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Admistrative code of 1987 (1) "Government of the Republic of the Philippines" refers to the corporate governmental entity through which the functions of government are exercised throughout the Philippines, including, save as the contrary appears from the context, the various arms through which political authority is made effective in the Philippines, whether pertaining to the autonomous regions, the provincial, city, municipal or barangay subdivisions or other forms of local government. Section 1. The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 158466 June 15, 2004 PABLO V. OCAMPO, petitioner, vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL AND MARIO B. CRESPO a.k.a. MARK JIMENEZ, respondents.
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Page 1: Admistrative Code of 1987

Admistrative code of 1987(1) "Government of the Republic of the Philippines"

refers to the corporate governmental entity through which the functions of government are exercised throughout the Philippines, including, save as the contrary appears from the context, the various arms through which political authority is made effective in the Philippines, whether pertaining to the autonomous regions, the provincial, city, municipal or barangay subdivisions or other forms of local government.

Section 1. The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 158466             June 15, 2004

PABLO V. OCAMPO, petitioner, vs.HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL AND MARIO B. CRESPO a.k.a. MARK JIMENEZ, respondents.

D E C I S I O N

SANDOVAL-GUTIERREZ, J.:

The wreath of victory cannot be transferred from the disqualified winner to the repudiated loser because the law then as now only

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authorizes a declaration of election in favor of the person who obtained a plurality of votes and does not entitle a candidate receiving the next highest number of votes to be declared elected.1

This is a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, filed by petitioner Pablo V. Ocampo. He alleged that the House of Representatives Electoral Tribunal (HRET), herein public respondent, committed grave abuse of discretion in issuing in HRET Case No. 01-024, Pablo Ocampo vs. Mario "Mark Jimenez" Crespo, the (a) Resolution2 dated March 27, 2003 holding that "protestant" (herein petitioner) cannot be proclaimed the duly elected Representative of the 6th District of Manila since being a second placer, he "cannot be proclaimed the first among the remaining qualified candidates"; and (b) Resolution3 dated June 2, 2003 denying his motion for reconsideration.

The facts are uncontroverted:

On May 23, 2001, the Manila City Board of Canvassers proclaimed private respondent Mario B. Crespo, a.k.a. Mark Jimenez, the duly elected Congressman of the 6th District of Manila pursuant to the May 14, 2001 elections. He was credited with 32,097 votes or a margin of 768 votes over petitioner who obtained 31,329 votes.

On May 31, 2001, petitioner filed with the HRET an electoral protest4 against private respondent, impugning the election in 807 precincts in the 6th District of Manila on the following grounds: (1) misreading of votes garnered by petitioner; (2) falsification of election returns; (3) substitution of election returns; (4) use of marked, spurious, fake and stray ballots; and (5) presence of ballots written by one person or two persons. The case was docketed as HRET Case No. 01-024. Petitioner prayed that a revision and appreciation of the ballots in the 807 contested

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precincts be conducted; and that, thereafter, he be proclaimed the duly elected Congressman of the 6th District of Manila.

On June 18, 2001, private respondent filed his answer with counter-protest5 vehemently denying that he engaged in massive vote buying. He also opposed petitioner’s allegation that there is a need for the revision and appreciation of ballots.

After the preliminary conference between the parties on July 12, 2001, the HRET issued a Resolution6 limiting the issues to: first, whether massive vote-buying was committed by private respondent; and second, whether petitioner can be proclaimed

the duly elected Representative of the 6th District of Manila.

Meanwhile, on March 6, 2003, the HRET, in HRET Cases Nos. 01-020, Bienvenido Abante & Prudencio Jalandoni vs. Mario Crespo, and 01-023, Rosenda Ann M. Ocampo vs. Mario Crespo, issued Resolutions declaring that private respondent is "ineligible for the Office of Representative of Sixth District of Manila for lack of residence in the district" and ordering "him to vacate his office."7 Private respondent filed a motion for reconsideration but was denied.8

On March 12, 2003, petitioner filed a motion to implement Section 6 of Republic Act No. 6646,9 which reads:

"Section 6. Effects of Disqualification Case. – Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof, order the

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suspension of the proclamation of such candidate whenever the evidence of guilt is strong."

Petitioner averred that since private respondent was declared disqualified in HRET Cases Nos. 01-020 and 01-023, the votes cast for him should not be counted. And having garnered the second highest number of votes, he (petitioner) should be declared the winner in the May 14, 2001 elections and proclaimed the duly elected Congressman of the 6th District of Manila.

On March 26, 2003, private respondent filed an opposition to petitioner’s motion to implement the afore-quoted provision.

On March 27, 2003, the HRET issued a Resolution holding that private respondent was guilty of vote-buying and disqualifying him as Congressman of the 6th District of Manila. Anent the second issue of whether petitioner can be proclaimed the duly elected Congressman, the HRET held:

"x x x Jurisprudence has long established the doctrine that a second placer cannot be proclaimed the first among the remaining qualified candidates. The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected does not necessarily give the candidate who obtained the second highest number of votes the right to be declared the winner of the elective office. x x x

It is of no moment that there is only a margin of 768 votes between protestant and protestee. Whether the margin is ten or ten thousand, it still remains that protestant did not receive the mandate of the majority during the elections. Thus, to proclaim him as the duly elected representative in the stead of protestee would be anathema to the most basic precepts of republicanism and democracy as enshrined within our Constitution. In effect, we

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would be advocating a massive disenfranchisement of the majority of the voters of the sixth district of Manila.

Congressional elections are different from local government elections. In local government elections, when the winning candidate for governor or mayor is subsequently disqualified, the vice-governor or the vice-mayor, as the case may be, succeeds to the position by virtue of the Local Government Code. It is different in elections for representative. When a voter chooses his congressional candidate, he chooses only one. If his choice is concurred in by the majority of voters, that candidate is declared the winner. Voters are not afforded the opportunity of electing a ‘substitute congressman’ in the eventuality that their first choice dies, resigns, is disqualified, or in any other way leaves the post vacant. There can only be one representative for that particular legislative district. There are no runners-up or second placers. Thus, when the person vested with the mandate of the majority is disqualified from holding the post he was elected to, the only recourse to ascertain the new choice of the electorate is to hold another election. x x x

This does not mean that the Sixth Legislative District of Manila will be without adequate representation in Congress. Article VI, Section 9 of the Constitution, and Republic Act No. 6645 allows Congress to call a special election to fill up this vacancy. There are at least 13 months until the next congressional elections, which is more than sufficient time within which to hold a special election to enable the electorate of the Sixth District of Manila to elect their representative.

For this reason, the Tribunal holds that protestant cannot be proclaimed as the duly elected representative of the Sixth legislative District of Manila.

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In view of the conclusion herein reached, it is unnecessary to rule on the recount and revision of ballots in the protested and counter-protested precincts.

WHEREFORE, the Tribunal Resolved to:

x x x x x x

) DENY protestant’s (petitioner) Motion to Implement Section 6, Republic Act No. 6646 by declaring the votes cast for Mario Crespo as stray votes."

(2) Petitioner filed a partial motion for reconsideration but was denied. Hence, the present petition for certiorari.

(3) Petitioner contends that the HRET committed grave abuse of discretion when it ruled that "it is unnecessary to rule on the recount and revision of ballots in the protested and counter-protested precincts." He maintains that it is the ministerial duty of the HRET to implement the provisions of Section 6, R.A. No. 6646 specifically providing that "any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted."

(4) In his comment, private respondent counters that what the law requires is that the disqualification by final judgment takes place before the election. Here, the HRET Resolutions disqualifying him as Representative of the 6th District of Manila were rendered long after the May 14, 2001 elections. He also claims that the Resolutions are not yet final and executory because they are the subjects of certiorari proceedings before this Court. Hence, all his votes shall be counted

(5) and none shall be considered stray.

The HRET, in its comment, through the Office of the Solicitor General, merely reiterates its ruling.

(6) The petition must be dismissed.

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(7) The issues here are: (1) whether the votes cast in favor of private respondent should not be counted pursuant to Section 6 of R.A. No. 6646; and (2) whether petitioner, a second placer in the May 14, 2001 congressional elections, can be proclaimed the duly elected Congressman of the 6th District of Manila.

(8) The issues raised are not novel. In Codilla, Sr. vs. De Venecia,10 we expounded on the application of Section 6, R.A. No. 6646. There, we emphasized that there must be a final judgment before the election in order that the votes of a disqualified candidate can be considered "stray", thus:

(9) "Section 6 of R.A. No. 6646 and section 72 of the Omnibus Election Code require a final judgment before the election for the votes of a disqualified candidate to be considered "stray." Hence, when a candidate has not yet been disqualified by final judgment during the election day and was voted for, the votes cast in his favor cannot be declared stray. To do so would amount to disenfranchising the electorate in whom sovereignty resides."

The obvious rationale behind the foregoing ruling is that in voting for a candidate who has not been disqualified by final judgment during the election day, the people voted for him bona fide, without any intention to misapply their franchise, and in the honest belief that the candidate was then qualified to be the person to whom they would entrust the exercise of the powers of government.11

In the present case, private respondent was declared disqualified almost twenty-two (22) months after the May 14, 2001 elections. Obviously, the requirement of "final judgment before election" is absent. Therefore, petitioner can not invoke Section 6 of R.A. No. 6646.

Anent the second issue, we revert back to the settled jurisprudence that the subsequent disqualification of a candidate who obtained

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the highest number of votes does not entitle the candidate who garnered the second highest number of votes to be declared the winner.12 This principle has been reiterated in a number our decisions, such as Labo, Jr. vs. COMELEC,13 Abella vs. COMELEC,14 Benito vs. COMELEC15 and Domino vs. COMELEC.16 As a matter of fact, even as early as 1912, it was held that the candidate who lost in an election cannot be proclaimed the winner in the event that the candidate who won is found to be ineligible for the office for which he was elected.17

In Geronimo vs. Ramos,18 if the winning candidate is not qualified and cannot qualify for the office to which he was elected, a permanent vacancy is thus created. The second placer is just that, a second placer – he lost in the elections, he was repudiated by either the majority or plurality of voters. He could not be proclaimed winner as he could not be considered the first among the qualified candidates. To rule otherwise is to misconstrue the nature of the democratic electroral process and the sociological and psychological underpinnings behind voters’ preferences.19

At any rate, the petition has become moot and academic. The Twelfth Congress formally adjourned on June 11, 2004. And on May 17, 2004, the City Board of Canvassers proclaimed Bienvenido Abante the duly elected Congressman of the Sixth District of Manila pursuant to the May 10, 2004 elections.

In the recent case of Enrile vs. Senate Electoral Tribunal,20 we ruled that a case becomes moot and academic when there is no more actual controversy between the parties or no useful purpose can be served in passing upon the merits. Worth reiterating is our pronouncement in Gancho-on vs. Secretary of Labor and Employment, thus:21

"It is a rule of universal application, almost, that courts of justice constituted to pass upon substantial rights will not consider questions in which no actual interests are involved; they decline

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jurisdiction of moot cases. And where the issue has become moot and academic, there is no justiciable controversy, so that a declaration thereon would be of no practical use or value. There is no actual substantial relief to which petitioner would be entitled and which would be negated by the dismissal of the petition."

WHEREFORE, the petition is hereby DISMISSED.

SO ORDERED.

Co Kim Chan v Valdez Tan   Keh

Posted on December 4, 2008 by danabatnag

Co Kim Chan v Valdez Tan Keh

Facts of the case: Co Kim Chan had a pending civil case, initiated during the Japanese occupation, with the Court of First Instance of Manila. After the Liberation of the Manila and the American occupation, Judge Arsenio Dizon refused to continue hearings on the case, saying that a proclamation issued by General Douglas MacArthur had invalidated and nullified all judicial proceedings and judgments of the courts of the Philippines and, without an enabling law, lower courts have no jurisdiction to take cognizance of and continue judicial proceedings pending in the courts of the defunct Republic of the Philippines (the Philippine government under the Japanese).

The court resolved three issues:1. Whether or not judicial proceedings and decisions made during the Japanese occupation were valid and remained valid even after the American occupation;2. Whether or not the October 23, 1944 proclamation MacArthur issued in which he declared that “all laws, regulations and processes of any other government in the Philippines than that of the said Commonwealth are null and void and without legal effect in areas of the Philippines free of enemy occupation and control” invalidated all judgments and judicial acts and proceedings of the courts;

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3. And whether or not if they were not invalidated by MacArthur’s proclamation, those courts could continue hearing the cases pending before them.

Ratio: Political and international law recognizes that all acts and proceedings of a de facto government are good and valid. The Philippine Executive Commission and the Republic of the Philippines under the Japanese occupation may be considered de facto governments, supported by the military force and deriving their authority from the laws of war.Municipal laws and private laws, however, usually remain in force unless suspended or changed by the conqueror. Civil obedience is expected even during war, for “the existence of a state of insurrection and war did not loosen the bonds of society, or do away with civil government or the regular administration of the laws. And if they were not valid, then it would not have been necessary for MacArthur to come out with a proclamation abrogating them.The second question, the court said, hinges on the interpretation of the phrase “processes of any other government” and whether or not he intended it to annul all other judgments and judicial proceedings of courts during the Japanese military occupation.IF, according to international law, non-political judgments and judicial proceedings of de facto governments are valid and remain valid even after the occupied territory has been liberated, then it could not have been MacArthur’s intention to refer to judicial processes, which would be in violation of international law.A well-known rule of statutory construction is: “A statute ought never to be construed to violate the law of nations if any other possible construction remains.”Another is that “where great inconvenience will result from a particular construction, or great mischief done, such construction is to be avoided, or the court ought to presume that such construction was not intended by the makers of the law, unless required by clear and unequivocal words.”Annulling judgments of courts made during the Japanese occupation would clog the dockets and violate international law, therefore what MacArthur said should not be construed to mean that judicial proceedings

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are included in the phrase “processes of any other governments.”In the case of US vs Reiter, the court said that if such laws and institutions are continued in use by the occupant, they become his and derive their force from him. The laws and courts of the Philippines did not become, by being continued as required by the law of nations, laws and courts of Japan.It is a legal maxim that, excepting of a political nature, “law once established continues until changed by some competent legislative power. IT IS NOT CHANGED MERELY BY CHANGE OF SOVEREIGNTY.” Until, of course, the new sovereign by legislative act creates a change.Therefore, even assuming that Japan legally acquired sovereignty over the Philippines, and the laws and courts of the Philippines had become courts of Japan, as the said courts and laws creating and conferring jurisdiction upon them have continued in force until now, it follows that the same courts may continue exercising the same jurisdiction over cases pending therein before the restoration of the Commonwealth Government, until abolished or the laws creating and conferring jurisdiction upon them are repealed by the said government.DECISION: Writ of mandamus issued to the judge of the Court of First Instance of Manila, ordering him to take cognizance of and continue to final judgment the proceedings in civil case no. 3012.

(10) Summary of ratio:1. International law says the acts of a de facto government are valid and civil laws continue even during occupation unless repealed.2. MacArthur annulled proceedings of other governments, but this cannot be applied on judicial proceedings because such a construction would violate the law of nations.3. Since the laws remain valid, the court must continue hearing the case pending before it.***3 kinds of de facto government: one established through rebellion (govt gets possession and control through force or the voice of the majority and maintains itself against the will of the rightful government)through occupation (established and maintained by military forces who invade and occupy a territory of the enemy in the course of war;

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denoted as a government of paramount force)through insurrection (established as an independent government by the inhabitants of a country who rise in insurrection against the parent state)

(11) Section 3. Civilian authority is, at all times, supreme over the military. The Armed Forces of the Philippines is the protector of the people and the State. Its goal is to secure the sovereignty of the State and the integrity of the national territory.

(12) Mon 24 Mar 2003

(13) Digest: Aglipay v. Ruiz (GR 45459, 13 March 1937)

(14) 

(15) Aglipay v. RuizGR 45459, 13 March 1937 (64 Phil 201)First Division, Laurel (p): 5 concur.

(16) Facts: In May 1936, the Director of Posts announced in the dailies of Manila that he would order the issuance of postage stamps commemorating the celebration in the City of Manila of the 33rd International Eucharistic Congress, organized by the Roman Catholic Church. The petitioner, Mons. Gregorio Aglipay, Supreme Head of the Philippine Independent Church, in the fulfillment of what he considers to be a civic duty, requested Vicente Sotto, Esq., member of the Philippine Bar, to denounce the matter to the President of the Philippines. In spite of the protest of the petitioner’s attorney, the Director of

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Posts publicly announced having sent to the United States the designs of the postage for printing. The said stamps were actually issued and sold though the greater part thereof remained unsold. The further sale of the stamps was sought to be prevented by the petitioner.

(17) Issue: Whether the issuance of the postage stamps was in violation of the Constitution.

(18) Held: Religious freedom as a constitutional mandate is not inhibition of profound reverence for religion and is not a denial of its influence in human affairs. Religion as a profession of faith to an active power that binds and elevates man to his Creator is recognized. And, in so far as it instills into the minds the purest principles of morality, its influence is deeply felt and highly appreciated. When the Filipino people, in the preamble of their Constitution, implored “the aid of Divine Providence, in order to establish a government that shall embody their ideals, conserve and develop the patrimony of the nation, promote the general welfare, and secure to themselves and their posterity the blessings of independence under a regime of justice, liberty and democracy,” they thereby manifested their intense religious nature and placed

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unfaltering reliance upon Him who guides the destinies of men and nations. The elevating influence of religion in human society is recognized here as elsewhere.

(19) Act 4052 contemplates no religious purpose in view. What it gives the Director of Posts is the discretionary power to determine when the issuance of special postage stamps would be “advantageous to the Government.” Of course, the phrase “advantageous to the Government” does not authorize the violation of the Constitution; i.e. to appropriate, use or apply of public money or property for the use, benefit or support of a particular sect or church. In the case at bar, the issuance of the postage stamps was not inspired by any sectarian feeling to favor a particular church or religious denominations. The stamps were not issued and sold for the benefit of the Roman Catholic Church, nor were money derived from the sale of the stamps given to that church. The purpose of the issuing of the stamps was to take advantage of an event considered of international importance to give publicity to the Philippines and its people and attract more tourists to the country. Thus, instead of showing a Catholic chalice, the stamp contained a map of the Philippines, the location of the City of Manila, and an inscription

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that reads “Seat XXXIII International Eucharistic Congress, Feb. 3-7, 1937.”

(20) The Supreme Court denied the petition for a writ of prohibition, without pronouncement as to costs.

Art II sec 6. The separation of Church and State shall be inviolable. Art III sec 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship,

without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights. Art VI sec 29(2). No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium. Establishment Clause Justice Laurel 1937 FACTS: On May 1936, respondent announced in the newspapers that he would order of postage stamps commemorating

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the 33rd International Eucharistic Congress under Act No. 4052 (cited below) Petitioner, Mons. Gregorio Aglipay, Supreme Head of the Phil. Independent Church (Aglipayan), seeks a writ of prohibition to prevent respondent Director of Posts from issuing and selling postage stamps commemorative of the said Congress. o Petitioner alleges that respondent in issuing and selling the postage stamps violated the Constitutional provision on the principle of separation of church and state, specifically section 13, subsection 3, Art. VI which says: “No public money or property shall ever be appropriated, applied, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination… or system of religion…” ISSUE: WON respondent violated the Constitution in issuing and selling the postage stamps. HELD: No constitutional infraction. History of Separation of Church and State: “… our history, not to speak of the history of mankind, has taught us that the union of church and state is prejudicial to both, for occasions might arise when the state will use the church, and the church the state, as a weapon in the furtherance of their respective ends and aims.” This principle was recognized in the Malolos Constitution, inserted in the Treaty of Paris, in the instructions of McKinley to the Phil.

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Commission… and finally embodied in the Constitution as the supreme expression of the Filipino people. Filipino’s enjoy both civil and religious freedom guaranteed in the Consti o What is guaranteed by our Constitution is religious liberty, not merely religious toleration. Religious Freedom: Religious Freedom as a constitutional mandate is not inhibition of profound reverence for religion and is not a denial of its influence in human affairs. o Imploring “the aid of Divine Providence, in order to establish a gov’t that shall embody their ideals…” in the preamble of the Constitution. General Concessions indiscriminately accorded to religious sects: o Tax exemptions properties devoted exclusively to religious purposes o Sectarian aid is not prohibited when a priest, preacher, etc. is assigned to the armed forces, penal institution, orphanage or leprosarium. o Optional religious instruction in public schools is allowed by constitutional mandate, etc. PRESENT CASE: Act No. 4052, from which draws authority to

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issue and sell the stamps contemplates no religious purpose, but gives the Director of the Posts the discretionary power to determine when the issuance of special postage stamps would be “advantageous to the Government.” The present case was not inspired by any sectarian feeling to favor a particular religious denomination. o The stamps were not issued for the benefit of the Roman Catholic Church, nor were money derived from the sale of the stamps given to the church. o Purpose of the stamps was “to advertise the Philippines and attract more tourists to the country” officials took advantage of an

internationally important event to give publicity to the Philippines and its people. The stamp as actually printed instead of showing a Catholic Church chalice as originally planned, contains a map of the Philippines and the location of the City of Manila with the inscription “Seat XXXIII Batch 2008A. 1 AGLIPAY vs. RUIZ

International Eucharistic Congress, Feb. 3-7, 1937.” • What is emphasized

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is not the Congress but Manila, the capital of the Philippines, as the seat of that congress. o The propaganda resulting from the issuance and sale of the staff might redound to the benefit of the Roman Catholic Church but this was not the intention and is only incidental to the original purpose. “We are of the opinion that the Government should not be embarrassed in its activities simply because of incidental results, more or less religious in character, if the purpose had in view is one which could legitimately be undertaken by appropriate legislation.” o There may have peen poor judgment in issuing and selling the stamp but a gap still exists between that and the unconstitutionality of the issuance and sale which was not filled by the petitioner. FACTS: 1. On March 23, 1976, the said barangay council adopted Resolution No. 5, "reviving the traditional socio-religious celebration" every fifth day of April "of the feast day of Señor San Vicente Ferrer, the patron saint of Valencia". lt provided for (1) the acquisition of the image of San Vicente Ferrer and (2) the construction of a waiting shed as the barangay's projects. Funds for the two projects would be obtained through the selling of tickets and cash donations "

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2. On March 26, 1976, the barangay council passed Resolution No. 6 which specified that, in accordance with the practice in Eastern Leyte, Councilman Tomas Cabatingan, the Chairman or hermano mayor of the fiesta, would be the caretaker of the image of San Vicente Ferrer and that the image would remain in his residence for one year and until the election of his successor as chairman of the next feast day. It was further provided in the resolution that the image would be made available to the Catholic parish church during the celebration of the saint's feast day. It was ratified in a plebiscite. 3. Funds were raised by means of solicitations and cash donations of the barangay residents and those of the neighboring places of Valencia. With those funds, the waiting shed was constructed and the wooden image of San Vicente Ferrer was acquired in Cebu City by the barangay council for four hundred pesos 4. On April 5, 1976, the image was temporarily placed in the altar of the Catholic church of Barangay Valencia so that the devotees could worship the saint during the mass for the fiesta. A controversy arose after the mass when the parish priest, Father Sergio Marilao Osmeña refused to return that image to the barangay council on the pretext that it was the property of the church because church funds were used for its acquisition. 5. Several days after the fiesta or on April 11, 1976, on the occasion of his sermon during a mass, Father Osmeña allegedly uttered defamatory remarks against the barangay captain, Manuel C. Veloso, apparently in connection with the disputed image. That incident provoked Veloso to file against Father Osmeña in the city court of Ormoc City a charge for grave oral defamation. 6. Father Osmeña retaliated by filing administrative complaints against Veloso with the city mayor's office and the Department of Local Government and Community Development on the grounds of immorality, grave abuse of authority, acts unbecoming a public official and ignorance of the law.

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7. Meanwhile, the image of San Vicente Ferrer remained in the Catholic church of Valencia. Because Father Osmeña did not accede to the request of Cabatingan to have custody of the image and "maliciously ignored" the council's Resolution No. 6, the council enacted on May 12, 1976 Resolution No. 10, authorizing the hiring of a lawyer to file a replevin case against Father Osmeña for the recovery of the image 8. The replevin case was filed in the city court of Ormoc City against Father Osmeña and Bishop Cipriano Urgel. After the barangay council had posted a cash bond of eight hundred pesos, Father Osmeña turned over the image to the council ln his answer to the complaint for replevin, he assailed the constitutionality of the said resolutions. 9. Later, he and three other persons, Andres Garces, a member of the Aglipayan Church, and two Catholic laymen, Jesus Edullantes and Nicetas Dagar, filed against the barangay council and its members (excluding two members) a complaint in the Court of First Instance at Ormoc City, praying for the annulment of the said resolutions (Their main argument was it prejudiced members of the Catholic Church because they could see the image in the church only once a year or during the fiesta. <Labo dud!> ) 10. Lower Court dismissed the complaints. ISSUES

1) WON that the barangay council was not duly constituted because lsidoro M. Mañago, Jr., the chairman of the kabataang barangay, was not allowed to participate in its sessions? NO Batch 2008A. 2 GARCES vs. ESTENZO

RATIO In this case, Mañago, the barangay youth chairman, was notified of the sessions of the barangay council to be held on March 23 and

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26, 1976 but he was not able to attend those sessions because he was working with a construction company based at Ipil, Ormoc City. Mañago's absence from the sessions of the barangay council did not render the said resolutions void. There was a quorum when the said resolutions were passed.

2) WON the resolutions contravene the constitutional provisions that "no law shall be made respecting an establishment of religion" and that "no public money or property shall ever be appropriated, applied, paid, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary as such. except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium? (haba, hehe) NO Ratio The wooden image was purchased in connection with the celebration of the barrio fiesta honoring the patron saint, San Vicente Ferrer, and not for the purpose of favoring any religion nor interfering with religious matters or the religious beliefs of the barrio residents. One of the highlights of the fiesta was the mass. Consequently, the image of the patron saint had to be placed in the church when the mass was celebrated. If there is nothing unconstitutional or illegal in holding a fiesta and having a patron saint for the barrio, then any activity intended to facilitate the worship of the patron saint (such as the acquisition and display of his image) cannot be branded as illegal. The barangay council designated a layman as the custodian of the wooden image in order to forestall any suspicion that it is favoring the Catholic church. A more practical reason for that arrangement would be that the image, if placed in a layman's custody, could easily be made available to any family desiring to borrow the image in connection with prayers and novenas.

