefinite preventive suspension violated the "equal protection clause" and shortened his term of office. Thus: 2. Petitioner is a duly elected municipal mayor of Lianga, Surigao del Sur. His term of office does not expire until 1986. Were it not for this information and the suspension decreed by the Sandiganbayan according to the Anti-Graft and Corrupt Practices Act, he would have been all this while in the full discharge of his functions as such municipal mayor. He was elected precisely to do so. As of October 26, 1983, he has been unable to. It is a basic assumption of the electoral process implicit in the right of suffrage that the people are entitled to the services of elective officials of their choice. For misfeasance or malfeasance, any of them could, of course, be proceeded against administratively or, as in this instance, criminally. In either case, his culpability must be established. Moreover, if there be a criminal action, he is entitled to the constitutional presumption of innocence. A preventive suspension may be justified. Its continuance, however, for an unreasonable length of time raises a due process question. For even if thereafter he were acquitted, in the meanwhile his right to hold office had been nullified. Clearly, there would be in such a case an injustice suffered by him. Nor is he the only victim. There is injustice inflicted likewise on the people of Lianga. They were deprived of the services of the man they had elected to serve as mayor. In that sense, to paraphrase Justice Cardozo, the protracted continuance of this preventive suspension had outrun the bounds of reason and resulted in sheer oppression. A denial of due process is thus quite manifest. It is to avoid such an unconstitutional application that the order of suspension should be lifted. 3. Nor is it solely the denial of procedural due process that is apparent. There is likewise an equal protection question. If the case against petitioner Layno were administrative in character the Local Government Code would be applicable. It is therein clearly provided that while preventive suspension is allowable for the causes therein enumerated, there is this emphatic limitation on the duration thereof: "In all cases, preventive suspension shall not extend beyond sixty days after the start of said suspension." It may be recalled that the principle against indefinite suspension applies equally to national government officials. So it was held in the leading case of Garcia v. Hon. Executive Secretary. According to the opinion of Justice Barrera: "To adopt the theory of respondents that an officer appointed by the President, facing administrative charges, can be preventively suspended indefinitely, would be to countenance a situation where the preventive suspension can, in effect, be the penalty itself without a finding of guilt after due hearing, contrary to the express mandate of the Constitution and the

Civil Service law." Further: "In the guise of a preventive suspension, his term of office could be shortened and he could in effect, be removed without a finding of a cause duly established after due hearing, in violation of the Constitution. Clearly then, the policy of the law mandated by the Constitution frowns at a suspension of indefinite duration. In this particular case, the mere fact that petitioner is facing a charge under the Anti-Graft and Corrupt Practices Act does not justify a different rule of law. To do so would be to negate the safeguard of the equal protection guarantee. 11 The case of Deloso, likewise, involved another elective official who was preventively suspended as provincial governor, also under RA 3019 the Anti-Graft Law. This Court, faced with similar factual circumstances as in Layno, applied the ruling in the latter case "in relation to the principles of due process and equal protection." It is readily apparent that Section 13 of R.A. 3019 upon which the preventive suspension of the accused in Laynoand Deloso was based is silent with respect to the duration of the preventive suspension, such that the suspension of the accused therein for a prolonged and unreasonable length of time raised a due process question. Not so in the instant case. Petitioner is charged with murder under the Revised Penal Code and it is undisputed that he falls squarely under Sec. 47 of R.A. 6975 which categorically states that his suspension shall last until the case is terminated. The succeeding sentence of the same section requires the case to be subjected to continuous trial which shall be terminated within ninety (90) days from arraignment of the accused. As previously emphasized, nowhere in the law does it say that after the lapse of the 90-day period for trial, the preventive suspension should be lifted. The law is clear, the ninety (90) days duration applies to the trial of the case not to the suspension. Nothing else should be read into the law. When the words and phrases of the statute are clear and unequivocal, their meaning determined from the language employed and the statute must be taken to mean exactly what it says. 12 Fourth. From the deliberations of the Bicameral Conference Committee on National Defense relative to the bill that became R.A. 6975, the meaning of Section 47 of R.A. 6975 insofar as the period of suspension is concerned becomes all the more clear. We quote: So other than that in that particular section, ano ba itong "Jurisdiction in Criminal Cases?" What is this all about? REP. ZAMORA. In case they are charged with crimes. THE CHAIRMAN (SEN. MACEDA). Ah, the previous one is administrative, no. Now, if it is charged with a crime, regular courts. SEN. GONZALES. Ano, the courts mismo ang magsasabing . . . THE CHAIRMAN (SEN. MACEDA). No, the jurisdiction. REP. ZAMORA. The jurisdiction if there is robbery. THE CHAIRMAN (SEN. MACEDA). Okay. "Preventive Suspension Pending Criminal Case. Upon the filing of a complaint or informations sufficient in form and substance against a member of the PNP for grave felonies where the penalty imposed by law is six years and one day or more, the court shall immediately suspend the accused from the office until the case is terminated." REP. ALBANO. Where are we now Mr. Chairman. THE CHAIRMAN (SEN. MACEDA). Grave felonies ito e. Six years and one day or more. SEN. SAGUISAG. Kung five years and litigation ng Supreme Court, ganoon ba and . . .?

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THE CHAIRMAN (SEN. MACEDA). Hindi, dahil iyong iba panay disciplinary iyon e. SEN. PIMENTEL. Anong page iyan, Rene? THE CHAIRMAN (SEN. MACEDA). Page 29 Preventive Suspension. REP. GUTANG. Ang complaint kasi ng mga tao, pagka may pulis na may criminal case at may baril pa rin at nag-uuniforme, hindi magandang tingnan e. So parang natatakot iyong mga witnesses. SEN. GONZALES. Anyway, kung ma-exempt na rito naman siya e. REP. GUTANG. Mayroong entitlement to reinstatement and pay. . . . xxx xxx xxx SEN. PIMENTEL. Dito sa "Preventive Suspension Pending Criminal Case." Okay ito but I think we should also mandate the early termination of the case. Ibig sabihin, okay, hindi ba "the suspension of the accused from office until the case is terminated?" Alam naman natin ang takbo ng mga kaso rito sa ating bansa e. REP. ZAMORA. Twenty days, okay na. SEN. PIMENTEL. Hindi, and ibig kong sabihin, let us just assume that a case can be, as Rene pointed out, can run to six years bago ma-terminate, sometimes ten years pa nga e. Okay, but maybe we should mandate. . . REP. ZAMORA. Continuous hearing. SEN. PIMENTEL. Not only that, but the case must be terminated within a period. REP. ALBANO. Ninety days na ho sa Supreme Court the trial. SEN. PIMENTEL. Ha? REP. ALBANO. The trial must be done within ninety days, SEN. PIMENTEL. Ang ibig kong sabihin kung maari sanang ilagay rito that the case shall also be terminated in one year from the time . . . aywan ko kung kaya nating gawin iyon. REP. ALBANO. One solution, Mr. Chairman. THE CHAIRMAN (SEN. MACEDA). Criminal case? Hindi ba that has all been held as directory even if you put it in the law? SEN. PIMENTEL. I know, but, iyon na nga, we are looking at some solution to a particular situation. SEN. ANGARA. Let's have continuous hearing and be terminated not later than ninety days. REP. ZAMORA. Ang point ni Ernie, that's really only the directory. All of these, well, looks exactly the same thing. SEN. ANGARA. No, but at least, we will shorten it up in a case like this. We are really keen on having it quick, swift. SEN. PIMENTEL. Swift justice. REP. ALBANO. Mr. Chairman. THE CHAIRMAN. (SEN. MACEDA). Yes. REP. ALBANO. Following the Veloso case in Anti-graft cases before the Sandiganbayan, the preventive suspension is only ninety days. In no case shall it go beyond ninety days which can also be applicable here because this is a preventive suspension. SEN. PIMENTEL. No, because you can legislate at least. SEN. SAGUISAG. But then the case may be anti-graft ha. The case filed against a policeman may be anti-graft in nature. . . SEN. PIMENTEL. Correct, correct, but is that a constitutional provision? Is it?

REP. ALBANO. No, but as a standard procedure. SEN. PIMENTEL. Then you can legislate. THE CHAIRMAN (SEN. MACEDA). No, because this particular provision is for criminal cases. I know anti-graft is a criminal case but here we are talking, let's say, of murder, rape, treason, robbery. That's why it is in that context that there is a difference between a purely anti-graft case and a criminal case which could be a serious case since it is six years and one day or more, so it must be already a grave felony. xxx xxx xxx REP. ALBANO. . . . What I mean to say is, preventive suspension, we can use the Veloso case. THE CHAIRMAN (SEN. MACEDA). No, that's too short, that's what I am saying. The feeling here is, for policeman, we have to be stricter especially if it is a criminal case. What Rene is just trying to say is, he is agreeable that the suspension is until the case is terminated, but he just wants some administrative balancing to expedite it. So let us study what kind of language could be done along that line. So just on the National Police Commission . . . SEN. ANGARA. Can I suggest a language that may reflect. . . THE CHAIRMAN (SEN. MACEDA). Okay, please. SEN. ANGARA. "Such case shall be subject to continuous trial and be terminated not later than . . ." whatever we agree. THE CHAIRMAN (SEN. MACEDA). Okay, so let's study that. So if there are any further amendments to Chapter 2 on the National Police Commission. . . . . .13 The foregoing discussions reveal the legislative intent to place on preventive suspension a member of the PNP charged with grave felonies where the penalty imposed by law exceeds six years of imprisonment and which suspension continues until the case against him is terminated. The reason why members of the PNP are treated differently from the other classes of persons charged criminally or administratively insofar as the application of the rule on preventive suspension is concerned is that policemen carry weapons and the badge of the law which can be used to harass or intimidate witnesses against them, as succinctly brought out in the legislative discussions. If a suspended policeman criminally charged with a serious offense is reinstated to his post while his case is pending, his victim and the witnesses against him are obviously exposed to constant threat and thus easily cowed to silence by the mere fact that the accused is in uniform and armed. The imposition of preventive suspension for over 90 days under Section 47 of R.A. 6975 does not violate the suspended policeman's constitutional right to equal protection of the laws. The equal protection clause exists to prevent undue favor or privilege. It is intended to eliminate discrimination and oppression based on inequality. Recognizing the existence of real differences among men, the equal protection clause does not demand absolute equality. It merely requires that all persons shall be treated alike, under like circumstances and conditions

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both as to the privileges conferred and liabilities enforced. 14 Thus, the equal protection clause does not absolutely forbid classifications, such as the one which exists in the instant case. If the classification is based on real and substantial differences; 15 is germane to the purpose of the law; 16 applies to all members of the same class; 17 and applies to current as well as future conditions, 18 the classification may not be impugned as violating the Constitution's equal protection guarantee. A distinction based on real and reasonable considerations related to a proper legislative purpose such as that which exists here is neither unreasonable, capricious nor unfounded. ACCORDINGLY, the petition is hereby DISMISSED. SO ORDERED. Narvasa, C.J., Cruz, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Vitug and Mendoza, JJ., concur. Feliciano, Padilla and Bidin, JJ., are on leave.

G.R. No. 128845 June 1, 2000 INTERNATIONAL SCHOOL ALLIANCE OF EDUCATORS (ISAE), petitioner, vs. HON. LEONARDO A. QUISUMBING in his capacity as the Secretary of Labor and Employment; HON. CRESENCIANO B. TRAJANO in his capacity as the Acting Secretary of Labor and Employment; DR. BRIAN MACCAULEY in his capacity as the Superintendent of International School-Manila; and INTERNATIONAL SCHOOL, INC., respondents. KAPUNAN, J.: Receiving salaries less than their counterparts hired abroad, the local-hires of private respondent School, mostly Filipinos, cry discrimination. We agree. That the local-hires are paid more than their colleagues in other schools is, of course, beside the point. The point is that employees should be given equal pay for work of equal value. That is a principle long honored in this jurisdiction. That is a principle that rests on fundamental notions of justice. That is the principle we uphold today.1wphi1.nt Private respondent International School, Inc. (the School, for short), pursuant to Presidential Decree 732, is a domestic educational institution established primarily for dependents of foreign diplomatic personnel and other temporary residents.1 To enable the School to continue carrying out its educational program and improve its standard of instruction, Section 2(c) of the same decree authorizes the School to employ its own teaching and management personnel selected by it either locally or abroad, from Philippine or other nationalities, such personnel being exempt from otherwise applicable laws and regulations attending their employment, except laws that have been or will be enacted for the protection of employees.

Accordingly, the School hires both foreign and local teachers as members of its faculty, classifying the same into two: (1) foreign-hires and (2) local-hires. The School employs four tests to determine whether a faculty member should be classified as a foreign-hire or a local hire: a. What is one's domicile? b. Where is one's home economy? c. To which country does one owe economic allegiance? d. Was the individual hired abroad specifically to work in the School and was the School responsible for bringing that individual to the Philippines?2 Should the answer to any of these queries point to the Philippines, the faculty member is classified as a local hire; otherwise, he or she is deemed a foreign-hire. The School grants foreign-hires certain benefits not accorded local-hires. These include housing, transportation, shipping costs, taxes, and home leave travel allowance. Foreign-hires are also paid a salary rate twenty-five percent (25%) more than local-hires. The School justifies the difference on two "significant economic disadvantages" foreign-hires have to endure, namely: (a) the "dislocation factor" and (b) limited tenure. The School explains: A foreign-hire would necessarily have to uproot himself from his home country, leave his family and friends, and take the risk of deviating from a promising career path all for the purpose of pursuing his profession as an educator, but this time in a foreign land. The new foreign hire is faced with economic realities: decent abode for oneself and/or for one's family, effective means of transportation, allowance for the education of one's children, adequate insurance against illness and death, and of course the primary benefit of a basic salary/retirement compensation. Because of a limited tenure, the foreign hire is confronted again with the same economic reality after his term: that he will eventually and inevitably return to his home country where he will have to confront the uncertainty of obtaining suitable employment after along period in a foreign land. The compensation scheme is simply the School's adaptive measure to remain competitive on an international level in terms of attracting competent professionals in the field of international education.3 When negotiations for a new collective bargaining agreement were held on June 1995, petitioner International School Alliance of Educators, "a legitimate labor union and the collective bargaining representative of all faculty members"4 of the School, contested the difference in salary rates between foreign and local-hires. This issue, as well as the question of whether foreign-hires should be included in the appropriate bargaining unit, eventually caused a deadlock between the parties. On September 7, 1995, petitioner filed a notice of strike. The failure of the National Conciliation and Mediation Board to bring the parties to a compromise prompted the Department of Labor and Employment (DOLE) to assume jurisdiction over the dispute. On June 10, 1996, the DOLE Acting Secretary, Crescenciano B. Trajano, issued an Order resolving the parity and representation issues in favor of the School. Then DOLE Secretary Leonardo A. Quisumbing subsequently denied petitioner's motion for reconsideration in an Order dated March 19, 1997. Petitioner now seeks relief in this Court.

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Petitioner claims that the point-of-hire classification employed by the School is discriminatory to Filipinos and that the grant of higher salaries to foreign-hires constitutes racial discrimination. The School disputes these claims and gives a breakdown of its faculty members, numbering 38 in all, with nationalities other than Filipino, who have been hired locally and classified as local hires.5 The Acting Secretary of Labor found that these non-Filipino local-hires received the same benefits as the Filipino local-hires. The compensation package given to local-hires has been shown to apply to all, regardless of race. Truth to tell, there are foreigners who have been hired locally and who are paid equally as Filipino local hires.6 The Acting secretary upheld the point-of-hire classification for the distinction in salary rates: The Principle "equal pay for equal work" does not find applications in the present case. The international character of the School requires the hiring of foreign personnel to deal with different nationalities and different cultures, among the student population. We also take cognizance of the existence of a system of salaries and benefits accorded to foreign hired personnel which system is universally recognized. We agree that certain amenities have to be provided to these people in order to entice them to render their services in the Philippines and in the process remain competitive in the international market. Furthermore, we took note of the fact that foreign hires have limited contract of employment unlike the local hires who enjoy security of tenure. To apply parity therefore, in wages and other benefits would also require parity in other terms and conditions of employment which include the employment which include the employment contract. A perusal of the parties' 1992-1995 CBA points us to the conditions and provisions for salary and professional compensation wherein the parties agree as follows: All members of the bargaining unit shall be compensated only in accordance with Appendix C hereof provided that the Superintendent of the School has the discretion to recruit and hire expatriate teachers from abroad, under terms and conditions that are consistent with accepted international practice. Appendix C of said CBA further provides: The new salary schedule is deemed at equity with the Overseas Recruited Staff (OSRS) salary schedule. The 25% differential is reflective of the agreed value of system displacement and contracted status of the OSRS as differentiated from the tenured status of Locally Recruited Staff (LRS). To our mind, these provisions demonstrate the parties' recognition of the difference in the status of two types of employees, hence, the difference in their salaries. The Union cannot also invoke the equal protection clause to justify its claim of parity. It is an established principle of constitutional law that the guarantee of equal protection of the laws is not violated by legislation or private covenants based on reasonable classification. A classification is reasonable if it is based on substantial distinctions and apply to all members of the same class. Verily, there is a substantial distinction between foreign hires and local hires, the former enjoying only a limited tenure, having no amenities of their own in the Philippines and have to be given a good compensation package in order to attract them to join the teaching faculty of the School.7 We cannot agree.

That public policy abhors inequality and discrimination is beyond contention. Our Constitution and laws reflect the policy against these evils. The Constitution8 in the Article on Social Justice and Human Rights exhorts Congress to "give highest priority to the enactment of measures that protect and enhance the right of all people to human dignity, reduce social, economic, and political inequalities." The very broad Article 19 of the Civil Code requires every person, "in the exercise of his rights and in the performance of his duties, [to] act with justice, give everyone his due, and observe honesty and good faith. International law, which springs from general principles of law,9 likewise proscribes discrimination. General principles of law include principles of equity, 10 i.e., the general principles of fairness and justice, based on the test of what is reasonable. 11 The Universal Declaration of Human Rights, 12 the International Covenant on Economic, Social, and Cultural Rights, 13the International Convention on the Elimination of All Forms of Racial Discrimination, 14 the Convention against Discrimination in Education, 15 the Convention (No. 111) Concerning Discrimination in Respect of Employment and Occupation 16 all embody the general principle against discrimination, the very antithesis of fairness and justice. The Philippines, through its Constitution, has incorporated this principle as part of its national laws. In the workplace, where the relations between capital and labor are often skewed in favor of capital, inequality and discrimination by the employer are all the more reprehensible. The Constitution 17 specifically provides that labor is entitled to "humane conditions of work." These conditions are not restricted to the physical workplace the factory, the office or the field but include as well the manner by which employers treat their employees. The Constitution 18 also directs the State to promote "equality of employment opportunities for all." Similarly, the Labor Code 19 provides that the State shall "ensure equal work opportunities regardless of sex, race or creed." It would be an affront to both the spirit and letter of these provisions if the State, in spite of its primordial obligation to promote and ensure equal employment opportunities, closes its eyes to unequal and discriminatory terms and conditions of employment. 20 Discrimination, particularly in terms of wages, is frowned upon by the Labor Code. Article 135, for example, prohibits and penalizes 21 the payment of lesser compensation to a female employee as against a male employee for work of equal value. Article 248 declares it an unfair labor practice for an employer to discriminate in regard to wages in order to encourage or discourage membership in any labor organization. Notably, the International Covenant on Economic, Social, and Cultural Rights, supra, in Article 7 thereof, provides: The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work, which ensure, in particular: a. Remuneration which provides all workers, as a minimum, with: (i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work; xxx xxx xxx The foregoing provisions impregnably institutionalize in this jurisdiction the long honored legal truism of "equal pay for equal work." Persons who work with substantially equal qualifications,

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skill, effort and responsibility, under similar conditions, should be paid similar salaries. 22 This rule applies to the School, its "international character" notwithstanding. The School contends that petitioner has not adduced evidence that local-hires perform work equal to that of foreign-hires. 23 The Court finds this argument a little cavalier. If an employer accords employees the same position and rank, the presumption is that these employees perform equal work. This presumption is borne by logic and human experience. If the employer pays one employee less than the rest, it is not for that employee to explain why he receives less or why the others receive more. That would be adding insult to injury. The employer has discriminated against that employee; it is for the employer to explain why the employee is treated unfairly. The employer in this case has failed to discharge this burden. There is no evidence here that foreign-hires perform 25% more efficiently or effectively than the local-hires. Both groups have similar functions and responsibilities, which they perform under similar working conditions. The School cannot invoke the need to entice foreign-hires to leave their domicile to rationalize the distinction in salary rates without violating the principle of equal work for equal pay. "Salary" is defined in Black's Law Dictionary (5th ed.) as "a reward or recompense for services performed." Similarly, the Philippine Legal Encyclopedia states that "salary" is the "[c]onsideration paid at regular intervals for the rendering of services." In Songco v. National Labor Relations Commission, 24 we said that: "salary" means a recompense or consideration made to a person for his pains or industry in another man's business. Whether it be derived from "salarium," or more fancifully from "sal," the pay of the Roman soldier, it carries with it the fundamental idea of compensation for services rendered. (Emphasis supplied.) While we recognize the need of the School to attract foreign-hires, salaries should not be used as an enticement to the prejudice of local-hires. The local-hires perform the same services as foreign-hires and they ought to be paid the same salaries as the latter. For the same reason, the "dislocation factor" and the foreign-hires' limited tenure also cannot serve as valid bases for the distinction in salary rates. The dislocation factor and limited tenure affecting foreignhires are adequately compensated by certain benefits accorded them which are not enjoyed by local-hires, such as housing, transportation, shipping costs, taxes and home leave travel allowances. The Constitution enjoins the State to "protect the rights of workers and promote their welfare," 25 "to afford labor full protection." 26 The State, therefore, has the right and duty to regulate the relations between labor and capital.27 These relations are not merely contractual but are so impressed with public interest that labor contracts, collective bargaining agreements included, must yield to the common good. 28 Should such contracts contain stipulations that are contrary to public policy, courts will not hesitate to strike down these stipulations. In this case, we find the point-of-hire classification employed by respondent School to justify the distinction in the salary rates of foreign-hires and local hires to be an invalid classification. There is no reasonable distinction between the services rendered by foreign-hires and localhires. The practice of the School of according higher salaries to foreign-hires contravenes public policy and, certainly, does not deserve the sympathy of this Court.