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This case is a petty quarrel over the custody of a saint's image. lt would never have arisen if the parties had been more diplomatic and tactful and if Father Osmeña had taken the trouble of causing contributions to be solicited from his own parishioners for the purchase of another image of San Vicente Ferrer to be installed in his church. There can be no question that the image in question belongs to the barangay council. Father Osmeña claim that it belongs to his church is wrong. The barangay council, as owner of the image, has the right to determine who should have custody thereof. If it chooses to change its mind and decides to give the image to the Catholic church, that action would not violate the Constitution because the image was acquired with private funds and is its private property. The council has the right to take measures to recover possession of the image by enacting Resolutions Nos. 10 and 12. Not every governmental activity which involves the expenditure of public funds and which has some religious tint is violative of the constitutional provisions regarding separation of church and state, freedom of worship and banning the use of public money or property. (Lower Court’s decision affirmed) (1971) This case was heard concurrently with two others, Early v. DiCenso (1971) and Robinson v. DiCenso (1971). The cases involved controversies over laws in Pennsylvania and Rhode Island. In Pennsylvania, a statute provided financial support for teacher salaries, textbooks, and instructional materials for secular subjects to non-public schools. The Rhode Island statute provided direct supplemental salary payments to teachers in non-public elementary schools. Each statute made aid available to "church-related educational institutions." Question Presented

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Did the Rhode Island and Pennsylvania statutes violate the First Amendment's Establishment Clause by making state financial aid available to "church-related educational institutions"? Conclusion Yes. Writing for the majority, Chief Justice Burger articulated a

three-part test for laws dealing with religious establishment. To be constitutional, a statute must have "a secular legislative purpose," it must have principal effects which neither advance nor inhibit religion, and it must not foster "an excessive government entanglement with religion." The Court found that the subsidization of parochial schools furthered a process of religious inculcation, and that the "continuing state surveillance" necessary to enforce the specific provisions of the laws would inevitably entangle the state in religious affairs. The Court also noted the presence of an unhealthy "divisive political potential" concerning legislation which appropriates support to religious schools. FACTS: Batch 2008A. 3

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-1648             August 17, 1949

PEDRO SYQUIA, GONZALO SYQUIA, and LEOPOLDO SYQUIA, petitioners, vs.NATIVIDAD ALMEDA LOPEZ, Judge of Municipal Court of Manila, CONRADO V. SANCHEZ, Judge of Court of First Instance of Manila, GEORGE F. MOORE, ET AL., respondents.

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Gibbs, Gibbs, Chuidian and Quasha for petitioner.J. A. Wolfson for respondent.

MONTEMAYOR, J.:

For the purposes of this decision, the following facts gathered from and based on the pleadings, may be stated. The plaintiffs named Pedro, Gonzalo, and Leopoldo, all surnamed Syquia, are the undivided joint owners of three apartment buildings situated in the City of Manila known as the North Syquia Apartments, South Syquia Apartments and Michel Apartments located at 1131 M. H. del Pilar, 1151 M. H. del Pilar and 1188 A. Mabini Streets, respectively.

About the middle of the year 1945, said plaintiffs executed three lease contracts, one for each of the three apartments, in favor of the United States of America at a monthly rental of P1,775 for the North Syquia Apartments, P1,890 for the South Syquia Apartment, and P3,335 for the Michel Apartments. The term or period for the three leases was to be "for the duration of the war and six months thereafter, unless sooner terminated by the United States of America." The apartment buildings were used for billeting and quartering officers of the U. S. armed forces stationed in the Manila area.

In March 1947, when these court proceedings were commenced, George F. Moore was the Commanding General, United States Army, Philippine Ryukus Command, Manila, and as Commanding General of the U. S. Army in the Manila Theatre, was said to control the occupancy of the said apartment houses and had authority in the name of the United States Government to assign officers of the U. S. Army to said apartments or to order said officers to vacate the same. Erland A. Tillman was the Chief, Real Estate Division, Office of the District Engineers, U. S. Army, Manila, who, under the command of defendant Moore was in direct charge and control of the lease and occupancy of said three apartment buildings.

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Defendant Moore and Tillman themselves did not occupy any part of the premises in question.

Under the theory that said leases terminated six months after September 2, 1945, when Japan surrendered, plaintiffs sometime in March, 1946, approached the predecessors in office of defendants Moore and Tillman and requested the return of the apartment buildings to them, but were advised that the U. S. Army wanted to continue occupying the premises. On May 11, 1946, said plaintiffs requested the predecessors in office of Moore and Tillman to renegotiate said leases, execute lease contract for a period of three years and to pay a reasonable rental higher than those payable under the old contracts. The predecessors in office of Moore in a letter dated June 6, 1946, refused to execute new leases but advised that "it is contemplated that the United States Army will vacate subject properties prior to 1 February 1947." Not being in conformity with the continuance of the old leases because of the alleged comparatively low rentals being paid thereunder, plaintiffs formally requested Tillman to cancel said three leases and to release the apartment buildings on June 28, 1946. Tillman refused to comply with the request. Because of the alleged representation and assurance that the U.S. Government would vacate the premises before February 1, 1947, the plaintiffs took no further steps to secure possession of the buildings and accepted the monthly rentals tendered by the predecessors in office of Moore and Tillman on the basis of a month to month lease subject to cancellation upon thirty days notice. Because of the failure to comply with the alleged representation and assurance that the three apartment buildings will be vacated prior to February 1, 1947, plaintiffs on February 17, 1947, served formal notice upon defendants Moore and Tillman and 64 other army officers or members of the United States Armed Forces who were then occupying apartments in said three buildings, demanding (a) cancellation of said leases; (b) increase in rentals to P300 per month per apartment effective thirty days from notice; (c) execution

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of new leases for the three or any one or two of the said apartment buildings for a definite term, otherwise, (d) release of said apartment buildings within thirty days of said notice in the event of the failure to comply with the foregoing demands. The thirty-day period having expired without any of the defendants having complied with plaintiffs' demands, the plaintiffs commenced the present action in the Municipal Court of Manila in the form of an action for unlawful detainer (desahucio) against Moore and Tillman and the 64 persons occupying apartments in the three buildings for the purpose of having them vacate the apartments, each occupants to pay P300 a month for his particular apartment from January 1, 1947 until each of said particular defendant had vacated said apartment; to permit plaintiffs access to said apartment buildings for the purpose of appraising the damages sustained as the result of the occupancy by defendants; that defendants be ordered to pay plaintiffs whatever damages may have been actually caused on said property; and that in the event said occupants are unable to pay said P300 a month and/or the damages sustained by said property, the defendants Moore and Tillman jointly and severally be made to pay said monthly rentals of P300 per month per apartment from January 1, 1947 to March 19, 1947, inclusive, and/or the damages sustained by said apartments, and that defendants Moore and Tillman be permanently enjoined against ordering any additional parties in the future from entering and occupying said premises.

Acting upon a motion to dismiss filed through the Special Assistant of the Judge Advocate, Philippine Ryukus Command on the ground that the court had no jurisdiction over the defendants and over the subject matter of the action, because the real party in interest was the U.S. Government and not the individual defendants named in the complaint, and that the complaint did not state a cause of action, the municipal court of Manila in an order dated April 29, 1947, found that the war between the United States of America and her allies on one side and Germany and Japan on the other, had

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not yet terminated and, consequently, the period or term of the three leases had not yet expired; that under the well settled rule of International Law, a foreign government like the United States Government cannot be sued in the courts of another state without its consent; that it was clear from the allegations of the complaint that although the United States of America has not been named therein as defendant, it is nevertheless the real defendant in this case, as the parties named as defendants are officers of the United States Army and were occupying the buildings in question as such and pursuant to orders received from that Government. The municipal court dismissed the action with costs against the plaintiffs with the suggestion or opinion that a citizen of the Philippines, who feels aggrieved by the acts of the Government of a foreign country has the right to demand that the Philippine Government study his claim and if found meritorious, take such diplomatic steps as may be necessary for the vindication of rights of that citizen, and that the matter included or involved in the action should be a proper subject matter of representations between the Government of the Government of the United States of America and the Philippines. Not being satisfied with the order, plaintiffs appealed to the Court of Manila, where the motion to dismiss was renewed.

The Court of First Instance of Manila in an order dated July 12, 1947, affirmed the order of the municipal court dismissing plaintiffs' complaint. It conceded that under the doctrine laid down in the case of U. S. vs. Lee, 106 U. S., 196 and affirmed in the case of Tindal vs. Wesley, 167 U. S., 204 ordinarily, courts have jurisdiction over cases where private parties sue to recover possession of property being held by officers or agents acting in the name of the U. S. Government even though no suit can be brought against the Government itself, but inasmuch as the plaintiffs in the present case are bringing this action against officers and agents of the U. S. Government not only to recover the possession of the three apartment houses supposedly being held illegally by them in the name of their government, but also to collect back rents, not only at

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the rate agreed upon in the lease contracts entered into by the United States of America but in excess of said rate, to say nothing of the damages claimed, as a result of which, a judgment in these proceedings may become a charge against the U. S. Treasury, then under the rule laid down in the case of Land vs. Dollar, 91 Law. ed., 1209, the present suit must be regarded as one against the United States Government itself, which cannot be sued without its consent, specially by citizens of another country.

The plaintiffs as petitioners have brought this case before us on a petition for a writ of mandamus seeking to order the Municipal Court of Manila to take jurisdiction over the case. On October 30, 1947, counsel for respondents Almeda Lopez, Sanchez, Moore and Tillman filed a motion to dismiss on several grounds. The case was orally argued on November 26, 1947. On March 4, 1948, petitioners filed a petition which, among other things, informed this Court that the North Syquia Apartments, the South Syquia Apartments and Michel Apartments would be vacated by their occupants on February 29, March 31, and May 31, 1948, respectively. As a matter of fact, said apartments were actually vacated on the dates already mentioned and were received by the plaintiff-owners.

On the basis of this petition and because of the return of the three apartment houses to the owners, counsel for respondents Almeda Lopez, Sanchez, Moore and Tillman filed a petition to dismiss the present case on the ground that it is moot. Counsel for the petitioners answering the motion, claimed that the plaintiffs and petitioners possession of the three apartment houses, reserving all of their rights against respondents including the right to collect rents and damages; that they have not been paid rents since January 1, 1947; that respondents admitted that there is a total of P109,895 in rentals due and owing to petitioners; that should this case be now dismissed, the petitioners will be unable to enforce collection; that the question of law involved in this case may again come up before the courts when conflicts arise between Filipino civilian property

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owners and the U.S. Army authorities concerning contracts entered into in the Philippines between said Filipinos and the U.S. Government. Consequently, this Court, according to the petitioners, far from dismissing the case, should decide it, particularly the question of jurisdiction.

On June 18, 1949, through a "petition to amend complaint" counsel for the petitioners informed this court that petitioners had already received the U. S. Army Forces in the Western Pacific the sum of P109,895 as rentals for the three apartments, but with the reservation that said acceptance should not be construed as jeopardizing the rights of the petitioners in the case now pending in the courts of the Philippines or their rights against the U. S. Government with respect to the three apartment houses. In view of this last petition, counsel for respondents alleging that both respondent Moore and Tillman had long left the Islands for other Army assignments, and now that both the possession of the three apartments in question as well as the rentals for their occupation have already been received by the petitioners renew their motion for dismissal on the ground that this case has now become moot.

The main purpose of the original action in the municipal court was to recover the possession of the three apartment houses in question. The recovery of rentals as submitted by the very counsel for the petitioner was merely incidental to the main action. Because the prime purpose of the action had been achieved, namely, the recovery of the possession of the premises, apart from the fact that the rentals amounting to P109,895 had been paid to the petitioners and accepted by them though under reservations, this Court may now well dismiss the present proceedings on the ground that the questions involved therein have become academic and moot. Counsel for the petitioners however, insists that a decision be rendered on the merits, particularly on the question of jurisdiction of the municipal court over the original action, not only for the satisfaction of the parties involved but also to serve as a guide in

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future cases involving cases of similar nature such as contracts of lease entered into between the Government of the United States of America on one side and Filipino citizens on the other regarding properties of the latter. We accept the suggestion of petitioners and shall proceed to discuss the facts and law involved and rule upon them.

We shall concede as correctly did the Court of First Instance, that following the doctrine laid down in the cases of U. S. vs. Lee and U. S. vs. Tindal, supra, a private citizen claiming title and right of possession of a certain property may, to recover possession of said property, sue as individuals, officers and agents of the Government who are said to be illegally witholding the same from him, though in doing so, said officers and agents claim that they are acting for the Government, and the court may entertain such a suit altho the Government itself is not included as a party-defendant. Of course, the Government is not bound or concluded by the decision. The philosophy of this ruling is that unless the courts are permitted to take cognizance and to assume jurisdiction over such a case, a private citizen would be helpless and without redress and protection of his rights which may have been invaded by the officers of the government professing to act in its name. In such a case the officials or agents asserting rightful possession must prove and justify their claim before the courts, when it is made to appear in the suit against them that the title and right of possession is in the private citizen. However, and this is important, where the judgment in such a case would result not only in the recovery of possession of the property in favor of said citizen but also in a charge against or financial liability to the Government, then the suit should be regarded as one against the government itself, and, consequently, it cannot prosper or be validly entertained by the courts except with the consent of said Government. (See case of Land vs. Dollar, 91 Law. ed., 1209.)

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From a careful study of this case, considering the facts involved therein as well as those of public knowledge of which we take judicial cognizance, we are convinced that the real party in interest as defendant in the original case is the United States of America. The lessee in each of the three lease agreements was the United States of America and the lease agreement themselves were executed in her name by her officials acting as her agents. The considerations or rentals was always paid by the U. S. Government. The original action in the municipal court was brought on the basis of these three lease contracts and it is obvious in the opinion of this court that any back rentals or increased rentals will have to be paid by the U. S. Government not only because, as already stated, the contracts of lease were entered into by such Government but also because the premises were used by officers of her armed forces during the war and immediately after the terminations of hostilities.

We cannot see how the defendants and respondents Moore and Tillman could be held individually responsible for the payments of rentals or damages in relation to the occupancy of the apartment houses in question. Both of these army officials had no intervention whatsoever in the execution of the lease agreements nor in the initial occupancy of the premises both of which were effected thru the intervention of and at the instance of their predecessors in office. The original request made by the petitioners for the return of the apartment buildings after the supposed termination of the leases, was made to, and denied not by Moore and Tillman but by their predecessors in office. The notice and decision that the U. S. Army wanted and in fact continued to occupy the premises was made not by Moore and Tillman but by predecessors in office. The refusal to renegotiate the leases as requested by the petitioners was made not by Moore but by his predecessors in office according to the very complaint filed in the municipal court. The assurance that the U. S. Army will vacate the premises prior to February 29, 1947, was also made by the predecessors in office of Moore.

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As to the defendant Tillman, according to the complaint he was Chief, Real State Division, Office of the District Engineer, U. S. Army, and was in direct charge and control of the leases and occupancy of the apartment buildings, but he was under the command of defendant Moore, his superior officer. We cannot see how said defendant Tillman in assigning new officers to occupy apartments in the three buildings, in obedience to order or direction from his superior, defendant Moore, could be held personally liable for the payment of rentals or increase thereof, or damages said to have been suffered by the plaintiffs.

With respect to defendant General Moore, when he assumed his command in Manila, these lease agreement had already been negotiated and executed and were in actual operation. The three apartment buildings were occupied by army officers assigned thereto by his predecessors in office. All that he must have done was to assign or billet incoming army officers to apartments as they were vacated by outgoing officers due to changes in station. He found these apartment buildings occupied by his government and devoted to the use and occupancy of army officers stationed in Manila under his command, and he had reasons to believe that he could continue holding and using the premises theretofore assigned for that purpose and under contracts previously entered into by his government, as long as and until orders to the contrary were received by him. It is even to be presumed that when demand was made by the plaintiffs for the payment of increased rentals or for vacating the three apartment buildings, defendant Moore, not a lawyer by profession but a soldier, must have consulted and sought the advise of his legal department, and that his action in declining to pay the increased rentals or to eject all his army officers from the three buildings must have been in pursuance to the advice and counsel of his legal division. At least, he was not in a position to pay increased rentals above those set and stipulated in the lease agreements, without the approval of his government, unless he personally assumed financial responsibility therefor. Under these

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circumstances, neither do we believe nor find that defendant Moore can be held personally liable for the payment of back or increased rentals and alleged damages.

As to the army officers who actually occupied the apartments involved, there is less reason for holding them personally liable for rentals and supposed damages as sought by the plaintiffs. It must be remembered that these army officers when coming to their station in Manila were not given the choice of their dwellings. They were merely assigned quarters in the apartment buildings in question. Said assignments or billets may well be regarded as orders, and all that those officers did was to obey them, and, accordingly, occupied the rooms assigned to them. Under such circumstances, can it be supposed or conceived that such army officers would first inquire whether the rental being paid by the government for the rooms or apartments assigned to them by order of their superior officer was fair and reasonable or not, and whether the period of lease between their government and the owners of the premises had expired, and whether their occupancy of their rooms or apartments was legal or illegal? And if they dismissed these seemingly idle speculations, assuming that they ever entered their minds, and continued to live in their apartments unless and until orders to the contrary were received by them, could they later be held personally liable for any back rentals which their government may have failed to pay to the owners of the building, or for any damages to the premises incident to all leases of property, specially in the absence of proof that such damages to property had been caused by them and not by the previous occupants, also army officers who are not now parties defendant to this suit? Incidentally it may be stated that both defendants Moore and Tillman have long left these Islands to assume other commands or assignments and in all probability none of their 64 co-defendants is still within this jurisdiction.

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On the basis of the foregoing considerations we are of the belief and we hold that the real party defendant in interest is the Government of the United States of America; that any judgment for back or increased rentals or damages will have to be paid not by defendants Moore and Tillman and their 64 co-defendants but by the said U. S. Government. On the basis of the ruling in the case of Land vs. Dollar already cited, and on what we have already stated, the present action must be considered as one against the U. S. Government. It is clear that the courts of the Philippines including the Municipal Court of Manila have no jurisdiction over the present case for unlawful detainer. The question of lack of jurisdiction was raised and interposed at the very beginning of the action. The U. S. Government has not given its consent to the filing of this suit which is essentially against her, though not in name. Moreover, this is not only a case of a citizen filing a suit against his own Government without the latter's consent but it is of citizen filing an action against a foreign government without said government's consent, which renders more obvious the lack of jurisdiction of the courts of his country. The principles of the law behind this rule are so elementary and of such general acceptance that we deem it unnecessary to cite authorities in support thereof.

In conclusion we find that the Municipal Court of Manila committed no error in dismissing the case for lack of jurisdiction and that the Court of First Instance acted correctly in affirming the municipal court's order of dismissal. Case dismissed, without pronouncement as to costs.

Moran, C.J., Paras, Feria, Bengzon, Tuason and Reyes, JJ., concur.

Republic of the PhilippinesSUPREME COURT

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Manila

THIRD DIVISION

 

G.R. No. 70547 January 22, 1993

PHILIPPINE NATIONAL RAILWAYS and HONORIO CABARDO, petitioners, vs.INTERMEDIATE APPELLATE COURT, and BALIWAG TRANSIT, INC., respondents.

The Solicitor General for petitioner.

Leopoldo Sta. Maria for private respondents.

 

MELO, J.:

The imputation of culpa on the part of herein petitioners as a result of the collision between its strain, bound for Manila from La Union, with a Baliwag transit bus at the railroad crossing on the road going to Hagonoy, Bulacan on August l0, 1974, is the subject of the petition at bar directed against the judgment of affirmance rendered by respondent court, through the Fourth Civil Cases Division (Sison, Bidin (P), Veloso, JJ.), vis-a-vis the decretal portion handed down by the court of origin in:

1. Ordering the defendants, jointly and severally to pay the plaintiff the amount of P179,511.52 as actual damages.

2. Ordering the defendants jointly and severally to pay the plaintiff P436,642.03 as reimbursement for the damages paid by the plaintiff to death, injury and damage claimants.

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3. Ordering the defendants jointly and severally to pay exemplary damages in the amount of P50, 000.00 to the plaintiff.

4. Ordering the defendants jointly and severally to pay the plaintiff attorney's fees in the amount of P5, 000.00.

5. Ordering the defendants, jointly and severally to pay the plaintiff interest at the legal rate on the above amounts due the plaintiff from August 10, 1974 until fully paid.

6. Ordering the defendants to pay the cost of this suit.

7. Ordering the dismissal of the defendants' counterclaim for lack of factual and legal basis. (p. 101, Record on Appeal; p. 103. Rollo.)

Culled from the text of the assailed disposition are the facts of the case at bar which are hereunder adopted verbatim:

The case arose from a collision of a passenger express train of defendant Philippine National Railways, (PNR) coming from San Fernando, La Union and bound for Manila and a passenger bus of Baliwag Transit, Inc. which was on its way to Hagonoy, Bulacan, from Manila, but upon reaching the railroad crossing at Barrio Balungao, Calumpit, Bulacan at about 1:30 in the afternoon of August 10, 1974, got stalled and was hit by defendant's express train causing damages to plaintiff's bus and its passengers, eighteen (18) of whom died and fifty-three (53) others suffered physical injuries. Plaintiff alleging that the proximate cause of the collision was the negligence and imprudence of defendant PNR and its locomotive engineer, Honorio Cirbado, in operating its passenger train in a busy intersection without any bars, semaphores, signal lights, flagman or switchman to warn the public of approaching train that would pass through the

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crossing, filed the instant action for Damages against defendants. The defendants, in their Answer traversed the material allegation of the Complaint and as affirmative defense alleged that the collision was caused by the negligence, imprudence and lack of foresight of plaintiff's bus driver, Romeo Hughes.

At the pre-trial conference held on June 23, 1976, the parties agreed on a partial stipulation of facts and issues which as amplified at the continuation of the pre-trial conference, on July 12, 1976, are as follows:

1 That plaintiff is a duly constituted corporation registered with the Securities and Exchange Commission engaged in the business of transportation and operating public utility buses for the public with lines covering Manila, Caloocan City, Quezon City, Malabon, Rizal, Bulacan, Pampanga and Nueva Ecija, and particularly from Manila to Hagonoy, Bulacan and return in the month of August, l974 passing thru the town of Calumpit Bulacan, temporarily while the bridge at Hagonoy, Bulacan was under construction;

2 That defendant Philippine National Railways is a purely government owned and controlled corporation duly registered and existing virtue of Presidential Decree No. 741, with capacity to sue and be sued, and is likewise engaged in transporting passengers and cargoes by trains and buses and that, it operates a train line between San Fernando, La Union and Manila particularly Passenger Express Train with Body No. 73, passing along the intersection of Barrio Balungao, Calumpit, Bulacan, in going to San Fernando, La Union from Manila and

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return;

3. That on August 10, 1974, at about 1:20 o'clock in the afternoon, a Baliuag Transit Bus with Body No. 1066 and Plate No. XS-929 PUB-Bulacan '74 was driven by its authorized driver Romeo Hughes and PNR Train No. 73 was operated by Train Engineer Honorio Cabardo alias Honorio Cirbado and at the railroad intersection at Barrio Balungao, Calumpit, Bulacan, said passenger train No. 73 hit and bumped the right mid portion of the plaintiff's passenger bus No. 1066, while the rear portion of said bus was at the railroad track and its direction was towards Hagonoy, Bulacan at about 1:30 o'clock in the afternoon;

4. That at the time of the collision there was a slight rainfall in the vicinity of the scene of the accident and that there was at said intersection no bars, semaphores, and signal lights that would warn the public of the approaching train that was about to pass through the intersection and likewise there was no warning devices to passing trains showing that they were about to pass an intersection in going to Manila from San Fernando, La Union and back;

5. That on account of said collision, the Baliuag Transit Bus with Body No. 1066 driven by Romeo Hughes was damaged and eighteen (18) of its passengers died and the rest who were more than fifty three (53) passengers suffered physical injuries;

6. That after the investigation the Chief of Police of Calumpit, Bulacan, filed a criminal case of Reckless Imprudence Causing Multiple Homicide with Multiple

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Physical Injuries and Damage to Property against Romeo Hughes y Parfan, driver of the Baliuag Transit bus docketed under Crim. Case No. 2392; while the train Engineer Honorio Cabardo alias Honorio Cirbado was not included as an accused in said case, although his train No. 73 was the one that hit and bumped the right rear portion of the said bus;

7. That immediately after the said accident Major Manuel A. Macam, Chief of the Municipal Police of Calumpit, Bulacan, together with some of his policemen conducted an investigation of the accident;

8. That at the railroad crossing in Calumpit, Bulacan where the accident took place there is no railroad crossing bar, however, during the pre-war days there was a railroad crossing bar at said intersection; that, however, there was only one sign of railroad crossing "Stop, Look and Listen" placed on a concrete slab and attached to a concrete post existing at the approach of the railroad track from the Highway going towards Hagonoy, Bulacan and that after the said railroad track there was a designated jeep parking area at the right side in the direction from the Highway to Hagonoy Bulacan;

9. That the train No. 73 driven by Train Engineer Honorio Cabardo alias Honorio Cirbado stopped after passing the railroad crossing at a distance of about 50 meters from the said intersection after the collision on August, 1974;

10. That the expected time of arrival of said Train No. 73 in Manila was 2:41 P.M. and its departure

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time from San Fernando, La Union was 9:00 A.M. and its expected arrival at Calumpit, Bulacan was 1:41 P.M. with no stop at Calumpit, Bulacan.

SIMPLIFICATION OF ISSUES

11. That the principal issue in the instant case is who between the driver Romeo Hughes of Baliuag Transit, Incorporated and the train engineer Honorio Cabardo alias Honorio Cirbado of the Philippine National Railways was negligent or whether or not both are negligent; that likewise which of said companies was negligent at said railroad intersection;

12. That another additional issue is whether the Baliuag Transit Incorporated has exercised the diligence of a good father of the family in the selection and supervision of its employees. (pp.85-87, Record on Appeal). ( Annex A, Petition; pp. 79-82, Rollo)

In addition, respondent court deemed it necessary to reflect the salient findings of the case for damages as formulated by the trial court:

Posed for resolution are the following issues: Who between the driver Romeo Hughes of the Baliuag Transit Incorporated and Honorio Cabardo, train Engineer of the Philippine National Railways was negligent in the operation of their respective vehicles, or whether or both were negligent? Could either of the companies Baliuag Transit Incorporated and the Philippine National Railways be held accountable for the collision because of negligence?

The defendants presented several statements or affidavits of alleged witnesses to the collision, specifically Exhibits 2, 3, 4,

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5, 6, 11, 13, 14, 15, 16, 17, 18 and 19; the Court is at a loss as to why the persons who gave the said statements were not presented as witnesses during the trial of thecase, as aptly said, the statements are hearsay evidence (Azcueta v. Cabangbang, — 45 O.G. 144); at most they be taken as proof only of the fact that statements of said persons were taken and that investigation was conducted of the incident; the Court cannot consider the averments in said statements as testimonies or evidence of truth.

Defendants endeavored to show that the proximate and immediate cause of the collision was the negligence of the bus driver because the driver did not make a stop before ascending the railtrack; he did not heed the warning or shoutings of bystanders and passengers and proceeded in traversing the railtrack at a fast speed; that the bus driver was in fact violating Section 42(d) of R.A. 4136, otherwise known as the Land Transportation and Traffic Code for failure to "stop, look, and listen" at the intersection, before crossing the railtrack; that it is incumbent upon him to take the necessary precautions at the intersection because the railroad track is in itself a warning; and the bus driver ignored such a warning and must assume the responsibility for the result of the motion taken by him (U.S. v. Mananquil, 42 Phil. 90)

Except the testimony of the train engineer Cabardo, there is no admissible evidence to show that indeed, the bus driver did not take the necessary precaution in traversing the track. Note that he first noticed the bus when it was only 15 meters away from him; he could not have possibly noticed the position of the bus before negotiating the track.

On the other hand, it was shown by plaintiff that the bus driver Romeo Hughes took the necessary precautions in

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traversing the track.

The bus driver had stopped before traversing the track and in fact asked the conductor to alight and made a "Look and Listen" before proceeding; the conductor had done just that and made a signal to proceed when he did not see any oncoming train. (TSN, October 2l, 1976, p. 4); plaintiff's bus drivers and conductors are enjoined to observe such a precautionary measure in seminars conducted by the company. (TSN, September 23, 1976. pp. 26-27).

The evidence disclosed that the train was running fast because by his own testimony, the train engineer had testified that before reaching the station of Calumpit the terrain was downgrade and levelled only after passing the Calumpit bridge (TSN, July 28, 1976, p. 14 ); the tendency of the train, coming from a high point is to accelerate as the gravity will necessarily make it so, especially when it is pulling seven coaches loaded with goods and passengers.