We agree, however, that foreign-hires do not belong to the same bargaining unit as the localhires. A bargaining unit is "a group of employees of a given employer, comprised of all or less than all of the entire body of employees, consistent with equity to the employer, indicate to be the best suited to serve the reciprocal rights and duties of the parties under the collective bargaining provisions of the law." 29 The factors in determining the appropriate collective bargaining unit are (1) the will of the employees (Globe Doctrine); (2) affinity and unity of the employees' interest, such as substantial similarity of work and duties, or similarity of compensation and working conditions (Substantial Mutual Interests Rule); (3) prior collective bargaining history; and (4) similarity of employment status. 30 The basic test of an asserted bargaining unit's acceptability is whether or not it is fundamentally the combination which will best assure to all employees the exercise of their collective bargaining rights. 31 It does not appear that foreign-hires have indicated their intention to be grouped together with local-hires for purposes of collective bargaining. The collective bargaining history in the School also shows that these groups were always treated separately. Foreign-hires have limited tenure; local-hires enjoy security of tenure. Although foreign-hires perform similar functions under the same working conditions as the local-hires, foreign-hires are accorded certain benefits not granted to local-hires. These benefits, such as housing, transportation, shipping costs, taxes, and home leave travel allowance, are reasonably related to their status as foreign-hires, and justify the exclusion of the former from the latter. To include foreign-hires in a bargaining unit with local-hires would not assure either group the exercise of their respective collective bargaining rights. WHEREFORE, the petition is GIVEN DUE COURSE. The petition is hereby GRANTED IN PART. The Orders of the Secretary of Labor and Employment dated June 10, 1996 and March 19, 1997, are hereby REVERSED and SET ASIDE insofar as they uphold the practice of respondent School of according foreign-hires higher salaries than local-hires. SO ORDERED. Puno and Pardo, JJ., concur. Davide, Jr., C.J., on official leave. Ynares-Santiago, J., is on leave. G.R. No. 132875-76 February 3, 2000 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMEO G. JALOSJOS, accused-appellant. RESOLUTION YNARES-SANTIAGO, J.: The accused-appellant, Romeo F. Jaloslos is a full-pledged member of Congress who is now confined at the national penitentiary while his conviction for statutory rape on two counts and acts of lasciviousness on six counts1is pending appeal. The accused-appellant filed this motion asking that he be allowed to fully discharge the duties of a Congressman, including attendance at legislative sessions and committee meetings despite his having been convicted in the first instance of a non-bailable offense. The issue raised is one of the first impression.

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Does membership in Congress exempt an accused from statutes and rules which apply to validly incarcerated persons in general? In answering the query, we are called upon to balance relevant and conflicting factors in the judicial interpretation of legislative privilege in the context of penal law. The accused-appellant's "Motion To Be Allowed To Discharge Mandate As Member of House of Representatives" was filed on the grounds that 1. Accused-appellant's reelection being an expression of popular will cannot be rendered inutile by any ruling, giving priority to any right or interest not even the police power of the State. 2. To deprive the electorate of their elected representative amounts to taxation without representation. 3. To bar accused-appellant from performing his duties amounts to his suspension/removal and mocks the renewed mandates entrusted to him by the people. 4. The electorate of the First District of Zamboanga del Norte wants their voice to be heard. 5. A precedent-setting U.S. ruling allowed a detained lawmaker to attend sessions of the U.S. Congress. 6. The House treats accused-appellant as a bona fide member thereof and urges a co-equal branch of government to respect its mandate. 7. The concept of temporary detention does not necessarily curtail the duty of accusedappellant to discharge his mandate. 8. Accused-appellant has always complied with the conditions/restrictions when allowed to leave jail. The primary argument of the movant is the "mandate of sovereign will." He states that the sovereign electorate of the First District of Zamboanga del Norte chose him as their representative in Congress. Having been re-elected by his constituents, he has the duty to perform the functions of a Congressman. He calls this a covenant with his constituents made possible by the intervention of the State. He adds that it cannot be defeated by insuperable procedural restraints arising from pending criminal cases. True, election is the expression of the sovereign power of the people. In the exercise of suffrage, a free people expects to achieve the continuity of government and the perpetuation of its benefits. However, inspite of its importance, the privileges and rights arising from having been elected may be enlarged or restricted by law. Our first task is to ascertain the applicable law. We start with the incontestable proposition that all top officials of Government-executive, legislative, and judicial are subject to the majesty of law. There is an unfortunate misimpression in the public mind that election or appointment to high government office, by itself, frees the official from the common restraints of general law. Privilege has to be granted by law, not inferred from the duties of a position. In fact, the higher the rank, the greater is the requirement of obedience rather than exemption. The immunity from arrest or detention of Senators and members of the House of Representatives, the latter customarily addressed as Congressmen, arises from a provision of the Constitution. The history of the provision shows that privilege has always been granted in a restrictive sense. The provision granting an exemption as a special privilege cannot be

extended beyond the ordinary meaning of its terms. It may not be extended by intendment, implication or equitable considerations. The 1935 Constitution provided in its Article VI on the Legislative Department. Sec 15. The Senators and Members of the House of Representatives shall in all cases except treason, felony, and breach of the peace be privileged from arrest during their attendance at the sessions of Congress, and in going to and returning from the same, . . . Because of the broad coverage of felony and breach of the peace, the exemption applied only to civil arrests. A congressman like the accused-appellant, convicted under Title Eleven of the Revised Penal Code could not claim parliamentary immunity from arrest. He was subject to the same general laws governing all persons still to be tried or whose convictions were pending appeal. The 1973 Constitution broadened the privilege of immunity as follows: Art. VIII, Sec. 9. A Member of the Batasang Pambansa shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest during his attendance at its sessions and in going to and returning from the same. For offenses punishable by more than six years imprisonment, there was no immunity from arrest. The restrictive interpretation of immunity and intent to confine it within carefully defined parameters is illustrated by the concluding portion of the provision, to wit: . . . but the Batasang Pambansa shall surrender the member involved the custody of the law within twenty four hours after its adjournment for a recess or for its next session, otherwise such privilege shall cease upon its failure to do so. The present Constitution adheres to the same restrictive rule minus the obligation of Congress to surrender the subject Congressman to the custody of the law. The requirement that he should be attending sessions or committee meetings has also been removed. For relatively minor offenses, it is enough that Congress is in session. The accused-appellant argues that a member of Congress' function to attend sessions is underscored by Section 16 (2), Article VI of the Constitution which states that (2) A majority of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day and may compel the attendance of absent Members in such manner, and under such penalties, as such House may provide. However, the accused-appellant has not given any reason why he should be exempted from the operation of Section 11, Article VI of the Constitution. The members of Congress cannot compel absent members to attend sessions if the reason for the absence is a legitimate one. The confinement of a Congressman charged with a crime punishable by imprisonment of more than six months is not merely authorized by law, it has constitutional foundations. Accused-appellant's reliance on the ruling in Aguinaldo v. Santos2, which states, inter alia, that The Court should never remove a public officer for acts done prior to his present term of office. To do otherwise would be to deprive the people of their right to elect their officers. When a people have elected a man to office, it must be assumed that they did this with the knowledge of his life and character, and that they disregarded or forgave his fault or misconduct, if he had been guilty of any. It is not for the Court, by reason of such fault or misconduct, to practically overrule the will of the people.

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will not extricate him from his predicament. It can be readily seen in the above-quoted ruling that the Aguinaldo case involves the administrative removal of a public officer for acts done prior to his present term of office. It does not apply to imprisonment arising from the enforcement of criminal law. Moreover, in the same way that preventive suspension is not removal, confinement pending appeal is not removal. He remains a congressman unless expelled by Congress or, otherwise, disqualified. One rationale behind confinement, whether pending appeal or after final conviction, is public self-defense. Society must protect itself. It also serves as an example and warning to others. A person charged with crime is taken into custody for purposes of the administration of justice. As stated in United States v. Gustilo,3 it is the injury to the public which State action in criminal law seeks to redress. It is not the injury to the complainant. After conviction in the Regional Trial Court, the accused may be denied bail and thus subjected to incarceration if there is risk of his absconding.4 The accused-appellant states that the plea of the electorate which voted him into office cannot be supplanted by unfounded fears that he might escape eventual punishment if permitted to perform congressional duties outside his regular place of confinement. It will be recalled that when a warrant for accused-appellant's arrest was issued, he fled and evaded capture despite a call from his colleagues in the House of Representatives for him to attend the sessions and to surrender voluntarily to the authorities. Ironically, it is now the same body whose call he initially spurned which accused-appellant is invoking to justify his present motion. This can not be countenanced because, to reiterate, aside from its being contrary to well-defined Constitutional restrains, it would be a mockery of the aims of the State's penal system. Accused-appellant argues that on several occasions the Regional Trial Court of Makati granted several motions to temporarily leave his cell at the Makati City Jail, for official or medical reasons, to wit: a) to attend hearings of the House Committee on Ethics held at the Batasan Complex, Quezon City, on the issue of whether to expel/suspend him from the House of Representatives; b) to undergo dental examination and treatment at the clinic of his dentist in Makati City; c) to undergo a thorough medical check-up at the Makati Medical Center, Makati City; d) to register as a voter at his hometown in Dapitan City. In this case, accused-appellant commuted by chartered plane and private vehicle. He also calls attention to various instances, after his transfer at the New Bilibid Prison in Muntinlupa City, when he was likewise allowed/permitted to leave the prison premises, to wit. a) to join "living-out" prisoners on "work-volunteer program" for the purpose of 1) establishing a mahogany seedling bank and 2) planting mahogany trees, at the NBP reservation. For this purpose, he was assigned one guard and allowed to use his own vehicle and driver in going to and from the project area and his place of confinement. b) to continue with his dental treatment at the clinic of his dentist in Makati City. c) to be confined at the Makati Medical Center in Makati City for his heart condition. There is no showing that the above privileges are peculiar to him or to a member of Congress. Emergency or compelling temporary leaves from imprisonment are allowed to all prisoners, at the discretion of the authorities or upon court orders.

What the accused-appellant seeks is not of an emergency nature. Allowing accused-appellant to attend congressional sessions and committee meeting for five (5) days or more in a week will virtually make him free man with all the privilege appurtenant to his position. Such an aberrant situation not only elevates accused-appellant's status to that of a special class, it also would be a mockery of the purposes of the correction system. Of particular relevance in this regard are the following observations of the Court in Martinez v. Morfe:5 The above conclusion reached by this Court is bolstered and fortified by policy considerations. There is, to be sure, a full recognition of the necessity to have members of Congress, and likewise delegates to the Constitutional Convention, entitled to the utmost freedom to enable them to discharge their vital responsibilities, bowing to no other force except the dictates of their conscience of their conscience. Necessarily the utmost latitude in free speech should be accorded them. When it comes to freedom from arrest, however, it would amount to the creation of a privileged class, without justification in reason, if notwithstanding their liability for a criminal offense, they would be considered immune during their attendance in Congress and in going to and returning from the same. There is likely to be no dissent from the proposition that a legislator or a delegate can perform his functions efficiently and well, without the need for any transgression of the criminal law. Should such an unfortunate event come to pass, he is to be treated like any other citizen considering that there is a strong public interest in seeing to it that crime should not go unpunished. To the fear that may be expressed that the prosecuting arm of the government might unjustly go after legislators belonging to the minority, it suffices to answer that precisely all the safeguards thrown around an accused by the Constitution, solicitous of the rights of an individual, would constitute an obstacle to such an attempt at abuse of power. The presumption of course is that the judiciary would remain independent. It is trite to say that in each and every manifestation of judicial endeavor, such a virtue is of the essence. The accused-appellant avers that his constituents in the First District of Zamboanga del Norte want their voices to be heard and that since he is treated as bona fide member of the House of Representatives, the latter urges a co-equal branch of government to respect his mandate. He also claims that the concept of temporary detention does not necessarily curtail his duty to discharge his mandate and that he has always complied with the conditions/restrictions when he is allowed to leave jail. We remain unpersuaded.1wphi1.nt No less than accused-appellant himself admits that like any other member of the House of Representatives "[h]e is provided with a congressional office situated at Room N-214, North Wing Building, House of Representatives Complex, Batasan Hills, Quezon City, manned by a full complement of staff paid for by Congress. Through [an] inter-department coordination, he is also provided with an office at the Administration Building, New Bilibid Prison, Muntinlupa City, where he attends to his constituents." Accused-appellant further admits that while under detention, he has filed several bills and resolutions. It also appears that he has been receiving his salaries and other monetary benefits. Succinctly stated, accused-appellant has been discharging his mandate as a member of the House of Representative consistent with the restraints upon one who is presently under detention. Being a detainee, accused-appellant should not even have been allowed by the prison authorities at the National Penitentiary to perform these acts.

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When the voters of his district elected the accused-appellant to Congress, they did so with full awareness of the limitations on his freedom of action. They did so with the knowledge that he could achieve only such legislative results which he could accomplish within the confines of prison. To give a more drastic illustration, if voters elect a person with full knowledge that he suffering from a terminal illness, they do so knowing that at any time, he may no longer serve his full term in office. In the ultimate analysis, the issue before us boils down to a question of constitutional equal protection. The Constitution guarantees: ". . . nor shall any person be denied the equal protection of laws."6 This simply means that all persons similarly situated shall be treated alike both in rights enjoyed and responsibilities imposed.7The organs of government may not show any undue favoritism or hostility to any person. Neither partiality not prejudice shall be displayed. Does being an elective official result in a substantial distinction that allows different treatment? Is being a Congressman a substantial differentiation which removes the accused-appellant as a prisoner from the same class as all persons validly confined under law? The performance of legitimate and even essential duties by public officers has never been an excuse to free a person validly in prison. The duties imposed by the "mandate of the people" are multifarious. The accused-appellant asserts that the duty to legislative ranks highest in the hierarchy of government. The accused-appellant is only one of 250 members of the House of Representatives, not to mention the 24 members of the Senate, charged with the duties of legislation. Congress continues to function well in the physical absence of one or a few of its members. Depending on the exigency of Government that has to be addressed, the President or the Supreme Court can also be deemed the highest for that particular duty. The importance of a function depends on the need to its exercise. The duty of a mother to nurse her infant is most compelling under the law of nature. A doctor with unique skills has the duty to save the lives of those with a particular affliction. An elective governor has to serve provincial constituents. A police officer must maintain peace and order. Never has the call of a particular duty lifted a prisoner into a different classification from those others who are validly restrained by law. A strict scrutiny of classifications is essential lest wittingly or otherwise, insidious discriminations are made in favor of or against groups or types of individuals.8 The Court cannot validate badges of inequality. The necessities imposed by public welfare may justify exercise of government authority to regulate even if thereby certain groups may plausibly assert that their interests are disregarded.9 We, therefore, find that election to the position of Congressman is not a reasonable classification in criminal law enforcement. The functions and duties of the office are not substantial distinctions which lift him from the class of prisoners interrupted in their freedom and restricted in liberty of movement. Lawful arrest and confinement are germane to the purposes of the law and apply to all those belonging to the same class.10 Imprisonment is the restraint of a man's personal liberty; coercion exercised upon a person to prevent the free exercise of his power of locomotion.11 More explicitly, "imprisonment" in its general sense, is the restraint of one's liberty. As a punishment, it is restraint by judgment of a court or lawful tribunal, and is personal to the

accused.12 The term refers to the restraint on the personal liberty of another; any prevention of his movements from place to place, or of his free action according to his own pleasure and will.13 Imprisonment is the detention of another against his will depriving him of his power of locomotion14 and it "[is] something more than mere loss of freedom. It includes the notion of restraint within limits defined by wall or any exterior barrier."15 It can be seen from the foregoing that incarceration, by its nature, changes an individual's status in society.16Prison officials have the difficult and often thankless job of preserving the security in a potentially explosive setting, as well as of attempting to provide rehabilitation that prepares inmates for re-entry into the social mainstream. Necessarily, both these demands require the curtailment and elimination of certain rights.17 Premises considered, we are constrained to rule against the accused-appellant's claim that reelection to public office gives priority to any other right or interest, including the police power of the State. WHEREFORE, the instant motion is hereby DENIED. SO ORDERED. Kapunan, Panganiban, Quisumbing, Purisima, Pardo Buena and De Leon, Jr., JJ., concur. Davide, Jr., C.J., and also in separate opinion of Justice Reyes. Bellosillo, J., I concur in the main and separate opinion. Melo, J., I join the majority as well as the separate opinion. Puno, J., I concur with the main and separate opinion. Vitug, J., I concur in both the ponencia and the separate opinion. Mendoza, J., I concur in this as well as in the separate opinion of Justice Gonzaga-Reyes. Gonzaga-Reyes, J., See separate concurring opinion. G.R. No. 128096 January 20, 1999 PANFILO M. LACSON, petitioner, vs. THE EXECUTIVE SECRETARY, THE SANDIGANBAYAN, OFFICE OF THE SPECIAL PROSECUTOR, THE DEPARTMENT OF JUSTICE, MYRNA ABALORA, NENITA ALAPAP, IMELDA PANCHO MONTERO, and THE PEOPLE OF THE PHILIPPINES, respondent. ROMEO M. ACOP AND FRANCISCO G. ZUBIA, JR., petitioner-intervenors. MARTINEZ, J.: The constitutionality of Sections 4 and 7 of Republic Act No. 8249 an act which further defines the jurisdiction of the Sandiganbayan is being challenged in this petition for prohibition and mandamus. Petitioner Panfilo Lacson, joined by petitioners-intervenors Romeo Acop and Francisco Zubia, Jr., also seeks to prevent the Sandiganbayan from proceedings with the trial of Criminal Cases Nos. 23047-23057 (for multiple murder) against them on the ground of lack of jurisdiction. The antecedents of this case, as gathered from the parties' pleadings and documentary proofs, are as follows: In the early morning of May 18, 1995, eleven (11) persons believed to be members of the Kuratong Baleleng gang, reportedly an organized crime syndicate which had been involved in a spate of bank robberies in Metro Manila, where slain along Commonwealth Avenue in

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Quezon City by elements of the Anti-Bank Robbery and Intelligence Task Group (ABRITG) headed by Chieff Superintendent Jewel Canson of the Philippine National Police (PNP). The ABRITG was composed of police officers from the Traffic Management Command (TMC) led by petitioner-intervenor Senior Superintendent Francisco Zubia, Jr.; Presidential Anti-Crime Commission Task Force Habagat (PACC-TFH) headed by petitioner Chief Superintendent Panfilo M. Lacson; Central Police District Command (CPDC) led by Chief Superintendent Ricardo de Leon; and the Criminal Investigation Command (CIC) headed by petitionerintervenor Chief Superintendent Romeo Acop. Acting on a media expose of SPO2 Eduardo delos Reyes, a member of the CIC, that what actually transpired at dawn of May 18, 1995 was a summary execution (or a rub out) and not a shoot-out between the Kuratong Baleleng gang members and the ABRITG, Ombudsman Aniano Desierto formed a panel of investigators headed by the Deputy Ombudsman for Military Affairs, Bienvenido Blancaflor, to investigate the incident. This panel later absolved from any criminal liability all the PNP officers and personal allegedly involved in May 18, 1995 incident, with a finding that the said incident was a legitimate police operation. 1 However, a review board led by Overall Deputy Ombudsman Francisco Villa modified modified the Blancaflor panel's finding and recommended the indictment for multiple murder against twenty-six (26) respondents, including herein petitioner and intervenors. The recommendation was approved by the Ombudsman except for the withdrawal of the charges against Chief Supt. Ricardo de Leon. Thus, on November 2, 1995, petitioner Panfilo Lacson was among those charged as principal in eleven (11) information for murder 2 before the Sandiganbayan's Second Division, while intervenors Romeo Acop and Francisco Zubia, Jr. were among those charged in the same informations as accessories after-in-the-fact. Upon motion by all the accused in the 11 information, 3 the Sandiganbayan allowed them to file a motion for reconsideration of the Ombudsman's action. 4 After conducting a reinvestigation, the Ombudsman filed on March 1, 1996 eleven (11) amended informations 5before the Sandiganbayan, wherein petitioner was charged only as an accessory, together with Romeo Acop and Francisco Zubia, Jr. and other. One of the accused 6 was dropped from the case. On March 5-6, 1996, all the accused filed separate motions questioning the jurisdiction of the Sandiganbayan, asserting that under the amended informations, the cases fall within the jurisdiction of the Regional Trial Court pursuant to Section 2 (paragraphs a and c) of Republic Act No. 7975. 7 They contend that the said law limited the jurisdiction of the Sandiganbayan to cases where one or more of the "principal accused" are government officials with Salary Grade (SG) 27 or higher, or PNP officials with the rank of Chief Superintendent (Brigadier General) or higher. The highest ranking principal accused in the amended informations has the rank of only a Chief Inspector, and none has the equivalent of at least SG 27. Thereafter, in a Resolution 8 dated May 8, 1996 (promulgated on May 9, 1996), penned by Justice Demetriou, with Justices Lagman and de Leon concurring, and Justices Balajadia and Garchitorena dissenting, 9 the Sandiganbayan admitted the amended information and ordered the cases transferred to the Quezon City Regional Trial Court which has original and exclusive jurisdiction under R.A. 7975, as none of the principal accused has the rank of Chief Superintendent or higher.

On May 17, 1996, the Office of the Special Prosecutor moved for a reconsideration, insisting that the cases should remain with the Sandiganbayan. This was opposed by petitioner and some of the accused. While these motions for reconsideration were pending resolution, and even before the issue of jurisdiction cropped up with the filing of the amended informations on March 1, 1996, House Bill No. 2299 10 and No. 1094 11(sponsored by Representatives Edcel C. Lagman and Lagman and Neptali M. Gonzales II, respectively), as well as Senate Bill No. 844 12 (sponsored by Senator Neptali Gonzales), were introduced in Congress, defining expanding the jurisdiction of the Sandiganbayan. Specifically, the said bills sought, among others, to amend the jurisdiction of the Sandiganbayan by deleting the word "principal" from the phrase "principal accused" in Section 2 (paragraphs a and c) of R.A. No. 7975. These bills were consolidated and later approved into law as R.A. No. 8249 13 by the President of the Philippines on February 5, 1997. Subsequently, on March 5, 1997, the Sandiganbayan promulgated a Resolution 14 denying the motion for reconsideration of the Special Prosecutor, ruling that it "stands pat in its resolution dated May 8, 1996." On the same day 15 the Sandiganbayan issued and ADDENDUM to its March 5, 1997 Resolution, the pertinent portion of which reads: After Justice Lagman wrote the Resolution and Justice Demetriou concurred in it, but before Justice de Leon. Jr. rendered his concurring and dissenting opinion, the legislature enacted Republic Act 8249 and the President of the Philippines approved it on February 5, 1997. Considering the pertinent provisions of the new law, Justices Lagman and Demetriou are now in favor of granting, as they are now granting, the Special Prosecutor's motion for reconsideration. Justice de Leon has already done so in his concurring and dissenting opinion. xxx xxx xxx Considering that three of the accused in each of these cases are PNP Chief Superintendents: namely, Jewel T. Canson, Romeo M. Acop and Panfilo M. Lacson, and that trial has not yet begun in all these cases in fact, no order of arrest has been issued this court has competence to take cognizance of these cases. To recapitulate, the net result of all the foregoing is that by the vote of 3 of 2, the court admitted the Amended Informations in these cases by the unanimous vote of 4 with 1 neither concurring not dissenting, retained jurisdiction to try and decide the cases 16 (Empahasis supplied) Petitioner now questions the constitutionality of Section 4 of R.A. No. 8249, including Section 7 thereof which provides that the said law "shall apply to all cases pending in any court over which trial has not begun as to the approval hereof." Petitioner argues that: a) The questioned provisions of the statute were introduced by the authors thereof in bad faith as it was made to precisely suit the situation in which petitioner's cases were in at the Sandiganbayan by restoring jurisdiction thereof to it, thereby violating his right to procedural due process and the equal protection clause of the Constitution. Further, from the way the Sandiganbayan has foot-dragged for nine (9) months the resolution of a pending incident involving the transfer of the cases to the Regional Trial Court, the passage of the law may

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have been timed to overtake such resolution to render the issue therein moot, and frustrate the exercise of petitioner's vested rights under the old Sandiganbayan law (RA 7975) b) Retroactive application of the law is plan from the fact that it was again made to suit the peculiar circumstances in which petitioner's cases were under, namely, that the trial had not yet commenced, as provided in Section 7, to make certain that those cases will no longer be remanded to the Quezon City Regional Trial Court, as the Sandiganbayan alone should try them, thus making it an ex post facto legislation and a denial of the right of petitioner as an accused in Criminal Case Nos. 23047-23057 to procedural due process. c) The title of the law is misleading in that it contains the aforesaid "innocuous" provisions in Sections 4 and 7 which actually expands rather than defines the old Sandiganbayan law (RA 7975), thereby violating the one-title one-subject requirement for the passage of statutes under Section 26 (1), Article VI of the Constitution. 17 For their part, the intervenors, in their petition-in-intervention, add that "while Republic Act No. 8249 innocuously appears to have merely expanded the jurisdiction of the Sandiganbayan, the introduction of Section 4 and 7 in said statute impressed upon it the character of a class legislation and an ex-post facto statute intended to apply specifically to the accused in the Kuratong Baleleng case pending before the Sandiganbayan. 18 They further argued that if their case is tried before the Sandiganbayan their right to procedural due process would be violated as they could no longer avail of the two-tiered appeal to the Sandiganbayan, which they acquired under R.A. 7975, before recourse to the Supreme Court. Both the Office of the Ombudsman and the Solicitor-General filed separate pleadings in support of the constitutionality of the challenged provisions of the law in question and praying that both the petition and the petition-in-intervention be dismissed. This Court then issued a Resolution 19 requiring the parties to file simultaneously within a nonextendible period of ten (10) days from notice thereof additional memoranda on the question of whether the subject amended informations filed a Criminal Case Nos. 2304723057 sufficiently allege the commission by the accused therein of the crime charged within the meaning Section 4 b of Republic Act No. 8249, so as to bring the said cases within the exclusive original jurisdiction of the Sandiganbayan. The parties, except for the Solicitor General who is representing the People of the Philippines, filed the required supplemental memorandum within the nonextendible reglementary period. The established rule is that every law has in its favor the presumption of constitutionality, and to justify its nullification there must be a clear and unequivocal breach of the Constitution, not a doubtful and argumentative one. 20 The burden of proving the invalidity of the law lies with those who challenge it. That burden, we regret to say, was not convincingly discharged in the present case. The creation of the Sandiganbayn was mandated in Section 5, Article XIII of the 1973 Constitution, which provides: Sec. 5. The Batasang Pambansa shall create a special court, to be known as Sandiganbayan, which shall have jurisdiction over criminal and civil cases involving graft and corrupt practices and such other offenses committed by public officers and employees including those in government-owned or controlled corporations, in relation to their office as may be determined by law.

The said special court is retained in the new (1987) Constitution under the following provisions in Article XI, Section 4: Sec. 4. The present anti-graft court known as the Sandiganbayan shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law. Pursuant to the constitutional mandate, Presidential Decree No. 1486 21 created the Sandiganbayan. Thereafter, the following laws on the Sandiganbayan, in chronological order, were enacted: P.D. No. 1606, 22 Section 20 of Batas Pambansa Blg. 123, 23 P.D. No. 1860, 24 P.D. No. 1861, 25 R.A. No. 7975, 26 and R.A. No. 8249. 27 Under the latest amendments introduced by Section 4 of R.A. No. 8249, the Sandiganbayan has jurisdiction over the following cases: Sec 4. Section 4 of the same decree [P.D. No. 1606, as amended] is hereby further amended to read as follows: Sec. 4. Jurisdiction The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Titile VII, Book II of the Revised Penal Code, where one or more of the accused are officials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense: (1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade "27" and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including: (a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineers, and other provincial department heads; (b) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads; (c) Officials of the diplomatic service occupying the position of consul and higher; (d) Philippine Army and air force colonels, naval captains, and all officers of higher rank; (e) Officers of the Philippines National Police while occupying the position of provincial director and those holding the rank of senior superintendent or higher. (f) City of provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; (g) Presidents, directors or trustees or managers of government-owned or controlled corporations, state universities or educational institutions or foundations; (2) Members of Congress or officials thereof classified as-Grade "27" and up under the Compensation and Position Classification Act of 1989; (3) Members of the judiciary without prejudice to the provisions of the Constitution; (4) Chairman and members of the Constitutional Commissions, without prejudice to the provisions of the Constitution; (5) All other national and local officials classified as Grade "27" or higher under the Compensation and Position Classification Act of 1989. b. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in Subsection a of this section in relation to their office.

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c. Civil and criminal cases filed pursuant to and connection with Executive Orders Nos. 1,2, 14 and 14-A, issued in 1986. In cases where none of the accused are occupying positions corresponding to salary Grade "27" or higher, as prescribed in the said Republic Act 6758, or military and PNP officers mentioned above, exclusive original jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their jurisdictions as privided in Batas Pambansa Blg. 129, as amended. The Sandiganbayan shall exercise exclusive appellate jurisdiction over final judgments, resolutions or orders of regional trial courts whether in the exercise of their own original jurisdiction or of their appellate jurisdiction as herein provided. The Sandiganbayan shall have exclusive original jurisdiction over petitions of the issuance of the writs of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary writs and processes in aid of its appellate jurisdiction and over petitions of similar nature, including quo warranto, arising or that may arise in cases filed or which may be filed under Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986: Provided, That the jurisdiction over these petitions shall not be exclusive of the Supreme Court. The procedure prescribed in Batas Pambansa Blg. 129, as well as the implementing rules that the Supreme Court has promulgated and may hereafter promulgate, relative to appeals/petitions for review to the Court of Appeals, shall apply to appeals and petitions for review filed with the Sandiganbayan. In all cases elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of the Ombudsman, through its special prosecutor, shall represent the People of the Philippines, except in cases filed pursuant to Executive Order Nos. 1, 2, 14, and 4-A, issued in 1986. In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employee, including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees in the proper courts which shall exercise exclusive jurisdiction over them. xxx xxx xxx (Emphasis supplied) Sec. 7 of R.A. No. 8249 states: Sec. 7. Transitory provision This act shall apply to all cases pending in any court over which trial has not begun as of the approval hereof. (Emphasis supplied) The Sandiganbayan law prior to R.A. 8249 was R.A. 7975. Section 2 of R.A. 7975 provides: Sec. 2. Section 4 of the same decree [Presidential Decree No. 1606, as amended) is hereby further amended to read as follows: Sec 4. Jurisdiction The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving: a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the pricipal accused are afficials occupying the following positions in the government, whether in a permanent, acting or interim capacity, at the time of the commission of the offense:

(1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade "27" and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically including: (a) Provincial governors, vice-governors, members of the sangguniang panlalawigan, and provincial treasurers, assessors, engineer, and other provincial department heads; (b) City mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers, assessors, engineers, and other city department heads; (c) Officials of the diplomatic service occupying the position of consul and higher; (d) Philippine Army and air force colonels, naval captains, and all officers of higher rank; (e) PNP chief superintendent and PNP officers of higher rank; (f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman and special prosecutor; (g) Presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational institutions or foundations; (2) Members of Congress or officials thereof classified as Grade "27" and up under the Compensation and Position Classification Act of 1989; (3) Members of the judiciary without prejudice to the provisions of the Constitution; (4) Chairman and members of the Constitutional Commissions, without prejudice to the provisions of the Constitution; (5) All other national and local officials classified as Grade "27" or higher under the Compensation and Position Classification Act of 1989. b. Other offenses or felonies committed by the public officials and employees mentioned in Subsection a of this section in relation to their office. c. Civil and criminal cases files pursuant to and in connection with Executive Order Nos. 1, 2, 14, and 4-A. In cases where none of the principal accused are occupying positions corresponding to salary Grade "27" or higher, as presribed in the said Republic Act 6758, or PNP officers occupying the rank of superintendent or higher, or their equivalent, exclusive jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and municipal circuit trial court, as the case may be, pursuant to their respective jurisdictions as provided in Batas Pambansa Blg. 129. The Sandiganbayan shall exercise exclusive appellate jurisdiction on appelas from the final judgment, resolutions or orders of regular court where all the accused are occupying positions lower than grade "27," or not otherwise covered by the preceding enumeration. xxx xxx xxx In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employees, including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees in the proper courts which shall have exclusive jurisdiction over them. xxx xxx xxx (Emphasis supplied) Sec. 7 of R.A. No. 7975 reads: Sec. 7. Upon the effectivity of this Act, all criminal cases in which trial has not begun in the Sandiganbayan shall be referred to the proper courts.

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Under paragraphs a and c, Section 4 of R.A. 8249, the word "principal" before the word "accused" appearing in the above-quoted Section 2 (paragraphs a and c) of R.A. 7975, was deleted. It is due to this deletion of the word "principal" that the parties herein are at loggerheads over the jurisdiction of the Sandiganbayan. Petitioner and intervenors, relying on R.A. 7975, argue that the Regional Trial Court, not the Sandiganbayan, has jurisdiction over the subject criminal cases since none of the principal accused under the amended information has the rank of Superintendent 28 or higher. On the other hand, the Office of the Ombudsman, through the Special Prosecutor who is tasked to represent the People before the Supreme Court except in certain cases, 29 contends that the Sandiganbayan has jurisdiction pursuant to R.A. 8249. A perusal of the aforequoted Section 4 of R.A. 8249 reveals that to fall under the exclusive original jurisdiction of the Sandiganbayan, the following requisites must concur: (1) the offense committed is a violation of (a) R.A. 3019, as amended (the Anti-Graft and Corrupt Practices Act), (b) R.A. 1379 (the law on ill-gotten wealth), (c) Chapter II, Section 2, Title VII, Book II of the Revised Penal Code (the law on bribery), 30 (d) Executive Order Nos. 1, 2, 14, and 14-A, issued in 1986 (sequestration cases), 31 or (e) other offenses or felonies whether simple or complexed with other crimes; (2) the offender comitting the offenses in items (a), (b), (c) and (e) is a public official or employee 32 holding any of the positions enumerated in paragraph a of Section 4; and (3) the offense committed is in relation to the office. Considering that herein petitioner and intervenors are being charged with murder which is a felony punishable under Title VIII of the Revised Penal Code, the governing on the jurisdictional offense is not paragraph a but paragraph b, Section 4 of R.A. 8249. This paragraph b pertains to "other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned in subsection a of (Section 4, R.A. 8249) in relation to their office. "The phrase" other offenses or felonies" is too broad as to include the crime of murder, provided it was committed in relation to the accused's officials functions. Thus, under said paragraph b, what determines the Sandiganbayan's jurisdiction is the official position or rank of the offender that is, whether he is one of those public officers or employees enumerated in paragraph a of Section 4. The offenses mentioned in pargraphs a, b and c of the same Section 4 do not make any reference to the criminal participation of the accused public officer as to whether he is charged as a principal, accomplice or accessory. In enacting R.A. 8249, the Congress simply restored the original provisions of P.D. 1606 which does not mention the criminal participation of the public officer as a requisite to determine the jurisdiction of the Sandiganbayan. Petitioner and entervenors' posture that Section 4 and 7 of R.A. 8249 violate their right to equal protection of the law 33 because its enactment was particularly directed only to the Kuratong Baleleng cases in the Sandiganbayan, is a contention too shallow to deserve merit. No concrete evidence and convincing argument were presented to warrant a declaration of an act of the entire Congress and signed into law by the highest officer of the co-equal executive department as unconstitutional. Every classification made by law is presumed reasonable. Thus, the party who challenges the law must present proof of arbitrariness. 34 It is an established precept in constitutional law that the guaranty of the equal protection of the laws is not violated by a legislation based on reasonable classification. The classification is reasonable and not arbitrary when there is concurrence of four elements, namely:

(1) it must rest on substantial distinction; (2) it must be germane to the purpose of the law; (3) must not be limited to existing conditions only, and (4) must apply equaly to all members of the same class, 35 all of which are present in this case. The challengers of Sections 4 and 7 of R.A. 8249 failed to rebut the presumption of constitutionality and reasonables of the questioned provisions. The classification between those pending cases involving the concerned public officials whose trial has not yet commence and whose cases could have been affected by the amendments of the Sandiganbayan jurisdiction under R.A. 8249, as against those cases where trial had already started as of the approval of the law, rests on substantial distinction that makes real differences. 36 In the first instance, evidence against them were not yet presented, whereas in the latter the parties had already submitted their respective proofs, examined witnesses and presented documents. Since it is within the power of Congress to define the jurisdiction of courts subject to the constitutional limitations, 37 it can be reasonably anticipated that an alteration of that jurisdiction would necessarily affect pending cases, which is why it has to privide for a remedy in the form of a transitory provision. Thus, petitioner and intervenors cannot now claim that Sections 4 and 7 placed them under a different category from those similarly situated as them. Precisely, paragraph a of Section 4 provides that it shall apply to "all case involving" certain public officials and, under the transitory provision in Section 7, to "all cases pending in any court." Contrary to petitioner and intervenors' argument, the law is not particularly directed only to the Kuratong Baleleng cases. The transitory provision does not only cover cases which are in the Sandiganbayan but also in "any court." It just happened that Kuratong Baleleng cases are one of those affected by the law. Moreover, those cases where trial had already begun are not affected by the transitory provision under Section 7 of the new law (R.A. 8249). In their futile attempt to have said sections nullified, heavy reliance is premised on what is perceived as bad faith on the part of a Senator and two Justices of the Sandiganbaya 38 for their participation in the passage of the said provisions. In particular, it is stressed that the Senator had expressed strong sentiments against those officials involved in the Kuratong Baleleng cases during the hearings conducted on the matter by the committee headed by the Senator. Petitioner further contends that the legislature is biased against him as he claims to have been selected from among the 67 million other Filipinos as the object of the deletion of the word "principal" in paragraph a, Section 4 of P.D. 1606, as amended, and of the transitory provision of R.A. 8249. 39 R.A 8249, while still a bill, was acted, deliberated, considered by 23 other Senators and by about 250 Representatives, and was separately approved by the Senate and House of Representatives and, finally, by the President of the Philippines. On the perceived bias that the Sandiganbayan Justices allegedly had against petitioner during the committe hearings, the same would not constitute sufficient justification to nullify an otherwise valid law. Their presence and participation in the legislative hearings was deemed necessary by Congress since the matter before the committee involves the graft court of which one is the head of the Sandiganbayan and the other a member thereof. The Congress, in its plenary legislative powers, is particularly empowered by the Constitution to invite persons to appear before it whenever it decides to conduct inquiries in aid of legislation. 40