Moreover, upon impact, the bus loaded with passengers was dragged and thrown into a ditch several meters away; the train had stopped only after the engine portion was about 190 meters away from the fallen bus; several passengers were injured and at least 20 died; such facts conclusively indicate that the train was speeding, because if it were moving at moderate speed, it would not run some 190 meters after impact and throw the bus at quite a distance especially so when it is claimed that the train's emergency brakes were applied.

Further, the train was an express train; its departure was 9:00 A.M. at San Fernando, La Union and expected in Manila at 2:41 P.M.; the collision occurred at 1:30 P.M. or 4 1/2 hours after it left La Union; surely, the train could have not

Page 44: Admistrative Code of 1987

negotiated such a distance in so short a time if it were not running at fast speed.

It may be argued that a railroad is not subject to the same restrictions to the speed of its train as a motorists (Mckelvey v. Delaware L. and W.R. Co. 253 App. D.V. 109, 300 NYS 1263 ); but it does not follow that a train will be permitted to run fast under all conditions at any rate of speed it may choose. It must regulate its speed with proper regard for the safety of human life and property (Johnson v. Southern Pacific Company (Cal. App. 288 p. 81), considering the surrounding circumstances particularly the nature of the locality (Atchinson, T. and SFR Co. v. Nicks (Arts) 165 p. 2d 167).

Cabardo's route included the passage over the said intersection; he could have noticed that it is a very busy intersection because the crossroad leads to the Calumpit Poblacion as well as to the neighboring town of Hagonoy; there was a parking lot by the side of the track whereat passengers board jeepneys for the neighboring barrios and towns; stalls abound in the vicinity and bystanders congregate nearby. A prudent train operator must, under the circumstances, slacken his speed almost for the protection of motorists and pedestrians, not only when a collision is inevitable but even if no hindrance is apparent on the way;

Moreover, there was an intermittent rain at the time of the collision (see stipulation of facts and photographs); the condition of the weather was such that even if for this reason alone, the train engineer should have foreseen that danger of collision lurked because of poor visibility of slippery road; he should have taken extra precaution by considerably slackening its speed. This he failed to do even if the nature of his job required him to observe care exercised by a prudent

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man.

Contributory negligence may not be ascribed to the bus driver; it was evident that he had taken the necessary precautions before passing over the railway track; if the bus was hit, it was for reasons beyond the control of the bus driver because he had no place to go; there were vehicles to his left which prevented him in swerving towards that direction; his bus stalled in view of the obstructions in his front where a sand and gravel truck stopped because of a jeep maneuvering into a garage up front. All the wheels at the bus have already passed the rail portion of the track and only the rear portion of the bus' body occupied or covered the railtrack. This was evident because the part of the bus hit by the train was the rear since the bus fell on a nearby ditch. Otherwise, if the bus was really hit in mid-body, the bus could have been halved into two because of the force of the impact.

The stipulation of facts between the parties show that there was no crossing bar at the railroad intersection at Calumpit, Bulacan at the time of collision (par. 8, Stipulation of Facts); the plaintiff contended and the defendants did not deny, that there were no signal lights, semaphores, flagman or switchman thereat; the absence of such devices, the plaintiff argues constitute negligence on the part of the Philippine National Railways.

A railroad is not required to have a gate (crossing bar) or a flagman, or to maintain signals at every intersection; only at such places reasonably necessary; what is considered reasonably necessary will depend on the amount of travel upon the road, the frequency with which trains pass over it and the view which could be obtained of trains as they approach the crossing, and other conditions (Pari v. Los Angeles, Ry. Corporation (Cal A2d) 128 p2d 563; Swdyk v.

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Indiana Harbor Belt R. Co. 148 F. 2d 795, and others).

As has been amply discussed, the crossroad at the intersection at Calumpit is one which is a busy thoroughfare; it leads to the Poblacion at Calumpit and other barrios as well as the town of Hagonoy; the vicinity is utilized as a parking and waiting area for passengers of jeepneys that ply between the barrios, clearly, the flow of vehicular traffic thereat is huge. It can be said also that, since there is no other railtrack going North except that one passing at Calumpit, trains pass over it frequently;

A portion of the intersection is being used as a parking area with stalls and other obstructions present making it difficult, if not impossible, to see approaching trains (see photographs).

The failure of the Philippine National Railways to put a cross bar, or signal light, flagman or switchman, or semaphores is evidence of negligence and disregard of the safety of the public, even if there is no law or ordinance requiring it, because public safety demands that said devices or equipments be installed, in the light of aforesaid jurisprudence. In the opinion of this Court the X sign or the presence of "STOP, LOOK, LISTEN" warnings would not be sufficient protection of the motoring public as well as the pedestrians, in the said intersection;

The parties likewise have stipulated that during the pre-war days, there was a railroad crossing bar at the said intersection (Par-8, Stipulation of Facts). It appears that it was a self imposed requirement which has been abandoned. In a case it was held that where the use of a flagman was self imposed, the abandonment thereof may constitute negligence. (Fleming v. Missouri and A. Ry. Co. 198 ARDC 290, 128 S.W. 2d 286 and others; cited in Sec. 1082

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SCRWARTZ, Vol. 2). Similarly, the abandonment by the PNR of the use of the crossing bar at the intersection at Calumpit constitutes negligence, as its installation has become imperative, because of the prevailing circumstances in the place.

A railroad company has been adjudged guilty of negligence and civilly liable for damages when it failed to install semaphores, or where it does not see to it that its flagman or switchman comply with their duties faithfully, to motorist injured by a crossing train as long as he had crossed without negligence on his part (Lilius vs. MRR, 39 Phil. 758). (Decision, pages 94-100, R A.; pp. 83-89, Rollo).

On the aspect of whether the Philippine National Railways enjoys immunity from suit, respondent court initially noted that an exculpation of this nature that was raised for the first time on appeal may no longer be entertained in view of the proscription under Section 2, Rule 9 of the Revised Rules of Court, apart from the fact that the lawyer of petitioner agreed to stipulate inter alia that the railroad company had capacity to sue and be sued. This being so, respondent court continued, PNR was perforce estopped from disavowing the prejudicial repercussion of an admission in judicio. Even as the laws governing the creation and rehabilitation of the PNR were entirely mute on its power to sue and be sued, respondent court nonetheless opined that such prerogative was implied from the general power to transact business pertinent or indispensable to the attainment of the goals of the railroad company under Section 4 of Republic Act No. 4156 as amended by Republic Act No. 6366:

Sec. 4 General Powers — The Philippine National Railways shall have the following general powers:

(a) To do all such other things and to transact all such business directly or indirectly necessary, incidental or conducive to the attainment of the purpose of the corporation;

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and

(b) Generally, to exercise all powers of a railroad corporation under the Corporation law.

in conjunction with Section 2(b) of Presidential Decree No. 741:

(b) To own or operate railroad transways, bus lines, trucklines, subways, and other kinds of land transportation, vessels, and pipelines, for the purpose of transporting for consideration, passengers, mail and property between any points in the Philippines;

Thus, respondent court utilized the doctrine of implied powers announced in National Airports Corporation vs. Teodoro, Sr. and Philippine Airlines, Inc. (91 Phil. 203 [1952]), to the effect that the power to sue and be sued is implicit from the faculty to transact private business. At any rate, respondent court characterized the railroad company as a private entity created not to discharge a governmental function but, among other things, to operate a transport service which is essentially a business concern, and thus barred from invoking immunity from suit.

In brushing aside petitioners' asseveration that the bus driver outraced the train at the crossing, respondent court observed that the bus was hit by the train at its rear portion then protruding over the tracks as the bus could not move because another truck at its front was equally immobile due to a jeep maneuvering into a nearby parking area. Under these tight conditions, respondent court blamed the train engineer who admitted to have seen the maneuvering jeep at a distance (TSN, July 28, 1976, page 18) and had the last clear chance to apply the brakes, knowing fully well that the vehicles following the jeep could not move away from the path of the train. Apart from these considerations, it was perceived below that the train was running fast during the entire trip since the train stopped 190 meters from the point of impact and arrived at Calumpit, Bulacan earlier than its expected time of arrival thereat.

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Moreover, respondent court agreed with the conclusion reached by the trial court that the absence of a crossing bar, signal light, flagman or switchman to warn the public of an approaching train constitutes negligence per the pronouncement of this Court in Lilius vs. Manila Railroad Company (59 Phil 758 [1934]).

Concerning the exercise of diligence normally expected of an employer in the selection and supervision of its employees, respondent court expressed the view that PNR was remiss on this score since it allowed Honorio Cabardo, who finished only primary education and became an engineer only through sheer experience, to operate the locomotive, not to mention the fact that such plea in avoidance was not asserted in the answer and was thus belatedly raised on appeal.

Petitioner moved to reconsider, but respondent court was far from persuaded. Hence, the petition before Us which, in essence, incorporates similar disputations anent PNR's immunity from suit and the attempt to toss the burden of negligence from the train engineer to the bus driver of herein private respondent.

The bone of contention for exculpation is premised on the familiar maxim in political law that the State, by virtue of its sovereign nature and as reaffirmed by constitutional precept, is insulated from suits without its consent (Article 16, Section 3, 1987 Constitution). However, equally conceded is the legal proposition that the acquiescence of the State to be sued can be manifested expressly through a general or special law, or indicated implicitly, as when the State commences litigation for the purpose of asserting an affirmative relief or when it enters into a contract (Cruz, Philippine Political Law, 1991 edition, page 33; Sinco, Philippine Political Law, Eleventh Edition, 1962, page 34). When the State participates in a covenant, it is deemed to have descended from its superior position to the level of an ordinary citizen and thus virtually opens itself to judicial process. Of course, We realize that this Court qualified this form of consent only to those contracts concluded in a proprietary capacity and therefore immunity will attach for those contracts entered into in a governmental capacity,

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following the ruling in the 1985 case of United States of America vs. Ruiz (136 SCRA 487 [1985]; cited by Cruz, supra at pages 36-37). But the restrictive interpretation laid down therein is of no practical worth nor can it give rise to herein petitioner PNR's exoneration since the case of Malong vs. Philippine National Railways (138 SCRA 63, [1985]); 3 Padilla, 1987 Constitution with Comments and Cases, 1991 edition, page 644), decided three months after Ruiz was promulgated, was categorical enough to specify that the Philippine National Railways "is not performing any governmental function" (supra, at page 68).

In Malong, Justice Aquino, speaking for the Court en banc, declared:

The Manila Railroad Company, the PNR's predecessor, as a common carrier, was not immune from suit under Act No. 1510, its charter.

The PNR Charter, Republic Act No. 4156, as amended by Republic Act No. 6366 and Presidential Decree No. 741, provides that the PNR is a government instrumentality under government ownership during its 50-year term, 1964 to 2014. It is under the Office of the President of the Philippines. Republic Act No. 6366 provides:

Sec. 1-a. Statement of policy. — The Philippine National Railways, being a factor for socio-economic development and growth, shall be a part of the infrastructure program of the government and as such shall remain in and under government ownership during its corporate existence. The Philippine National Railways must be administered with the view of serving the interests of the public by providing them the maximum of service and, while aiming at its greatest utility by the public, the economy of operation must be ensured so that service can be rendered at the minimum passenger

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and freight prices possible.

The charter also provides:

Sec. 4. General powers. — The Philippine National Railways shall have the following general powers:

(a) To do all such other things and to transact all such business directly or indirectly necessary, incidental or conducive to the attainment of the purpose of the corporation; and

(b) Generally, to exercise all powers of a railroad corporation under the Corporation Law. (This refers to Sections 81 to 102 of the Corporation Law on railroad corporations, not reproduced in the Corporation Code.)

Section 36 of the Corporation Code provides that every corporation has the power to sue and be sued in its corporate name. Section 13(2) of the Corporation Law provides that every corporation has the power to sue and be sued in any court.

A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends (Justice Holmes in Kawananakoa vs. Polyblank, 205 U.S. 353, 51 L. 3d 834).

The public service would be hindered, and public safety endangered, if the supreme authority could be subjected to suit at the instance of every citizen and, consequently, controlled in the use and disposition of the means required for the proper administration of the Government (The Siren vs. U.S., 7 Wall. 152, 19 L. ed. 129). (at pp.

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65-66).

To the pivotal issue of whether the State acted in a sovereign capacity when it organized the PNR for the purpose of engaging in transportation, Malong continued to hold that:

. . . in the instant case the State divested itself of its sovereign capacity when it organized the PNR which is no different from its predecessor, the Manila Railroad Company. The PNR did not become immune from suit. It did not remove itself from the operation of Articles 1732 to 1766 of the Civil Code on common carriers.

The correct rule is that "not all government entities, whether corporate or noncorporate, are immune from suits. Immunity from suit is determined by the character of the objects for which the entity was organized." (Nat. Airports Corp. vs. Teodoro and Phil. Airlines, Inc., 91 Phil. 203, 206; Santos vs. Santos, 92 Phil. 281, 285; Harry Lyons, Inc. vs. USA, 104 Phil. 593).

Suits against State agencies with respect to matters in which they have assumed to act in a private or nongovernmental capacity are not suits against the State (81 C.J.S. 1319).

Suits against State agencies with relation to matters in which they have assumed to act in a private or nongovernmental capacity, and various suits against certain corporations created by the State for public purposes, but to engage in matters partaking more of the nature of ordinary business rather than functions of a governmental or political character, are not regarded as suits against the State.

The latter is true, although the State may own the stock or property of such a corporation, for by

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engaging in business operations through a corporation the State divests itself so far of its sovereign character, and by implicating consents to suits against the corporation. (81 C.J.S. 1319).

The foregoing rule was applied to State Dock Commissions carrying on business relating to pilots, terminals and transportation (Standard Oil Co. of New Jersey vs. U.S., 27 Fed. 2nd 370) and to State Highways Commissions created to build public roads and given appropriations in advance to discharge obligations incurred in their behalf (Arkansas State Highway Commission vs. Dodge, 26 SW 2nd 879 and State Highway Commission of Missouri vs. Bates, 296 SW 418, cited in National Airports case).

The point is that when the government enters into a commercial business it abandons its sovereign capacity and is to be treated like any other private corporation (Bank of the U.S. vs. Planters' Bank, 9 Wheat. 904, 6 L ed. 244, cited in Manila Hotel Employees Association vs. Manila Hotel Company, et al., 73 Phil. 374, 388). The Manila Hotel case also relied on the following rulings:

By engaging in a particular business through the instrumentality of a corporation, the government divests itself pro hac vice of its sovereign character, so as to render the corporation subject to the rules of law governing private corporations.

When the State acts in its proprietary capacity, it is amenable to all the rules of law which bind private individuals.

There is not one law for the sovereign and another for the subject, but when the sovereign engages in

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business and the conduct of business enterprises, and contracts with individuals, whenever the contract in any form comes before the courts, the rights and obligation of the contracting parties must be adjusted upon the same principles as if both contracting parties were private persons. Both stand

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upon equality before the law, and the sovereign is merged in the dealer, contractor and suitor (People vs. Stephens, 71 N.Y. 549).

It should be noted that in Philippine National Railways vs. Union de Maquinistas, etc., L-31948, July 25, 1978, 84 SCRA 223, it was held that the PNR funds could be garnished at the instance of a labor union.

It would be unjust if the heirs of the victim of an alleged negligence of the PNR employees could not sue the PNR for damages. Like any private common carrier, the PNR is subject to the obligations of persons engaged in that private enterprise. It is not performing any governmental function.

Thus, the National Development Company is not immune from suit. It does not exercise sovereign functions. It is an agency for the performance of purely corporate, proprietary or business functions (National Development Company vs. Tobias, 117 Phil. 703, 705 and cases cited therein; National Development Company vs. NDC Employees and Workers' Union, L-32387, August 19, 1975, 66 SCRA 18l, 184).

Other government agencies not enjoying immunity from suit are the Social Security System (Social Security System vs. Court of Appeals,L-41299, February 21, 1983, 120 SCRA 707) and the Philippine National Bank (Republic vs. Philippine National Bank, 121 Phil. 26). (at pp. 66-68).

We come now to the question of whether respondent court properly agreed with the trial court in imputing negligence on the part of the train engineer and his employer.

It was demonstrated beyond cavil in the course of the pre-trial hearings held for the purpose of stipulating on crucial facts that the bus was hit on

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the rear portion thereof after it crossed the railroad tracks. Then, too the train engineer was frank enough to say that he saw the jeep maneuvering into a parking area near the crossing which caused the obstruction in the flow of traffic such that the gravel and sand truck including the bus of herein private respondent were not able to move forward or to take the opposite lane due to other vehicles. The unmindful demeanor of the train

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engineer in surging forward despite the obstruction before him is definitely anathema to the conduct of a prudent person placed under the same set of perceived danger. Indeed:

When it is apparent, or when in the exercise of reasonable diligence commensurate with the surroundings it should be apparent, to the company that a person on its track or to get on its track is unaware of his danger or cannot get out of the way, it becomes the duty of the company to use such precautions, by warnings, applying brakes, or otherwise, as may be reasonably necessary to avoid injury to him. (65 Am. Jur., Second Edition. p. 649).

Likewise, it was established that the weather condition was characterized with intermittent rain which should have prompted the train engineer to exercise extra precaution. Also, the train reached Calumpit, Bulacan ahead of scheduled arrival thereat, indicating that the train was travelling more than the normal speed of 30 kilometers per hour. If the train were really running at 30 kilometers per hour when it was approaching the intersection, it would probably not have travelled 190 meters more from the place of the accident (page 10, Brief for Petitioners). All of these factors, taken collectively, engendered the concrete and yes, correct conclusion that the train engineer was negligent who, moreover, despite the last opportunity within his hands vis-a-vis the weather condition including the presence of people near the intersection, could have obviated the impending collision had he slackened his speed and applied the brakes (Picart vs. Smith, 37 Phil. 809 [1918]).Withal, these considerations were addressed to the trial judge who, unlike appellate magistrates, was in a better position to assign weight on factual questions. Having resolved the question of negligence between the train engineer and the bus driver after collating the mass of evidence, the conclusion reached thereafter thus commands great respect especially so in this case where respondent court gave its nod of approval to the findings of the court of origin (Co vs. Court of Appeals, 193 SCRA 198; 206 [1991]); Amigo vs. Teves, 50 O.G. 5799; Regalado, Remedial

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Law Compendium, Fifth edition, page 353).

What exacerbates against petitioners' contention is the authority in this jurisdiction to the effect that the failure of a railroad company to install a semaphore or at the very least, to post a flagman or watchman to warn the public of the passing train amounts to negligence (Lilius vs. Manila Railroad Company, 59 Phil. 758 [1934]).

WHEREFORE, the petition is hereby DISMISSED and the decision of respondent court AFFIRMED.

SO ORDERED.

Gutierrez, Jr., Davide, Jr. and Romero, JJ., concur.

Bidin, J., took no part.

The Lawphil Project - Arellano Law Foundation

classes of traffic “whenever the condition of the road or the traffic makes such action necessary or advisable in the public convenience and interest.” The delegated power, if at all, therefore, is not the determination of what the law shall be, but merely the ascertainment of the facts and circumstances upon which the application of said law is to be predicated. To promulgate rules and regulations on the use of national roads and to determine when and how long a national road should be closed to traffic, in view of the condition of the road or the traffic thereon and the requirements of public convenience and interest, is an administrative function which cannot be directly discharged by the National Assembly. The promotion of social justice is to be achieved not through a mistaken sympathy towards any given group. Social justice is

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"neither communism, nor despotism, nor atomism, nor anarchy," but the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated. Social justice means the promotion of the welfare of all the people, the adoption by the Government of measures calculated to insure economic stability of all the competent elements of society, through the maintenance of a proper economic and social equilibrium in the interrelations of the members of the community, constitutionally, through the adoption of measures legally justifiable, or extra-constitutionally, through the exercise of powers underlying the existence of all governments on the time-honored principle of salus populi est suprema lex. Social justice, therefore, must be founded on the recognition of the necessity of interdependence among divers and diverse units of a society and of the protection that should be equally and evenly extended to all groups as a combined force in our social and economic life, consistent with the fundamental and paramount objective of the state of promoting the health, comfort, and quiet of all persons, and of bringing about "the greatest good to the greatest number."

Summary: Simon vs. Commission on Human Rights (GR

100150, 5 January 1994)

Simon vs. Commission on Human Rights

[GR 100150, 5 January 1994]

En Banc, Vitug (J): 12 concur

Facts: A "Demolition Notice," dated 9 July 1990, signed by Carlos

Quimpo in his capacity as an Executive Officer of the Quezon City

Integrated Hawkers Management Council under the Office of the

City Mayor, was sent to, and received by, the Roque Fermo, et. al.

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(being the officers and members of the North Edsa Vendors

Association, Incorporated). In said notice, Fermo, et. al. were given

a grace-period of 3 days (up to 12 July 1990) within which to vacate

the premises of North EDSA. Prior to their receipt of the demolition

notice, Fermo, et. al. were informed by Quimpo that their stalls

should be removed to give way to the "People's Park". On 12 July

1990, the group, led by their President Roque Fermo, filed a letter-

complaint (Pinag-samang Sinumpaang Salaysay) with the

Commission on Human Rights (CHR) against Brigido R. Simon,

Carlos Quimpo, Carlito Abelardo, and Generoso Ocampo, asking

the late CHR Chairman Mary Concepcion Bautista for a letter to be

addressed to then Mayor Simon of Quezon City to stop the

demolition of Fermo, et. al.'s stalls, sari-sari stores, and carinderia

along North EDSA (CHR Case 90-1580). On 23 July 1990, the

CHR issued an Order, directing Simon, et. al. "to desist from

demolishing the stalls and shanties at North EDSA pending

resolution of the vendors/squatters' complaint before the

Commission" and ordering Simon, et. al. to appear before the CHR.

On the basis of the sworn statements submitted by Fermo, et. al.

on 31 July 1990, as well as CHR's own ocular inspection, and

convinced that on 28 July 1990 Simon, et. al. carried out the

demolition of Fermo, et. al.'s stalls, sari-sari stores and carinderia,

the CHR, in its resolution of 1 August 1990, ordered the

disbursement of financial assistance of not more than P200,000.00

in favor of Fermo, et. al. to purchase light housing materials and

food under the Commission's supervision and again directed

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Simon, et. al. to "desist from further demolition, with the warning

that violation of said order would lead to a citation for contempt and

arrest." A motion to dismiss, dated 10 September 1990, questioned

CHR's jurisdiction. During the 12 September 1990 hearing, Simon,

et. al. moved for postponement, arguing that the motion to dismiss

set for 21 September 1990 had yet to be resolved, and likewise

manifested that they would bring the case to the courts. In an

Order, dated 25 September 1990, the CHR cited Simon, et. al. in

contempt for carrying out the demolition of the stalls, sari-sari

stores and carinderia despite the "order to desist", and it imposed a

fine of P500.00 on each of them. On 1 March 1991, the CHR

issued an Order, denying Simon, et.al.'s motion to dismiss and

supplemental motion to dismiss. In an Order, dated 25 April 1991,

Simon, et. al.'s motion for reconsideration was denied. Simon, et.

al. filed the petition for prohibition, with prayer for a restraining order

and preliminary injunction, questioning the extent of the authority

and power of the CHR, and praying that the CHR be prohibited

from further hearing and investigating CHR Case 90 —1580,

entitled "Fermo, et al. vs. Quimpo, et al."

Issue: Whether the CHR has the power to issue the “order to

desist” against the demolition of Fermo, et. al.’s stalls, and to cite

Mayor Simon, et. al. for contempt for proceeding to demolish said

stalls despite the CHR order.

Held: Section 18, Article XIII, of the 1987 Constitution, is a

provision empowering the Commission on Human Rights to

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"investigate, on its own or on complaint by any party, all forms of

human rights violations involving civil and political rights." Recalling

the deliberations of the Constitutional Commission, it is readily

apparent that the delegates envisioned a Commission on Human

Rights that would focus its attention to the more severe cases of

human rights violations; such areas as the "(1) protection of rights

of political detainees, (2) treatment of prisoners and the prevention

of tortures, (3) fair and public trials, (4) cases of disappearances,

(5) salvagings and hamletting, and (6) other crimes committed

against the religious." While the enumeration has not likely been

meant to have any preclusive effect, more than just expressing a

statement of priority, it is, nonetheless, significant for the tone it has

set. In any event, the delegates did not apparently take comfort in

peremptorily making a conclusive delineation of the CHR's scope of

investigatorial jurisdiction. They have thus seen it fit to resolve,

instead, that "Congress may provide for other cases of violations of

human rights that should fall within the authority of the Commission,

taking into account its recommendation." Herein, there is no cavil

that what are sought to be demolished are the stalls, sari-sari

stores and carinderia, as well as temporary shanties, erected by

Fermo, at. al. on a land which is planned to be developed into a

"People's Park." More than that, the land adjoins the North EDSA of

Quezon City which, the Court can take judicial notice of, is a busy

national highway. The consequent danger to life and limb is thus to

be likewise simply ignored. It is indeed paradoxical that a right

which is claimed to have been violated is one that cannot, in the

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first place, even be invoked, if its is not, in fact, extant. Be that as it

may, looking at the standards vis-a-vis the circumstances obtaining

herein, the Court not prepared to conclude that the order for the

demolition of the stalls, sari-sari stores and carinderia of Fermo, et.

al. can fall within the compartment of "human rights violations

involving civil and political rights" intended by the Constitution. On

its contempt powers, the CHR is constitutionally authorized to

"adopt its operational guidelines and rules of procedure, and cite for

contempt for violations thereof in accordance with the Rules of

Court." Accordingly, the CHR acted within its authority in providing

in its revised rules, its power "to cite or hold any person in direct or

indirect contempt, and to impose the appropriate penalties in

accordance with the procedure and sanctions provided for in the

Rules of Court." That power to cite for contempt, however, should

be understood to apply only to violations of its adopted operational

guidelines and rules of procedure essential to carry out its

investigatorial powers. To exemplify, the power to cite for contempt

could be exercised against persons who refuse to cooperate with

the said body, or who unduly withhold relevant information, or who

decline to honor summons, and the like, in pursuing its investigative

work. The "order to desist" (a semantic interplay for a restraining

order) herein, however, is not investigatorial in character but

prescinds from an adjudicative power that it does not possess. As

held in Export Processing Zone Authority vs. Commission on

Human Rights, "The constitutional provision directing the CHR to

'provide for preventive measures and legal aid services to the

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underprivileged whose human rights have been violated or need

protection' may not be construed to confer jurisdiction on the

Commission to issue a restraining order or writ of injunction for, it

that were the intention, the Constitution would have expressly said

so. 'Jurisdiction is conferred only by the Constitution or by law'. It is

never derived by implication. Evidently, the 'preventive measures

and legal aid services' mentioned in the Constitution refer to

extrajudicial and judicial remedies (including a writ of preliminary

injunction) which the CHR may seek from the proper courts on

behalf of the victims of human rights violations. Not being a court of

justice, the CHR itself has no jurisdiction to issue the writ, for a writ

of preliminary injunction may only be issued `by the judge of any

court in which the action is pending [within his district], or by a

Justice of the Court of Appeals, or of the Supreme Court. A writ of

preliminary injunction is an ancillary remedy. It is available only in a

pending principal action, for the preservation or protection of the

rights and interests of a party thereto, and for no other purpose."