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Petitioner and entervenors further further argued that the retroactive application of R.A. 8249 to the Kuratong Baleleng cases constitutes an ex post facto law 41 for they are deprived of their right to procedural due process as they can no longer avail of the two-tiered appeal which they had allegedly acquired under R.A. 7975. Again, this contention is erroneous. There is nothing ex post facto in R.A. 8249. In Calder v. Bull, 42 an ex post facto law is one (a) which makes an act done criminal before the passing of the law and which was innocent when committed, and punishes such action; or (b) which aggravates a crime or makes it greater than when it was committed; or (c) which changes the punishment and inflicts a greater punishment than the law annexed to the crime when it was committed. (d) which alters the legal rules of evidence and recieves less or different testimony that the law required at the time of the commission of the offense on order to convict the defendant. 43 (e) Every law which, in relation to the offense or its consequences, alters the situation of a person to his disadvantage. 44 This Court added two more to the list, namely: (f) that which assumes to regulate civil rights and remedies only but in effect imposes a penalty or deprivation of a right which when done was lawful; (g) deprives a person accussed of crime of some lawful protection to which he has become entitled, such as the protection of a former conviction or acquittal, or a proclamation of a amnesty. 45 Ex post facto law, generally, prohibits retrospectivity of penal laws. 46 R.A. 8249 is not penal law. It is a substantive law on jurisdiction which is not penal in character. Penal laws are those acts of the Legislature which prohibit certain acts and establish penalties for their violations; 47 or those that define crimes, treat of their nature, and provide dor their punishment. 48 R.A 7975, which amended P.D. 1606 as regards the Sandiganbayan's jurisdiction, its mode of appeal and other procedural matters, has been declared by the Court as not a penal law, but clearly a procedural statute, i.e. one which prescribes rules of procedure by which courts applying laws of all kinds can properly administer justice. 49 Not being a penal law, the retroactive application of R.A. 8249 cannot be challenged as unconstitutional. Petitioner's and entervenors' contention that their right to a two-tiered appeal which they acquired under R.A. 7975 has been diluted by the enactment of R.A. 8249, is incorrect. The same contention has already been rejected by the court several times 50 considering that the right to appeal is not a natural right but statutory in nature that can be regulated by law. The mode of procedure provided for in the statutory right of appeal is not included in the prohibition against ex post facto laws. 51 R.A. 8249 pertains only to matters of procedure, and being merely an amendatory statute it does not partake the nature of an ex post facto law. It does not mete out a penalty and, therefore, does not come within the prohibition. 52 Moreover, the law did not alter the rules of evidence or the mode of trial. 53 It has been ruled that adjective statutes may be made applicable to actions pending and unresolved at the time of their passage. 54 In any case; R.A. 8249 has preserved the accused's right to appeal to the Supreme Court to review questions of law. 55 On the removal of the intermediate review of facts, the Supreme

Court still has the power of review to determine if he presumption of innocence has been convincing overcome. 56 Another point. The challenged law does not violate the one-title-one-subject provision of the Constitution. Much emphasis is placed on the wording in the title of the law that it "defines" the Sandiganbayan jurisdiction when what it allegedly does is to "expand" its jurisdiction. The expantion in the jurisdiction of the Sandiganbayan, if it can be considered as such, does not have to be expressly stated in the title of the law because such is the necessary consequence of the amendments. The requirement that every bill must only have one subject expressed in the title 57 is satisfied if the title is comprehensive enough, as in this case, to include subjects related to the general purpose which the statute seeks to achieve. 58 Such rule is liberally interpreted and should be given a practical rather than a technical construction. There is here sufficient compliance with such requirement, since the title of R.A. 8249 expresses the general subject (involving the jurisdiction of the Sandiganbayan and the amendment of P.D. 1606, as amended) and all the provisions of the law are germane to that general subject. 59 The Congress, in employing the word "define" in the title of the law, acted within its power since Section 2, Article VIII of the Constitution itself empowers the legislative body to "define, prescribe, and apportion the jurisdiction of various courts. 60 There being no unconstitutional infirmity in both the subject amendatory provision of Section 4 and the retroactive procedural application of the law as provided in Section 7 of R.A. No. 8249, we shall now determine whether under the allegations in the Informations, it is the Sandiganbayan or Regional Trial Court which has jurisdictions over the multiple murder case against herein petitioner and entervenors. The jurisdiction of a court is defined by the Constitution or statute. The elements of that definition must appear in the complaint or information so as to ascertain which court has jurisdiction over a case. Hence the elementary rule that the jurisdiction of a court is determined by the allegations in the complaint or informations, 61 and not by the evidence presented by the parties at the trial. 62 As stated earlier, the multiple murder charge against petitioner and intervenors falls under Section 4 [paragraph b] of R.A. 8249. Section 4 requires that the offense charged must be committed by the offender in relation to his office in order for the Sandiganbayan to have jurisdiction over it. 63 This jurisdictional requirement is in accordance with Section 5, Article XIII of the 1973 Constitution which mandated that the Sandiganbayan shall have jurisdiction over criminal cases committed by the public officers and employees, including those in govermentowned or controlled corporations, "in relation to their office as may be determined by law." This constitutional mandate was reiterated in the new (1987) Constitution when it declared in Section 4 thereof that the Sandiganbayan shall continue to function and exercise its jurisdiction as now or hereafter may be provided by law. The remaining question to be resolved then is whether the offense of multiple murder was committed in relation to the office of the accussed PNP officers. In People vs. Montejo, 64 we held that an offense is said to have been committed in relation to the office if it (the offense) is "intimately connected" with the office of the offender and perpetrated while he was in the performance of his official functions. 65 This intimate relation between the offense charged and the discharge of official duties "must be alleged in the informations." 66

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As to how the offense charged be stated in the informations, Section 9, Rule 110 of the Revised Rules of Court mandates: Sec. 9 Couse of accusation The acts or omissions complied of as constituting the offense must be stated in ordinary and concise language without repetition not necessarily in the terms of the statute defining the offense, but in such from as is sufficient to enable a person of common understanding to know what offense is intended to be charged, and enable the court to pronounce proper judgment. (Emphasis supplied) As early as 1954 we pronounced that "the factor that characterizes the charge is the actual recital of the facts." 67The real nature of the criminal charge is determined not from the caption or preamble of the informations nor from the specification of the provision of law alleged to have been violated, they being conclusions of law, but by the actual recital of facts in the complaint or information. 68 The noble object or written accusations cannot be overemphasized. This was explained in U.S. v. Karelsen: 69 The object of this written accusations was First; To furnish the accused with such a descretion of the charge against him as will enable him to make his defense and second to avail himself of his conviction or acquittal for protection against a further prosecution for the same cause and third, to inform the court of the facts alleged so that it may decide whether they are sufficient in law to support a conviction if one should be had. In order that the requirement may be satisfied, facts must be stated, not conclusions of law. Every crime is made up of certain acts and intent these must be set forth in the complaint with reasonable particularly of time, place, names (plaintiff and defendant) and circumstances. In short, the complaint must contain a specific allegation of every fact andcircumstance necessary to constitute the crime charged. (Emphasis supplied) It is essential, therefore, that the accused be informed of the facts that are imputed to him as "he is presumed to have no indefendent knowledge of the facts that constitute the offense." 70 Applying these legal principles and doctrines to the present case, we find the amended informations for murder against herein petitioner and intervenors wanting of specific factual averments to show the intimate relation/connection between the offense charged and the discharge of official function of the offenders. In the present case, one of the eleven (11) amended informations 71 for murder reads: AMENDED INFORMATIONS The undersigned Special Prosecution Officer III. Office of the Ombudsman hereby accuses CHIEF INSP. MICHAEL RAY AQUINO, CHIEF INSP. ERWIN T. VILLACORTE, SENIOR INSP. JOSELITO T. ESQUIVEL, INSP. RICARDO G. DANDAN, SPO4 VICENTE P. ARNADO, SPO4 ROBERTO F. LANGCAUON, SPO2 VIRGILIO V. PARAGAS, SPO2 ROLANDO R. JIMENEZ, SPO1 WILFREDO C. CUARTERO, SPO1 ROBERTO O. AGBALOG, SPO1 OSMUNDO B. CARINO, CHIEF SUPT. JEWEL F. CANSON, CHIEF SUPT. ROMEO M. ACOP, CHIEF SUPT. PANFILO M. LACSON, SENIOR SUPT. FRANCISCO G. ZUBIA JR., SUPT. ALMARIO A. HILARIO, CHIEF INSP. CESAR O. MANCAO III, CHIEF INSP. GIL L. MENESES, SENIOR INSP. GLENN DUMLAO, SENIOR INSP. ROLANDO ANDUYAN, INSP. CEASAR TANNAGAN, SPO3 WILLY NUAS, SPO3 CICERO S. BACOLOD, SPO2 NORBERTO LASAGA, PO2 LEONARDO GLORIA, and PO2

ALEJANDRO G. LIWANAG of the crime of Murder as defined and penalize under Article 248 of the Revised Penal Code committed as follows That on or about May 18, 1995 in Mariano Marcos Avenue, Quezon City Philippines and within the jurisdiction of his Honorable Court, the accused CHIEF INSP. MICHAEL RAY AQUINO, CHIEF INSP. ERWIN T. VILLACORTE, SENIOR INSP. JOSELITO T. ESQUIVEL, INSP. RICARDO G. DANDAN, SPO4 VICENTE ARNADO, SPO4 ROBERTO F. LANGCAUON, SPO2 VIRGILIO V. PARAGAS, SPO2 ROLANDO R. JIMENEZ, SPO1 WILFREDO C. CUARTERO, SPO1 ROBERTO O. AGBALOG, and SPO1 OSMUNDO B. CARINO, all taking advantage of their public and official positions as officers and members of the Philippine National Police and committing the acts herein alleged in relation to their public office, conspiring with intent to kill and using firearms with treachery evident premeditation and taking advantage of their superior strenghts did then and there willfully unlawfully and feloniously shoot JOEL AMORA, thereby inflicting upon the latter mortal wounds which caused his instantaneous death to the damage and prejudice of the heirs of the said victim. That accused CHIEF SUPT. JEWEL F. CANSON, CHIEF SUPT. ROMOE M. ACOP, CHIEF SUPT. PANFILO M. LACSON, SENIOR SUPT. FRANCISCO G. ZUBIAM JR., SUPT. ALMARIO A. HILARIO, CHIEF INSP. CESAR O. MANCAO II, CHIEF INSP. GIL L. MENESES, SENIOR INSP. GLENN DUMLAO, SENIOR INSP. ROLANDO ANDUYAN, INSP. CEASAR TANNAGAN, SPO3 WILLY NUAS, SPO3 CICERO S. BACOLOD, PO2 ALEJANDRO G. LIWANAG committing the acts in relation to office as officers and members of the Philippine National Police are charged herein as accessories after-the-fact for concealing the crime herein above alleged by among others falsely representing that there where no arrest made during the read conducted by the accused herein at Superville Subdivision, Paranaque, Metro Manila on or about the early dawn of May 18, 1995. CONTRARY LAW. While the above-quoted information states that the above-named principal accused committed the crime of murder "in relation to thier public office, there is, however, no specific allegation of facts that the shooting of the victim by the said principal accused was intimately related to the discharge of their official duties as police officers. Likewise, the amended information does not indicate that the said accused arrested and investigated the victim and then killed the latter while in their custody. Even the allegations concerning the criminal participation of herein petitioner and intevenors as among the accessories after-the-facts, the amended information is vague on this. It is alleged therein that the said accessories concelead "the crime herein-above alleged by, among others, falsely representing that there were no arrests made during the raid conducted by the accused herein at Superville Subdivision, Paranaque Metro Manila, on or about the early dawn of May 18, 1995." The sudden mention of the "arrests made during the raid conducted by the accused" surprises the reader. There is no indication in the amended information that the victim was one of those arrested by the accused during the "raid." Worse, the raid and arrests were allegedly conducted "at Superville Subdivision, Paranaque, Metro Manila" but, as alleged in the immediately preceding paragraph of the amended information, the shooting of the victim by the principal accused occurred in Mariano Marcos Avenue, Quezon City." How the raid, arrests and shooting happened in the two places far away from each other is puzzling. Again, while there is the allegation in the amended information that the

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said accessories committed the offense "in relation to office as officers and members of the (PNP)," we, however, do not see the intimate connection between the offense charged and the accused's official functions, which, as earlier discussed, is an essential element in determining the jurisdiction of the Sandiganbayan. The stringent requirement that the charge be set forth with such particularly as will reasonably indicate the exact offense which the accused is alleged to have committed in relation to his office was, sad to say, not satisfied. We believe that the mere allegation in the amended information that the offense was committed by the accused public officer in relation to his office is not sufficient. That phrase is merely a conclusion between of law, not a factual avernment that would show the close intimacy between the offense charged and the discharge of the accused's official duties. In People vs. Magallanes, 72 where the jurisdiction between the Regional Trial Court and the Sandiganbayan was at issue, we ruled: It is an elementary rule that jurisdiction is determined by the allegations in the complaint or information and not by the result of evidence after trial. In (People vs) Montejo (108 Phil 613 (1960), where the amended information alleged Leroy S. Brown City Mayor of Basilan City, as such, has organized groups of police patrol and civilian commandoes consisting of regular policeman and . . . special policemen appointed and provided by him with pistols and higher power guns and then established a camp . . . at Tipo-tipo which is under his command . . . supervision and control where his co-defendants were stationed entertained criminal complaints and conducted the corresponding investigations as well as assumed the authority to arrest and detain person without due process of law and without bringing them to the proper court, and that in line with this set-up established by said Mayor of Basilan City as such, and acting upon his orders his codefendants arrested and maltreated Awalin Tebag who denied in consequence thereof. we held that the offense charged was committed in relation to the office of the accused because it was perpetreated while they were in the performance, though improper or irregular of their official functions and would not have been committed had they not held their office, besides, the accused had no personal motive in committing the crime thus, there was an intimate connection between the offense and the office of the accused. Unlike in Montejo the informations in Criminal Cases Nos. 15562 and 15563 in the court below do not indicate that the accused arrested and investigated the victims and then killed the latter in the course of the investigation. The informations merely allege that the accused for the purpose of extracting or extortin the sum of P353,000.00 abducted, kidnapped and detained the two victims, and failing in their common purpose they shot; and killed the said victims. For the purpose of determining jurisdiction, it is these allegations that shall control, and not the evidence presented by the prosecution at the trial. In the aforecited case of People vs. Montejo, it is noteworthy that the phrase committed in relation to public office "does not appear in the information, which only signifies that the said phrase is not what determines the jurisdiction of the Sandiganbayan. What is controlling is the specific factual allegations in the information that would indicate the close intimacy between the discharge of the accused's official duties and the commission of the offense charged, in order to qualify the crime as having been committed in relation to public office.

Consequently, for failure to show in the amended informations that the charge of murder was intimately connected with the discharge of official functions of the accused PNP officers, the offense charged in the subject criminal cases is plain murder and, therefore, within the exclusive original jurisdiction of the Regional Trial Court, 73 not the Sandiganbayan. WHEREFORE, the constitutionality of Sections 4 and 7 of R.A. 8249 is hereby sustained. The Addendum to the March 5, 1997 Resolution of the Sandiganbayan is REVERSED. The Sandiganbayan is hereby directed to transfer Criminal Cases Nos. 23047 to 23057 (for multiple murder) to the Regional Trial Court of Quezon City which has exclusive original jurisdiction over the said cases.1wphi1.nt SO ORDERED. Davide, Jr., CJ., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena and Gonzaga-Reyes, JJ., concur. G.R. No. L-23794 February 17, 1968 ORMOC SUGAR COMPANY, INC., plaintiff-appellant, vs. THE TREASURER OF ORMOC CITY, THE MUNICIPAL BOARD OF ORMOC CITY, HON. ESTEBAN C. CONEJOS as Mayor of Ormoc City and ORMOC CITY, defendantsappellees. Ponce Enrile, Siguion Reyna, Montecillo & Belo and Teehankee, Carreon & Taada for plaintiff-appellant. Ramon O. de Veyra for defendants-appellees. BENGZON, J.P., J.: On January 29, 1964, the Municipal Board of Ormoc City passed 1 Ordinance No. 4, Series of 1964, imposing "on any and all productions of centrifugal sugar milled at the Ormoc Sugar Company, Inc., in Ormoc City a municipal tax equivalent to one per centum (1%) per export sale to the United States of America and other foreign countries." 2 Payments for said tax were made, under protest, by Ormoc Sugar Company, Inc. on March 20, 1964 for P7,087.50 and on April 20, 1964 for P5,000, or a total of P12,087.50. On June 1, 1964, Ormoc Sugar Company, Inc. filed before the Court of First Instance of Leyte, with service of a copy upon the Solicitor General, a complaint 3 against the City of Ormoc as well as its Treasurer, Municipal Board and Mayor, alleging that the afore-stated ordinance is unconstitutional for being violative of the equal protection clause (Sec. 1[1], Art. III, Constitution) and the rule of uniformity of taxation (Sec. 22[1]), Art. VI, Constitution), aside from being an export tax forbidden under Section 2287 of the Revised Administrative Code. It further alleged that the tax is neither a production nor a license tax which Ormoc City under Section 15-kk of its charter and under Section 2 of Republic Act 2264, otherwise known as the Local Autonomy Act, is authorized to impose; and that the tax amounts to a customs duty, fee or charge in violation of paragraph 1 of Section 2 of Republic Act 2264 because the tax is on both the sale and export of sugar. Answering, the defendants asserted that the tax ordinance was within defendant city's power to enact under the Local Autonomy Act and that the same did not violate the afore-cited constitutional limitations. After pre-trial and submission of the case on memoranda, the Court of First Instance, on August 6, 1964, rendered a decision that upheld the constitutionality of

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the ordinance and declared the taxing power of defendant chartered city broadened by the Local Autonomy Act to include all other forms of taxes, licenses or fees not excluded in its charter. Appeal therefrom was directly taken to Us by plaintiff Ormoc Sugar Company, Inc. Appellant alleges the same statutory and constitutional violations in the aforesaid taxing ordinance mentioned earlier. Section 1 of the ordinance states: "There shall be paid to the City Treasurer on any and all productions of centrifugal sugar milled at the Ormoc Sugar Company, Incorporated, in Ormoc City, a municipal tax equivalent to one per centum (1%) per export sale to the United States of America and other foreign countries." Though referred to as a tax on the export of centrifugal sugar produced at Ormoc Sugar Company, Inc. For production of sugar alone is not taxable; the only time the tax applies is when the sugar produced is exported. Appellant questions the authority of the defendant Municipal Board to levy such an export tax, in view of Section 2287 of the Revised Administrative Code which denies from municipal councils the power to impose an export tax. Section 2287 in part states: "It shall not be in the power of the municipal council to impose a tax in any form whatever, upon goods and merchandise carried into the municipality, or out of the same, and any attempt to impose an import or export tax upon such goods in the guise of an unreasonable charge for wharfage use of bridges or otherwise, shall be void." Subsequently, however, Section 2 of Republic Act 2264 effective June 19, 1959, gave chartered cities, municipalities and municipal districts authority to levy for public purposes just and uniform taxes, licenses or fees. Anent the inconsistency between Section 2287 of the Revised Administrative Code and Section 2 of Republic Act 2264, this Court, in Nin Bay Mining Co. v. Municipality of Roxas 4 held the former to have been repealed by the latter. And expressing Our awareness of the transcendental effects that municipal export or import taxes or licenses will have on the national economy, due to Section 2 of Republic Act 2264, We stated that there was no other alternative until Congress acts to provide remedial measures to forestall any unfavorable results. The point remains to be determined, however, whether constitutional limits on the power of taxation, specifically the equal protection clause and rule of uniformity of taxation, were infringed. The Constitution in the bill of rights provides: ". . . nor shall any person be denied the equal protection of the laws." (Sec. 1 [1], Art. III) In Felwa vs. Salas, 5 We ruled that the equal protection clause applies only to persons or things identically situated and does not bar a reasonable classification of the subject of legislation, and a classification is reasonable where (1) it is based on substantial distinctions which make real differences; (2) these are germane to the purpose of the law; (3) the classification applies not only to present conditions but also to future conditions which are substantially identical to those of the present; (4) the classification applies only to those who belong to the same class. A perusal of the requisites instantly shows that the questioned ordinance does not meet them, for it taxes only centrifugal sugar produced and exported by the Ormoc Sugar Company, Inc. and none other. At the time of the taxing ordinance's enactment, Ormoc Sugar Company, Inc., it is true, was the only sugar central in the city of Ormoc. Still, the classification, to be reasonable, should be in terms applicable to future conditions as well. The

taxing ordinance should not be singular and exclusive as to exclude any subsequently established sugar central, of the same class as plaintiff, for the coverage of the tax. As it is now, even if later a similar company is set up, it cannot be subject to the tax because the ordinance expressly points only to Ormoc City Sugar Company, Inc. as the entity to be levied upon. Appellant, however, is not entitled to interest; on the refund because the taxes were not arbitrarily collected (Collector of Internal Revenue v. Binalbagan). 6 At the time of collection, the ordinance provided a sufficient basis to preclude arbitrariness, the same being then presumed constitutional until declared otherwise. WHEREFORE, the decision appealed from is hereby reversed, the challenged ordinance is declared unconstitutional and the defendants-appellees are hereby ordered to refund the P12,087.50 plaintiff-appellant paid under protest. No costs. So ordered. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur.1wph1.t G.R. No. 132527. July 29, 2005 COCONUT OIL REFINERS ASSOCIATION, INC. represented by its President, JESUS L. ARRANZA, PHILIPPINE ASSOCIATION OF MEAT PROCESSORS, INC. (PAMPI), represented by its Secretary, ROMEO G. HIDALGO, FEDERATION OF FREE FARMERS (FFF), represented by its President, JEREMIAS U. MONTEMAYOR, and BUKLURAN NG MANGGAGAWANG PILIPINO (BMP), represented by its Chairperson, FELIMON C. LAGMAN, Petitioners, vs. HON. RUBEN TORRES, in his capacity as Executive Secretary; BASES CONVERSION AND DEVELOPMENT AUTHORITY, CLARK DEVELOPMENT CORPORATION, SUBIC BAY METROPOLITAN AUTHORITY, 88 MART DUTY FREE, FREEPORT TRADERS, PX CLUB, AMERICAN HARDWARE, ROYAL DUTY FREE SHOPS, INC., DFS SPORTS, ASIA PACIFIC, MCI DUTY FREE DISTRIBUTOR CORP. (formerly MCI RESOURCES, CORP.), PARK & SHOP, DUTY FREE COMMODITIES, L. FURNISHING, SHAMBURGH, SUBIC DFS, ARGAN TRADING CORP., ASIPINE CORP., BEST BUY, INC., PX CLUB, CLARK TRADING, DEMAGUS TRADING CORP., D.F.S. SPORTS UNLIMITED, INC., DUTY FREE FIRST SUPERSTORE, INC., FREEPORT, JC MALL DUTY FREE INC. (formerly 88 Mart [Clark] Duty Free Corp.), LILLY HILL CORP., MARSHALL, PUREGOLD DUTY FREE, INC., ROYAL DFS and ZAXXON PHILIPPINES, INC., Respondents. DECISION AZCUNA, J.: This is a Petition for Prohibition and Injunction seeking to enjoin and prohibit the Executive Branch, through the public respondents Ruben Torres in his capacity as Executive Secretary, the Bases Conversion Development Authority (BCDA), the Clark Development Corporation (CDC) and the Subic Bay Metropolitan Authority (SBMA), from allowing, and the private respondents from continuing with, the operation of tax and duty-free shops located at the Subic Special Economic Zone (SSEZ) and the Clark Special Economic Zone (CSEZ), and to declare the following issuances as unconstitutional, illegal, and void: 1. Section 5 of Executive Order No. 80,1 dated April 3, 1993, regarding the CSEZ.

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2. Executive Order No. 97-A, dated June 19, 1993, pertaining to the SSEZ. 3. Section 4 of BCDA Board Resolution No. 93-05-034,2 dated May 18, 1993, pertaining to the CSEZ. Petitioners contend that the aforecited issuances are unconstitutional and void as they constitute executive lawmaking, and that they are contrary to Republic Act No. 72273 and in violation of the Constitution, particularly Section 1, Article III (equal protection clause), Section 19, Article XII (prohibition of unfair competition and combinations in restraint of trade), and Section 12, Article XII (preferential use of Filipino labor, domestic materials and locally produced goods). The facts are as follows: On March 13, 1992, Republic Act No. 7227 was enacted, providing for, among other things, the sound and balanced conversion of the Clark and Subic military reservations and their extensions into alternative productive uses in the form of special economic zones in order to promote the economic and social development of Central Luzon in particular and the country in general. Among the salient provisions are as follows: SECTION 12. Subic Special Economic Zone. ... The abovementioned zone shall be subject to the following policies: (a) Within the framework and subject to the mandate and limitations of the Constitution and the pertinent provisions of the Local Government Code, the Subic Special Economic Zone shall be developed into a self-sustaining, industrial, commercial, financial and investment center to generate employment opportunities in and around the zone and to attract and promote productive foreign investments; (b) The Subic Special Economic Zone shall be operated and managed as a separate customs territory ensuringfree flow or movement of goods and capital within, into and exported out of the Subic Special Economic Zone, as well as provide incentives such as tax and duty-free importations of raw materials, capital and equipment. However, exportation or removal of goods from the territory of the Subic Special Economic Zone to the other parts of the Philippine territory shall be subject to customs duties and taxes under the Customs and Tariff Code and other relevant tax laws of the Philippines;4 (c) The provision of existing laws, rules and regulations to the contrary notwithstanding, no taxes, local and national, shall be imposed within the Subic Special Economic Zone. In lieu of paying taxes, three percent (3%) of the gross income earned by all businesses and enterprises within the Subic Special Ecoomic Zone shall be remitted to the National Government, one percent (1%) each to the local government units affected by the declaration of the zone in proportion to their population area, and other factors. In addition, there is hereby established a development fund of one percent (1%) of the gross income earned by all businesses and enterprises within the Subic Special Economic Zone to be utilized for the development of municipalities outside the City of Olangapo and the Municipality of Subic, and other municipalities contiguous to the base areas. ... SECTION 15. Clark and Other Special Economic Zones. Subject to the concurrence by resolution of the local government units directly affected, the President is hereby authorized to create by executive proclamation a Special Economic Zone covering the lands occupied by

the Clark military reservations and its contiguous extensions as embraced, covered and defined by the 1947 Military Bases Agreement between the Philippines and the United States of America, as amended, located within the territorial jurisdiction of Angeles City, Municipalities of Mabalacat and Porac, Province of Pampanga and the Municipality of Capas, Province of Tarlac, in accordance with the policies as herein provided insofar as applicable to the Clark military reservations. The governing body of the Clark Special Economic Zone shall likewise be established by executive proclamation with such powers and functions exercised by the Export Processing Zone Authority pursuant to Presidential Decree No. 66 as amended. The policies to govern and regulate the Clark Special Economic Zone shall be determined upon consultation with the inhabitants of the local government units directly affected which shall be conducted within six (6) months upon approval of this Act. Similarly, subject to the concurrence by resolution of the local government units directly affected, the President shall create other Special Economic Zones, in the base areas of Wallace Air Station in San Fernando, La Union (excluding areas designated for communications, advance warning and radar requirements of the Philippine Air Force to be determined by the Conversion Authority) and Camp John Hay in the City of Baguio. Upon recommendation of the Conversion Authority, the President is likewise authorized to create Special Economic Zones covering the Municipalities of Morong, Hermosa, Dinalupihan, Castillejos and San Marcelino. On April 3, 1993, President Fidel V. Ramos issued Executive Order No. 80, which declared, among others, that Clark shall have all the applicable incentives granted to the Subic Special Economic and Free Port Zone under Republic Act No. 7227. The pertinent provision assailed therein is as follows: SECTION 5. Investments Climate in the CSEZ. Pursuant to Section 5(m) and Section 15 of RA 7227, the BCDA shall promulgate all necessary policies, rules and regulations governing the CSEZ, including investment incentives, in consultation with the local government units and pertinent government departments for implementation by the CDC. Among others, the CSEZ shall have all the applicable incentives in the Subic Special Economic and Free Port Zone under RA 7227 and those applicable incentives granted in the Export Processing Zones, the Omnibus Investments Code of 1987, the Foreign Investments Act of 1991 and new investments laws which may hereinafter be enacted. The CSEZ Main Zone covering the Clark Air Base proper shall have all the aforecited investment incentives, while the CSEZ Sub-Zone covering the rest of the CSEZ shall have limited incentives. The full incentives in the Clark SEZ Main Zone and the limited incentives in the Clark SEZ Sub-Zone shall be determined by the BCDA. Pursuant to the directive under Executive Order No. 80, the BCDA passed Board Resolution No. 93-05-034 on May 18, 1993, allowing the tax and duty-free sale at retail of consumer goods imported via Clark for consumption outside the CSEZ. The assailed provisions of said resolution read, as follows: Section 4. SPECIFIC INCENTIVES IN THE CSEZ MAIN ZONE. The CSEZ-registered enterprises/businesses shall be entitled to all the incentives available under R.A. No. 7227, E.O. No. 226 and R.A. No. 7042 which shall include, but not limited to, the following: I. As in Subic Economic and Free Port Zone:

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A. Customs: ... 4. Tax and duty-free purchase and consumption of goods/articles (duty free shopping) within the CSEZ Main Zone. 5. For individuals, duty-free consumer goods may be brought out of the CSEZ Main Zone into the Philippine Customs territory but not to exceed US$200.00 per month per CDC-registered person, similar to the limits imposed in the Subic SEZ. This privilege shall be enjoyed only once a month. Any excess shall be levied taxes and duties by the Bureau of Customs. On June 10, 1993, the President issued Executive Order No. 97, "Clarifying the Tax and Duty Free Incentive Within the Subic Special Economic Zone Pursuant to R.A. No. 7227." Said issuance in part states, thus: SECTION 1. On Import Taxes and Duties Tax and duty-free importations shall apply only to raw materials, capital goods and equipment brought in by business enterprises into the SSEZ. Except for these items, importations of other goods into the SSEZ, whether by business enterprises or resident individuals, are subject to taxes and duties under relevant Philippine laws. The exportation or removal of tax and duty-free goods from the territory of the SSEZ to other parts of the Philippine territory shall be subject to duties and taxes under relevant Philippine laws. Nine days after, on June 19, 1993, Executive Order No. 97-A was issued, "Further Clarifying the Tax and Duty-Free Privilege Within the Subic Special Economic and Free Port Zone." The relevant provisions read, as follows: SECTION 1. The following guidelines shall govern the tax and duty-free privilege within the Secured Area of the Subic Special Economic and Free Port Zone: 1.1 The Secured Area consisting of the presently fenced-in former Subic Naval Base shall be the only completely tax and duty-free area in the SSEFPZ. Business enterprises and individuals (Filipinos and foreigners) residing within the Secured Area are free to import raw materials, capital goods, equipment, and consumer items tax and duty-free. Consumption items, however, must be consumed within the Secured Area. Removal of raw materials, capital goods, equipment and consumer items out of the Secured Area for sale to nonSSEFPZ registered enterprises shall be subject to the usual taxes and duties, except as may be provided herein. 1.2. Residents of the SSEFPZ living outside the Secured Area can enter the Secured Area and consume any quantity of consumption items in hotels and restaurants within the Secured Area. However, these residents can purchase and bring out of the Secured Area to other parts of the Philippine territory consumer items worth not exceeding US$100 per month per person. Only residents age 15 and over are entitled to this privilege. 1.3. Filipinos not residing within the SSEFPZ can enter the Secured Area and consume any quantity of consumption items in hotels and restaurants within the Secured Area. However, they can purchase and bring out [of] the Secured Area to other parts of the Philippine territory consumer items worth not exceeding US$200 per year per person. Only Filipinos age 15 and over are entitled to this privilege.

Petitioners assail the $100 monthly and $200 yearly tax-free shopping privileges granted by the aforecited provisions respectively to SSEZ residents living outside the Secured Area of the SSEZ and to Filipinos aged 15 and over residing outside the SSEZ. On February 23, 1998, petitioners thus filed the instant petition, seeking the declaration of nullity of the assailed issuances on the following grounds: I. EXECUTIVE ORDER NO. 97-A, SECTION 5 OF EXECUTIVE ORDER NO. 80, AND SECTION 4 OF BCDA BOARD RESOLUTION NO. 93-05-034 ARE NULL AND VOID [FOR] BEING AN EXERCISE OF EXECUTIVE LAWMAKING. II. EXECUTIVE ORDER NO. 97-A, SECTION 5 OF EXECUTIVE ORDER NO. 80, AND SECTION 4 OF BCDA BOARD RESOLUTION NO. 93-05-034 ARE UNCONSTITUTIONAL FOR BEING VIOLATIVE OF THE EQUAL PROTECTION CLAUSE AND THE PROHIBITION AGAINST UNFAIR COMPETITION AND PRACTICES IN RESTRAINT OF TRADE. III. EXECUTIVE ORDER NO. 97-A, SECTION 5 OF EXECUTIVE ORDER NO. 80, AND SECTION 4 OF BCDA BOARD RESOLUTION NO. 93-05-034 ARE NULL AND VOID [FOR] BEING VIOLATIVE OF REPUBLIC ACT NO. 7227. IV. THE CONTINUED IMPLEMENTATION OF THE CHALLENGED ISSUANCES IF NOT RESTRAINED WILL CONTINUE TO CAUSE PETITIONERS TO SUFFER GRAVE AND IRREPARABLE INJURY.5 In their Comments, respondents point out procedural issues, alleging lack of petitioners legal standing, the unreasonable delay in the filing of the petition, laches, and the propriety of the remedy of prohibition. Anent the claim on lack of legal standing, respondents argue that petitioners, being mere suppliers of the local retailers operating outside the special economic zones, do not stand to suffer direct injury in the enforcement of the issuances being assailed herein. Assuming this is true, this Court has nevertheless held that in cases of paramount importance where serious constitutional questions are involved, the standing requirements may be relaxed and a suit may be allowed to prosper even where there is no direct injury to the party claiming the right of judicial review.6 In the same vein, with respect to the other alleged procedural flaws, even assuming the existence of such defects, this Court, in the exercise of its discretion, brushes aside these technicalities and takes cognizance of the petition considering the importance to the public of the present case and in keeping with the duty to determine whether the other branches of the government have kept themselves within the limits of the Constitution.7 Now, on the constitutional arguments raised: As this Court enters upon the task of passing on the validity of an act of a co-equal and coordinate branch of the Government, it bears emphasis that deeply ingrained in our jurisprudence is the time-honored principle that a statute is presumed to be valid.8 This presumption is rooted in the doctrine of separation of powers which enjoins upon the three coordinate departments of the Government a becoming courtesy for each others acts.9 Hence, to doubt is to sustain. The theory is that before the act was done or the law was

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enacted, earnest studies were made by Congress, or the President, or both, to insure that the Constitution would not be breached.10 This Court, however, may declare a law, or portions thereof, unconstitutional where a petitioner has shown a clear and unequivocal breach of the Constitution, not merely a doubtful or argumentative one.11 In other words, before a statute or a portion thereof may be declared unconstitutional, it must be shown that the statute or issuance violates the Constitution clearly, palpably and plainly, and in such a manner as to leave no doubt or hesitation in the mind of the Court.12 The Issue on Executive Legislation Petitioners claim that the assailed issuances (Executive Order No. 97-A; Section 5 of Executive Order No. 80; and Section 4 of BCDA Board Resolution No. 93-05-034) constitute executive legislation, in violation of the rule on separation of powers. Petitioners argue that the Executive Department, by allowing through the questioned issuances the setting up of tax and duty-free shops and the removal of consumer goods and items from the zones without payment of corresponding duties and taxes, arbitrarily provided additional exemptions to the limitations imposed by Republic Act No. 7227, which limitations petitioners identify as follows: (1) [Republic Act No. 7227] allowed only tax and duty-free importation of raw materials, capital and equipment. (2) It provides that any exportation or removal of goods from the territory of the Subic Special Economic Zone to other parts of the Philippine territory shall be subject to customs duties and taxes under the Customs and Tariff Code and other relevant tax laws of the Philippines. Anent the first alleged limitation, petitioners contend that the wording of Republic Act No. 7227 clearly limits the grant of tax incentives to the importation of raw materials, capital and equipment only. Hence, they claim that the assailed issuances constitute executive legislation for invalidly granting tax incentives in the importation of consumer goods such as those being sold in the duty-free shops, in violation of the letter and intent of Republic Act No. 7227. A careful reading of Section 12 of Republic Act No. 7227, which pertains to the SSEZ, would show that it does not restrict the duty-free importation only to "raw materials, capital and equipment." Section 12 of the cited law is partly reproduced, as follows: SECTION 12. Subic Special Economic Zone. ... The abovementioned zone shall be subject to the following policies: ... (b) The Subic Special Economic Zone shall be operated and managed as a separate customs territory ensuring free flow or movement of goods and capital within, into and exported out of the Subic Special Economic Zone, as well as provide incentives such as tax and duty-free importations of raw materials, capital and equipment.However, exportation or removal of goods from the territory of the Subic Special Economic Zone to the other parts of the Philippine territory shall be subject to customs duties and taxes under the Customs and Tariff Code and other relevant tax laws of the Philippines.13 While it is true that Section 12 (b) of Republic Act No. 7227 mentions only raw materials, capital and equipment, this does not necessarily mean that the tax and duty-free buying privilege is limited to these types of articles to the exclusion of consumer goods. It must be remembered that in construing statutes, the proper course is to start out and follow the true

intent of the Legislature and to adopt that sense which harmonizes best with the context and promotes in the fullest manner the policy and objects of the Legislature.14 In the present case, there appears to be no logic in following the narrow interpretation petitioners urge. To limit the tax-free importation privilege of enterprises located inside the special economic zone only to raw materials, capital and equipment clearly runs counter to the intention of the Legislature to create a free port where the "free flow ofgoods or capital within, into, and out of the zones" is insured. The phrase "tax and duty-free importations of raw materials, capital and equipment" was merely cited as an example of incentives that may be given to entities operating within the zone. Public respondent SBMA correctly argued that the maxim expressio unius est exclusio alterius, on which petitioners impliedly rely to support their restrictive interpretation, does not apply when words are mentioned by way of example.15 It is obvious from the wording of Republic Act No. 7227, particularly the use of the phrase "such as," that the enumeration only meant to illustrate incentives that the SSEZ is authorized to grant, in line with its being a free port zone. Furthermore, said legal maxim should be applied only as a means of discovering legislative intent which is not otherwise manifest, and should not be permitted to defeat the plainly indicated purpose of the Legislature.16 The records of the Senate containing the discussion of the concept of "special economic zone" in Section 12 (a) of Republic Act No. 7227 show the legislative intent that consumer goods entering the SSEZ which satisfy the needs of the zone and are consumed there are not subject to duties and taxes in accordance with Philippine laws, thus: Senator Guingona. . . . The concept of Special Economic Zone is one that really includes the concept of a free port, but it is broader. While a free port is necessarily included in the Special Economic Zone, the reverse is not true that a free port would include a special economic zone. Special Economic Zone, Mr. President, would include not only the incoming and outgoing of vessels, duty-free and tax-free, but it would involve also tourism, servicing, financing and all the appurtenances of an investment center. So, that is the concept, Mr. President. It is broader. It includes the free port concept and would cater to the greater needs of Olangapo City, Subic Bay and the surrounding municipalities. Senator Enrile. May I know then if a factory located within the jurisdiction of Morong, Bataan that was originally a part of the Subic Naval reservation, be entitled to a free port treatment or just a special economic zone treatment? Senator Guingona. As far as the goods required for manufacture is concerned, Mr. President, it would have privileges of duty-free and tax-free. But in addition, the Special Economic Zone could embrace the needs of tourism, could embrace the needs of servicing, could embrace the needs of financing and other investment aspects. Senator Enrile. When a hotel is constructed, Mr. President, in this geographical unit which we call a special economic zone, will the goods entering to be consumed by the customers or guests of the hotel be subject to duties? Senator Guingona. That is the concept that we are crafting, Mr. President. Senator Enrile. No. I am asking whether those goods will be duty-free, because it is constructed within a free port.