SECOND DIVISION

[G.R. No. 144681. June 21, 2004]

PROFESSIONAL REGULATION COMMISSION (PRC), CHAIRMAN HERMOGENES P. POBRE, ASSOCIATE COMMISSIONER ARMANDO PASCUAL, BOARD OF MEDICINE, CHAIRMAN RODOLFO P. DE GUZMAN, JOSE S. RAMIREZ, JUANITO B. BILLOTE, RUBEN R.

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POLICARPIO, EDGARDO T. FERNANDO and RICARDO D. FULGENCIO II, petitioners, vs. ARLENE V. DE GUZMAN, VIOLETA V. MENESES, CELERINA S. NAVARRO, JOSE RAMONCITO P. NAVARRO, ARNEL V. HERRERA and GERALDINE ELIZABETH M. PAGILAGAN, ELNORA R. RAQUENO, MARISSA A. REGODON, LAURA M. SANTOS, KARANGALAN D. SERRANO, DANILO A. VILLAVER, MARIA ROSARIO L. LEONOR, ALICIA S. LIZANO, MARITEL M. ECHIVERRI, BERNADETTE T. MENDOZA, FERNANDO F. MANDAPAT, ALELI A. GOLLAYAN, ELCIN C. ARRIOLA, HERMINIGILDA E. CONEJOS, SALLY B. BUNAGAN, ROGELIO B. ANCHETA, OSCAR H. PADUA, JR., EVELYN D. GRAJO, EVELYN S. ACOSTA, MARGARITA BELINDA L. VICENCIO, VALENTINO P. ARBOLEDA, EVELYN O. RAMOS, ACHILLES J. PERALTA, CORAZON M. CRUZ, LEUVINA P. CHICO, JOSEPH A. JAO, MA. LUISA S. GUTIERREZ, LYDIA C. CHAN, OPHELIA C. HIDALGO, FERNANDO T. CRUZ, MELVIN M. USITA, RAFAEL I. TOLENTINO, GRACE E. UY, CHERYL R. TRIGUERO, MICHAEL L. SERRANO, FEDERICO L. CASTILLO, MELITA J. CAÑEDO, SAMUEL B. BANGOY, BERNARDITA B. SY, GLORIA T. JULARBAL, FREDERICK D. FRANCISCO, CARLOS M. BERNARDO, JR., HUBERT S. NAZARENO, CLARISSA B. BACLIG, DAYMINDA G. BONTUYAN, BERNADETTE H. CABUHAT, NANCY J. CHAVEZ, MARIO D. CUARESMA, ERNESTO L. CUE, EVELYN C. CUNDANGAN, RHONEIL R. DEVERATURDA, DERILEEN D. DORADO, SAIBZUR N. EDDING, VIOLETA C. FELIPE, HERMINIO V. FERNANDEZ, JR., MARIA VICTORIA M. LACSAMANA, NORMA G. LAFAVILLA, RUBY B. LANTIN, MA. ELOISA Q. MALLARI, CLARISA SJ. NICOLAS, PERCIVAL H. PANGILINAN, ARNULFO A. SALVADOR, ROBERT B. SANCHEZ, MERLY D. STA. ANA and YOLANDA P. UNICA, respondents.

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D E C I S I O N

TINGA, J.:

This petition for review under Rule 45 of the 1997 Rules of Civil Procedure seeks to nullify the Decision,i[1] dated May 16, 2000, of the Court of Appeals in CA-G.R. SP No. 37283. The appellate court affirmed the judgmentii[2] dated December 19, 1994, of the Regional Trial Court (RTC) of Manila, Branch 52, in Civil Case No. 93-66530. The trial court allowed the respondents to take their physician’s oath and to register as duly licensed physicians. Equally challenged is the Resolutioniii[3] promulgated on August 25, 2000 of the Court of Appeals, denying petitioners’ Motion for Reconsideration.

The facts of this case are as follows:

The respondents are all graduates of the Fatima College of Medicine, Valenzuela City, Metro Manila. They passed the Physician Licensure Examination conducted in February 1993 by the Board of Medicine (Board). Petitioner Professional Regulation Commission (PRC) then released their names as successful examinees in the medical licensure examination.

Shortly thereafter, the Board observed that the grades of the seventy-nine successful examinees from Fatima College in the two most difficult subjects in the medical licensure exam, Biochemistry (Bio-Chem) and Obstetrics and Gynecology (OB-Gyne), were unusually and exceptionally high. Eleven Fatima examinees scored 100% in Bio-Chem and ten got 100% in OB-Gyne, another eleven got 99% in Bio-Chem, and twenty-one scored 99% in OB-Gyne. The Board also observed that many of those who passed from Fatima got marks of 95% or better in both subjects, and no one got a mark lower than 90%. A comparison of the performances of the candidates from other schools was made. The Board observed that strangely, the unusually high ratings were true only for Fatima College examinees. It was a record-breaking phenomenon in the

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history of the Physician Licensure Examination.

On June 7, 1993, the Board issued Resolution No. 19, withholding the registration as physicians of all the examinees from the Fatima College of Medicine.iv[4] The PRC asked the National Bureau of Investigation (NBI) to investigate whether any anomaly or irregularity marred the February 1993 Physician Licensure Examination.

Prior to the NBI investigation, the Board requested Fr. Bienvenido F. Nebres, S.J., an expert mathematician and authority in statistics, and later president of the Ateneo de Manila University, to conduct a statistical analysis of the results in Bio-Chem and Ob-Gyne of the said examination.

On June 10, 1993, Fr. Nebres submitted his report. He reported that a comparison of the scores in Bio-Chem and Ob-Gyne, of the Fatima College examinees with those of examinees from De La Salle University and Perpetual Help College of Medicine showed that the scores of Fatima College examinees were not only incredibly high but unusually clustered close to each other. He concluded that there must be some unusual reason creating the clustering of scores in the two subjects. It must be a cause “strong enough to eliminate the normal variations that one should expect from the examinees [of Fatima College] in terms of talent, effort, energy, etc.”v[5]

For its part, the NBI found that “the questionable passing rate of Fatima examinees in the [1993] Physician Examination leads to the conclusion that the Fatima examinees gained early access to the test questions.”vi[6]

On July 5, 1993, respondents Arlene V. De Guzman, Violeta V. Meneses, Celerina S. Navarro, Jose Ramoncito P. Navarro, Arnel V. Herrera, and Geraldine Elizabeth M. Pagilagan (Arlene V. De Guzman et al., for brevity) filed a special civil action for mandamus, with prayer for preliminary mandatory injunction docketed as Civil Case No. 93-66530 with the Regional Trial Court (RTC) of Manila,

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Branch 52. Their petition was adopted by the other respondents as intervenors.

Meanwhile, the Board issued Resolution No. 26, dated July 21, 1993, charging respondents with “immorality, dishonest conduct, fraud, and deceit” in connection with the Bio-Chem and Ob-Gyne examinations. It recommended that the test results of the Fatima examinees be nullified. The case was docketed as Adm. Case No. 1687 by the PRC.

On July 28, 1993, the RTC issued an Order in Civil Case No. 93-66530 granting the preliminary mandatory injunction sought by the respondents. It ordered the petitioners to administer the physician’s oath to Arlene V. De Guzman et al., and enter their names in the rolls of the PRC.

The petitioners then filed a special civil action for certiorari with the Court of Appeals to set aside the mandatory injunctive writ, docketed as CA-G.R. SP No. 31701.

On October 21, 1993, the appellate court decided CA-G.R. SP No. 31701, with the dispositive portion of the Decision ordaining as follows:

WHEREFORE, this petition is GRANTED. Accordingly, the writ of preliminary mandatory injunction issued by the lower court against petitioners is hereby nullified and set aside.

SO ORDERED.1[7]

Arlene V. de Guzman, et al., then elevated the foregoing Decision to this Court in G.R. No. 112315. In our Resolution dated May 23, 1994, we denied the petition for failure to show reversible error on the part of the appellate court.

Meanwhile, on November 22, 1993, during the pendency of the instant petition, the pre-trial conference in Civil Case No. 93-66530

1 [7] Id. at 175. Penned by Associate Justice Alfredo L. Benipayo and concurred in by Presiding Justice Santiago M. Kapunan (later a member of the Supreme Court and now retired) and Associate Justice Ma. Alicia Austria-Martinez (now a member of the Second Division of the Supreme Court).

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was held. Then, the parties, agreed to reduce the testimonies of their respective witnesses to sworn questions-and-answers. This was without prejudice to cross-examination by the opposing counsel.

On December 13, 1993, petitioners’ counsel failed to appear at the trial in the mistaken belief that the trial was set for December 15. The trial court then ruled that petitioners waived their right to cross-examine the witnesses.

On January 27, 1994, counsel for petitioners filed a Manifestation and Motion stating the reasons for her non-appearance and praying that the cross-examination of the witnesses for the opposing parties be reset. The trial court denied the motion for lack of notice to adverse counsel. It also denied the Motion for Reconsideration that followed on the ground that adverse counsel was notified less than three (3) days prior to the hearing.

Meanwhile, to prevent the PRC and the Board from proceeding with Adm. Case No. 1687, the respondents herein moved for the issuance of a restraining order, which the lower court granted in its Order dated April 4, 1994.

The petitioners then filed with this Court a petition for certiorari docketed as G.R. No. 115704, to annul the Orders of the trial court dated November 13, 1993, February 28, 1994, and April 4, 1994. We referred the petition to the Court of Appeals where it was docketed as CA-G.R. SP No. 34506.

On August 31, 1994, the appellate court decided CA-G.R. SP No. 34506 as follows:

WHEREFORE, the present petition for certiorari with prayer for temporary restraining order/preliminary injunction is GRANTED and the Orders of December 13, 1993, February 7, 1994, February 28, 1994, and April 4, 1994 of the RTC-Manila, Branch 52, and all further proceedings taken by it in

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Special Civil Action No. 93-66530 are hereby DECLARED NULL and VOID. The said RTC-Manila is ordered to allow petitioners’ counsel to cross-examine the respondents’ witnesses, to allow petitioners to present their evidence in due course of trial, and thereafter to decide the case on the merits on the basis of the evidence of the parties. Costs against respondents.

IT IS SO ORDERED.2[8]

The trial was then set and notices were sent to the parties.

A day before the first hearing, on September 22, 1994, the petitioners filed an Urgent Ex-Parte Manifestation and Motion praying for the partial reconsideration of the appellate court’s decision in CA-G.R. SP No. 34506, and for the outright dismissal of Civil Case No. 93-66530. The petitioners asked for the suspension of the proceedings.

In its Order dated September 23, 1994, the trial court granted the aforesaid motion, cancelled the scheduled hearing dates, and reset the proceedings to October 21 and 28, 1994.

Meanwhile, on October 25, 1994, the Court of Appeals denied the partial motion for reconsideration in CA-G.R. SP No. 34506. Thus, petitioners filed with the Supreme Court a petition for review docketed as G.R. No. 117817, entitled Professional Regulation Commission, et al. v. Court of Appeals, et al.

On November 11, 1994, counsel for the petitioners failed to appear at the trial of Civil Case No. 93-66530. Upon motion of the respondents herein, the trial court ruled that herein petitioners waived their right to cross-examine the herein respondents. Trial was reset to November 28, 1994.

On November 25, 1994, petitioners’ counsel moved for the inhibition of the trial court judge for alleged partiality. On November 2 [8] Rollo, pp. 199-200. Penned by Associate Justice Jaime M. Lantin, with Associate Justices Angelina S.

Gutierrez (now a member of the Supreme Court), and Conchita Carpio Morales (likewise a present member of the Supreme Court) concurring.

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28, 1994, the day the Motion to Inhibit was to be heard, petitioners failed to appear. Thus, the trial court denied the Motion to Inhibit and declared Civil Case No. 93-66530 deemed submitted for decision.

On December 19, 1994, the trial court handed down its judgment in Civil Case No. 93-66530, the fallo of which reads:

WHEREFORE, judgment is rendered ordering the respondents to allow the petitioners and intervenors (except those with asterisks and footnotes in pages 1 & 2 of this decision) [sic],3

[9] to take the physician’s oath and to register them as physicians.

It should be made clear that this decision is without prejudice to any administrative disciplinary action which may be taken against any of the petitioners for such causes and in the manner provided by law and consistent with the requirements of the Constitution as any other professionals.

No costs.

SO ORDERED.4[10]

As a result of these developments, petitioners filed with this Court a petition for review on certiorari docketed as G.R. No. 118437, entitled Professional Regulation Commission v. Hon. David G. Nitafan, praying inter alia, that (1) G.R. No. 118437 be consolidated with G.R. No. 117817; (2) the decision of the Court of Appeals dated August 31, 1994 in CA-G.R. SP No. 34506 be nullified for its failure to decree the dismissal of Civil Case No. 93-66530, and in the alternative, to set aside the decision of the trial court in Civil Case No. 93-66530, order the trial court judge to

3 [9] Of the intervenors in Civil Case No. 93-66530, Achilles Peralta and Evelyn Ramos were dropped as parties per Order of the trial court dated August 24, 1993. The case was dismissed as to Sally Bunagan, Reogelio Ancheta, Oscar Padua, Evelyn Grajo, Valentino Arboleda, Carlos Bernardo, Jr., Mario Cuaresma, Violeta Felipe, and Percival Pangilinan as per Order dated November 25, 1994. Corazon Cruz and Samuel Bangoy were deemed by the trial court no longer entitled to the avails of the suit for seeking extrajudicial relief from the Board of Medicine, as per its Order dated November 25, 1994. See CA Rollo, pp. 140-141.

4 [10] CA Rollo, pp. 174-175.

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inhibit himself, and Civil Case No. 93-66530 be re-raffled to another branch.

On December 26, 1994, the petitioners herein filed their Notice of Appeal5

[11] in Civil Case No. 93-66530, thereby elevating the case to the Court of Appeals, where it was docketed as CA-G.R. SP No. 37283.

In our Resolution of June 7, 1995, G.R. No. 118437 was consolidated with G.R. No. 117817.

On July 9, 1998, we disposed of G.R. Nos. 117817 and 118437 in this wise:

WHEREFORE, the petition in G.R. No. 117817 is DISMISSED for being moot. The petition in G.R. No. 118437 is likewise DISMISSED on the ground that there is a pending appeal before the Court of Appeals. Assistant Solicitor General Amparo M. Cabotaje-Tang is advised to be more circumspect in her dealings with the courts as a repetition of the same or similar acts will be dealt with accordingly.

SO ORDERED.6[12]

While CA-G.R. SP No. 37283 was awaiting disposition by the appellate court, Arnel V. Herrera, one of the original petitioners in Civil Case No. 93-66530, joined by twenty-seven intervenors, to wit: Fernando F. Mandapat, Ophelia C. Hidalgo, Bernadette T. Mendoza, Ruby B. Lantin-Tan, Fernando T. Cruz, Marissa A. Regodon, Ma. Eloisa Q. Mallari-Largoza, Cheryl R. Triguero, Joseph A. Jao, Bernadette H. Cabuhat, Evelyn S. Acosta-Cabanes, Laura M. Santos, Maritel M. Echiverri, Bernadette C. Escusa, Carlosito C. Domingo, Alicia S. Lizano, Elnora R. Raqueno-Rabaino, Saibzur N. Edding, Derileen D. Dorado-Edding, Robert B. Sanchez, Maria Rosario L. Leonor-Lacandula, Geraldine Elizabeth

5 [11] Id. at 205.

6 [12] G.R. Nos. 117817 and 118437, 9 July 1998, 292 SCRA 155, 167. Penned by Associate Justice Josue N. Bellosillo, with Associate Justices Hilario G. Davide, Jr., Jose C. Vitug, Artemio V. Panganiban, and Leonardo A. Quisumbing concurring.

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M. Pagilagan-Palma, Margarita Belinda L. Vicencio-Gamilla, Herminigilda E. Conejos, Leuvina P. Chico-Paguio, Elcin C. Arriola-Ocampo, and Jose Ramoncito P. Navarro, manifested that they were no longer interested in proceeding with the case and moved for its dismissal. A similar manifestation and motion was later filed by intervenors Mary Jean I. Yeban-Merlan, Michael L. Serrano, Norma G. Lafavilla, Arnulfo A. Salvador, Belinda C. Rabara, Yolanda P. Unica, Dayminda G. Bontuyan, Clarissa B. Baclig, Ma. Luisa S. Gutierrez, Rhoneil R. Deveraturda, Aleli A. Gollayan, Evelyn C. Cundangan, Frederick D. Francisco, Violeta V. Meneses, Melita J. Cañedo, Clarisa SJ. Nicolas, Federico L. Castillo, Karangalan D. Serrano, Danilo A. Villaver, Grace E. Uy, Lydia C. Chan, and Melvin M. Usita. The Court of Appeals ruled that its decision in CA-G.R. SP No. 37283 would not apply to them.

On May 16, 2000, the Court of Appeals decided CA-G.R. SP No. 37283, with the following fallo, to wit:

WHEREFORE, finding no reversible error in the decision appealed from, We hereby AFFIRM the same and DISMISS the instant appeal.

No pronouncement as to costs.

SO ORDERED.7[13]

In sustaining the trial court’s decision, the appellate court ratiocinated that the respondents complied with all the statutory requirements for admission into the licensure examination for physicians in February 1993. They all passed the said examination. Having fulfilled the requirements of Republic Act No. 2382,8

[14] they should be allowed to take their oaths as physicians and be registered in the rolls of the PRC.

Hence, this petition raising the following issues:

I

7 [13] Rollo, p. 67.

8 [14] The Medical Act of 1959.

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WHETHER OR NOT RESPONDENTS HAVE A VALID CAUSE OF ACTION FOR MANDAMUS AGAINST PETITIONERS IN THE LIGHT OF THE RESOLUTION OF THIS HONORABLE COURT IN G.R. NO. 112315 AFFIRMING THE COURT OF APPEALS’ DECISION DECLARING THAT IF EVER THERE IS SOME DOUBT AS TO THE MORAL FITNESS OF EXAMINEES, THE ISSUANCE OF LICENSE TO PRACTICE MEDICINE IS NOT AUTOMATICALLY GRANTED TO THE SUCCESSFUL EXAMINEES.

II

WHETHER OR NOT THE PETITION FOR MANDAMUS COULD PROCEED DESPITE THE PENDENCY OF ADMINISTRATIVE CASE NO. 1687, WHICH WAS PRECISELY LODGED TO DETERMINE THE MORAL FITNESS OF RESPONDENTS TO BECOME DOCTORS.9

[15]

To our mind, the only issue is: Did the Court of Appeals commit a reversible error of law in sustaining the judgment of the trial court that respondents are entitled to a writ of mandamus?

The petitioners submit that a writ of mandamus will not lie in this case. They point out that for a writ of mandamus to issue, the applicant must have a well-defined, clear and certain legal right to the thing demanded and it is the duty of the respondent to perform the act required. Thus, mandamus may be availed of only when the duty sought to be performed is a ministerial and not a discretionary one. The petitioners argue that the appellate court’s decision in CA-G.R. SP No. 37283 upholding the decision of the trial court in Civil Case No. 93-66530 overlooked its own pronouncement in CA-G.R. SP No. 31701. The Court of Appeals held in CA-G.R. SP No. 31701 that the issuance of a license to engage in the practice of medicine becomes discretionary on the PRC if there exists some doubt that the successful examinee has not fully met the

9 [15] Rollo, pp. 28-29.

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requirements of the law. The petitioners stress that this Court’s Resolution dated May 24, 1994 in G.R. No. 112315 held that there was no showing “that the Court of Appeals had committed any reversible error in rendering the questioned judgment” in CA-G.R. SP No. 31701. The petitioners point out that our Resolution in G.R. No. 112315 has long become final and executory.

Respondents counter that having passed the 1993 licensure examinations for physicians, the petitioners have the obligation to administer to them the oath as physicians and to issue their certificates of registration as physicians pursuant to Section 2010

[16]

of Rep. Act No. 2382. The Court of Appeals in CA-G.R. SP No. 37283, found that respondents complied with all the requirements of Rep. Act No. 2382. Furthermore, respondents were admitted by the Medical Board to the licensure examinations and had passed the same. Hence, pursuant to Section 20 of Rep. Act No. 2382, the petitioners had the obligation to administer their oaths as physicians and register them.

Mandamus is a command issuing from a court of competent jurisdiction, in the name of the state or the sovereign, directed to some inferior court, tribunal, or board, or to some corporation or person requiring the performance of a particular duty therein specified, which duty results from the official station of the party to whom the writ is directed, or from operation of law.11

[17] Section 3 of Rule 6512

[18] of the 1997 Rules of Civil Procedure outlines two

10 [16] SEC. 20. Issuance of Certificates of Registration, grounds for refusal of [the] same. – The Commissioner of Civil Service (now Professional Regulation Commission) the chairman, the members and the Secretary of the Board of Medical Examiners (now Medical Board) shall sign and issue certificates of registration to those who have satisfactorily complied with the requirements of the Board. They shall not issue a certificate of registration to any candidate who has been convicted by a court of competent jurisdiction of any criminal offense involving moral turpitude, or has been found guilty of immoral or dishonorable conduct after the investigation by the Board of Medical Examiners (now Medical Board), or has been declared to be of unsound mind. (As amended by Rep. Act No. 4224, which took effect June 19, 1965).

11 [17] See United States v. Boutwell, 17 Wall (US) 604, 21 L. Ed 721; Laizure v. Baker, 11 P. 2d 560; State ex rel Lyons v. McDowell, 57 A. 2d 94; Rader v. Burton, 122 N.E. 2d 856; Board of Managers v. City of Wilmington, 70 S.E. 2d 833.

12 [18] SEC. 3. Petition for mandamus. – When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby

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situations when a writ of mandamus may issue, when any tribunal, corporation, board, officer or person unlawfully (1) neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station; or (2) excludes another from the use and enjoyment of a right or office to which the other is entitled.

We shall discuss the issues successively.

1. On The Existence of a Duty of the Board of Medicine To Issue Certificates of Registration as Physicians under Rep. Act No. 2382.

For mandamus to prosper, there must be a showing that the officer, board, or official concerned, has a clear legal duty, not involving discretion.13

[19] Moreover, there must be statutory authority for the performance of the act,14

[20] and the performance of the duty has been refused.15

[21] Thus, it must be pertinently asked now: Did petitioners have the duty to administer the Hippocratic Oath and register respondents as physicians under the Medical Act of 1959?

As found by the Court of Appeals, on which we agree on the basis of the records:

It bears emphasizing herein that petitioner-appellees and intervenor-appellees have fully complied with all the statutory requirements for admission into the licensure examinations for physicians conducted and administered by the respondent-appellants on February 12, 14, 20 and 21, 1993. Stress, too,

may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent, immediately or at some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent.

The petition shall also contain a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46.

13 [19] See Potter v. Anderson, 392 P. 2d 650; State ex rel Jester v. Paige, 213 P. 2d 441; State ex rel. Sharp v. Cross, 211 P. 2d 760; St. George v. Hanson, et al., 78 S.E. 2d 885; State ex rel Vander v. Board of County Com’rs. et al., 135 N.E. 2d 701.

14 [20] See State ex rel Jester v. Paige, supra; Pedroso v. De Walt, et al., 340 S.W. 2d 566.

15 [21] See State Board of Barber Examiners v. Walker, 192 P. 2d 723; State ex rel Sharp v. Cross, supra; State ex rel Hacharedi v. Baxter, 74 N.E. 2d 242, 332 US 827, 92 L. Ed 402, 68 S. Ct 209.

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must be made of the fact that all of them successfully passed the same examinations.16

[22]

The crucial query now is whether the Court of Appeals erred in concluding that petitioners should allow the respondents to take their oaths as physicians and register them, steps which would enable respondents to practice the medical profession17

[23] pursuant to Section 20 of the Medical Act of 1959?

The appellate court relied on a single provision, Section 20 of Rep. Act No. 2382, in concluding that the petitioners had the ministerial obligation to administer the Hippocratic Oath to respondents and register them as physicians. But it is a basic rule in statutory construction that each part of a statute should be construed in connection with every other part to produce a harmonious whole, not confining construction to only one section.18

[24] The intent or meaning of the statute should be ascertained from the statute taken as a whole, not from an isolated part of the provision. Accordingly, Section 20 of Rep. Act No. 2382, as amended should be read in conjunction with the other provisions of the Act. Thus, to determine whether the petitioners had the ministerial obligation to administer the Hippocratic Oath to respondents and register them as physicians, recourse must be had to the entirety of the Medical Act of 1959.

A careful reading of Section 20 of the Medical Act of 1959 discloses that the law uses the word “shall” with respect to the issuance of certificates of registration. Thus, the petitioners “shall sign and issue certificates of registration to those who have satisfactorily complied with the requirements of the Board.” In statutory construction the term “shall” is a word of command. It is given imperative meaning. Thus, when an examinee satisfies the requirements for the grant of his physician’s license, the Board is

16 [22] Rollo, p. 58.

17 [23] Id. at 59.

18 [24] Sotto v. Sotto, No. 17768, 1 September 1922, 43 Phil. 688, 694. See also Araneta v. Concepcion and Araneta, No. L-9667, 31 July 1956, 99 Phil. 709, 712.

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obliged to administer to him his oath and register him as a physician, pursuant to Section 20 and par. (1) of Section 2219

[25] of the Medical Act of 1959.

However, the surrounding circumstances in this case call for serious inquiry concerning the satisfactory compliance with the Board requirements by the respondents. The unusually high scores in the two most difficult subjects was phenomenal, according to Fr. Nebres, the consultant of PRC on the matter, and raised grave doubts about the integrity, if not validity, of the tests. These doubts have to be appropriately resolved.

Under the second paragraph of Section 22, the Board is vested with the power to conduct administrative investigations and “disapprove applications for examination or registration,” pursuant to the objectives of Rep. Act No. 2382 as outlined in Section 1 20

[26]

thereof. In this case, after the investigation, the Board filed before the PRC, Adm. Case No. 1687 against the respondents to ascertain their moral and mental fitness to practice medicine, as required by Section 921

[27] of Rep. Act No. 2382. In its Decision dated

19 [25] SEC. 22. Administrative investigations. – In addition to the functions provided for in the preceding sections, the Board of Medical Examiners (now Medical Board) shall perform the following duties: (1) to administer oath to physicians who qualified in the examinations (stress supplied); (2) to study the conditions affecting the practice of medicine in all parts of the Philippines; (3) to exercise the powers conferred upon it by this article with the view of maintaining the ethical and professional standards of the medical profession; (4) to subpoena or subpoena duces tecum witnesses for all purposes required in the discharge of its duties; and (5) to promulgate, with the approval of the Commissioner of Civil Service (now Professional Regulation Commission), such rules and regulations as it may deem necessary for the performance of its duties in harmony with the provisions of this Act and necessary for the proper practice of medicine in the Philippines.

Administrative investigations shall be conducted by at least two members of the Medical Board with one legal officer sitting during the investigation, otherwise the proceedings shall be considered void. The existing rules of evidence shall be observed during all administrative investigations. The Board may disapprove applications for examination or registration, reprimand erring physicians, or suspend or revoke registration certificates, if the respondents are found guilty after due investigation. (As amended by Rep. Act No. 4224, effective June 19, 1965.)

20 [26] SEC. 1. Objectives. – This Act provides for and shall govern (a) the standardization and regulation of medical education; (b) the examination for registration of physicians; and (c) the supervision, control, and regulation of the practice of medicine in the Philippines.