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Senator Guingona. For as long as it services the needs of the Special Economic Zone, yes. Senator Enrile. For as long as the goods remain within the zone, whether we call it an economic zone or a free port, for as long as we say in this law that all goods entering this particular territory will be duty-free and tax-free, for as long as they remain there, consumed there or reexported or destroyed in that place, then they are not subject to the duties and taxes in accordance with the laws of the Philippines? Senator Guingona. Yes.17 Petitioners rely on Committee Report No. 1206 submitted by the Ad Hoc Oversight Committee on Bases Conversion on June 26, 1995. Petitioners put emphasis on the reports finding that the setting up of duty-free stores never figured in the minds of the authors of Republic Act No. 7227 in attracting foreign investors to the former military baselands. They maintain that said law aimed to attract manufacturing and service enterprises that will employ the dislocated former military base workers, but not investors who would buy consumer goods from duty-free stores. The Court is not persuaded. Indeed, it is well-established that opinions expressed in the debates and proceedings of the Legislature, steps taken in the enactment of a law, or the history of the passage of the law through the Legislature, may be resorted to as aids in the interpretation of a statute with a doubtful meaning.18 Petitioners posture, however, overlooks the fact that the 1995 Committee Report they are referring to came into being well after the enactment of Republic Act No. 7227 in 1993. Hence, as pointed out by respondent Executive Secretary Torres, the aforementioned report cannot be said to form part of Republic Act No. 7227s legislative history. Section 12 of Republic Act No. 7227, provides in part, thus: SEC. 12. Subic Special Economic Zone. -- . . . The abovementioned zone shall be subject to the following policies: (a) Within the framework and subject to the mandate and limitations of the Constitution and the pertinent provisions of the Local Government Code, the Subic Special Economic Zone shall be developed into a self-sustaining, industrial, commercial, financial and investment center to generate employment opportunities in and around the zone and to attract and promote productive foreign investments. 19 The aforecited policy was mentioned as a basis for the issuance of Executive Order No. 97-A, thus: WHEREAS, Republic Act No. 7227 provides that within the framework and subject to the mandate and limitations of the Constitution and the pertinent provisions of the Local Government Code, the Subic Special Economic and Free Port Zone (SSEFPZ) shall be developed into a self-sustaining industrial, commercial, financial and investment center to generate employment opportunities in and around the zone and to attract and promote productive foreign investments; and WHEREAS, a special tax and duty-free privilege within a Secured Area in the SSEFPZ subject, to existing laws has been determined necessary to attract local and foreign visitors to the zone. Executive Order No. 97-A provides guidelines to govern the "tax and duty-free privileges within the Secured Area of the Subic Special Economic and Free Port Zone." Paragraph 1.6

thereof states that "(t)he sale of tax and duty-free consumer items in the Secured Area shall only be allowed in duly authorized duty-free shops." The Court finds that the setting up of such commercial establishments which are the only ones duly authorized to sell consumer items tax and duty-free is still well within the policy enunciated in Section 12 of Republic Act No. 7227 that ". . .the Subic Special Economic Zone shall be developed into a self-sustaining, industrial, commercial, financial and investment center to generate employment opportunities in and around the zone and to attract and promote productive foreign investments." (Emphasis supplied.) However, the Court reiterates that the second sentences of paragraphs 1.2 and 1.3 of Executive Order No. 97-A, allowing tax and duty-free removal of goods to certain individuals, even in a limited amount, from the Secured Area of the SSEZ, are null and void for being contrary to Section 12 of Republic Act No. 7227. Said Section clearly provides that "exportation or removal of goods from the territory of the Subic Special Economic Zone to the other parts of the Philippine territory shall be subject to customs duties and taxes under the Customs and Tariff Code and other relevant tax laws of the Philippines." On the other hand, insofar as the CSEZ is concerned, the case for an invalid exercise of executive legislation is tenable. In John Hay Peoples Alternative Coalition, et al. v. Victor Lim, et al.,20 this Court resolved an issue, very much like the one herein, concerning the legality of the tax exemption benefits given to the John Hay Economic Zone under Presidential Proclamation No. 420, Series of 1994, "CREATING AND DESIGNATING A PORTION OF THE AREA COVERED BY THE FORMER CAMP JOHN AS THE JOHN HAY SPECIAL ECONOMIC ZONE PURSUANT TO REPUBLIC ACT NO. 7227." In that case, among the arguments raised was that the granting of tax exemptions to John Hay was an invalid and illegal exercise by the President of the powers granted only to the Legislature. Petitioners therein argued that Republic Act No. 7227 expressly granted tax exemption only to Subic and not to the other economic zones yet to be established. Thus, the grant of tax exemption to John Hay by Presidential Proclamation contravenes the constitutional mandate that "[n]o law granting any tax exemption shall be passed without the concurrence of a majority of all the members of Congress."21 This Court sustained the argument and ruled that the incentives under Republic Act No. 7227 are exclusive only to the SSEZ. The President, therefore, had no authority to extend their application to John Hay. To quote from the Decision: More importantly, the nature of most of the assailed privileges is one of tax exemption. It is the legislature, unless limited by a provision of a state constitution, that has full power to exempt any person or corporation or class of property from taxation, its power to exempt being as broad as its power to tax. Other than Congress, the Constitution may itself provide for specific tax exemptions, or local governments may pass ordinances on exemption only from local taxes. The challenged grant of tax exemption would circumvent the Constitutions imposition that a law granting any tax exemption must have the concurrence of a majority of all the members of Congress. In the same vein, the other kinds of privileges extended to the John Hay SEZ are by tradition and usage for Congress to legislate upon.

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Contrary to public respondents suggestions, the claimed statutory exemption of the John Hay SEZ from taxation should be manifest and unmistakable from the language of the law on which it is based; it must be expressly granted in a statute stated in a language too clear to be mistaken. Tax exemption cannot be implied as it must be categorically and unmistakably expressed. If it were the intent of the legislature to grant to John Hay SEZ the same tax exemption and incentives given to the Subic SEZ, it would have so expressly provided in R.A. No. 7227.22 In the present case, while Section 12 of Republic Act No. 7227 expressly provides for the grant of incentives to the SSEZ, it fails to make any similar grant in favor of other economic zones, including the CSEZ. Tax and duty-free incentives being in the nature of tax exemptions, the basis thereof should be categorically and unmistakably expressed from the language of the statute. Consequently, in the absence of any express grant of tax and dutyfree privileges to the CSEZ in Republic Act No. 7227, there would be no legal basis to uphold the questioned portions of two issuances: Section 5 of Executive Order No. 80 and Section 4 of BCDA Board Resolution No. 93-05-034, which both pertain to the CSEZ. Petitioners also contend that the questioned issuances constitute executive legislation for allowing the removal of consumer goods and items from the zones without payment of corresponding duties and taxes in violation of Republic Act No. 7227 as Section 12 thereof provides for the taxation of goods that are exported or removed from the SSEZ to other parts of the Philippine territory. On September 26, 1997, Executive Order No. 444 was issued, curtailing the duty-free shopping privileges in the SSEZ and the CSEZ "to prevent abuse of duty-free privilege and to protect local industries from unfair competition." The pertinent provisions of said issuance state, as follows: SECTION 3. Special Shopping Privileges Granted During the Year-round Centennial Anniversary Celebration in 1998. Upon effectivity of this Order and up to the Centennial Year 1998, in addition to the permanent residents, locators and employees of the fenced-in areas of the Subic Special Economic and Freeport Zone and the Clark Special Economic Zone who are allowed unlimited duty free purchases, provided these are consumed within said fenced-in areas of the Zones, the residents of the municipalities adjacent to Subic and Clark as respectively provided in R.A. 7227 (1992) and E.O. 97-A s. 1993 shall continue to be allowed One Hundred US Dollars (US$100) monthly shopping privilege until 31 December 1998. Domestic tourists visiting Subic and Clark shall be allowed a shopping privilege of US$25 for consumable goods which shall be consumed only in the fenced-in area during their visit therein. SECTION 4. Grant of Duty Free Shopping Privileges Limited Only To Individuals Allowed by Law. Starting 1 January 1999, only the following persons shall continue to be eligible to shop in duty free shops/outlets with their corresponding purchase limits: a. Tourists and Filipinos traveling to or returning from foreign destinations under E.O. 97-A s. 1993 One Thousand US Dollars (US$1,000) but not to exceed Ten Thousand US Dollars (US$10,000) in any given year; b. Overseas Filipino Workers (OFWs) and Balikbayans defined under R.A. 6768 dated 3 November 1989 Two Thousand US Dollars (US$2,000);

c. Residents, eighteen (18) years old and above, of the fenced-in areas of the freeports under R.A. 7227 (1992) and E.O. 97-A s. 1993 Unlimited purchase as long as these are for consumption within these freeports. The term "Residents" mentioned in item c above shall refer to individuals who, by virtue of domicile or employment, reside on permanent basis within the freeport area. The term excludes (1) non-residents who have entered into short- or long-term property lease inside the freeport, (2) outsiders engaged in doing business within the freeport, and (3) members of private clubs (e.g., yacht and golf clubs) based or located within the freeport. In this regard, duty free privileges granted to any of the above individuals (e.g., unlimited shopping privilege, tax-free importation of cars, etc.) are hereby revoked.23 A perusal of the above provisions indicates that effective January 1, 1999, the grant of dutyfree shopping privileges to domestic tourists and to residents living adjacent to SSEZ and the CSEZ had been revoked. Residents of the fenced-in area of the free port are still allowed unlimited purchase of consumer goods, "as long as these are for consumption within these freeports." Hence, the only individuals allowed by law to shop in the duty-free outlets and remove consumer goods out of the free ports tax-free are tourists and Filipinos traveling to or returning from foreign destinations, and Overseas Filipino Workers and Balikbayans as defined under Republic Act No. 6768.24 Subsequently, on October 20, 2000, Executive Order No. 303 was issued, amending Executive Order No. 444. Pursuant to the limited duration of the privileges granted under the preceding issuance, Section 2 of Executive Order No. 303 declared that "[a]ll special shopping privileges as granted under Section 3 of Executive Order 444, s. 1997, are hereby deemed terminated. The grant of duty free shopping privileges shall be restricted to qualified individuals as provided by law." It bears noting at this point that the shopping privileges currently being enjoyed by Overseas Filipino Workers, Balikbayans, and tourists traveling to and from foreign destinations, draw authority not from the issuances being assailed herein, but from Executive Order No. 46 25 and Republic Act No. 6768, both enacted prior to the promulgation of Republic Act No. 7227. From the foregoing, it appears that petitioners objection to the allowance of tax-free removal of goods from the special economic zones as previously authorized by the questioned issuances has become moot and academic. In any event, Republic Act No. 7227, specifically Section 12 (b) thereof, clearly provides that "exportation or removal of goods from the territory of the Subic Special Economic Zone to the other parts of the Philippine territory shall be subject to customs duties and taxes under the Customs and Tariff Code and other relevant tax laws of the Philippines." Thus, the removal of goods from the SSEZ to other parts of the Philippine territory without payment of said customs duties and taxes is not authorized by the Act. Consequently, the following italicized provisions found in the second sentences of paragraphs 1.2 and 1.3, Section 1 of Executive Order No. 97-A are null and void: 1.2 Residents of the SSEFPZ living outside the Secured Area can enter and consume any quantity of consumption items in hotels and restaurants within the Secured Area. However, these residents can purchase and bring out of the Secured Area to other parts of the Philippine territory consumer items worth not exceeding US $100 per month per person. Only residents age 15 and over are entitled to this privilege.

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1.3 Filipinos not residing within the SSEFPZ can enter the Secured Area and consume any quantity of consumption items in hotels and restaurants within the Secured Area. However, they can purchase and bring out of the Secured Area to other parts of the Philippine territory consumer items worth not exceeding US $200 per year per person. Only Filipinos age 15 and over are entitled to this privilege.26 A similar provision found in paragraph 5, Section 4(A) of BCDA Board Resolution No. 93-05034 is also null and void. Said Resolution applied the incentives given to the SSEZ under Republic Act No. 7227 to the CSEZ, which, as aforestated, is without legal basis. Having concluded earlier that the CSEZ is excluded from the tax and duty-free incentives provided under Republic Act No. 7227, this Court will resolve the remaining arguments only with regard to the operations of the SSEZ. Thus, the assailed issuance that will be discussed is solely Executive Order No. 97-A, since it is the only one among the three questioned issuances which pertains to the SSEZ. Equal Protection of the Laws Petitioners argue that the assailed issuance (Executive Order No. 97-A) is violative of their right to equal protection of the laws, as enshrined in Section 1, Article III of the Constitution. To support this argument, they assert that private respondents operating inside the SSEZ are not different from the retail establishments located outside, the products sold being essentially the same. The only distinction, they claim, lies in the products variety and source, and the fact that private respondents import their items tax-free, to the prejudice of the retailers and manufacturers located outside the zone. Petitioners contention cannot be sustained. It is an established principle of constitutional law that the guaranty of the equal protection of the laws is not violated by a legislation based on a reasonable classification.27Classification, to be valid, must (1) rest on substantial distinction, (2) be germane to the purpose of the law, (3) not be limited to existing conditions only, and (4) apply equally to all members of the same class.28 Applying the foregoing test to the present case, this Court finds no violation of the right to equal protection of the laws. First, contrary to petitioners claim, substantial distinctions lie between the establishments inside and outside the zone, justifying the difference in their treatment. In Tiu v. Court of Appeals,29 the constitutionality of Executive Order No. 97-A was challenged for being violative of the equal protection clause. In that case, petitioners claimed that Executive Order No. 97-A was discriminatory in confining the application of Republic Act No. 7227 within a secured area of the SSEZ, to the exclusion of those outside but are, nevertheless, still within the economic zone. Upholding the constitutionality of Executive Order No. 97-A, this Court therein found substantial differences between the retailers inside and outside the secured area, thereby justifying a valid and reasonable classification: Certainly, there are substantial differences between the big investors who are being lured to establish and operate their industries in the so-called "secured area" and the present business operators outside the area. On the one hand, we are talking of billion-peso investments and thousands of new jobs. On the other hand, definitely none of such magnitude. In the first, the economic impact will be national; in the second, only local. Even more important, at this time the business activities outside the "secured area" are not likely to have any impact in achieving the purpose of the law, which is to turn the former military base to productive use for

the benefit of the Philippine economy. There is, then, hardly any reasonable basis to extend to them the benefits and incentives accorded in R.A. 7227. Additionally, as the Court of Appeals pointed out, it will be easier to manage and monitor the activities within the "secured area," which is already fenced off, to prevent "fraudulent importation of merchandise" or smuggling. It is well-settled that the equal-protection guarantee does not require territorial uniformity of laws. As long as there are actual and material differences between territories, there is no violation of the constitutional clause. And of course, anyone, including the petitioners, possessing the requisite investment capital can always avail of the same benefits by channeling his or her resources or business operations into the fenced-off free port zone.30 The Court in Tiu found real and substantial distinctions between residents within the secured area and those living within the economic zone but outside the fenced-off area. Similarly, real and substantial differences exist between the establishments herein involved. A significant distinction between the two groups is that enterprises outside the zones maintain their businesses within Philippine customs territory, while private respondents and the other dulyregistered zone enterprises operate within the so-called "separate customs territory." To grant the same tax incentives given to enterprises within the zones to businesses operating outside the zones, as petitioners insist, would clearly defeat the statutes intent to carve a territory out of the military reservations in Subic Bay where free flow of goods and capital is maintained. The classification is germane to the purpose of Republic Act No. 7227. As held in Tiu, the real concern of Republic Act No. 7227 is to convert the lands formerly occupied by the US military bases into economic or industrial areas. In furtherance of such objective, Congress deemed it necessary to extend economic incentives to the establishments within the zone to attract and encourage foreign and local investors. This is the very rationale behind Republic Act No. 7227 and other similar special economic zone laws which grant a complete package of tax incentives and other benefits. The classification, moreover, is not limited to the existing conditions when the law was promulgated, but to future conditions as well, inasmuch as the law envisioned the former military reservation to ultimately develop into a self-sustaining investment center. And, lastly, the classification applies equally to all retailers found within the "secured area." As ruled in Tiu, the individuals and businesses within the "secured area," being in like circumstances or contributing directly to the achievement of the end purpose of the law, are not categorized further. They are all similarly treated, both in privileges granted and in obligations required. With all the four requisites for a reasonable classification present, there is no ground to invalidate Executive Order No. 97-A for being violative of the equal protection clause. Prohibition against Unfair Competition and Practices in Restraint of Trade Petitioners next argue that the grant of special tax exemptions and privileges gave the private respondents undue advantage over local enterprises which do not operate inside the SSEZ, thereby creating unfair competition in violation of the constitutional prohibition against unfair competition and practices in restraint of trade. The argument is without merit. Just how the assailed issuance is violative of the prohibition against unfair competition and practices in restraint of trade is not clearly explained in the petition. Republic Act No. 7227, and consequently Executive Order No. 97-A, cannot be said

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to be distinctively arbitrary against the welfare of businesses outside the zones. The mere fact that incentives and privileges are granted to certain enterprises to the exclusion of others does not render the issuance unconstitutional for espousing unfair competition. Said constitutional prohibition cannot hinder the Legislature from using tax incentives as a tool to pursue its policies. Suffice it to say that Congress had justifiable reasons in granting incentives to the private respondents, in accordance with Republic Act No. 7227s policy of developing the SSEZ into a self-sustaining entity that will generate employment and attract foreign and local investment. If petitioners had wanted to avoid any alleged unfavorable consequences on their profits, they should upgrade their standards of quality so as to effectively compete in the market. In the alternative, if petitioners really wanted the preferential treatment accorded to the private respondents, they could have opted to register with SSEZ in order to operate within the special economic zone. Preferential Use of Filipino Labor, Domestic Materials and Locally Produced Goods Lastly, petitioners claim that the questioned issuance (Executive Order No. 97-A) openly violated the State policy of promoting the preferential use of Filipino labor, domestic materials and locally produced goods and adopting measures to help make them competitive. Again, the argument lacks merit. This Court notes that petitioners failed to substantiate their sweeping conclusion that the issuance has violated the State policy of giving preference to Filipino goods and labor. The mere fact that said issuance authorizes the importation and trade of foreign goods does not suffice to declare it unconstitutional on this ground. Petitioners cite Manila Prince Hotel v. GSIS31 which, however, does not apply. That case dealt with the policy enunciated under the second paragraph of Section 10, Article XII of the Constitution,32 applicable to the grant of rights, privileges, and concessions "covering the national economy and patrimony," which is different from the policy invoked in this petition, specifically that of giving preference to Filipino materials and labor found under Section 12 of the same Article of the Constitution. (Emphasis supplied). In Taada v. Angara,33 this Court elaborated on the meaning of Section 12, Article XII of the Constitution in this wise: [W]hile the Constitution indeed mandates a bias in favor of Filipino goods, services, labor and enterprises, at the same time, it recognizes the need for business exchange with the rest of the world on the bases of equality and reciprocity and limits protection of Filipino enterprises only against foreign competition and trade practices that are unfair. In other words, the Constitution did not intend to pursue an isolationist policy. It did not shut out foreign investments, goods and services in the development of the Philippine economy. While the Constitution does not encourage the unlimited entry of foreign goods, services and investments into the country, it does not prohibit them either. In fact, it allows an exchange on the basis of equality and reciprocity, frowning only on foreign competition that is unfair.34 This Court notes that the Executive Department, with its subsequent issuance of Executive Order Nos. 444 and 303, has provided certain measures to prevent unfair competition. In particular, Executive Order Nos. 444 and 303 have restricted the special shopping privileges to certain individuals.35 Executive Order No. 303 has limited the range of items that may be sold in the duty-free outlets,36 and imposed sanctions to curb abuses of duty-free

privileges.37 With these measures, this Court finds no reason to strike down Executive Order No. 97-A for allegedly being prejudicial to Filipino labor, domestic materials and locally produced goods. WHEREFORE, the petition is PARTLY GRANTED. Section 5 of Executive Order No. 80 and Section 4 of BCDA Board Resolution No. 93-05-034 are hereby declared NULL and VOID and are accordingly declared of no legal force and effect. Respondents are hereby enjoined from implementing the aforesaid void provisions. All portions of Executive Order No. 97-A are valid and effective, except the second sentences in paragraphs 1.2 and 1.3 of said Executive Order, which are hereby declared INVALID. No costs. SO ORDERED. Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, Carpio-Morales, Callejo, Sr., Tinga, Chico-Nazario, and Garcia, JJ., concur. Carpio, J., no part. Corona, J., on official leave. G.R. No. 130716 December 9, 1998 FRANCISCO I. CHAVEZ, petitioner, vs. PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG) and MAGTANGGOL GUNIGUNDO (in his capacity as chairman of the PCGG), respondents, GLORIA A. JOPSON, CELNAN A. JOPSON, SCARLET A. JOPSON, and TERESA A. JOPSON, petitioners-in-intervention. PANGANIBAN, J.: Petitioner asks this Court to define the nature and the extent of the people's constitutional right to information on matters of public concern. Does this right include access to the terms of government negotiations prior to their consummation or conclusion? May the government, through the Presidential Commission on Good Government (PCGG), be required to reveal the proposed terms of a compromise agreement with the Marcos heirs as regards their alleged illgotten wealth? More specifically, are the "General Agreement" and "Supplemental Agreement," both dated December 28, 1993 and executed between the PCGG and the Marcos heirs, valid and binding? The Case These are the main questions raised in this original action seeking (1) to prohibit and "[e]njoin respondents [PCGG and its chairman] from privately entering into, perfecting and/or executing any greement with the heirs of the late President Ferdinand E. Marcos . . . relating to and concerning the properties and assets of Ferdinand Marcos located in the Philippines and/or abroad including the so-called Marcos gold hoard"; and (2) to "[c]ompel respondent[s] to make public all negotiations and agreement, be they ongoing or perfected, and all documents related to or relating to such negotiations and agreement between the PCGG and the Marcos heirs." 1 The Facts