21 [27] SEC. 9. Candidates for board examinations. – Candidates for Board examinations shall have the following qualifications:

(1)He shall be a citizen of the Philippines or a citizen of any foreign country who has submitted competent and conclusive documentary evidence, confirmed by the Department of Foreign Affairs, showing that his country’s existing laws permit citizens of the Philippines to practice medicine under the same rules and regulations governing citizens thereof;

(2) He shall be of good moral character;

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July 1, 1997, the Board ruled:

WHEREFORE, the BOARD hereby CANCELS the respondents[’] examination papers in the Physician Licensure Examinations given in February 1993 and further DEBARS them from taking any licensure examination for a period of ONE (1) YEAR from the date of the promulgation of this DECISION. They may, if they so desire, apply for the scheduled examinations for physicians after the lapse of the period imposed by the BOARD.

SO ORDERED.22[28]

Until the moral and mental fitness of the respondents could be ascertained, according to petitioners, the Board has discretion to hold in abeyance the administration of the Hippocratic Oath and the issuance of the certificates to them. The writ of mandamus does not lie to compel performance of an act which is not duly authorized.

The respondents nevertheless argue that under Section 20, the Board shall not issue a certificate of registration only in the following instances: (1) to any candidate who has been convicted by a court of competent jurisdiction of any criminal offense involving moral turpitude; (2) or has been found guilty of immoral or dishonorable conduct after the investigation by the Board; or (3) has been declared to be of unsound mind. They aver that none of these circumstances are present in their case.

Petitioners reject respondents’ argument. We are informed that in Board Resolution No. 26,23

[29] dated July 21, 1993, the Board

(3) He shall be of sound mind;

(4) He shall not have been convicted by a court of competent jurisdiction of any offense involving moral turpitude;

(5) He shall be a holder of the Degree of Doctor of Medicine or its equivalent conferred by a college of medicine duly recognized by the Government; and

(6) He must have completed a calendar year of technical training known as internship the nature of which shall be prescribed by the Board of Medical Education undertaken in hospitals and health centers approved by the Board. (As amended by Rep. Act No. 5946, approved June 21, 1969).

22 [28] Rollo, p. 419.

23 [29] Id. at 99.

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resolved to file charges against the examinees from Fatima College of Medicine for “immorality, dishonesty, fraud, and deceit in the Obstetrics-Gynecology and Biochemistry examinations.” It likewise sought to cancel the examination results obtained by the examinees from the Fatima College.

Section 824[30] of Rep. Act No. 2382 prescribes, among others, that

a person who aspires to practice medicine in the Philippines, must have “satisfactorily passed the corresponding Board Examination.” Section 22, in turn, provides that the oath may only be administered “to physicians who qualified in the examinations.” The operative word here is “satisfactorily,” defined as “sufficient to meet a condition or obligation” or “capable of dispelling doubt or ignorance.”25

[31] Gleaned from Board Resolution No. 26, the licensing authority apparently did not find that the respondents “satisfactorily passed” the licensure examinations. The Board instead sought to nullify the examination results obtained by the respondents.

2. On the Right Of The Respondents To Be Registered As Physicians

The function of mandamus is not to establish a right but to enforce one that has been established by law. If no legal right has been violated, there can be no application of a legal remedy, and the writ of mandamus is a legal remedy for a legal right.26

[32] There must be a well-defined, clear and certain legal right to the thing demanded.27

[33] It is long established rule that a license to practice medicine is a privilege or franchise granted by the government.28

[34]

24 [30] SEC. 8. Prerequisite to the practice of medicine. – No person shall engage in the practice of medicine in the Philippines unless he is at least twenty-one years of age, has satisfactorily passed the corresponding Board Examination, and is a holder of a valid Certificate of Registration duly issued to him by the Board of Medical Examiners (now Medical Board).

25 [31] WEBSTER’S NEW INTERNATIONAL DICTIONARY 2017 (1993 ed.).

26 [32] See Fosdick v. Terry, 117 So. 2d 397, 398; Puritan Coal Corp. v. Davis, 42 S.E. 2d 807, 813.

27 [33] Lemi v. Valencia, No. L-20768, 29 November 1968, 26 SCRA 203, 210; Ocampo v. Subido, No. L-28344, 27 August 1976, 72 SCRA 443, 452-453.

28 [34] See Morse v. State Board of Medical Examiners, 122 S.W. 446, 448 (1909).

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It is true that this Court has upheld the constitutional right 29[35] of

every citizen to select a profession or course of study subject to a fair, reasonable, and equitable admission and academic requirements.30

[36] But like all rights and freedoms guaranteed by the Charter, their exercise may be so regulated pursuant to the police power of the State to safeguard health, morals, peace, education, order, safety, and general welfare of the people.31

[37] Thus, persons who desire to engage in the learned professions requiring scientific or technical knowledge may be required to take an examination as a prerequisite to engaging in their chosen careers. This regulation takes particular pertinence in the field of medicine, to protect the public from the potentially deadly effects of incompetence and ignorance among those who would practice medicine. In a previous case, it may be recalled, this Court has ordered the Board of Medical Examiners to annul both its resolution and certificate authorizing a Spanish subject, with the degree of Licentiate in Medicine and Surgery from the University of Barcelona, Spain, to practice medicine in the Philippines, without first passing the examination required by the Philippine Medical Act.32

[38] In another case worth noting, we upheld the power of the State to upgrade the selection of applicants into medical schools through admission tests.33

[39]

It must be stressed, nevertheless, that the power to regulate the exercise of a profession or pursuit of an occupation cannot be exercised by the State or its agents in an arbitrary, despotic, or oppressive manner. A political body that regulates the exercise of a particular privilege has the authority to both forbid and grant such privilege in accordance with certain conditions. Such conditions may not, however, require giving up ones constitutional rights as a

29 [35] CONST. Art. XIV, Sec. 5 (3).

30 [36] Reyes v. Court of Appeals, G.R. Nos. 94961 and 96491, 25 February 1991, 194 SCRA 402, 409-410.

31 [37] Primicias v. Fugoso, No. L-1800, 27 January 1948, 80 Phil. 71, 75.

32 [38] Philippine Medical Association v. Board of Medical Examiners, No. L-25135, 21 September 1968, 25 SCRA 29.

33 [39] Tablarin v. Judge Angelina S. Gutierrez, No. L-78164, 31 July 1987, 152 SCRA 730, 743.

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condition to acquiring the license.34[40] Under the view that the

legislature cannot validly bestow an arbitrary power to grant or refuse a license on a public agency or officer, courts will generally strike down license legislation that vests in public officials discretion to grant or refuse a license to carry on some ordinarily lawful business, profession, or activity without prescribing definite rules and conditions for the guidance of said officials in the exercise of their power.35

[41]

In the present case, the aforementioned guidelines are provided for in Rep. Act No. 2382, as amended, which prescribes the requirements for admission to the practice of medicine, the qualifications of candidates for the board examinations, the scope and conduct of the examinations, the grounds for denying the issuance of a physician’s license, or revoking a license that has been issued. Verily, to be granted the privilege to practice medicine, the applicant must show that he possesses all the qualifications and none of the disqualifications. Furthermore, it must appear that he has fully complied with all the conditions and requirements imposed by the law and the licensing authority. Should doubt taint or mar the compliance as being less than satisfactory, then the privilege will not issue. For said privilege is distinguishable from a matter of right, which may be demanded if denied. Thus, without a definite showing that the aforesaid requirements and conditions have been satisfactorily met, the courts may not grant the writ of mandamus to secure said privilege without thwarting the legislative will.

3. On the Ripeness of the Petition for Mandamus

Lastly, the petitioners herein contend that the Court of Appeals should have dismissed the petition for mandamus below for being premature. They argue that the administrative remedies had not

34 [40] See Manchester Press Club v. State Liquor Commission, 200 A. 407, 116 ALR 1093.

35 [41] See Yick Wo v. Hopkins, 118 US 356, 30 L.Ed. 220, 6 S. Ct. 1064; City Council of Montgomery v. West, 42 So. 1000; In Re Porterfield, 168 P. 2d 706, 167 ALR 675; Anderson v. City of Wellington, 19 P. 719; State v. Harris, 6 S.E. 2d 854.

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been exhausted. The records show that this is not the first time that petitioners have sought the dismissal of Civil Case No. 93-66530. This issue was raised in G.R. No. 115704, which petition we referred to the Court of Appeals, where it was docketed as CA-G.R. SP No. 34506. On motion for reconsideration in CA-G.R. SP No. 34506, the appellate court denied the motion to dismiss on the ground that the prayers for the nullification of the order of the trial court and the dismissal of Civil Case No. 93-66530 were inconsistent reliefs. In G.R. No. 118437, the petitioners sought to nullify the decision of the Court of Appeals in CA-G.R. SP No. 34506 insofar as it did not order the dismissal of Civil Case No. 93-66530. In our consolidated decision, dated July 9, 1998, in G.R. Nos. 117817 & 118437, this Court speaking through Justice Bellosillo opined that:

Indeed, the issue as to whether the Court of Appeals erred in not ordering the dismissal of Civil Case No. 93-66530 sought to be resolved in the instant petition has been rendered meaningless by an event taking place prior to the filing of this petition and denial thereof should follow as a logical consequence.36

[42] There is no longer any justiciable controversy so that any declaration thereon would be of no practical use or value.37

[43] It should be recalled that in its decision of 19 December 1994 the trial court granted the writ of mandamus prayed for by private respondents, which decision was received by petitioners on 20 December 1994. Three (3) days after, or on 23 December 1994, petitioners filed the instant petition. By then, the remedy available to them was to appeal the decision to the Court of Appeals, which they in fact did, by filing a notice of appeal on 26 December 1994.38

[44]

36 [42] Citing Bautista v. Board of Energy, G.R. No. 75016, 13 January 1989, 169 SCRA 167.

37 [43] Citing Gancho-on v . Secretary of Labor and Employment, G.R. No. 108033 , 14 April 1997, 271 SCRA 204, 208.

38 [44] Rollo, pp. 340-341.

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The petitioners have shown no cogent reason for us to reverse the aforecited ruling. Nor will their reliance upon the doctrine of the exhaustion of administrative remedies in the instant case advance their cause any.

Section 2639[45] of the Medical Act of 1959 provides for the

administrative and judicial remedies that respondents herein can avail to question Resolution No. 26 of the Board of Medicine, namely: (a) appeal the unfavorable judgment to the PRC; (b) should the PRC ruling still be unfavorable, to elevate the matter on appeal to the Office of the President; and (c) should they still be unsatisfied, to ask for a review of the case or to bring the case to court via a special civil action of certiorari. Thus, as a rule, mandamus will not lie when administrative remedies are still available.40

[46] However, the doctrine of exhaustion of administrative remedies does not apply where, as in this case, a pure question of law is raised.41

[47] On this issue, no reversible error may, thus, be laid at the door of the appellate court in CA-G.R. SP No. 37283, when it refused to dismiss Civil Case No. 93-66530.

As we earlier pointed out, herein respondents Arnel V. Herrera, Fernando F. Mandapat, Ophelia C. Hidalgo, Bernadette T. Mendoza, Ruby B. Lantin-Tan, Fernando T. Cruz, Marissa A. Regodon, Ma. Eloisa Q. Mallari-Largoza, Cheryl R. Triguero, Joseph A. Jao, Bernadette H. Cabuhat, Evelyn S. Acosta-Cabanes, Laura M. Santos, Maritel M. Echiverri, Bernadette C. Escusa, Carlosito C. Domingo, Alicia S. Lizano, Elnora R. Raqueno-Rabaino, Saibzur N. Edding, Derileen D. Dorado-Edding, Robert B. Sanchez, Maria Rosario Leonor-Lacandula, Geraldine Elizabeth M. Pagilagan-Palma, Margarita Belinda L. Vicencio-Gamilla,

39 [45] SEC. 26. Appeal from judgment. – The decision of the Board of Medical Examiners (now Medical Board) shall automatically become final thirty days after the date of its promulgation unless the respondent, during the same period, has appealed to the Commissioner of the Civil Service (now Professional Regulation Commission) and later to the Office of the President of the Philippines. If the final decision is not satisfactory, the respondent may ask for a review of the case, or may file in court a petition for certiorari.

40 [46] Ang Tuan Kai & Co. v. Import Control Commission, No. L-4427, 21 April 1952, 91 Phil. 143, 145; Peralta v. Salcedo, etc., No. L-10771, 30 April 1957, 101 Phil. 452, 454.

41 [47] See Madrigal v. Lecaroz, G.R. No. 46218, 23 October 1990, 191 SCRA 20, 26.

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Herminigilda E. Conejos, Leuvina P. Chico-Paguio, Elcin C. Arriola-Ocampo, and Jose Ramoncito P. Navarro manifested to the Court of Appeals during the pendency of CA-G.R. SP No. 37283, that they were no longer interested in proceeding with the case and moved for its dismissal insofar as they were concerned. A similar manifestation and motion were later filed by intervenors Mary Jean I. Yeban-Merlan, Michael L. Serrano, Norma G. Lafavilla, Arnulfo A. Salvador, Belinda C. Rabarra, Yolanda P. Unica, Dayminda G. Bontuyan, Clarissa B. Baclig, Ma. Luisa S. Gutierrez, Rhoneil R. Deveraturda, Aleli A. Gollayan, Evelyn C. Cundangan, Frederick D. Francisco, Violeta V. Meneses, Melita J. Cañedo, Clarisa SJ. Nicolas, Federico L. Castillo, Karangalan D. Serrano, Danilo A. Villaver, Grace E. Uy, Lydia C. Chan, and Melvin M. Usita. Following these manifestations and motions, the appellate court in CA-G.R. SP No. 37283 decreed that its ruling would not apply to them. Thus, inasmuch as the instant case is a petition for review of the appellate court’s ruling in CA-G.R. SP No. 37283, a decision which is inapplicable to the aforementioned respondents will similarly not apply to them.

As to Achilles J. Peralta, Evelyn O. Ramos, Sally B. Bunagan, Rogelio B. Ancheta, Oscar H. Padua, Jr., Evelyn D. Grajo, Valentino P. Arboleda, Carlos M. Bernardo, Jr., Mario D. Cuaresma, Violeta C. Felipe, Percival H. Pangilinan, Corazon M. Cruz and Samuel B. Bangoy, herein decision shall not apply pursuant to the Orders of the trial court in Civil Case No. 93-66530, dropping their names from the suit.

Consequently, this Decision is binding only on the remaining respondents, namely: Arlene V. de Guzman, Celerina S. Navarro, Rafael I. Tolentino, Bernardita B. Sy, Gloria T. Jularbal, Hubert S. Nazareno, Nancy J. Chavez, Ernesto L. Cue, Herminio V. Fernandez, Jr., Maria Victoria M. Lacsamana and Merly D. Sta. Ana, as well as the petitioners.

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WHEREFORE, the instant petition is GRANTED. Accordingly, (1) the assailed decision dated May 16, 2000, of the Court of Appeals, in CA-G.R. SP No. 37283, which affirmed the judgment dated December 19, 1994, of the Regional Trial Court of Manila, Branch 52, in Civil Case No. 93-66530, ordering petitioners to administer the physician’s oath to herein respondents as well as the resolution dated August 25, 2000, of the appellate court, denying the petitioners’ motion for reconsideration, are REVERSED and SET ASIDE; and (2) the writ of mandamus, issued in Civil Case No. 93-66530, and affirSmed by the appellate court in CA-G.R. SP No. 37283 is NULLIFIED AND SET ASIDE.

SO ORDERED.

Puno, (Chairman), and Callejo, Sr., JJ., concur.Quisumbing, J., no part.Austria-Martinez, J., no part - on leave.

JMM PROMOTIONS AND MANAGEMENT, INC., petitioner, vs. COURT OF APPEALS, EMMANUEL BALANE AND CELSO PAGAPOLA-AN, respondents.

D E C I S I O N

CORONA, J.:

In the hope of attaining a better future, many Filipinos succumb to the lure of opportunities in distant shores. Not all, however, are able to realize their dreams. A number of them return with neither money nor glory. For these unlucky souls, they take home with them twice the misery which they yearned to elude in the first place. When the dream is gone, there is nothing left but a bitter pill to swallow.

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Before us is a petition for review under Rule 45 of the Rules of Court of the decision42

[1] dated June 25, 1999 of the Court of Appeals, which denied the petition for certiorari of the decision dated January 30, 1996 of the National Labor Relations Commission filed by herein petitioner JMM Promotions and Management, Inc.

This petition is an offshoot of an illegal dismissal case filed by private respondents Emmanuel Balane (Balane) and Celso Pagapola-an (Pagapola-an) in the POEA seeking justice for the plight they suffered as overseas entertainers. Private respondents charged petitioner with causing injury to their rights.

The facts of this case follow.

In March 1993, Sam Jin Entertainment Co. Ltd. (Sam Jin), through its agency, petitioner JMM Promotions and Management, Inc., hired private respondents and Theresa Domatican (Domatican) as entertainers for deployment in Korea. The three entertainers, as a musical band, assumed the name “Fix Trio.” Balane played the keyboard while Pagapola-an handled the guitar. Domatican was the band’s original vocalist.

The employment contract provided that private respondents were to receive a monthly salary of four hundred thousand won (W400,000) plus a round trip fare for a one-year contract.

The band was set to leave on March 26, 1993. However, a day before the band’s departure, on March 25, 1993, petitioner assigned Bernadette Flores (Flores) instead of Domatican to perform with the band in Korea.

Private respondents, together with Flores, performed as a group for about four months in Seoul, South Korea. Their stint, however, was short-lived because of poor performance. Private respondents laid the blame on Flores’ lack of singing talent. Sam Jin thereafter

42

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advised private respondents to return to the Philippines. Flores stayed behind.

On July 23, 1993, private respondents were repatriated to the Philippines. Before their departure from Korea, private respondents signed a statement dated July 21, 1993,43

[2] prepared by their employer, which expressed their agreement to go back home due to some difficulties in their contractual undertaking and another statement dated July 22, 1993,44

[3] which contained their promise to refund petitioner the sum of one hundred forty thousand won (W140,000) representing the balance of their processing fee.

Private respondents, after arrival in the Philippines, filed with the POEA an illegal dismissal case and money claim for the unfinished employment contract against petitioner and Sam Jin. They claimed that petitioner was mainly responsible for their aborted stint as a band in Seoul, Korea. The last-minute replacement of Domatican with Flores, a singer of allegedly questionable talent, resulted in the band’s poor performance. This, in turn, led to the premature termination of the band’s contract.

Petitioner denied any liability or responsibility for the untimely termination of private respondents’ employment contract. It mainly anchored its defense to the statements dated July 21, 1993 and July 22, 1993, signed by private respondents, arguing that the latter voluntarily expressed their desire to go back to the Philippines.

The POEA ruled in favor of private respondents, ordering petitioner and Sam Jin to jointly and severally pay private respondents the amount of US$1,049.98 each, representing the compensation for the unfinished portion of the employment contract,45

[4] based on the following:

43

44

45

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“After a judicious appraisal of the attendant facts and evaluation of the evidence on record, we find that what actually transpired in this case was an unsuccessful and a losing entertainment business venture on account of the entertainers’ failure to put up a good show or performance before the customers and clients of the club owners. Complainants blamed the respondents for this fiasco by attributing the cause thereof to the inability of the singer to render her part of the trio as she was not a singer nor had she undergone testing or audition before her engagement as such. What was originally contracted for was the real singer/talent and member of the contracted trio, Theresa Domatican. These facts have not been contradicted or explained by the respondents except the allegation that complainants were having difficulty in their employment, hence they signed a rescission agreement.

“Respondents’ Annexes ‘A’ and ‘B’, the statements executed by complainants, were however disputed by the latter, claiming that they were forced under the circumstances to sign the same. They were put in a situation where they can not (sic) longer perform effectively because of a singer who cannot sing. If they do not perform, they will not be paid. Thus they were sent home by their employer and as a pre requisite for their repatriation, they were made to sign the aforementioned statements citing difficulty in their employment as cause of their discharge. Complainants were definitely pushed against the wall and had no other recourse but to comply with their employer’s orders in order to be repatriated.

“It is also worthy to note that one of the complainants, Emmanuel Balane, corroborated their stance by executing a statement in the presence of our Consul at the Philippine Embassy in Seoul, Korea. This statement is further supported by the Statement dated July 22, 1993 (Annex ‘B’, Joint

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Affidavit of Complainants) which was signed by Kang Ho Suck, Cho Jin Young and Shin Bok Hu.”46

[5]

The NLRC affirmed the decision of the POEA on appeal, holding that the findings of the POEA were supported by substantial evidence.

Twice thwarted but still unyielding, petitioner filed with the Court of Appeals a petition for certiorari under Rule 65 of the Rules of Court seeking the reversal of the NLRC decision.

Petitioner’s hope of vindication in the Court of Appeals failed as the latter found no reason to disturb the findings of the NLRC. The Court of Appeals attributed fault to the petitioner for the band’s poor performance abroad when it replaced the band’s original vocalist Domatican with Flores at the “eleventh hour.” Thus, it held:

“The effect of petitioner’s fault should not be used as the excuse to terminate its contract of employment with private respondents.”47

[6]

Aggrieved by the ruling of the Court of Appeals, petitioner now comes before us with the following –

“GROUNDS IN SUPPORT OF THE PETITION

a - The law is clear that an aggrieved party, before the appellate body may consider such as the findings of facts, been able to substantiate the matter arrived at by preponderance of evidence.

b - That public respondent cannot shied (sic) away from the mandated rule in the appreciation of evidence; the proceedings before the inferior quasi-judicial bodies is one of mere submission of affidavits whereon no open testimony is

46

47

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taken to cross-examine the witnesses; uprightness of the findings is, therefore, questionable and subject to review.”48

[7]

Petitioner argues that the Court of Appeals erroneously sustained the findings of fact of the NLRC. Private respondents could not have performed with Flores for four months in Korea if they did not initially do well as a band. Fights within and among themselves, therefore, caused their misfortunes.

Petitioner disputes the observation of the Court of Appeals that private respondents were intimidated into signing the quitclaim and request for repatriation. They were paid their salaries and they even committed to pay petitioner the amount of W140,000 as reimbursement for expenses incurred in their deployment to Seoul, Korea.

Petitioner also avers that the execution of statements critical of petitioner before the Philippine Consul in Seoul was not reflected in the records. There being no evidence thereof, private respondents’ stories were bereft of factual basis. Furthermore, the identity of the Koreans who allegedly signed and backed up private respondents’ statements was neither ascertained nor proved.

Petitioner asserts that the quitclaims executed by private respondents on July 21, 1993 and July 22, 1993 were valid and binding. The existence of fraud, mistake or duress in their execution has not been established. Thus, documents attesting that a compromise agreement has been reached between the parties remain valid in the absence of any proof to the contrary.

On the other hand, due to alleged financial difficulties,49[8] private

respondent Balane filed his comment through a mere attorney-in-fact and contended that the petition for review is merely a dilatory tactic employed by petitioner.50

[9]

48

49

50

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Petitioner’s arguments border on despair.

As an overture, clear and unmistakable is the rule that the Supreme Court is not a trier of facts. Just as well entrenched is the doctrine that pure issues of fact may not be the proper subject of appeal by certiorari under Rule 45 of the Revised Rules of Court as this mode of appeal is generally confined to questions of law.51

[10] We therefore take this opportunity again to reiterate that only questions of law, not questions of fact, may be raised before the Supreme Court in a petition for review under Rule 45 of the Rules of Court. This Court cannot be tasked to go over the proofs presented by the petitioners in the lower courts and analyze, assess and weigh them to ascertain if the court a quo and the appellate court were correct in their appreciation of the evidence.52

[11]

We note that petitioner’s arguments are based on factual and evidentiary matters which the Supreme Court does not inquire into in an appeal on certiorari.53

[12] The issues propounded by petitioner involve only questions of fact previously raised and satisfactorily ruled upon by the courts a quo.

The POEA and the NLRC were one with respect to the finding that private respondents were illegally dismissed. Petitioner’s obstinacy proved futile as the Court of Appeals was likewise in agreement with the labor courts. “Findings of fact by administrative agencies are generally accorded great respect, if not finality, by the courts because of the special knowledge and expertise over matters falling under their jurisdiction.”54

[13] Moreover, it is a time-honoured rule that “the factual findings of the Court of Appeals are conclusive on the parties and not reviewable by the Supreme Court – and they carry even more weight when the Court of Appeals

51

52

53

54

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affirms the factual findings of the trial court.”55[14] Any exception to

these principles, as set forth in the case of Ramos v. Pepsi-Cola Bottling Co.56

[15] must be clearly and convincingly proven. Petitioner, however, failed to prove that this case falls within the exception.

Nonetheless, we find it necessary to discuss the issue of validity of the quitclaims. In the instant case, private respondents claim that they were merely compelled to sign the releases in favor of their employer. Petitioner, on the other hand, asserts that private respondents entered into the compromise agreement freely and voluntarily and should not, at this late stage, be permitted to renounce their signed commitments.

No reasonable argument, however, can possibly sustain petitioner’s position. Although quitclaims have long been accepted in this jurisdiction, when the voluntariness of the execution of the quitclaim or release is squarely at issue, then the employee’s claim may still be given due course.57

[16] The law looks with disfavor on quitclaims and releases by employees who have been inveigled or pressured into signing them by unscrupulous employers seeking to evade their legal responsibilities.58

[17]

We are not ready to deviate from this rule for the reason that the courts a quo have sufficient factual basis in ruling that private respondents were merely pressured to sign the quitclaims/compromise agreements. The fact that private respondents signed the subject statements releasing petitioner and Sam Jin from any liability and assenting to a refund of the amount allegedly representing the expenses incurred by petitioner, without any objection, does not automatically mean the absence of duress, considering the pathetic circumstances private respondents were in. We find it incredible that, after all the expense and the trouble 55

56

57

58

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they went through in seeking greener pastures abroad, private respondents would suddenly and without reason decide to return home and face, as jobless people, a staggering debt of W140,000. The private respondents had no choice but to sign. They were stranded in a foreign land with no work and no income, and with their employer threatening not to give them their return tickets to Manila if they refused to sign.

Thus, we have time and again held that quitclaims, waivers and/or complete releases executed by the employees do not stop them from pursuing their claims arising from unfair labor practice - if there is a showing of undue pressure or duress. The basic reason for this is that such quitclaims, waivers and/or complete releases, being figuratively exacted through the barrel of a gun, are against public policy and therefore null and void ab initio. Accordingly, private respondents’ signatures in the subject waivers or quitclaims never foreclosed their right to pursue a case for illegal dismissal and money claim. Employer and employee were not on equal footing.59

[18] As aptly observed by the Court of Appeals, private respondents’ backs were to the wall. Had they been in a position to object, private respondents would not have agreed to reimburse petitioner the amount of W140,000 as no person in his right mind, specially if he is in dire financial straights, would agree to such an undertaking. Private respondents went abroad precisely to escape poverty. Obviously it was out of desperation and helplessness that private respondents agreed to affix their signatures on the subject waivers. They are therefore deemed not to have waived any of their rights. Renuntiatio non praesumitur.”60

[19]

This Court sees no compelling reason to reverse the findings of the POEA, the NLRC and respondent Court of Appeals for lack of

59

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any showing of error, mistake or misappreciation of facts.61[20] This

assailed decisions are in harmony with the law and the evidence.

WHEREFORE, the petition is hereby DENIED.

SO ORDERED.

PLDT vs. NTC [G.R. No. 88404.  October 18, 1990.]En Banc, Melencio-Herrera (J): 6 concurring

Facts: On 22 June 1958, RA 2090, was enacted (An Act Granting Felix Alberto and Company, Incorporated, a Franchise to Establish Radio Stations for Domestic and Transoceanic Telecommunications). Felix Alberto & Co., Inc. (FACI) was the original corporate name, which was changed to ETCI with the amendment of the Articles of Incorporation in 1964. On 13 May 1987, alleging urgent public need, ETCI filed an application with NTC (NTC Case 87-89) for the issuance of a Certificate of Public Convenience and Necessity (CPCN) to construct, install, establish, operate and maintain a Cellular Mobile Telephone System and an Alpha Numeric Paging System in Metro Manila and in the Southern Luzon regions, with a prayer for provisional authority to operate Phase A of its proposal within Metro Manila.  PLDT filed an Opposition with a Motion to Dismiss, based primarily on the grounds that (1) ETCI is not capacitated or qualified under its legislative franchise to operate a systemwide telephone or network of telephone service such as the one proposed in its application; (2) ETCI lacks the facilities needed and indispensable to the successful operation of the proposed cellular mobile telephone system; (3) PLDT has itself a pending application with NTC (Case 86-86) to install and operate a Cellular Mobile Telephone System for domestic and international service not only in Manila but also in the 61

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provinces and that under the “prior operator” or “protection of investment” doctrine, PLDT has the priority or preference in the operation of such service; and (4) the provisional authority, if granted, will result in needless, uneconomical and harmful duplication, among others. In an Order, dated 12 November 1987, NTC overruled PLDT’s Opposition and declared that RA 2090 should be liberally construed as to include among the services under said franchise the operation of a cellular mobile telephone service. After evaluating the reconsideration sought by PLDT, the NTC, in October 1988, maintained its ruling that liberally construed, and that ETCI’s franchise carries with it the privilege to operate and maintain a cellular mobile telephone service.

On 12 December 1988, NTC issued an order opining that “public interest, convenience and necessity further demand a second cellular mobile telephone service provider and finds prima facie evidence showing ETCI’s legal, financial and technical capabilities to provide a cellular mobile service using the AMPS system,” NTC granted ETCI provisional authority to install, operate and maintain a cellular mobile telephone system initially in Metro Manila, Phase A only, subject to the terms and conditions set forth in the same Order. One of the conditions prescribed (Condition 5) was that, within ninety (90) days from date of the acceptance by ETCI of the terms and conditions of the provisional authority, ETCI and PLDT “shall enter into an interconnection agreement for the provision of adequate interconnection facilities between applicant’s cellular mobile telephone switch and the public switched telephone network and shall jointly submit such interconnection agreement to the Commission for approval.” In a “Motion to Set Aside the Order” granting

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provisional authority, PLDT alleged essentially that the interconnection ordered was in violation of due process and that the grant of provisional authority was jurisdictionally and procedurally infirm. On 8 May 1989, NTC issued an order denying reconsideration and set the date for continuation of the hearings on the main proceedings.  PLDT challenged the NTC orders of 12 December 1988 and 8 May 1989 before the Supreme Court.

On 15 June 1989, the Supreme Court dismissed the petition for its failure to comply fully with the requirements of Circular 188. Upon satisfactory showing, however, that there was such compliance, the Court reconsidered the order and reinstated the petition. On 27 February 1990, the Court issued a Temporary Restraining Order, upon PLDT’s urgent manifestation, enjoining NTC to “Cease and Desist from all or any of its on-going proceedings and ETCI from continuing any and all acts intended or related to or which will amount to the implementation/execution of its provisional authority.” PLDT was required by the Court to post a bond of P5 million. PLDT complied.

The Supreme Court dismissed the petition for lack of merit and lifted the Temporary Restraining Order issued. The bond issued as a condition for the issuance of said restraining Order is declared forfeited in favor of Express Telecommunications Co., Inc.; with cost against PLDT.

1.    Abuse of discretion or lack of jurisdiction only issue in a special civil action for Certiorari and ProhibitionBeing a special civil action for Certiorari and Prohibition, the Court only need determine if NTC acted without

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jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in granting provisional authority to ETCI under the NTC questioned Orders of 12 December 1988 and 8 May 1989.

2.    NTC has jurisdictionNTC is the regulatory agency of the national government with jurisdiction over all telecommunications entities. It is legally clothed with authority and given ample discretion to grant a provisional permit or authority. In fact, NTC may, on its own initiative, grant such relief even in the absence of a motion from an applicant.

3.    Section 3 (Provisional Remedy), Rule 15, Rule of Practice and Procedure before the Board of Communications (now NTC)“Upon the filing of an application, complaint or petition or at any stage thereafter, the Board may grant on motion of the pleaders or on its own initiative, the relief prayed for, based on the pleading, together with the affidavits and supporting documents attached thereto, without prejudice to a final decision after completion of the hearing which shall be called within 30 days from grant of authority asked for.”

4.    Provisionary authority properly grantedThe provisional authority granted by the NTC has a definite expiry period of 18 months unless sooner renewed, and which may be revoked, amended or revised by the NTC; and covers one of four phases. It is also limited to Metro Manila only. The installation and operation of an alpha numeric paging system was not authorized. The main proceedings are clearly to continue as stated in the NTC Order of 8 May 1989. Further, the provisional authority was issued after due hearing, reception of evidence and

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evaluation thereof, with the hearings attended by various oppositors, including PLDT. It was granted only after a prima facie showing that ETCI had the necessary legal, financial and technical capabilities and that public interest, convenience and necessity so demanded.

5.    Provisional authority meaningless if grantee is not allowed to operateProvisional authority would be meaningless if the grantee were not allowed to operate. Its lifetime is limited and may be revoked by the NTC at any time in accordance with law. The initial expenditure of P130M more or less, is rendered necessary even under a provisional authority to enable ETCI to prove its capability.

6.    Differences exist between a Provisional Authority and a Certificate of Public Convenience and NecessityBasic differences exist between a provisional authority and a Certificate of Public Convenience and Necessity (CPCN). If what had been granted were a CPCN, it would constitute a final order or award reviewable only by ordinary appeal to the Court of Appeals pursuant to Section 9(3) of BP 129, and not by Certiorari before the Supreme Court.

7.    The Coverage of ETCI’s Franchise (RA 2090)RA 2090 grants ETCI (formerly FACI) “the right and privilege of constructing, installing, establishing and operating in the entire Philippines radio stations for reception and transmission of messages on radio stations in the foreign and domestic public fixed point-to-point and public base, aeronautical and land mobile stations, . . . with the corresponding relay stations for the reception and transmission of wireless messages on radiotelegraphy and/or radiotelephony . . . . ”

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8.    Radiotelephony definedAs defined by the New International Webster Dictionary the term “radiotelephony” is defined as a telephony carried on by aid of radiowaves without connecting wires. The International Telecommunications Union (ITU) defines a “radiotelephone call” as a “telephone call, originating in or intended on all or part of its route over the radio communications channels of the mobile service or of the mobile satellite service.”

9.    Radiotelephony construed liberally to include cellular mobile telephone system (CMTS)In its Order of 12 November 1987, the NTC construed the technical term “radiotelephony” liberally as to include the operation of a cellular mobile telephone system. While under Republic Act 2090 a system-wide telephone or network of telephone service by means of connecting wires may not have been contemplated, it can be construed liberally that the operation of a cellular mobile telephone service which carries messages, either voice or record, with the aid of radiowaves or a part of its route carried over radio communication channels, is one included among the services under said franchise for which a certificate of public convenience and necessity may be applied for.

10.    Construction given by administrative agency given great weight and respectThe construction given by an administrative agency possessed of the necessary special knowledge, expertise and experience and deserves great weight and respect. It can only be set aside by judicial intervention on proof of gross abuse of discretion, fraud, or error of law.

11.    Factual issues not subject of a special civil action for certiorari

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Whether or not ETCI (previously FACI), in contravention of its franchise, started the first of its radio telecommunication stations within 2 years from the grant of its franchise and completed the construction within 10 years from said date; and whether or not its franchise had remained unused from the time of its issuance, are questions of fact beyond the province of this Court, besides the well-settled procedural consideration that factual issues are not subjects of a special civil action for Certiorari. Moreover, neither Section 4, RA 2090 nor PD 36 should be construed as self-executing in working a forfeiture. Franchise holders should be given an opportunity to be heard, particularly so, where ETCI does not admit any breach, in consonance with the rudiments of fair play.

12.    Legislative franchise cannot be collaterally attacked; cannot be revoked without due process of lawPLDT’s allegation – that the ETCI franchise had lapsed into non-existence for failure of the franchise holder to begin and complete construction of the radio system authorized under the franchise and that PD 36 (2 November 1972) which legislates the mandatory cancellation or invalidation of all franchises for the operation of communications services, which have not been availed of or used by the party or parties in whose name they were issued – partakes of a collateral attack on a franchise (RA 2090), which is not allowed. A franchise is a property right and cannot be revoked or forfeited without due process of law.

13.    Forfeiture by non-user proper subject of prerogative writ of quo warranto; Right to assert belongs to the StateThe determination of the right to the exercise of a

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franchise, or whether the right to enjoy such privilege has been forfeited by non-user, is more properly the subject of the prerogative writ of quo warranto, the right to assert which, as a rule, belongs to the State “upon complaint or otherwise” the reason being that the abuse of a franchise is a public wrong and not a private injury. A forfeiture of a franchise will have to be declared in a direct proceeding for the purpose brought by the State because a franchise is granted by law and its unlawful exercise is primarily a concern of Government.

14.    Section 10 of RA 2090“The grantee shall not lease, transfer, grant the usufruct of, sell or assign this franchise nor the rights and privileges acquired thereunder to any person, firm, company, corporation or other commercial or legal entity nor merge with any other person, company or corporation organized for the same purpose, without the approval of the Congress of the Philippines first had. . . . . ” The foregoing provision is directed to the “grantee” of the franchise, which is the corporation itself and refers to a sale, lease, or assignment of that franchise. It does not include the transfer or sale of shares of stock of a corporation by the latter’s stockholders.

15.    Section 20 (h) of CA 146, as amended by CA 454; Acts requiring the approval of the CommissionSubject to established limitations and exceptions and saving provisions to the contrary, it shall be unlawful for any public service or for the owner, lessee or operator thereof, without the approval and authorization of the Commission previously had  xxx xxx xxx (h) To sell or register in its books the transfer or sale of shares of its capital stock, if the result of that sale in itself or in connection with another previous sale, shall be to vest in

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the transferee more than forty per centum of the subscribed capital of said public service. Any transfer made in violation of this provision shall be void and of no effect and shall not be registered in the books of the public service corporation. Nothing herein contained shall be construed to prevent the holding of shares lawfully acquired.

16.    Sales of shares of stock of a public utility governed by Section 20h of the Public Service Act (CA 146)The sale of shares of stock of a public utility is governed by another law, i.e., Section 20(h) of the Public Service Act (Commonwealth Act 146). Pursuant thereto, the Public Service Commission (now the NTC) is the government agency vested with the authority to approve the transfer of more than 40% of the subscribed capital stock of a telecommunications company to a single transferee. Transfers of shares of a public utility corporation need only NTC approval, not Congressional authorization.

17.    Grant of provisional authority deemed approval of series of transfers of shares in ETCIThe approval of the NTC may be deemed to have been met when it authorized the issuance of the provisional authority to ETCI. There was full disclosure before the NTC of the transfers that transpired starting in 1964 until 1987. In fact, the NTC Order of 12 November 1987 required ETCI to submit its “present capital and ownership structure.” Further, ETCI even filed a Motion before the NTC, dated 8 December 1987, or more than a year prior to the grant of provisional authority, seeking approval of the increase in its capital stock from P960,000.00 to P40M, and the stock transfers made by its stockholders.

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18.    Distinction between shares of stock and sale of franchise itself; Corporation has separate and distinct personality from its stockholdersA distinction should be made between shares of stock, which are owned by stockholders, the sale of which requires only NTC approval, and the franchise itself which is owned by the corporation as the grantee thereof, the sale or transfer of which requires Congressional sanction. Since stockholders own the shares of stock, they may dispose of the same as they see fit. They may not, however, transfer or assign the property of a corporation, like its franchise. In other words, even if the original stockholders had transferred their shares to another group of shareholders, the franchise granted to the corporation subsists as long as the corporation, as an entity, continues to exist. The franchise is not thereby invalidated by the transfer of the shares. A corporation has a personality separate and distinct from that of each stockholder. It has the right of continuity or perpetual succession.

19.    PLDT cannot justifiably refuse to interconnect, pursuant to RA 6849RA 6849, or the Municipal Telephone Act of 1989, approved on 8 February 1990, mandates interconnection providing as it does that “all domestic telecommunications carriers or utilities . . . shall be interconnected to the public switch telephone network.” Such regulation of the use and ownership of telecommunications systems is in the exercise of the plenary police power of the State for the promotion of the general welfare.

20.    Constitutional mandate as to the use of property (Section 6, Article XII)Section 6, Article XII, of the 1987 Constitution provides that “the use of property bears a social function, and all

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economic agents shall contribute to the common good. Individuals and private groups, including corporations, cooperatives, and similar collective organizations, shall have the right to own, establish, and operate economic enterprises, subject to the duty of the State to promote distributive justice and to intervene when the common good so demands.”

21.    NTC merely exercised delegated authority when it decreed interconnectionThe interconnection which has been required of PLDT is a form of “intervention” with property rights dictated by “the objective of government to promote the rapid expansion of telecommunications services in all areas of the Philippines, . . . to maximize the use of telecommunications facilities available, . . . in recognition of the vital role of communications in nation building . . . and to ensure that all users of the public telecommunications service have access to all other users of the service wherever they may be within the Philippines at an acceptable standard of service and at reasonable cost” (DOTC Circular 90-248). Undoubtedly, the encompassing objective is the common good. The NTC, as the regulatory agency of the State, merely exercised its delegated authority to regulate the use of telecommunications networks when it decreed interconnection.

22.    Interconnection; Sections 1 and 5 of Ministry Circular 82-81 (6 December 1982)Section 1 of  Ministry Circular 82-81 provides “that the government encourages the provision and operation of public mobile telephone service within local sub-base stations, particularly, in the highly commercialized areas.” Section 5 on the other hand provides “that, in the event the authority to operate said service be granted to other

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applicants, other than the franchise holder, the franchise operator shall be under obligation to enter into an agreement with the domestic telephone network, under an interconnection agreement.”

23.    Interconnection; DOTC Circular 87-188 (1987)Department of Transportation and Communication (DOTC) Circular No. 87-188, issued in 1987, also decrees that “all public communications carriers shall interconnect their facilities pursuant to comparatively efficient interconnection (CEI) as defined by the NTC in the interest of economic efficiency.”

24.    DOTC Circular 90-248 (14 June 1990); Policy on Interconnection and Revenue Sharing by Public Communications CarriersThe sharing of revenue was an additional feature considered in DOTC Circular 90-248. The circular provides that “It is the objective of government to promote the rapid expansion of telecommunications services in all areas of the Philippines. There is s need to maximize the use of telecommunications facilities available and encourage investment in telecommunications infrastructure by suitably qualified service providers. In recognition of the vital role of communications in nation building, there is a need to ensure that all users of the public telecommunications service have access to all other users of the service wherever they may be within the Philippines at an acceptable standard of service and at reasonable cost. Thus, all facilities offering public telecommunication services shall be interconnected into the nationwide telecommunications network/s; the interconnection of networks shall be effected in a fair and non-discriminatory manner and within the shortest timeframe practicable; and the precise points of interface between service operators

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shall be as defined by the NTC; and the apportionment of costs and division of revenues resulting from interconnection of telecommunications networks shall be as approved and/or prescribed by the NTC.”

25.    Other interconnection-related circulars: DOTC Circular 7-13-90 (12 July 1990)The NTC, on 12 July 1990, issued Memorandum Circular 7-13-90 prescribing the “Rules and Regulations Governing the Interconnection of Local Telephone Exchanges and Public Calling Offices with the Nationwide Telecommunications Network/s, the Sharing of Revenue Derived Therefrom, and for Other Purposes.”

26.    Interconnection allows parties to discuss and agree terms; Negotiations provides right to be heardThe NTC order to interconnect allows the parties themselves to discuss and agree upon the specific terms and conditions of the interconnection agreement instead of the NTC itself laying down the standards of interconnection which it can very well impose. Thus it is that PLDT cannot justifiably claim denial of due process. It has been heard. It will continue to be heard in the main proceedings. It will surely be heard in the negotiations concerning the interconnection agreement.

27.    Purpose of interconnectionWhat interconnection seeks to accomplish is to enable the system to reach out to the greatest number of people possible in line with governmental policies laid down. Cellular phones can access PLDT units and vice versa in as wide an area as attainable. With the broader reach, public interest and convenience will be better served. The interconnection sought by ETCI is by no means a “parasitic

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dependence” on PLDT. The ETCI system can operate on its own even without interconnection, but it will be limited to its own subscribers. To be sure, ETCI could provide no mean competition, and eat into PLDT’s own toll revenue, but all for the eventual benefit of all that the system can reach.

28.    Ultimate Considerations to which public utilities must yieldThe decisive considerations are public need, public interest, and the common good. Those were the overriding factors which motivated NTC in granting provisional authority to ETCI. Article II, Section 24 of the 1987 Constitution, recognizes the vital role of communication and information in nation building. It is likewise a State policy to provide the environment for the emergence of communications structures suitable to the balanced flow of information into, out of, and across the country (Article XVI, Section 10, ibid.). A modern and dependable communications network rendering efficient and reasonably priced services is also indispensable for accelerated economic recovery and development. To these public and national interests, public utility companies must bow and yield.

29.    Free competition in industry answer to improvement in telecommunication industry; No public utility has a constitutional right to a monopoly positionFree competition in the industry may also provide the answer to a much-desired improvement in the quality and delivery of this type of public utility, to improved technology, fast and handy mobile service, and reduced user dissatisfaction. After all, neither PLDT nor any other public utility has a constitutional right to a monopoly

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position in view of the Constitutional proscription that no franchise certificate or authorization shall be exclusive in character or shall last longer than 50 years (ibid., Section 11; Article XIV, Section 5, 1973 Constitution; Article XIV, Section 8, 1935 Constitution). Additionally, the State is empowered to decide whether public interest demands that monopolies be regulated or prohibited (1987 Constitution, Article XII, Section 19).

the lottery franchise granted to the PCSO is political and not judicial or legal, which should be ventilated in another forum; and that the "petitioners do not appear to have the legal standing or real interest in the subject contract and in obtaining the reliefs sought." Issue: WON the petitioners have legal standing to challenge a contract entered into by the Philippine Charity Sweepstakes Office with a foreign corporation for the operation of a nationwide lottery Ruling:YE S Rationale: The preliminary issue on the locus standi of the petitioners should, indeed, be resolved in their favor. A party'sstanding before this Court is a procedural technicality which it may, in the exercise of its discretion, set aside inview of the importance of the issues raised. In the landmark Emergency Powers Cases,29 this Court brushed asidethis technicality because "the transcendental importance to the public of these cases demands that they be settledpromptly and definitely, brushing aside, if we must, technicalities of procedure. (Avelino vs. Cuenco, G.R. No. L-2821)." Insofar as taxpayers' suits are concerned, this Court had declared that it "is not devoid of discretion as towhether or not it should be entertained,"30 or that it "enjoys an open discretion to entertain the same or not."31

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In line with the liberal policy of this Court on locus standi, ordinary taxpayers, members of Congress, and evenassociation of planters, and non-profit civic organizations were allowed to initiate and prosecute actions before thisCourt to question the constitutionality or validity of laws, acts, decisions, rulings, or orders of various governmentagencies or instrumentalities. Among such cases were those assailing the constitutionality of (a) R.A. No. 3836insofar as it allows retirement gratuity and commutation of vacation and sick leave to Senators and Representativesand to elective officials of both Houses of Congress;38 (b) Executive Order No. 284, issued by President Corazon C.Aquino on 25 July 1987, which allowed members of the cabinet, their undersecretaries, and assistant secretaries tohold other government offices or positions;39 (c) the automatic appropriation for debt service in the GeneralAppropriations Act;40 (d) R.A. No. 7056 on the holding of desynchronized elections;41 (d) R.A. No. 1869 (the charterof the Philippine Amusement and Gaming Corporation) on the ground that it is contrary to morals, public policy, andorder;42 and (f) R.A. No. 6975, establishing the Philippine NationalPolice.43

G.R. No. 71977 February 27, 1987

DEMETRIO G. DEMETRIA, M.P., AUGUSTO S. SANCHEZ, M.P., ORLANDO S. MERCADO, M.P., HONORATO Y. AQUINO, M.P., ZAFIRO L. RESPICIO, M.P., DOUGLAS R. CAGAS, M.P., OSCAR F. SANTOS, M.P., ALBERTO G. ROMULO, M.P., CIRIACO R. ALFELOR, M.P., ISIDORO E. REAL, M.P., EMIGDIO L. LINGAD, M.P., ROLANDO C. MARCIAL, M.P., PEDRO M. MARCELLANA, M.P., VICTOR S. ZIGA, M.P., and ROGELIO V. GARCIA. M.P., petitioners, vs.HON. MANUEL ALBA in his capacity as the MINISTER OF THE

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BUDGET and VICTOR MACALINGCAG in his capacity as the TREASURER OF THE PHILIPPINES, respondents.

 

FERNAN, J.:

Assailed in this petition for prohibition with prayer for a writ of preliminary injunction is the constitutionality of the first paragraph of Section 44 of Presidential Decree No. 1177, otherwise known as the "Budget Reform Decree of 1977."

Petitioners, who filed the instant petition as concerned citizens of this country, as members of the National Assembly/Batasan Pambansa representing their millions of constituents, as parties with general interest common to all the people of the Philippines, and as taxpayers whose vital interests may be affected by the outcome of the reliefs prayed for" 1 listed the grounds relied upon in this petition as follows:

A. SECTION 44 OF THE 'BUDGET REFORM DECREE OF 1977' INFRINGES UPON THE FUNDAMENTAL LAW BY AUTHORIZING THE ILLEGAL TRANSFER OF PUBLIC MONEYS.

B. SECTION 44 OF PRESIDENTIAL DECREE NO. 1177 IS REPUGNANT TO THE CONSTITUTION AS IT FAILS TO SPECIFY THE OBJECTIVES AND PURPOSES FOR WHICH THE PROPOSED TRANSFER OF FUNDS ARE TO BE MADE.

C. SECTION 44 OF PRESIDENTIAL DECREE NO. 1177 ALLOWS THE PRESIDENT TO OVERRIDE THE SAFEGUARDS, FORM AND PROCEDURE PRESCRIBED BY THE CONSTITUTION IN APPROVING APPROPRIATIONS.

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D. SECTION 44 OF THE SAME DECREE AMOUNTS TO AN UNDUE DELEGATION OF LEGISLATIVE POWERS TO THE EXECUTIVE.

E. THE THREATENED AND CONTINUING TRANSFER OF FUNDS BY THE PRESIDENT AND THE IMPLEMENTATION THEREOF BY THE BUDGET MINISTER AND THE TREASURER OF THE PHILIPPINES ARE WITHOUT OR IN EXCESS OF THEIR AUTHORITY AND JURISDICTION. 2

Commenting on the petition in compliance with the Court resolution dated September 19, 1985, the Solicitor General, for the public respondents, questioned the legal standing of petitioners, who were allegedly merely begging an advisory opinion from the Court, there being no justiciable controversy fit for resolution or determination. He further contended that the provision under consideration was enacted pursuant to Section 16[5], Article VIII of the 1973 Constitution; and that at any rate, prohibition will not lie from one branch of the government to a coordinate branch to enjoin the performance of duties within the latter's sphere of responsibility.

On February 27, 1986, the Court required the petitioners to file a Reply to the Comment. This, they did, stating, among others, that as a result of the change in the administration, there is a need to hold the resolution of the present case in abeyance "until developments arise to enable the parties to concretize their respective stands." 3

Thereafter, We required public respondents to file a rejoinder. The Solicitor General filed a rejoinder with a motion to dismiss, setting forth as grounds therefor the abrogation of Section 16[5], Article VIII of the 1973 Constitution by the Freedom Constitution of March 25, 1986, which has allegedly rendered the instant petition moot and academic. He likewise cited the "seven pillars" enunciated by

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Justice Brandeis in Ashwander v. TVA, 297 U.S. 288 (1936) 4 as basis for the petition's dismissal.

In the case of Evelio B. Javier v. The Commission on Elections and Arturo F. Pacificador, G.R. Nos. 68379-81, September 22, 1986, We stated that:

The abolition of the Batasang Pambansa and the disappearance of the office in dispute between the petitioner and the private respondents — both of whom have gone their separate ways — could be a convenient justification for dismissing the case. But there are larger issues involved that must be resolved now, once and for all, not only to dispel the legal ambiguities here raised. The more important purpose is to manifest in the clearest possible terms that this Court will not disregard and in effect condone wrong on the simplistic and tolerant pretext that the case has become moot and academic.

The Supreme Court is not only the highest arbiter of legal questions but also the conscience of the government. The citizen comes to us in quest of law but we must also give him justice. The two are not always the same. There are times when we cannot grant the latter because the issue has been settled and decision is no longer possible according to the law. But there are also times when although the dispute has disappeared, as in this case, it nevertheless cries out to be resolved. Justice demands that we act then, not only for the vindication of the outraged right, though gone, but also for the guidance of and as a restraint upon the future.

It is in the discharge of our role in society, as above-quoted, as well as to avoid great disservice to national interest that We take cognizance of this petition and thus deny public respondents' motion to dismiss. Likewise noteworthy is the fact that the new

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Constitution, ratified by the Filipino people in the plebiscite held on February 2, 1987, carries verbatim section 16[5], Article VIII of the 1973 Constitution under Section 24[5], Article VI. And while Congress has not officially reconvened, We see no cogent reason for further delaying the resolution of the case at bar.

The exception taken to petitioners' legal standing deserves scant consideration. The case of Pascual v. Secretary of Public Works, et al., 110 Phil. 331, is authority in support of petitioners' locus standi. Thus:

Again, 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. Although there are some decisions to the contrary, the prevailing view in the United States is stated in the American Jurisprudence as follows:

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 expenditures of moneys raised by taxation and may therefore question the constitutionality of statutes requiring expenditure of public moneys. [ 11 Am. Jur. 761, Emphasis supplied. ]

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Moreover, in Tan v. Macapagal, 43 SCRA 677 and Sanidad v. Comelec, 73 SCRA 333, We said that as regards taxpayers' suits, this Court enjoys that open discretion to entertain the same or not.

The conflict between paragraph 1 of Section 44 of Presidential Decree No. 1177 and Section 16[5], Article VIII of the 1973 Constitution is readily perceivable from a mere cursory reading thereof. Said paragraph 1 of Section 44 provides:

The President shall have the authority to transfer any fund, appropriated for the different departments, bureaus, offices and agencies of the Executive Department, which are included in the General Appropriations Act, to any program, project or activity of any department, bureau, or office included in the General Appropriations Act or approved after its enactment.

On the other hand, the constitutional provision under consideration reads as follows:

Sec. 16[5]. No law shall be passed authorizing any transfer of appropriations, however, the President, the Prime Minister, the Speaker, the Chief Justice of the Supreme Court, and the heads of constitutional commis ions may by law be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations.

The prohibition to transfer an appropriation for one item to another was explicit and categorical under the 1973 Constitution. However, to afford the heads of the different branches of the government and those of the constitutional commissions considerable flexibility in the use of public funds and resources, the constitution allowed the enactment of a law authorizing the transfer of funds for the purpose of augmenting an item from savings in another item in the appropriation of the government branch or constitutional body

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concerned. The leeway granted was thus limited. The purpose and conditions for which funds may be transferred were specified, i.e. transfer may be allowed for the purpose of augmenting an item and such transfer may be made only if there are savings from another item in the appropriation of the government branch or constitutional body.