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Petitioner Francisco I. Chavez, as "taxpayer, citizen and former government official who initiated the prosecution of the Marcoses and their cronies who committed unmitigated plunder of the public treasury and the systematic subjugation of the country's economy," alleges that what impelled him to bring this action were several news reports 2 bannered in a number of broadsheets sometime in September 1997. These news items referred to (1) the alleged discovery of billions of dollars of Marcos assets deposited in various coded accounts in Swiss banks; and (2) the reported execution of a compromise, between the government (through PCGG) and the Marcos heirs, on how to split or share these assets. Petitioner, invoking his constitutional right to information 3 and the correlative duty of the state to disclose publicly all its transactions involving the national interest, 4 demands that respondents make public any and all negotiations and agreements pertaining to PCGG's task of recovering the Marcoses' ill-gotten wealth. He claims that any compromise on the alleged billions of ill-gotten wealth involves an issue of "paramount public interest," since it has a "debilitating effect on the country's economy" that would be greatly prejudicial to the national interest of the Filipino people. Hence, the people in general have a right to know the transactions or deals being contrived and effected by the government. Respondents, on the other hand, do not deny forging a compromise agreement with the Marcos heirs. They claim, though, that petitioner's action is premature, because there is no showing that he has asked the PCGG to disclose the negotiations and the Agreements. And even if he has, PCGG may not yet be compelled to make any disclosure, since the proposed terms and conditions of the Agreements have not become effective and binding. Respondents further aver that the Marcos heirs have submitted the subject Agreements to the Sandiganbayan for its approval in Civil Case No. 141, entitled Republic v. Heirs of Ferdinand E. Marcos, and that the Republic opposed such move on the principal grounds that (1) said Agreements have not been ratified by or even submitted to the President for approval, pursuant to Item No. 8 of the General Agreement; and (2) the Marcos heirs have failed to comply with their undertakings therein, particularly the collation and submission of an inventory of their assets. The Republic also cited an April 11, 1995 Resolution in Civil Case No. 0165, in which the Sandiganbayan dismissed a similar petition filed by the Marcoses' attorney-in-fact. Furthermore, then President Fidel V. Ramos, in his May 4, 1998 Memorandum 5 to then PCGG Chairman Magtanggol Gunigundo, categorically stated: This is to reiterate my previous position embodied in the Palace Press Release of 6 April 1995 that I have not authorized you to approve the Compromise Agreements of December 28, 1993 or any agreement at all with the Marcoses, and would have disapproved them had they been submitted to me. The Full Powers of Attorney of March 1994 and July 4, 1994, did not authorize you to approve said Agreements, which I reserve for myself as President of the Republic of the Philippines. The assailed principal Agreement 6 reads: GENERAL AGREEMENT KNOW ALL MEN BY THESE PRESENTS: This Agreement entered into this 28th day of December, 1993, by and between The Republic of the Philippines, through the Presidential Commission on Good Government (PCGG), a governmental agency vested with authority defined under Executive Orders Nos.

1, 2 and 14, with offices at the philcomcen Building, Pasig, Metro Manila, represented by its Chairman referred to as FIRST PARTY, and Estate of Ferdinand E. Marcos, represented by Imelda Romualdez Marcos and Ferdinand R. Marcos, Jr., all of legal age, and with address at c/o No. 154 Lopez Rizal St., Mandaluyong, Metro Manila, and Imelda Romualdez Marcos, Imee Marcos Manotoc, Ferdinand E. Marcos, Jr., and Irene Marcos Araneta, hereinafter collectively referred to as the PRIVATE PARTY. W I T N E S S E T H: WHEREAS, the PRIVATE PARTY has been impelled by their sense of nationalism and love of country and of the entire Filipino people, and their desire to set up a foundation and finance impact projects like installation of power plants in selected rural areas and initiation of other community projects for the empowerment of the people; WHEREAS, the FIRST PARTY has obtained a judgment from the Swiss Federal Tribunal of December 21, 1990, that the $356 million belongs in principle to the Republic of the Philippines provided certain conditionalities are met, but even after 7 years, the FIRST PARTY has not been able to procure a final judgment of conviction against the PRIVATE PARTY; WHEREAS, the FIRST PARTY is desirous of avoiding a long-drawn out litigation which, as proven by the past 7 years, is consuming money, time and effort, and is counter-productive and ties up assets which the FIRST PARTY could otherwise utilize for its Comprehensive Agrarian Reform Program, and other urgent needs; WHEREAS, His Excellency, President Fidel V. Ramos, has adopted a policy of unity and reconciliation in order to bind the nation's wounds and start the process of rebuilding this nation as it goes on to the twenty-first century; WHEREAS, this Agreement settles all claims and counterclaims which the parties may have against one another, whether past, present, or future, matured or inchoate. NOW, THEREFORE, for and in consideration of the mutual covenants set forth herein, the parties agree as follows: 1. The parties will collate all assets presumed to be owned by, or held by other parties for the benefit of, the PRIVATE PARTY for purposes of determining the totality of the assets covered by the settlement. The subject assets shall be classified by the nature thereof, namely: (a) real estate; (b) jewelry; (c) paintings and other works of art; (d) securities; (e) funds on deposit; (f) precious metals, if any, and (g) miscellaneous assets or assets which could not appropriately fall under any of the preceding classification. The list shall be based on the full disclosure of the PRIVATE PARTY to insure its accuracy. 2. Based on the inventory, the FIRST PARTY shall determine which shall be ceded to the FIRST PARTY, and which shall be assigned to/retained by the PRIVATE PARTY. The assets of the PRIVATE PARTY shall be net of and exempt from, any form of taxes due the Republic of the Philippines. However, considering the unavailability of all pertinent and relevant documents and information as to balances and ownership, the actual specification of assets to be retained by the PRIVATE PARTY shall be covered by supplemental agreements which shall form part of this Agreement. 3. Foreign assets which the PRIVATE PARTY shall fully disclose but which are held by trustees, nominees, agents or foundations are hereby waived over by the PRIVATE PARTY in

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favor of the FIRST PARTY. For this purpose, the parties shall cooperate in taking the appropriate action, judicial and/or extrajudicial, to recover the same for the FIRST PARTY. 4. All disclosures of assets made by the PRIVATE PARTY shall not be used as evidence by the FIRST PARTY in any criminal, civil, tax or administrative case, but shall be valid and binding against said PARTY for use by the FIRST PARTY in withdrawing any account and/or recovering any asset. The PRIVATE PARTY withdraws any objection to the withdrawal by and/or release to the FIRST PARTY by the Swiss banks and/or Swiss authorities of the $356 million, its accrued interests, and/or any other account; over which the PRIVATE PARTY waives any right, interest or participation in favor of the FIRST PARTY. However, any withdrawal or release of any account aforementioned by the FIRST PARTY shall be made in the presence of any authorized representative of the PRIVATE PARTY. 5. The trustees, custodians, safekeepers, depositaries, agents, nominees, administrators, lawyers, or any other party acting in similar capacity in behalf of the PRIVATE PARTY are hereby informed through this General Agreement to insure that it is fully implemented and this shall serve as absolute authority from both parties for full disclosure to the FIRST PARTY of said assets and for the FIRST PARTY to withdraw said account and/or assets and any other assets which the FIRST PARTY on its own or through the help of the PRIVATE PARTY/their trustees, etc., may discover. 6. Any asset which may be discovered in the future as belonging to the PRIVATE PARTY or is being held by another for the benefit of the PRIVATE PARTY and which is not included in the list per No. 1 for whatever reason shall automatically belong to the FIRST PARTY, and the PRIVATE PARTY in accordance with No. 4 above, waives any right thereto. 7. This Agreement shall be binding on and inure to the benefit of, the parties and their respective legal representatives, successors and assigns and shall supersede any other prior agreement. 8. The PARTIES shall submit this and any other implementing Agreements to the President of the Philippines for approval. In the same manner, the PRIVATE PARTY shall provide the FIRST PARTY assistance by way of testimony or deposition on any information it may have that could shed light on the cases being pursued by the FIRST PARTY against other parties. The FIRST PARTY shall desist from instituting new suits already subject of this Agreement against the PRIVATE PARTY and cause the dismissal of all other cases pending in the Sandiganbayan and in other courts. 9. In case of violation by the PRIVATE PARTY of any of the conditions herein contained, the PARTIES shall be restored automatically to the status quo ante the signing of this Agreement. For purposes of this Agreement, the PRIVATE PARTY shall be represented by Atty. Simeon M. Mesina, Jr., as their only Attorney-in-Fact. IN WITNESS WHEREOF, the parties have signed this instrument this 28th day of December, 1993, in Makati, Metro Manila. PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT By: [Sgd.] MAGTANGGOL C. GUNIGUNDO Chairman ESTATE OF FERDINAND E. MARCOS,

IMELDA R. MARCOS, MA. IMELDA MARCOS-MANOTOC, FERDINAND R. MARCOS, JR., & IRENE MARCOSARANETA By: [Sgd.] IMELDA ROMUALDEZ-MARCOS [Sgd.] MA. IMELDA MARCOS-MANOTOC FERDINAND R. MARCOS, JR. 7 [Sgd.] IRENE MARCOS-ARANETA Assisted by: [Sgd.] ATTY. SIMEON M. MESINA, JR. Counsel & Attorney-in-Fact Petitioner also denounces this supplement to the above Agreement: 8 SUPPLEMENTAL AGREEMENT This Agreement entered into this 28th day of December, 1993, by and between The Republic of the Philippines, through the Presidential Commission on Good Government (PCGG), a governmental agency vested with authority defined under Executive Orders Nos. 1, 2 and 14, with offices at the Philcomcen Building, Pasig, Metro Manila, represented by its Chairman Magtanggol C. Gunigundo, hereinafter referred to as the FIRST PARTY, and Estate of Ferdinand E. Marcos, represented by Imelda Romualdez Marcos and Ferdinand R. Marcos, Jr., all of legal age, and with address at c/o No. 154 Lopez Rizal St., Mandaluyong, Metro Manila, and Imelda Romualdez Marcos, Imee Marcos Manotoc, Ferdinand E. Marcos, Jr., and Irene Marcos Araneta, hereinafter collectively referred to as the PRIVATE PARTY. W I T N E S S E T H: The parties in this case entered into a General Agreement dated Dec. 28, 1993; The PRIVATE PARTY expressly reserve their right to pursue their interest and/or sue over local assets located in the Philippines against parties other than the FIRST PARTY. The parties hereby agree that all expenses related to the recovery and/or withdrawal of all assets including lawyers' fees, agents' fees, nominees' service fees, bank charges, traveling expenses and all other expenses related thereto shall be for the account of the PRIVATE PARTY. In consideration of the foregoing, the parties hereby agree that the PRIVATE PARTY shall be entitled to the equivalent of 25% of the amount that may be eventually withdrawn from said $356 million Swiss deposits. IN WITNESS WHEREOF, the parties have signed this instrument this 28th day of December, 1993, in Makati, Metro Manila. PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT By: [Sgd.] MAGTANGGOL C. GUNIGUNDO Chairman ESTATE OF FERDINAND E. MARCOS, IMELDA R. MARCOS, MA. IMELDA

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MARCOS-MANOTOC, FERDINAND R. MARCOS, JR., & IRENE MARCOSARANETA By: [Sgd.] IMELDA ROMUALDEZ-MARCOS [Sgd.] MA. IMELDA MARCOS-MANOTOC FERDINAND R. MARCOS, JR. 9 [Sgd.] IRENE MARCOS-ARANETA Assisted by: [Sgd.] ATTY. SIMEON M. MESINA, JR. Counsel & Attorney-in-Fact Acting on a motion of petitioner, the Court issued a Temporary Restraining Order 10 dated March 23, enjoining respondents, their agents and/or representatives from "entering into, or perfecting and/or executing any agreement with the heirs of the late President Ferdinand E. Marcos relating to and concerning their ill-gotten wealth." Issues The Oral Argument, held on March 16, 1998, focused on the following issues: (a) Procedural: (1) Whether or not the petitioner has the personality or legal standing to file the instant petition; and (2) Whether or not this Court is the proper court before which this action may be filed. (b) Substantive: (1) Whether or not this Court could require the PCGG to disclose to the public the details of any agreement, perfected or not, with the Marcoses; and (2) Whether or not there exist any legal restraints against a compromise agreement between the Marcoses and the PCGG relative to the Marcoses' ill-gotten wealth. 11 After their oral presentations, the parties filed their respective memoranda. On August 19, 1998, Gloria, Celnan, Scarlet and Teresa, all surnamed Jopson, filed before the Court a Motion for Intervention, attaching thereto their Petition in Intervention. They aver that they are "among the 10,000 claimants whose right to claim from the Marcos Family and/or the Marcos Estate is recognized by the decision in In re Estate of Ferdinand Marcos, Human Rights Litigation, Maximo Hilao, et al., Class Plaintiffs No. 92-15526, U.S. Court of Appeals for the 9th Circuit US App. Lexis 14796, June 16, 1994 and the Decision of the Swiss Supreme Court of December 10, 1997." As such, they claim to have personal and direct interest in the subject matter of the instant case, since a distribution or disposition of the Marcos properties may adversely affect their legitimate claims. In a minute Resolution issued on August 24, 1998, the Court granted their motion to intervene and required the respondents to comment thereon. The September 25, 1998 Comment 12 of the solicitor general on said motion merely reiterated his aforecited arguments against the main petition. 13 The Court's Ruling The petition id imbued with merit. First Procedural Issue: Petitioner's Standing

Petitioner, on the one hand, explains that as a taxpayer and citizen, he has the legal personality to file the instant petition. He submits that since ill-gotten wealth "belongs to the Filipino people and [is], in truth hand in fact, part of the public treasury," any compromise in relation to it would constitute a diminution of the public funds, which can be enjoined by a taxpayer whose interest is for a full, if not substantial, recovery of such assets. Besides, petitioner emphasize, the matter of recovering the ill-gotten wealth of the Marcoses is an issue "of transcendental importance the public." He asserts that ordinary taxpayers have a right to initiate and prosecute actions questioning the validity of acts or orders of government agencies or instrumentalities, if the issues raised are "of paramount public interest;" and if they "immeasurably affect the social, economic, and moral well-being of the people." Moreover, the mere fact that he is a citizen satisfies the requirement of personal interest, when the proceeding involves the assertion of a public right, 14 such as in this case. He invokes several decisions 15 of this Court which have set aside the procedural matter of locus standi, when the subject of the case involved public interest. On the other hand, the solicitor general, on behalf of respondents, contends that petitioner has no standing to institute the present action, because no expenditure of public funds is involved and said petitioner has no actual interest in the alleged agreement. Respondents further insist that the instant petition is premature, since there is no showing that petitioner has requested PCGG to disclose any such negotiations and agreements; or that, if he has, the Commission has refused to do so. Indeed, the arguments cited by petitioner constitute the controlling decisional rule as regards his legal standing to institute the instant petition. Access to public documents and records is a public right, and the real parties in interest are the people themselves. 16 In Taada v. Tuvera, 17 the Court asserted that when the issue concerns a public a right and the object of mandamus is to obtain the enforcement of a public duty, the people are regarded as the real parties in interest; and because it is sufficient that petitioner is a citizen and as such is interested in the execution of the laws, he need not show that he has any legal or special interest in the result of the action. 18 In the aforesaid case, the petitioners sought to enforce their right to be informed on matters of public concern, a right then recognized in Section 6, Article IV of the 1973 Constitution, 19 in connection with the rule that laws in order to be valid and enforceable must be published in the Official Gazette or otherwise effectively promulgated. In ruling for the petitioners' legal standing, the Court declared that the right they sought to be enforced "is a public right recognized by no less than the fundamental law of the land." Legaspi v. Civil Service Commission, 20 while reiterating Taada, further declared that "when a mandamus proceeding involves the assertion of a public right, the requirement of personal interest is satisfied by the mere fact that petitioner is a citizen and, therefore, part of the general 'public' which possesses the right." 21 Further, in Albano v. Reyes, 22 we said that while expenditure of public funds may not have been involved under the questioned contract for the development, the management and the operation of the Manila International Container Terminal, "public interest [was] definitely involved considering the important role [of the subject contract] . . . in the economic development of the country and the magnitude of the financial consideration involved." We