Paragraph 1 of Section 44 of P.D. No. 1177 unduly over extends the privilege granted under said Section 16[5]. It empowers the President to indiscriminately transfer funds from one department, bureau, office or agency of the Executive Department to any program, project or activity of any department, bureau or office included in the General Appropriations Act or approved after its enactment, without regard as to whether or not the funds to be transferred are actually savings in the item from which the same are to be taken, or whether or not the transfer is for the purpose of augmenting the item to which said transfer is to be made. It does not only completely disregard the standards set in the fundamental law, thereby amounting to an undue delegation of legislative powers, but likewise goes beyond the tenor thereof. Indeed, such constitutional infirmities render the provision in question null and void.

"For the love of money is the root of all evil: ..." and money belonging to no one in particular, i.e. public funds, provide an even greater temptation for misappropriation and embezzlement. This, evidently, was foremost in the minds of the framers of the constitution in meticulously prescribing the rules regarding the appropriation and disposition of public funds as embodied in Sections 16 and 18 of Article VIII of the 1973 Constitution. Hence, the conditions on the release of money from the treasury [Sec. 18(1)]; the restrictions on the use of public funds for public purpose [Sec. 18(2)]; the prohibition to transfer an appropriation for an item to another [See. 16(5) and the requirement of specifications [Sec. 16(2)], among others, were all safeguards designed to forestall

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abuses in the expenditure of public funds. Paragraph 1 of Section 44 puts all these safeguards to naught. For, as correctly observed by petitioners, in view of the unlimited authority bestowed upon the President, "... Pres. Decree No. 1177 opens the floodgates for the enactment of unfunded appropriations, results in uncontrolled executive expenditures, diffuses accountability for budgetary performance and entrenches the pork barrel system as the ruling party may well expand [sic] public money not on the basis of development priorities but on political and personal expediency." 5 The contention of public respondents that paragraph 1 of Section 44 of P.D. 1177 was enacted pursuant to Section 16(5) of Article VIII of the 1973 Constitution must perforce fall flat on its face.

Another theory advanced by public respondents is that prohibition will not lie from one branch of the government against a coordinate branch to enjoin the performance of duties within the latter's sphere of responsibility.

Thomas M. Cooley in his "A Treatise on the Constitutional Limitations," Vol. 1, Eight Edition, Little, Brown and Company, Boston, explained:

... The legislative and judicial are coordinate departments of the government, of equal dignity; each is alike supreme in the exercise of its proper functions, and cannot directly or indirectly, while acting within the limits of its authority, be subjected to the control or supervision of the other, without an unwarrantable assumption by that other of power which, by the Constitution, is not conferred upon it. The Constitution apportions the powers of government, but it does not make any one of the three departments subordinate to another, when exercising the trust committed to it. The courts may declare legislative enactments unconstitutional and void in some cases, but not because the judicial power is superior in degree or

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dignity to the legislative. Being required to declare what the law is in the cases which come before them, they must enforce the Constitution, as the paramount law, whenever a legislative enactment comes in conflict with it. But the courts sit, not to review or revise the legislative action, but to enforce the legislative will, and it is only where they find that the legislature has failed to keep within its constitutional limits, that they are at liberty to disregard its action; and in doing so, they only do what every private citizen may do in respect to the mandates of the courts when the judges assumed to act and to render judgments or decrees without jurisdiction. "In exercising this high authority, the judges claim no judicial supremacy; they are only the administrators of the public will. If an act of the legislature is held void, it is not because the judges have any control over the legislative power, but because the act is forbidden by the Constitution, and because the will of the people, which is therein declared, is paramount to that of their representatives expressed in any law." [Lindsay v. Commissioners, & c., 2 Bay, 38, 61; People v. Rucker, 5 Col. 5; Russ v. Com., 210 Pa. St. 544; 60 Atl. 169, 1 L.R.A. [N.S.] 409, 105 Am. St. Rep. 825] (pp. 332-334).

Indeed, where the legislature or the executive branch is acting within the limits of its authority, the judiciary cannot and ought not to interfere with the former. But where the legislature or the executive acts beyond the scope of its constitutional powers, it becomes the duty of the judiciary to declare what the other branches of the government had assumed to do as void. This is the essence of judicial power conferred by the Constitution "in one Supreme Court and in such lower courts as may be established by law" [Art. VIII, Section 1 of the 1935 Constitution; Art. X, Section 1 of the 1973 Constitution and which was adopted as part of the Freedom Constitution, and Art. VIII, Section 1 of the 1987 Constitution] and which power this Court has exercised in many instances. *

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Public respondents are being enjoined from acting under a provision of law which We have earlier mentioned to be constitutionally infirm. The general principle relied upon cannot therefore accord them the protection sought as they are not acting within their "sphere of responsibility" but without it.

The nation has not recovered from the shock, and worst, the economic destitution brought about by the plundering of the Treasury by the deposed dictator and his cohorts. A provision which allows even the slightest possibility of a repetition of this sad experience cannot remain written in our statute books.

WHEREFORE, the instant petition is granted. Paragraph 1 of Section 44 of Presidential Decree No. 1177 is hereby declared null and void for being unconstitutional.

SO ORDER RED.

G.R. Nos. 86540-41 November 6, 1989

MANTRUSTE SYSTEMS, INC., petitioner, vs.THE HON. COURT OF APPEALS, ASSET PRIVATIZATION TRUST, MAKATI AGRO-TRADING, INC., and LA FILIPINA UY GONGCO. CORP., respondents.

Antonio F. Navarrette and Francisco A. Lava, Jr. for petitioner.

J.N. Borrillo, Jr. Law Offices Co-counsel for petitioner.

Alejandro Z. Barin and Balgos & Perez for Makati Agro-Trading, Inc. and La Filipina Uy Gongco Corp.

Ramon T. Garcia and Fiorello E. Azura for respondent Asset Privatization Trust.

 

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GRIÑO-AQUINO, J.:

In this petition for review, Mantruste Systems, Inc. (or MSI seeks the annulment of the decision dated September 29, 1988 and the resolution dated January 4, 1989 of the Court of Appeals in the consolidated cases of "Makati Agro-Trading, Inc., et al. vs. Judge Job Madayag, et al." (CA-G.R. SP No. 13929) and "Asset Privatization Trust vs. Judge Job Madayag, et al." (CA-G.R. SP No. 14535) which set aside the writ of preliminary injunction that was issued on December 19, 1987 by Judge Madayag in Civil Case No. 18319 of the Regional Trial Court of Manila ("Mantruste Systems, Inc. vs. Development Bank of the Philippines, Asset Privatization Trust, Makati Agro-Trading, Inc. and La Filipina Uy Gongco Corporation"). Judge Madayag enjoined the defendants in. that case from doing the acts stated in its temporary restraining order of November 13, 1987, namely:

... from approving the winning bid and awarding the BAYVIEW property, subject matter of this case, in favor of the winning bidders, the herein defendants, Makati Agro-Trading, Inc. and La Filipina Uy-Gongco Corporation;

enjoining the Defendants DBP and APT from taking physical possession of the BAYVIEW property, or ejecting the plaintiff and its concessionaires, representatives and agents, from the leased premises;

from terminating the Contract of Lease (Annex N); and

from disturbing and obstructing the plaintiff, through the defendants' designated security guards, in the pursuit of its business in the leased premises, until further orders from this Court. (p. 18, Rollo.)

The facts are stated in the decision of the Court of Appeals as follows:

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... Herein private respondent Mantruste System, Inc. (MSI) entered into an 4 "interim lease agreement" dated August 26, 1986 with Page 139 the Development Bank of the Philippines — owner of the Bayview Plaza Hotel — wherein the former would operate the hotel for "a minimum of three months or until such time that the said properties are sold to MSI or other third parties by DBP."

On December 8, 1986 the President issued Proclamation No. 50 entitled "Launching a Program for the Expeditious Disposition or Privatization of Certain Government Corporations and/or the (acquired) Assets thereof, and creating a Committee on Privatization and the Asset Privatization Trust." The Bayview Hotel properties were among the government assets Identified for privatization and were consequently transferred from DBP to APT for disposition.

To effect the disposition of the property, the DBP notified MSI that it was terminating the "interim lease agreement." In a certificate dated September 18, 1987 signed by Ernesto S. Salgado, President and Chairman of the Board of herein private respondent (Annex D; Exh. 2-APT) the latter agreed to the termination with the following terms:

1. Thirty days from today as of the signing of this Certification, I will consider the Lease Contract between MANTRUSTE SYSTEM, INC. and DEVELOPMENT BANK OF THE PHILIPPINES terminated.

2. The Bayview Prince Hotel will be made available for inspection at all times by other bidders.

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3. The Bayview Prince Hotel will be ready for delivery to any new owners thirty (30) days from signing of this Certification.

On October 7, 1987 the APT sent a letter to MSI through Mr. Salgado granting the latter an extension of thirty days from October 18 "within which to effect the delivery of the Bayview Prince Hotel to APT." The extension was given to "allow (MSI) to wind up (its) affairs and to facilitate a smooth turn-over of the facilities to its new owners without necessarily interrupting the hotel's regular operation." The signature of Mr. Salgado appears on the lower left hand of the letter under the word "CONFORME."

However, fifteen days later, or on October 22, 1987, MSI — through its Executive Vice-President Rolando C. Cipriano — informed APT of the following points:

xxx xxx xxx

MSI is of the opinion . . . since its lease on the hotel properties has been for more than one year now, its lease status has taken the character of a long term one. As such MSI as the lessee has acquired certain rights and privileges under law and equity.

xxx xxx xxx

. . . it is the company's firm contention that it has acquired a priority right to the purchase of Bayview Hotel properties over and above other interested parties . . . (Annex F, petition, SP-14535).

APT's response to this demand was equally firm. It informed MSI that APT has ". . . not found any stipulation

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tending to support your claim that Mantruste System, Inc., as lessee, has acquired ... priority right to the purchase of Bayview Hotel . . ." The Trust also pointed out that the "Pre-Bidding Conference" for the sale of the hotel has already been conducted such that for APT to favorably consider your (MSI's) request would not be in consonance with law, equity and fair play (Annex G, Idem)

On October 28, Salgado, speaking for MSI, wrote APT informing the latter of the alleged "legal lien" over the hotel to the amount of P10,000,000 (should be P12,000,000). Moreover, he demanded that the Trust consider MSI a "very preferred" bidder. Nevertheless, on November 4, 1987 herein private respondent allegedly prepared to submit its bid to the APT for P95,000,000.00 in cash or P120,000,000 in installment terms.

On the same occasion, however, MSI asked the Trust for clarification on the following points: (1) whether APT had a clean title over the property; (2) whether the Trust knew the hotel had back taxes; (3) who should pay the tax arrears; and (4) whether MSI'S advances made in behalf of DBP would be treated as part of the bid offer.

From there, the versions of the MSI and the Trust differed. According to herein private respondent, because of the questions it posed to the Trust, it was "immediately disqualified from the public bidding." The trust alleged on the other hand that MSI voluntarily desisted from participating in the bidding. The property eventually was awarded to herein petitioners Makati-Agro Trading and La Filipina Uy Gongco Corporation which submitted a bid for P83,000,000 (should be P85,000,000).

On November 13, 1981, herein private respondent filed a complaint with respondent lower court — docketed as Civil

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Case No. 18319 — praying among others for: (1) the issuance of a restraining order enjoining APT from approving the winning bid and awarding the Bayview property to private petitioners, and from ejecting MSI from the property or from terminating the contract of lease; (2) the award of the Bayview property in favor of MSI as the highest bidder. On December 15, 1937, the lower court, as already said, granted the writ of preliminary injunction. (pp. 247- 250, Rollo.)

The Court of Appeals nullified the lower court's writ of preliminary injunction for being violative of Section 31 of Proclamation No. 50-A dated December 15,1986, which provides:

No court or administrative agency shall issue any restraining order or injunction against the Trust in connection with the acquisition, sale or disposition of assets transferred to it . . . Nor shall such order or injunction be issued against any purchaser of assets sold by the Trust to prevent such purchaser from taking possession of any assets purchased by him.

The Court of Appeals rejected Judge Madayag's opinion that the above provision of Proclamation No. 50-A is unconstitutional because: (1) it ceased to be operative in view of the 1987 Constitution; (2) it constitutes a deprivation of property without due process of law; and (3) it impinges upon the judicial power as defined in Section 1, Article VIII of the 1987 Constitution. The Court of Appeals held that:

(1) Proclamation No. 50-A continued to be operative after the effectivity of the 1987 Constitution, by virtue of Section 3, Article XVIII (Transitory Provisions) providing that:

Sec. 3. All existing laws, decrees, executive orders, proclamations, letters of instructions and other executive

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issuances not inconsistent with this Constitution shall remain operative until amended, repealed, or revoked.

(2) Section 31 of Proclamation No. 50-A does not deprive MSI of its property  existent, and its belief that DBP had declared it to be the preferred buyer of the hotel is "illusory." Its only "property right" was its reimbursable advances allegedly amounting to P12 million (but denied by DBP in its answer to the complaint) which, it may sue to collect in a separate action.

(3) In view of Section 31 of Proclamation No. 50-A, the issuance of a writ of preliminary injunction by the lower court against the APT may not be justified as a valid exercise of power, i.e., the power to settle actual controversies involving rights which are legally demandable and enforceable, for does not have a legally demandable and enforceable right of retention over the hotel. In any case, judicial power is "not unqualified." It may be regulated and defined by the Constitution (Sec. 2, Art. VIII, 1987 Constitution) and by law, and the law in this particular case (Sec. 31, Procl. No. 50-A) provides that judicial power may not be exercised in the form of an injunction against the acts of the APT in pursuance of its mandate.

The seven grounds of this petition for certiorari may be compressed into the following propositions:

(1) that the Court of Appeals gravely abused its discretion in substituting its own discretion for that of the trial court on the propriety of issuing the writ of preliminary injunction to preserve the status quo and to protect Mantruste's contractual right to retain possession of the Bayview Hotel until all its advances are paid; and

(2) that the Court of Appeals erred: (a) in holding that Mantruste's property rights are non-existent except its right to the refund of its alleged advances; (b) in not declaring unconstitutional Section 31 of Proclamation 50-A prohibiting the issuance of an injunction against

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the APT and (c) in finding that Mantruste is to blame for its failure to participate in the bidding for the Bayview Hotel

We find no merit in the petition.

While the well-known and basic purpose of a preliminary injunction is to preserve the status quo of the property subject of the action to protect the rights of the plaintiff respecting the same during the pendency of the suit (Calo vs. Roldan, 76 Phil. 445, 452; Lasala vs. Fernandez, 5 SCRA 79; Rivera vs. Florendo, 144 SCRA 643), and that generally, the exercise of sound judicial discretion by the lower court will not be interfered with (Rodulfa vs. Alfonso, 76 Phil. 225, 232), the Court of Appeals however correctly found that, under the lease agreement between the DBP and Mantruste, the latter's claim to a "patent contractual right to retain possession of the Bayview Hotel until all its advances are paid" is non-existent. As the right of retention does not exist, neither does the right to the relief (injunction) demanded (Sec. 3, Rule 58, Rules of Court).

Furthermore, there is Section 31 of Proclamation No. 50-A to be reckoned with which explicitly prohibits courts and administrative agencies from issuing "any restraining order or injunction against the Trust APT in connection with the acquisition, sale or disposition of assets transferred to it, nor against any purchaser of assets sold by the Trust to prevent such purchaser from taking possession of any assets purchased by him." While the petitioner decries the "probable injustice" that it will suffer if it is ousted from the hotel and possession of the property is delivered to the private respondents as the winning bidders/purchasers at the public auction sale, the greater prejudice and injustice to the latter who, after paying P85 million to purchase the hotel have been deprived of its possession by the illegal issuance of the writ of injunction, may not be glossed over. On the other hand, as indicated by the Appellate Court, the petitioner is not without adequate remedy to recover its alleged P12 million advances on behalf of the DBP to make the hotel

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operational. It may sue either the DBP, or its successor-in-interest, the APT for payment of the claim.

Mantruste's right to reimbursement for those advances (the exact amount of which remains to be determined) may not be denied. However, its claim to a right of retention over the hotel pending such reimbursement, is, as was correctly found by the Court of Appeals, "illusory" and "non-existent." A mere lessee, like Mantruste, is not a builder in good faith, hence, the right of retention given to a possessor in good faith under Article 546 of the Civil Code, pending reimbursement of his advances for necessary repairs and useful improvements on another's property is not available to a lessee whose possession is not that of an owner.

A lessee is not entitled to retain possession of the premises leased until he is reimbursed for alleged improvements thereon, for a lessee cannot pretend to act in good faith in making improvements.

A lessee, in order to be entitled to one half the value of the improvements introduced by him in the leased premises, or to remove them should lessor refuse to reimburse the half value thereof, must show that the same were introduced in good faith; are useful; suitable to the use for which the lease is intended without altering the form and substance of the premises. (Imperial Insurance, Inc. vs. Simon, 14 SCRA 855.)

Petitioner's contention that he is a builder in good faith for which reason he may not he evicted unless he is indemnified for the cost of his improvements on the leased premises, has no merit. Knowing that his right to occupy the premises was temporary, he is deemed to have built his house at his own risk. (Lopez, Inc. vs. Phil. & Eastern Trading Co., Inc., 98 Phil. 348.)

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It is a settled rule that lessees are not possessors in good faith, because they know that their occupancy of the premises continues only during the life of the lease, hence they cannot, as a matter of right, recover the value of their improvements from the lessor, much less retain the premises until they are reimbursed therefor. (Bacaling vs. Laguna, et al., 54 SCRA 243.)

Section 31 of Proclamation No. 50-A does not infringe any provision of the Constitution. It does not impair the inherent power of courts "to settle actual controversies which are legally demandable and enforceable and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government" (Sec. 1, Art. VIII, 1987 Constitution). The power to define, prescribe and apportion the jurisdiction of the various courts belongs to the legislature, except that it may not deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5, Article VIII of the Constitution (Sec. 2, Art. VIII, 1987 Constitution).

The President, in the exercise of her legislative power under the Freedom Constitution, issued Proclamation No. 50-A prohibiting the courts from issuing restraining orders and writs of injunction against the APT and the purchasers of any assets sold by it, to prevent courts from interfering in the discharge, by this instrumentality of the executive branch of the Government, of its task of carrying out "the expeditious disposition and privatization of certain government corporations and/or the assets thereof' (Proc. No. 50), absent any grave abuse of discretion amounting to excess or lack of jurisdiction on its part. This proclamation, not being inconsistent with the Constitution and not having been repealed or revoked by Congress, has remained operative (Sec. 3, Art. XVIII, 1987 Constitution).

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While the judicial power may appear to be pervasive, the truth is that under the system of separation of powers set up in the Constitution, the power of the courts over the other branches and instrumentalities of the Government is limited only to the determination of "whether or not there has been a grave abuse of discretion (by them) amounting to lack or excess of jurisdiction" in the exercise of their authority and in the performance of Page 145 their assigned tasks (Sec. 1, Art. VIII, 1987 Constitution). Courts may not substitute their judgment for that of the APT, nor block, by an injunction, the discharge of its functions and the implementation of its decisions in connection with the acquisition, sale or disposition of assets transferred to it.

There can be no justification for judicial interference in the business of an administrative agency, except when it violates a citizen's constitutional rights, or commits a grave abuse of discretion, or acts in excess of, or without jurisdiction.

The Court of Appeals correctly ruled that paragraph 2 of the Contract of Lease which provides:

2. The term of the lease is a minimum of three (3) months or until such time that said properties are sold to MSI or other third parties by DBP (p. 1, Annex N of Annex A hereof; Exh. I.)

does not give Mantruste preferred standing or "a right of first refusal" as a prospective buyer of the Bayview Hotel. That provision of the lease contract gives it only the right, equally with others, to bid for the property.

In any event, assuming that Mantruste did have that preferred status (for it was assured by Estela Ladrido, DBP's officer-in-charge of the Bayview Hotel, that "all things equal (sic) DBP would be more inclined to sell the Bayview property to MSI Mantruste lost that preferential right by failing to participate in the bidding for the

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property. Its allegation that it would have submitted a higher bid than the winning bidders, is futile, for the fact is that it did not submit a bid. Its excuses for failing to do so are unconvincing. The real reason is difficult to fathom but the following statement in its petition —

Considering that Mantruste has made capital expenditures of more than P12 million, then this would mean an uninterrupted, peaceful and continued possession by Mantruste of Bayview for more than twenty (20) years in order to complete the offsetting process. (p. 44, Petition.)

may provide a clue. Mantruste may have banked on its alleged advance of P12 million to keep it in possession of the hotel for 20 years, without having to buy it at the APT's auction.

WHEREFORE, finding no reversible error in the decision of the Court of Appeals, the petition for review is dismissed for lack of merit. Costs against the petitioner.

SO ORDERED.

G.R. No. 22041           September 11, 1924

JOSE ALEJANDRINO, petitioner, vs.MANUEL L. QUEZON, ET AL., respondents.

Araneta & Zaragoza for petitioner.Attorney-General Villa-Real for respondents.

MALCOLM, J.:

The petitioner in this original proceeding in mandamus and injunction is Jose Alejandrino, a Senator appointed by the Governor-General to represent the Twelfth Senatorial District. The respondents are Manuel L. Quezon, President of the Philippine

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Senate; Isabelo de los Reyes, Santiago Fonacier, Alejo Mabanag, Bernabe de Guzman, Ramon Fernandez, Emiliano T. Tirona, Antero Soriano, Juan B. Alegre, Vicente de Vera, Jose Ma. Arroyo, Francisco Enage, Tomas Gomez, Sergio Osmeña, Celestino Rodriguez, Francisco Soriano, Jose A. Clarin, Hadji Butu, Espiridion Guanco, Hermenegildo Villanueva, Jose Hontiveros, Teodoro Sandiko, and Santiago Lucero, all members of the Philippine Senate; Faustino Aguilar, Secretary of the Philippine Senate; Bernabe Bustamante, Sergeant-at-arms of the Philippine Senate, and Francisco Dayaw, Paymaster of the Philippine Senate.

The casus belli is a resolution adopted by the Philippine Senate composed of the respondent Senators, on February 5, 1924, depriving Senator Alejandrino of all the prerogatives, privileges, and emoluments of his office for the period of one year from the first of January, 1924. The resolution reads as follows:

Resolved: That the Honorable Jose Alejandrino, Senator for the Twelfth District, be, as he is hereby declared guilty of disorderly conduct and flagrant violation of the privileges of the Senate for having treacherously assaulted the Honorable Vicente de Vera, Senator for the Sixth District on the occasion of the debate regarding the credentials of said Mr. Alejandrino;

Resolved, further: That the Honorable Jose Alejandrino be, as he is hereby, deprived of all of his prerogatives, privileges and emoluments as such Senator during one year from the first of January, nineteen hundred and twenty-four;

And, resolved, lastly: That the said Honorable Jose Alejandrino, being a Senator appointed by the Governor-General of these Islands, a copy of this resolution be furnished said Governor-General for his information.

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The burden of petitioner's complaint is that the resolution above quoted is unconstitutional and entirely of no effect, for five reasons. He prays the court: (1) To issue a preliminary injunction against the respondents enjoining them from executing the resolution; (2) to declare the aforesaid resolution of the Senate null and void; and (3) as a consequence of the foregoing, to issue a final writ of mandamus and injunction against the respondents ordering them to recognize the rights of the petitioner to exercise his office as Senator and that he enjoy all of his prerogatives, privileges, and emoluments, and prohibiting them from preventing the petitioner from exercising the rights of his office, and from carrying the order of suspension, into effect. By special appearance, the Attorney-General, in representation of the respondents, has objected to the jurisdiction of the court, and later, by demurrer, has pressed the same point.

In order that an obvious angle to the case may not subsequently embarrass us, we desire first of all to say that looking through the form of the action to the substance, this is, in effect, a suit instituted by one member of the Philippine Senate against the Philippine Senate and certain of its official employees. May the Supreme Court of the Philippines Islands by mandamus and injunction annul the suspension of Senator Alejandrino and compel the Philippine Senate to reinstate him in his official position? Without, therefore, at this time discussing any of the other interesting questions which have been raised and argued, we proceed at once to resolve the issue here suggested.

There are certain basic principles which lie at the foundation of the Government of the Philippine Islands, which are familiar to students of public law. It is here only necessary to recall that under our system of government, each of the three departments is distinct and not directly subject to the control of another department. The power to control is the power to abrogate and the power to

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abrogate is the power to usurp. Each department may, nevertheless, indirectly restrain the others.

It is peculiarly the duty of the judiciary to say what the law is, to enforce the Constitution, and to decide whether the proper constitutional sphere of a department has been transcended. The courts must determine the validity of legislative enactments as well as the legality of all private and official acts. To this extent, do the courts restrain the other departments.

With these sound premises in mind, we are not at all surprised to find the general rule of mandamus to be, that the writ will not lie from one branch of the government to a coordinate branch, for the very obvious reason that neither is inferior to the other. Mandamus will not lie against the legislative body, its members, or its officers, to compel the performance of duties purely legislative in their character which therefore pertain to their legislative, functions and over which they have exclusive control. The courts cannot dictate action in this respect without a gross usurpation of power. So it has been held that there where a member has been expelled by the legislative body, the courts have no power, irrespective of whether the expulsion was right or wrong, to issue a mandate to compel his reinstatement. (Code of Civil Procedure, secs. 222, 515; 18 R. C. L., 186, 187; Cooley, Constitutional Limitations, 190; French vs. Senate [1905], 146 Cal., 604; Hiss vs. Bartlett [1855], 69 Mass., 468; Ex parte Echols [1886], 39 Ala., 698; State vs. Bolte [1889], 151 Mo., 362; De Diego vs. House of Delegates [1904], 5 Porto Rico, 235; Greenwood Cemetery Land Co. vs. Routt [1892], 17 Colo., 156; State ex rel. Cranmer vs. Thorson [1896], 33 L. R. A., 582; People ex rel. Billings vs. Bissell [1857], 19 Ill., 229; People ex rel. Bruce vs. Dunne [1913], 258 Ill., 441; People ex rel. La Chicote vs. Best [1907], 187 N. Y., 1; Abueva vs. Wood [1924], 45 Phil., 612.)

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The authorities which support the doctrines above announced are numerous and instructive. They are found among the decisions of our own court, of the United States Supreme Court, and of other jurisdictions. If some of these cases relate to the chief executive rather than to the legislature, it is only necessary to explain that the same rules which govern the relations of the court to the chief executive likewise govern the relations of the courts to the legislature.

The controlling case in this jurisdiction on the subject is Severino vs. Governor-General and Provincial Board of Occidental Negros ([1910], 16 Phil., 366). This was an original application made in this court praying for a writ of mandamus to the Governor-General to compel him to call a special election as provided by law. The Attorney-General demurred to the petition on the ground of lack of jurisdiction, and the court, after an elaborate discussion, reached the conclusion that "we have no jurisdiction to interfere with the Governor-General of these Islands, as the head of the executive department, in the performance of any of his official acts." The demurrer was accordingly sustained and the complaint dismissed. It is noted that in this decision reliance was placed on the cases of Mississippi vs. Johnson and Ord ([1867], 4 Wall., 475, and Sutherland vs. Governor ([1874], 29 Mich., 320), which we will now proceed to notice.