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concluded that, as a consequence, the disclosure provision in the Constitution would constitute sufficient authority for upholding the petitioner's standing. Similarly, the instant petition is anchored on the right of the people to information and access to official records, documents and papers a right guaranteed under Section 7, Article III of the 1987 Constitution. Petitioner, a former solicitor general, is a Filipino citizen. Because of the satisfaction of the two basic requisites laid down by decisional law to sustain petitioner's legal standing, i.e. (1) the enforcement of a public right (2) espoused by a Filipino citizen, we rule that the petition at bar should be allowed. In any event, the question on the standing of Petitioner Chavez is rendered moot by the intervention of the Jopsons, who are among the legitimate claimants to the Marcos wealth. The standing of the Jopsons is not seriously contested by the solicitor general. Indeed, said petitioners-intervenors have a legal interest in the subject matter of the instant case, since a distribution or disposition of the Marcoses' ill-gotten properties may adversely affect the satisfaction of their claims. Second Procedural Issue: The Court's Jurisdiction Petitioner asserts that because this petition is an original action for mandamus and one that is not intended to delay any proceeding in the Sandiganbayan, its having been filed before this Court was proper. He invokes Section 5, Article VIII of the Constitution, which confers upon the Supreme Court original jurisdiction over petitions for prohibition and mandamus. The solicitor general, on the other hand, argues that the petition has been erroneously brought before this Court, since there is neither a justiciable controversy nor a violation of petitioner's rights by the PCGG. He alleges that the assailed agreements are already the very lis mota in Sandiganbayan Civil Case No. 0141, which has yet to dispose of the issue; thus, this petition is premature. Furthermore, respondents themselves have opposed the Marcos heirs' motion, filed in the graft court, for the approval of the subject Agreements. Such opposition belies petitioner's claim that the government, through respondents, has concluded a settlement with the Marcoses as regards their alleged ill-gotten assets. In Taada and Legaspi, we upheld therein petitioners' resort to a mandamus proceeding, seeking to enforce a public right as well as to compel performance of a public duty mandated by no less than the fundamental law. 23 Further, Section 5, Article VIII of the Constitution, expressly confers upon the Supreme Court original jurisdiction over petitions for certiorari, prohibition, mandamus, quo warranto and habeas corpus. Respondents argue that petitioner should have properly sought relief before the Sandiganbayan, particularly in Civil Case No. 0141, in which the enforcement of the compromise Agreements is pending resolution. There may seem to be some merit in such argument, if petitioner is merely seeking to enjoin the enforcement of the compromise and/or to compel the PCGG to disclose to the public the terms contained in said Agreements. However, petitioner is here seeking the public disclose of "all negotiations and agreement, be they ongoing or perfected, and documents related to or relating to such negotiations and agreement between the PCGG and the Marcos heirs." In other words, this petition is not confined to the Agreements that have already been drawn, but likewise to any other ongoing or future undertaking towards any settlement on the alleged Marcos loot. Ineluctably, the core issue boils down to the precise interpretation, in terms of

scope, of the twin constitutional provisions on "public transactions." This broad and prospective relief sought by the instant petition brings it out of the realm of Civil Case No. 0141. First Substantive Issue: Public Disclosure of Terms of Any Agreement, Perfected or Not In seeking the public disclosure of negotiations and agreements pertaining to a compromise settlement with the Marcoses as regards their alleged ill-gotten wealth, petitioner invokes the following provisions of the Constitution: Sec. 7 [Article III]. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. Sec. 28 [Article II]. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. Respondents' opposite view is that the above constitutional provisions refer to completed and operative official acts, not to those still being considered. As regards the assailed Agreements entered into by the PCGG with the Marcoses, there is yet no right of action that has accrued, because said Agreements have not been approved by the President, and the Marcos heirs have failed to fulfill their express undertaking therein. Thus, the Agreements have not become effective. Respondents add that they are not aware of any ongoing negotiation for another compromise with the Marcoses regarding their alleged ill-gotten assets. The "information" and the "transactions" referred to in the subject provisions of the Constitution have as yet no defined scope and extent. There are no specific laws prescribing the exact limitations within which the right may be exercised or the correlative state duty may be obliged. However, the following are some of the recognized restrictions: (1) national security matters and intelligence information, (2) trade secrets and banking transactions, (3) criminal matters, and (4) other confidential information. Limitations to the Right: (1) National Security Matters At the very least, this jurisdiction recognizes the common law holding that there is a governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters. 24 But where there is no need to protect such state secrets, the privilege may not be invoked to withhold documents and other information, 25provided that they are examined "in strict confidence" and given "scrupulous protection." Likewise, information on inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest. 26 (2) Trade Secrets and Banking Transactions The drafters of the Constitution also unequivocally affirmed that, aside from national security matters and intelligence information, trade or industrial secrets (pursuant to the Intellectual

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Property Code 27 and other related laws) as well as banking transactions (pursuant to the Secrecy of Bank Deposits Act 28) are also exempted from compulsory disclosure. 29 (3) Criminal Matters Also excluded are classified law enforcement matters, such as those relating to the apprehension, the prosecution and the detention of criminals, 30 which courts may nor inquire into prior to such arrest, detention and prosecution. Efforts at effective law enforcement would be seriously jeopardized by free public access to, for example, police information regarding rescue operations, the whereabouts of fugitives, or leads on covert criminal activities. (4) Other Confidential Information The Ethical Standards Act 31 further prohibits public officials and employees from using or divulging "confidential or classified information officially known to them by reason of their office and not made available to the public." 32 Other acknowledged limitations to information access include diplomatic correspondence, closed door Cabinet meetings and executive sessions of either house of Congress, as well as the internal deliberations of the Supreme Court. 33 Scope: Matters of Public Concern and Transactions Involving Public Interest In Valmonte v. Belmonte Jr., 34 the Court emphasized that the information sought must be "matters of public concern," access to which may be limited by law. Similarly, the state policy of full public disclosure extends only to "transactions involving public interest" and may also be "subject to reasonable conditions prescribed by law." As to the meanings of the terms "public interest" and "public concern," the Court, in Legaspi v. Civil Service Commission, 35 elucidated: In determining whether or not a particular information is of public concern there is no rigid test which can be applied. "Public concern" like "public interest" is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public. Considered a public concern in the above-mentioned case was the "legitimate concern of citizens to ensure that government positions requiring civil service eligibility are occupied only by persons who are eligibles." So was the need to give the general public adequate notification of various laws that regulate and affect the actions and conduct of citizens, as held inTaada. Likewise did the "public nature of the loanable funds of the GSIS and the public office held by the alleged borrowers (members of the defunct Batasang Pambansa)" qualify the information sought in Valmonte as matters of public interest and concern. In AquinoSarmiento v. Morato, 36 the Court also held that official acts of public officers done in pursuit if their official functions are public in character; hence, the records pertaining to such official acts and decisions are within the ambit of the constitutional right of access to public records. Under Republic Act No. 6713, public officials and employees are mandated to "provide information on their policies and procedures in clear and understandable language, [and] ensure openness of information, public consultations and hearings whenever appropriate . . .,"

except when "otherwise provided by law or when required by the public interest." In particular, the law mandates free public access, at reasonable hours, to the annual performance reports of offices and agencies of government and government-owned or controlled corporations; and the statements of assets, liabilities and financial disclosures of all public officials and employees. 37 In general, writings coming into the hands of public officers in connection with their official functions must be accessible to the public, consistent with the policy of transparency of governmental affairs. This principle is aimed at affording the people an opportunity to determine whether those to whom they have entrusted the affairs of the government are honesty, faithfully and competently performing their functions as public servants. 38 Undeniably, the essence of democracy lies in the free flow of thought; 39 but thoughts and ideas must be well-informed so that the public would gain a better perspective of vital issues confronting them and, thus, be able to criticize as well as participate in the affairs of the government in a responsible, reasonable and effective manner. Certainly, it is by ensuring an unfettered and uninhibited exchange of ideas among a well-informed public that a government remains responsive to the changes desired by the people. 40 The Nature of the Marcoses' Alleged Ill-Gotten Wealth We now come to the immediate matter under consideration. Upon the departure from the country of the Marcos family and their cronies in February 1986, the new government headed by President Corazon C. Aquino was specifically mandated to "[r]ecover ill-gotten properties amassed by the leaders and supporters of the previous regime and [to] protect the interest of the people through orders of sequestration or freezing of assets or accounts." 41 Thus, President Aquino's very first executive orders (which partook of the nature of legislative enactments) dealt with the recovery of these alleged ill-gotten properties. Executive Order No. 1, promulgated on February 28, 1986, only two (2) days after the Marcoses fled the country, created the PCGG which was primarily tasked to assist the President in the recovery of vast government resources allegedly amassed by former President Marcos, his immediate family, relatives and close associates both here and abroad. Under Executive Order No. 2, issued twelve (12) days later, all persons and entities who had knowledge or possession of ill-gotten assets and properties were warned and, under pain of penalties prescribed by law, prohibited from concealing, transferring or dissipating them or from otherwise frustrating or obstructing the recovery efforts of the government. On May 7, 1986, another directive (EO No. 14) was issued giving additional powers to the PCGG which, taking into account the overriding considerations of national interest and national survival, required it to achieve expeditiously and effectively its vital task of recovering ill-gotten wealth. With such pronouncements of our government, whose authority emanates from the people, there is no doubt that the recovery of the Marcoses' alleged ill-gotten wealth is a matter of public concern and imbued with public interest. 42 We may also add that "ill-gotten wealth," by its very nature, assumes a public character. Based on the aforementioned Executive Orders, "ill-gotten wealth" refers to assets and properties purportedly acquired, directly or indirectly, by former President Marcos, his immediate family, relatives and close associates through or as a

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result of their improper or illegal use of government funds or properties; or their having taken undue advantage of their public office; or their use of powers, influences or relationships, "resulting in their unjust enrichment and causing grave damage and prejudice to the Filipino people and the Republic of the Philippines." Clearly, the assets and properties referred to supposedly originated from the government itself. To all intents and purposes, therefore, they belong to the people. As such, upon reconveyance they will be returned to the public treasury, subject only to the satisfaction of positive claims of certain persons as may be adjudged by competent courts. Another declared overriding consideration for the expeditious recovery of illgotten wealth is that it may be used for national economic recovery. We believe the foregoing disquisition settles the question of whether petitioner has a right to respondents' disclosure of any agreement that may be arrived at concerning the Marcoses' purported ill-gotten wealth. Access to Information on Negotiating Terms But does the constitutional provision likewise guarantee access to information regarding ongoing negotiations or proposals prior to the final agreement? This same clarification was sought and clearly addressed by the constitutional commissioners during their deliberations, which we quote hereunder: 43 MR. SUAREZ. And when we say "transactions" which should be distinguished from contracts, agreements, or treaties or whatever, does the Gentleman refer to the steps leading to the consummation of the contract, or does he refer to the contract itself? MR. OPLE. The "transactions" used here, I suppose, is generic and, therefore, it can cover both steps leading to a contract, and already a consummated contract, Mr. Presiding Officer. MR. SUAREZ. This contemplates inclusion of negotiations leading to the consummation of the transaction? MR. OPLE. Yes, subject to reasonable safeguards on the national interest. Considering the intent of the Constitution, we believe that it is incumbent upon the PCGG and its officers, as well as other government representatives, to disclose sufficient public information on any proposed settlement they have decided to take up with the ostensible owners and holders of ill-gotten wealth. Such information, though, must pertain to definite propositions of the government, not necessarily to intra-agency or inter-agency recommendations or communications 44 during the stage when common assertions are still in the process of being formulated or are in the "exploratory" stage. There is a need, of course, to observe the same restrictions on disclosure of information in general, as discussed earlier such as on matters involving national security, diplomatic or foreign relations, intelligence and other classified information. Second Substantive Issue: Legal Restraints on a Marcos-PCGG Compromise Petitioner lastly contends that any compromise agreement between the government and the Marcoses will be a virtual condonation of all the alleged wrongs done by them, as well as an unwarranted permission to commit graft and corruption. Respondents, for their part, assert that there is no legal restraint on entering into a compromise with the Marcos heirs, provided the agreement does not violate any law. Prohibited Compromises

In general, the law encourages compromises in civil cases, except with regard to the following matters: (1) the civil status of persons, (2) the validity of a marriage or a legal separation, (3) any ground for legal separation, (4) future support, (5) the jurisdiction of courts, and (6) future legitimate. 45 And like any other contract, the terms and conditions of a compromise must not be contrary to law, morals, good customs, public policy or public order. 46 A compromise is binding and has the force of law between the parties, 47 unless the consent of a party is vitiated such as by mistake, fraud, violence, intimidation or undue influence or when there is forgery, or if the terms of the settlment are so palpably unconscionable. In the latter instances, the agreement may be invalidated by the courts. 48 Effect of Compromise on Civil Actions One of the consequences of a compromise, and usually its primary object, is to avoid or to end a litigation. 49 In fact, the law urges courts to persuade the parties in a civil case to agree to a fair settlement. 50 As an incentive, a court may mitigate damages to be paid by a losing party who shows a sincere desire to compromise. 51 In Republic & Campos Jr. v. Sandiganbayan, 52 which affirmed the grant by the PCGG of civil and criminal immunity to Jose Y. Campos and the family, the Court held that in the absence an express prohibition, the rule on compromises in civil actions under the Civil Code is applicable to PCGG cases. Such principle is pursuant to the objectives of EO No. 14 particularly the just and expeditious recovery of ill-gotten wealth, so that it may be used to hasten economic recovery. The same principle was upheld in Benedicto v. Board of Administrators of Television Stations RPN, BBC and IBC 53 andRepublic v. Benedicto, 54 which ruled in favor of the validity of the PCGG compromise agreement with Roberto S. Benedicto. Immunity from Criminal Prosecution However, any compromise relating to the civil liability arising from an offense does not automatically terminate the criminal proceeding against or extinguish the criminal liability of the malefactor. 55 While a compromise in civil suits is expressly authorized by law, there is no similar general sanction as regards criminal liability. The authority must be specifically conferred. In the present case, the power to grant criminal immunity was confered on PCGG by Section 5 of EO No. 14, as amended by EO No. 14-A, whci provides: Sec. 5. The President Commission on Good Government is authorized to grant immunity from criminal prosecution to any person who provides information or testifies in any investigation conducted by such Commission to establish the unlawful manner in which any respondent, defendant or accused has acquired or accumulated the property or properties in question in any case where such information or testimony is necessary to ascertain or prove the latter's guilt or his civil liability. The immunity thereby granted shall be continued to protect the witness who repeats such testimony before the Sandiganbayan when required to do so by the latter or by the Commission. The above provision specifies that the PCGG may exercise such authority under these conditions: (1) the person to whom criminal immunity is granted provides information or testifies in an investigation conducted by the Commission; (2) the information or testimony pertains to the unlawful manner in which the respondent, defendant or accused acquired or accumulated ill-gotten property; and (3) such information or testimony is necessary to

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ascertain or prove guilt or civil liability of such individual. From the wording of the law, it can be easily deducted that the person referred to is a witness in the proceeding, not the principal respondent, defendant or accused. Thus, in the case of Jose Y. Campos, the grant of both civil and criminal immunity to him and his family was "[i]n consideration of the full cooperation of Mr. Jose Y. Campos [with] this Commission, his voluntary surrender of the properties and assets [] disclosed and declared by him to belong to deposed President Ferdinand E. Marcos [] to the Government of the Republic of the Philippines[;] his full, complete and truthful disclosures[;] and his commitment to pay a sum of money as determined by the Philippine Government." 56 Moreover, the grant of criminal immunity to the Camposes and the Benedictos was limited to acts and omissions prior to February 25, 1996. At the time such immunity was granted, no criminal cases have yet been filed against them before the competent court. Validity of the PCGG-Marcos Compromise Agreements Going now to the subject General and Supplemental Agreements between the PCGG and the Marcos heirs, a cursory perusal thereof reveals serious legal flaws. First, the Agreements do not conform to the above requirements of EO Nos. 14 and 14-A. We believe that criminal immunity under Section 5 cannot be granted to the Marcoses, who are the principal defendants in the spate of ill-gotten wealth cases now pending before the Sandiganbayan. As stated earlier, the provision is applicable mainly to witnesses who provide information or testify against a respondent, defendant or accused in an ill-gotten wealth case. While the General Agreement states that the Marcoses "shall provide the [government] assistance by way of testimony or deposition on any information [they] may have that could shed light on the cases being pursued by the [government] against other parties," 57 the clause does not fully comply with the law. Its inclusion in the Agreement may have been only an afterthought, conceived in pro forma compliance with Section 5 of EO No. 14, as amended. There is no indication whatsoever that any of the Marcos heirs has indeed provided vital information against any respondent or defendant as to the manner in which the latter may have unlawfully acquired public property. Second, under Item No. 2 of the General Agreement, the PCGG commits to exempt from all forms of taxes the properties to be retained by the Marcos heirs. This is a clear violation of the Construction. The power to tax and to grant tax exemptions is vested in the Congress and, to a certain extent, in the local legislative bodies. 58 Section 28 (4), Article VI of the Constitution, specifically provides: "No law granting any tax exemption shall be passed without the concurrence of a majority of all the Member of the Congress." The PCGG has absolutely no power to grant tax exemptions, even under the cover of its authority to compromise ill-gotten wealth cases. Even granting that Congress enacts a law exempting the Marcoses form paying taxes on their properties, such law will definitely not pass the test of the equal protection clause under the Bill of Rights. Any special grant of tax exemption in favor only of the Marcos heirs will constitute class legislation. It will also violate the constitutional rule that "taxation shall be uniform and equitable." 59 Neither can the stipulation be construed to fall within the power of the commissioner of internal revenue to compromise taxes. Such authority may be exercised only when (1) there is

reasonable doubt as to the validity of the claim against the taxpayer, and (2) the taxpayer's financial position demonstrates a clear inability to pay. 60 Definitely, neither requisite is present in the case of the Marcoses, because under the Agreement they are effectively conceding the validity of the claims against their properties, part of which they will be allowed to retain. Nor can the PCGG grant of tax exemption fall within the power of the commissioner to abate or cancel a tax liability. This power can be exercised only when (1) the tax appears to be unjustly or excessively assessed, or (2) the administration and collection costs involved do not justify the collection of the tax due. 61 In this instance, the cancellation of tax liability is done even before the determination of the amount due. In any event, criminal violations of the Tax Code, for which legal actions have been filed in court or in which fraud is involved, cannot be compromised. 62 Third, the government binds itself to cause the dismissal of all cases against the Marcos heirs, pending before the Sandiganbayan and other court. 63 This is a direct encroachment on judicial powers, particularly in regard to criminal jurisdiction. Well-settled is the doctrine that once a case has been filed before a court of competent jurisdiction, the matter of its dismissal or pursuance lies within the full discretion and control of the judge. In a criminal case, the manner in which the prosecution is handled, including the matter of whom to present as witnesses, may lie within the sound discretion of the government prosecution; 64 but the court decides, based on the evidence proffered, in what manner it will dispose of the case. Jurisdiction, once acquired by the trial court, is not lost despite a resolution, even by the justice secretary, to withdraw the information or to dismiss the complaint. 65 The prosecution's motion to withdraw or to dismiss is not the least binding upon the court. On the contrary, decisional rules require the trial court to make its own evaluation of the merit of the case, because granting such motion is equivalent to effecting a disposition of the case itself. 66 Thus, the PCGG, as the government prosecutor of ill-gotten wealth cases, cannot guarantee the dismissal of all such criminal cases against the Marcoses pending in the courts, for said dismissal is not within its sole power and discretion. Fourth, the government also waives all claims and counterclaims, "whether past, present, or future, matured or inchoate," against the Marcoses. 67 Again, this ill-encompassing stipulation is contrary to law. Under the Civil Code, an action for future fraud may not be waived. 68 The stipulation in the Agreement does not specify the exact scope of future claims against the Marcoses that the government thereby relinquishes. Such vague and broad statement may well be interpreted to include all future illegal acts of any of the Marcos heirs, practically giving them a license to perpetrate fraud against the government without any liability at all. This is a palpable violation of the due process and equal protection guarantees of the Constitution. It effectively ensconces the Marcoses beyond the reach of the law. It also sets a dangerous precedent for public accountability. It is a virtual warrant for public officials to amass public funds illegally, since there is an open option to compromise their liability in exchange for only a portion of their ill-gotten wealth. Fifth, the Agreements do not provide for a definite or determinable period within which the parties shall fulfill their respective prestations. It may take a lifetime before the Marcoses submit an inventory of their total assets. Sixth, the Agreements do not state with specificity the standards for determining which assets shall be forfeited by the government and which shall be retained by the Marcoses. While the

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Supplemental Agreement provides that the Marcoses shall be entitled to 25 per cent of the $356 million Swiss deposits (less government recovery expenses), such sharing arrangement pertains only to the said deposits. No similar splitting scheme is defined with respect to the other properties. Neither is there, anywhere in the Agreements, a statement of the basis for the 25-75 percent sharing ratio. Public officers entering into an arrangement appearing to be manifestly and grossly disadvantageous to the government, in violation of the Ati-Graft and Corruption Practice Act, 69 invite their indictment for corruption under the said law. Finally, the absence of then President Ramos' approval of the principal Agreement, an express condition therein, renders the compromise incomplete and unenforceable. Nevertheless, as detailed above, even if such approval were obtained, the Agreements would still not be valid. From the foregoing disquisition, it is crystal clear to the Court that the General and Supplemental Agreements, both dated December 28, 1993, which the PCGG entered into with the Marcos heirs, are violative of the Constitution and the laws aforementioned. WHEREFORE, the petition is GRANTED. The General and Supplemental Agreement dated December 28, 1993, which PCGG and the Marcos heirs entered into are hereby declared NULL AND VOID for being contrary to law and the Constitution. Respondent PCGG, its officers and all government functionaries and officials who are or may be directly ot indirectly involved in the recovery of the alleged ill-gotten wealth of the Marcoses and their associates are DIRECTED to disclose to the public the terms of any proposed compromise settlment, as well as the final agreement, relating to such alleged ill-gotten wealth, in accordance with the discussions embodied in this Decision. No pronouncement as to cost. SO ORDERED. Davide, Jr., C.J., Melo and Quisumbing, JJ., concur. Vitug, J., Please see separate opinion.

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