State of Mississippi vs. Andrew Johnson, President of the United States, supra, concerned a bill praying the United States, Supreme Court to enjoin and restrain Andrew Johnson, President of the United States, and E. O. C. Ord, General Commanding in the District of Mississippi and Arkansas from executing certain Acts of Congress. Mr. Chief Justice Chase delivering the opinion of the court said the single point which required consideration was this: Can the President be restrained by injunction from carrying into effect an Act of Congress alleged to be unconstitutional? He continued:

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The Congress is the Legislative Department of the Government; the President is the Executive Department. Neither can be restrained in its action by the Judicial Department; though the acts of both, when performed, are, in proper cases, subject to its cognizance.

The impropriety of such interference will be clearly seen upon consideration of its possible consequences.

Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience, it is needless to observe that the court is without power to enforce its process. If, on the other hand, the President complies with the order of the court and refuses to execute the Acts of Congress, is it not clear that a collision may occur between the Executive and Legislative Departments of the Government? May not the House of Representatives impeach the President for such refusal? And in that case could this court interfere in behalf of the President, thus endangered by compliance with its mandate, and restrain by injunction the Senate of the United States from sitting as a court of impeachment? Would the strange spectacle be offered to the public wonder of an attempt by this court to arrest proceedings in that court?

These questions answer themselves.

xxx           xxx           xxx

We are fully satisfied that this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties; and that no such bill ought to be received by us.

It has been suggested that the bill contains a prayer that, if the relief sought cannot be had against Andrew Johnson, as President, it may be granted against Andrew Johnson,

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as a citizen of Tennessee. But it is plain that relief as against the execution of an Act of Congress by Andrew Johnson, is relief against its execution by the President. . . .

Sutherland vs. Governor of Michigan, supra, well known to the legal fraternity on account of being written by Judge Cooley, related to an application for mandamus to the Governor to compel him to perform a duty imposed upon him by statute. Judge Cooley, in part, said:

. . . Our government is on whose powers have been carefully apportioned between three distinct departments, which emanate alike from the people, have their powers alike limited and defined by the constitution, are of equal dignity, and within their respective spheres of action equally independent.

xxx           xxx           xxx

It is true that neither of the departments can operate in all respects independently of the others, and that what are called the checks and balances of government constitute each a restraint upon the rest. . . . But in each of these cases the action of the department which controls, modifies, or in any manner influences that of another, is had strictly within its own sphere, and for that reason gives no occasion for conflict, controversy or jealousy. The Legislature in prescribing rules for the courts, is acting within its proper province in making laws, while the courts, in declining to enforce an unconstitutional law, are in like manner acting within their proper province, because they are only applying that which is law to the controversies in which they are called upon to give judgment. It is mainly by means of these checks and balances that the officers of the several departments are kept within their

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jurisdiction, and if they are disregarded in any case, and power is usurped or abused, the remedy is by impeachment, and not by another department of the government attempting to correct the wrong by asserting a superior authority over that which by the constitution is its equal.

It has long been a maxim in this country that the Legislature cannot dictate to the courts what their judgments shall be, or set aside or alter such judgments after they have been rendered. If it could, constitutional liberty would cease to exist; and if the Legislature could in like manner override executive action also, the government would become only a despotism under popular forms. On the other hand it would be readily cancelled that no court can compel the Legislature to make or to refrain from making laws, or to meet or adjourn at its command, or to take any action whatsoever, though the duty to take it be made ever so clear by the constitution or the laws. In these cases the exemption of the one department from the control of the other is not only implied in the framework of government, but is indispensably necessary if any useful apportionment of power is to exist.

xxx           xxx           xxx

It is not attempted to be disguised on the part of the relators that any other course than that which leaves the head of the executive department to act independently in the discharge of his duties might possibly lead to unseemly conflicts, if not to something worse, should the courts undertake to enforce their mandates and the executive refuse to obey. . . . And while we should concede, if jurisdiction was plainly vested in us, the

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inability to enforce our judgment would be no sufficient reason for failing to pronounce it, especially against an officer who would be presumed ready and anxious in all cases to render obedience to the law, yet in a case where jurisdiction is involved in doubt it is not consistent with the dignity of the court to pronounce judgments which may be disregarded with impunity, nor with that of the executive to place him in position where, in a matter within his own province, he must act contrary to his judgment, or strand convicted of a disregard of the laws.

We only take space to notice on more case, which concerns specifically the right of the judiciary to control by mandamus the action of the legislature. French vs. Senate of the State of California, supra, was an original proceeding in mandamus brought by the petitioners who were duly elected senators of the state to compel the Senate of California to admit them as members thereof. It was alleged that the petitioners had been expelled without hearing or opportunity for defense. The writ was denied, Mr. Justice Shaw delivering the opinion of the court, saying:

Even if we should give these allegations their fullest force in favor of the pleader, they do not make a case justifying the interposition of this court. Under our form of government the judicial department has no power to revise even the most arbitrary and unfair action of the legislative department, or of their house thereof, taken in pursuance of the power committed exclusively to that department by the constitution. . . .

There can be noted as specific corroborative authority, State vs. Bolte, supra, Abueva vs. Wood, supra, and Commonwealth of Massachusetts vs. Mellon, Secretary of the Treasury ([1923], 262 U. S., 447), the latest expression of opinion by the United States Supreme Court. The record discloses that it was the firm opinion of

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the late Chief Justice that the court should not assume jurisdiction of the proceedings.

So as to be perfectly fair to the petitioner, it is but proper to state that the principles laid down in some of the preceding authorities have been the subject of adverse criticism. It is said that the fallacy of the argument lies in the statement that the three departments of the government are independent of each other. "They are independent in so far as they proceed within their legitimate province and perform the duties that the law requires; yet it has never been held that the executive was the sole judge of what duties the law imposes upon him, or the manner in which duties shall be exercised. The final arbiter in cases of dispute is the judiciary, and to this extent at least the executive department may be said to be dependent upon and subordinate to the judiciary. . . . It is not the office of the person to whom the writ of mandamus is directed, but the nature of the thing to be done, by which the propriety of issuing a mandamus is to be determined." (2 Bailey on Mandamus, pp. 926-927.) But these were arguments which should have been presented years ago in this court, and which when recently presented by counsel in his argument for the petitioner in the case of Perfecto vs. Wood, R. G. No. 20867, 1 met with no favorable response from the court. It is now too late to go back and revise previous decisions and overturn them; in fact this would be not only impracticable but impossible since at least two decision of the United States Supreme Court seem to us to be controlling.

No court has ever held and we apprehend no court will ever hold that it possesses the power to direct the Chief Executive or the Legislature or a branch thereof to take any particular action. If a court should ever be so rash as to thus trench on the domain of either of the other departments, it will be the end of popular government as we know it in democracies.

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It is intimated rather faintly that, conceding all that is said with reference to the right of the Supreme Court to issue mandamus directed to the Philippine Senate, yet we would be justified in having our mandate run not against the Philippine Senate or against the President of the Philippine Senate and his fellow Senators but against the secretary, the sergeant-at-arms, and the disbursing officer of the Senate. But this begs the question. If we have no authority to control the Philippine Senate, we have no authority to control the actions of subordinate employees acting under the direction of the Senate. The secretary, sergeant-at-arms, and disbursing officer of the Senate are mere agents of the Senate who cannot act independently of the will of that body. Should the Court do as requested, we might have the spectable presented of the court ordering the secretary, the sergeant-at-arms, and the disbursing officer of the Philippine Senate to do one thing, and the Philippine Senate ordering them to do another thing. The writ of mandamus should not be granted unless it clearly appears that the person to whom it is directed has the absolute power to execute it. (Turnbull vs. Giddings [1893], 95 Mich., 314; Abueva vs. Wood, supra.)

The question of jurisdiction is invariably one of perplexing difficulty. On the one hand, no consideration of policy or convenience should induce this court to exercise a power that does not belong to it. On the other hand, no consideration of policy or convenience should induce this court to surrender a power which it is its duty to exercise. But certainly mandamus should never issue from this court where it will not prove to be effectual and beneficial. It should not be awarded where it will create discord and confusion. It should not be awarded where mischievous consequences are likely to follow. Judgment should not be pronounced which might possibly lead to unseemly conflicts or which might be disregarded with impunity. This court should offer no means by a decision for any possible collision between it as the highest court in the Philippines and the Philippine Senate as a branch of a coordinate department,

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or between the Court and the Chief Executive or the Chief Executive and the Legislature.

On the merits of the controversy, we will only say this: The Organic Act authorizes the Governor-General of the Philippine Islands to appoint two senators and nine representatives to represent the non-Christian regions in the Philippine Legislature. These senators and representatives "hold office until removed by the Governor-General." (Organic Act, secs. 16, 17.) They may not be removed by the Philippine Legislature. However, to the Senate and the House of Representatives, respectively, is granted the power to "punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel an elective member." (Organic Act, sec. 18.) Either House may thus punish an appointive member for disorderly behavior. Neither House may expel an appointive member for any reason. As to whether the power to "suspend" is then included in the power to "punish," a power granted to the two Houses of the Legislature by the Constitution, or in the power to "remove," a power granted to the Governor-General by the Constitution, it would appear that neither is the correct hypothesis. The Constitution has purposely withheld from the two Houses of the Legislature and the Governor-General alike the power to suspend an appointive member of the Legislature.

It is noteworthy that the Congress of the United States has not in all its long history suspended a member. And the reason is obvious. Punishment by way of reprimand or fine vindicates the outraged dignity of the House without depriving the constituency of representation; expulsion, when permissible, likewise vindicates the honor of the legislative body while giving to the constituency an opportunity to elect anew; but suspension deprives the electoral district of representation without that district being afforded any means by which to fill the vacancy. By suspension, the seat remains filed but the occupant is silenced. Suspension for one year is equivalent to qualified expulsion or removal.

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It is beyond the power of any branch of the Government of the Philippine Islands to exercise its functions in any other way than that prescribed by the Organic Law or by local laws which conform to the Organic Law. This was, in effect, our holding in the comparatively recent case of Concepcion vs. Paredes ([1921], 42 Phil., 599), when we had under particular consideration a legislative attempt to deprive the Chief Executive of his constitutional power of appointment. What was there announced is equally applicable to the instant proceedings.

While what has just been said may be unnecessary for a correct decision, it is inserted so that the vital question argued with so much ability may not pass entirely unnoticed, and so that there may be at least an indication of the attitude of the court as a restraining force, with respect to the checks and balances of government. The Supreme Court, out of respect for the Upper House of a coordinate branch of the government, takes no affirmative action. But the perfection of the entire system suggests the thought that no action should be taken elsewhere which would constitute, or even seem to constitute, disregard for the Constitution.

Conceding therefore that the power of the Senate to punish its members for disorderly behavior does not authorize it to suspend on appointive member from the exercise of his office for one year, conceding what has been so well stated by the learned counsel for the petitioner, conceding all this and more, yet the writ prayed for cannot issue, for the all-conclusive reason that the Supreme Court does not possess the power of coercion to make the Philippine Senate take any particular action. If it be said that this conclusion leaves the petitioner without a remedy, the answer is that the judiciary is not the repository of all wisdom and all power. It would hardly be becoming for the judiciary to assume the role of either a credulous inquisitor, a querulous censor, or a jaunty knight, who passes down the halls of legislation and of administration giving

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heed to those who have grievances against the Legislature and the Chief Executive.

We rule that neither the Philippine Legislature nor a branch thereof can be directly controlled in the exercise of their legislative powers by any judicial process. The court accordingly lacks jurisdiction to consider the petition and the demurrer must be sustained. As it is unlikely that the petition could be amended to state a cause of action, it must be dismissed without costs. Such is the judgment of the court. So ordered.

Street, Villamor and Romualdez, JJ., concur.

G.R. No. L-6749             July 30, 1955

JEAN L. ARNAULT, petitioner-appellee, vs.EUSTAQUIO BALAGTAS, as Director of Prisons, respondent-appellant.

Office of the Solicitor General Ambrosio Padilla, Assistant Solicitor General Guillermo E. Torres and Solicitor Jaime De Los Angeles for appellant.Estanislao A. Fernandez and Roman B. Antonio for appellee.

LABRADOR, J.:

This an appeal from judgment of the Court of First Instance of Rizal, Pasay City Branch, Honorable Jose F. Flores presiding, in habeas corpus proceeding, declaring that the continued detention and confinement of Jean L. Arnault in the new Bilibid Prison, in pursuance of Senate Resolution No. 114, dated November 8, 1952, is illegal, for the reason that the Senate of the Philippines committed a clear abuse of discretion in considering his answer naming one Jess D. Santos as the person to whom delivery of the sum of P440,000 was made in the sale of the Buenavista and Tambobong Estate, as a refusal to answer the question directed by

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the Senate committee to him, and on the further ground that said Jean L. Arnault, by his answer has purged himself of contempt and is consequently entitled to be released and discharged.

Petitioner-appellee was an attorney in-fact or Ernest H. Burt in the negotiations for the purchase of the Buenavista and Tambobong Estates by the Government of the Philippines. The purchase was effected on October 21, 1949 and the price paid for both estates was P5,000,000. On February 27, 1950, the Senate of the Philippines adopted Resolution No. 8, whereby it created a Special Committee to determine "whether the said purchase was honest, valid and proper, and whether the price involved in the deal was fair and just, the parties responsible therefor, any other facts the Committee may deem proper in the premises." In the investigation conducted by the Committee in pursuance of said Resolution, petitioner-appellee was asked to whom a part of the purchase price, or P440,000, was delivered. Petitioner-appellee refused to answer this question, whereupon the Committee resolved on May 15, 1950, to order his commitment to the custody of the Sergeant at-arms of the Philippines Senate and imprisoned in the new Bilibid Prison in Rizal until such time when he shall reveal to the Senate or to the Special Committee the name of the person who received the P440,000 and to answer questions pertinent thereto. In G.R. No. L-3820, petitioner-appellee herein questioned the validity of the confinement so ordered, by a petition for certiorari filed in this Court. He contended that the Senate of the Philippines has no power to punish him for contempt for refusing to reveal the name of the person to whom he delivered P440,000., that the Legislature lacks authority to punish him for contempt beyond the term of the legislative session, and that the question of the Senate which he refused to answer is an incriminating question which the appellee is not bound to answer. All the abovementioned contentions were adversely passed upon by the decision of this Court, so his petition for release was denied.

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In the month of December, 1951, while still in confinement in Bilibid, petitioner-appellee executed an affidavit, Exhibit A, wherein he gives in detail the history of his life, the events surrounding acquisition of the Buenavista and Tambobong Estates by Gen. Burt, the supposed circumstances under which he met one by the name of Jess D. Santos. Upon the presentation of the said affidavit to the said Senate Special Committee, the latter subjected petitioner to questioning regarding the identity of Jess D. Santos, and after said investigation and questioning the Committee adopted Resolution No. 114 on November 8, 1952. This Resolution reads as follows:

RESOLUTION APPROVING THE REPORT OF THE SPECIAL COMMITTEE TO INVESTIGATE THE BUENAVISTA AND TAMBOBONG ESTATES DEAL, AND ORDERING THE DIRECTOR OF PRISON TO CONTINUE HOLDING JEAN L. ARNAULT IN HIS CUSTODY, AND IN CONFINEMENT AND DETENTION AT THE NEW BILIBID PRISON AT MUNTINLUPA, RIZAL, UNTIL THE SAID ARNAULT SHALL HAVE PURGED HIMSELF OF CONTEMPT OF THE SENATE.

WHEREAS, on the 15th May 1950 the Senate of the Philippines, transcending divisions of party and faction in the national interest, adopted a Resolution ordering the detention and confinement of Jean L. Arnault at the New Bilibid Prison in Muntinlupa, Rizal, until he should have purged himself of contempt of the Senate by revealing the person to whom he gave the sum of P440,000 in connection with the Buenavista and Tambobong Estates deal, and by answering other pertinent questions in connection therewith;

WHEREAS, after considering the lengthy testimony offered by the said Jean L. Arnault, and the report thereon rendered by the Senate Special Committee on the said deal, the Senate holds and finds that, despite numerous and generous

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opportunities offered to him at his own instance and solicitation, the said Jean L. Arnault has failed and refused, and continues to fail and refuse, to reveal the person to whom he gave the said amount of P440,000, and to answer other pertinent questions in connection with the Buenavista and Tambobong estates deal;

WHEREAS, the Senate holds and finds that the situation of the said Jean L. Arnault has not materially changed since he was committed to prison for contempt of the Senate, and since the Supreme Court of the Philippines, in a judgment long since become final, upheld the power and authority of the Senate to hold the said Jean L. Arnault in custody, detention, and confinement, said power and authority having been held to be coercive rather than punitive, and fully justified until the said Jean L. Arnault should have given the information which he had withheld and continues contumaciously to withhold;

WHEREAS, the insolent and manifest untruthful statements made by the said Jean L. Arnault on the occasions above referred to constitute a continuing contempt of the Senate, and an added affront to its dignity and authority, such that , were they to be condoned or overlooked, the power and authority of the Senate to conduct investigations would become futile and ineffectual because they could be defied by any person of sufficient stubbornness and malice;

WHEREAS, the Senate holds and finds that the identity of the person to whom the said Jean L. Arnault gave the amount of P440,000 in connection with the Buenavista and Tambobong estates deal, and the further information which the Senate requires and which the said Jean L. Arnault arrogantly and contumaciously withholds, is required for the discharge of its legislative functions, particularly so that adequate measures can be taken to prevent the repetition of similar frauds upon

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the Government and the People of the Philippines and to recover said amount; and

WHEREAS, while not insensible to the appeal of understanding and mercy, the Senate holds and finds that the said Jean L. Arnault, by his insolent and contumacious defiance of the legitimate authority of the Senate, is trifling with its proceedings, renders himself unworthy of mercy, and, in the language of the Supreme Court, is his own jailer, because he could open the doors of his prison at any time by revealing the truth; now therefore, be it

Resolved by the Senate of the Philippines, That the Senate hold and find, as it hereby holds and finds, that Juan L. Arnault has not purged himself of contempt of the Senate, and has in no way altered his situation since he has committed to coercive not punitive, imprisonment for such contempt on the 15th day of May, 1950; and that Senate order, as it hereby orders, the Director of Prisons to hold the said Jean L. Arnault, in his custody, and in confinement and detention at the New Bilibid Prison in Muntinlupa, Rizal, in coercive imprisonment, until he should have purged himself of the aforesaid contempt to the satisfaction, and until order to that effect, of the Senate of the Philippines or of its Special Committee to investigate the Buenavista and Tambobong Estates deal.

Adopted, November 8, 1952 . (Exhibit 0)

In his petition for the writ of habeas corpus in the Court of First Instance, petitioner-appellee alleges: (1) That the acquisition by the Government, through the Rural Progress Administration, of the Buenavista and Tambobong Estates was not illegal nor irregular nor scandalous nor malodorous, but was in fact beneficial to the Government; (2) that the decision of this Court in G. R. No. L-3820 declared that the Senate did not imprison Arnault "beyond proper limitations", i.e., beyond the period longer than arresto mayor, as

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this is the maximum penalty that can be imposed under the provisions of Article 150 of the Revised Penal Code; (3) that petitioner-appellee purged himself of the contempt charges when he disclosed the fact that the one to whom he gave the P440,000 was Jess D. Santos, and submitted evidence in corroboration thereof; (4) that the Senate is not justified in finding that the petitioner-appellee did tell the truth when he mentioned Jess D. Santos as the person to whom he gave the P440,000, specially on the basis of the evidence submitted to it; (5) that the legislative purpose or intention, for which the Senate ordered the confinement may be considered as having been accomplished, and, therefore, there is no reason for petitioner-appellee's continued confinement.

The claim that the purchase of the Buenavista and Tambobong Estates is beneficial to the government and is neither illegal nor irregular is beside the point. To our minds, two questions are decisive of this case. The first is: Did the Senate Special Committee believe the statement of the petitioner-appellee that the person to whom he gave the P440,000 is one by the name of Jess D. Santos and if it did not, may the court review said finding? And the second is: If the Senate did not believe the statement, is the continued confinement and detention of the petitioner-appellee, as ordered in Senate Resolution of November 8, 1952, valid?

On the first question, the Senate found as a fact that petitioner "has failed and refused, and continues to fail and refuse, to reveal the person to whom he gave the amount of P440,000" and that the situation of petitioner "has not materially charged since he was committed to prison." In the first resolution of the Senate Special Committee of May 15, 1950, it found that petitioner "refused to reveal the name of the persons to whom he gave the P440,000, as well as to answer other pertinent questions related to said amount." It is clear and evident that the Senate Committee did not believe petitioner's statement that the person to whom he delivered the abovementioned amount is one by the name of Jess D. Santos.

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The court a quo, however, arrogating unto itself the power to review such finding, held that the "petitioner has satisfactorily shown that the person of Jess D. Santos actually and physically existed in the human flesh," that the opinion or conclusion of the Senate Committee is not borne to out by the evidence produced at the investigation, that the Senate abused its discretion in making its conclusion and that under these circumstances the only thing that could in justice be done to petitioner is to order his release and have his case endorsed to the prosecution branch of the judicial department for investigation and prosecution as the circumstances warrant.

There is an inherent fundamental error in the course of action that the lower court followed. It assumed that courts have the right to review the findings of legislative bodies in the exercise of the prerogative of legislation, or interfere with their proceedings or their discretion in what is known as the legislative process.

The courts avoid encroachment upon the legislature in its exercise of departmental discretion in the means used to accomplish legitimate legislative ends. Since the legislature is given a large discretion in reference to the means it may employ to promote the general welfare, and alone may judge what means are necessary and appropriate to accomplish an end which the Constitution makes legitimate, the courts cannot undertake to decide whether the means adopted by the legislature are the only means or even the best means possible to attain the end sought, for such course would best the exercise of the police power of the state in the judicial department. It has been said that the methods, regulations, and restrictions to be imposed to attain results consistent with the public welfare are purely of legislative cognizance, and the determination of the legislature is final, except when so arbitrary as to be violative of the constitutional rights of the citizen. Furthermore, in the absence of a clear violation of a

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constitutional inhibition, the courts should assume that legislative discretion has been properly exercised. (11 Am. Jur., pp. 901-902).

These the judicial department of the government has no right or power or authority to do, much in the same manner that the legislative department may not invade the judicial realm in the ascertainment of truth and in the application and interpretation of the law, in what is known as the judicial process, because that would be in direct conflict with the fundamental principle of separation of powers established by the Constitution. The only instances when judicial intervention may lawfully be invoke are when there has been a violation of a constitutional inhibition, or when there has been an arbitrary exercise of the legislative discretion.

Under our 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 the popular will. Each has exclusive cognizance of the matters within its jurisdiction, and is supreme within its own sphere. (People of the Philippine Islands, et al. vs. Vera, et al 65 Phil., 56; See also Angara vs. Electoral Commission, 63 Phil., 139)

All that the courts may do, in relation to the proceedings taken against petitioner prior to his incarceration, is to determine if the constitutional guarantee of due process has been accorded him before his incarceration by legislative order, and this because of the mandate of the Supreme Law of the land that no man shall be deprived life, liberty or property without due process of law. In the case at bar such right has fully been extended the petitioner, he having been given the opportunity to be heard personally and by

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counsel in all the proceedings prior to the approval of the Resolution ordering his continued confinement.

The second question involves in turn the following propositions: Does the Philippine Senate have the power and authority to pass its resolution ordering the continued confinement of the petitioner? In the supposition that such power and authority exist, was such power legitimately exercised after the petitioner had given the name Jess D. Santos? A study of the text of the resolution readily shows that the Senate found that the petitioner-appellee did not disclose, by the mere giving of the name Jess D. Santos, the identity of the person to whom the sum of P440, 000 was delivered, and, in addition thereto that petitioner withheld said identity arrogantly and contumaciously in continued affront of the Senate's authority and dignity. Although the resolution studiously avoids saying that the confinement is a punishment, but merely seeks to coerce the petitioner into telling the truth, the intention is evident that the continuation of the imprisonment ordered is in fact partly unitive. This may be inferred from the confining made in the resolution that petitioner-appellee's acts were arrogant and contumacious and constituted an affront to the Senate's dignity and authority. In a way, therefore, the petitioner's assumption that the imprisonment is punitive is justified by the language of the resolution, wherefore the issue now before Us in whether the Senate has the power to punish the contempt committed against it under the circumstances of the case. This question is thus squarely presented before Us for determination.

In the previous case of this same petitioner decided by this Court, G. R. No. L-38201, Arnault vs. Nazareno, et al. (46 Off. Gaz., No. 7, 3100), it was admitted and we had ruled that the Senate has the authority to commit a witness if he refuses to answer a question pertinent to a legislative inquiry, to compel him to give the information, i.e., by reason of its coercive power, not its punitive power. It is now contended by petitioner that if he committed an

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offense of contempt or perjury against the legislative body, because he refused to reveal the identity of the person in accordance with the demands of the Senate Committee, the legislature may not punish him, for the punishment for his refusal should be sought through the ordinary processes of the law, i. e., by the institution of a criminal action in a court of justice.

American legislative bodies, after which our own is patterned, have the power to punish for contempt if the contempt has had the effect of obstructing the exercise by the legislature of, or deterring or preventing it from exercising, its legitimate functions (Annotation to Jurney vs. MacCraken, 79 L. ed. 814). While the power of the United States Senate to punish for contempt was not clearly recognized in its earlier decision (See Marshal vs. Gordon, 61 L. ed. 881), the Supreme Court of the United States two decades ago held that such power and authority exist. In the case of Jurney vs. MacCraken (294 U. S. 123, 79 L. ed. 802), the question before it was whether or not the Senate could order the confinement of a private citizen because of the destruction and removal by him of certain papers required to be produced. The court said:

First, The main contention of MacCracken is that the so-called power to punish for contempt may never be exerted, in the case of a private citizen, solely qua punishment. The argument is that the power may be used by the legislative body merely as a means of removing an existing obstruction to the performance of its duties; that the power to punish ceases as soon as the obstruction has been removed, or its removal has become impossible; and hence that there is no power to punish a witness who, having been requested to produce papers, destroys them after service of the subpoena. The contention rests upon a misconception of the limitations upon the power of the Houses of Congress to punish for contempt. It is true that the scope of the power is narrow. No act is so punishable unless it is of a nature to obstruct the performance

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of the duties of the legislature. This may be lack of power, because, as in Kilbourn vs. Thompson, 103 U. S. 168, 26 L. ed. 377, there was no legislative duty to be performed; or because, as in Marshall vs. Gordon, 243 U. S. 521, 61 L. ed. 881, 37 S. Ct. 448, L. R. A. 1917F, 279, Ann. Cas. 1918B, 371, the act complained of is deemed not to be of a character to obstruct the legislative process. But, where the offending act was of a nature to obstruct the legislative process, the fact that the obstruction has since been removed, or that its removal has become impossible is without legal significance.

The power to punish a private citizen for a past and completed act was exerted by Congress as early as 1795; and since then it has been exercised on several occasions. It was asserted, before the Revolution, by the colonial assemblies, in intimation of the British House of Commons; and afterwards by the Continental Congress and by state legislative bodies. In Anderson vs. Dunn, 6 Wheat, 204, 5 L. ed. 242, decided in 1821, it was held that the House had power to punish a private citizen for an attempt to bribe a member. No case has been found in which an exertion of the power to punish for contempt has been successfully challenged on the ground that, before punishment, the offending act had been consummated or that the obstruction suffered was irremediable. The statement in the opinion in Marshall vs. Gordon, 243 U. S. 521, 61 L. ed. 881, 37 S. Ct. 448, L. R. A. 1917F. 279 Ann. Cas. 1918B, 371, supra, upon which MacCracken relies, must be read in the light of the particular facts. It was there recognized that the only jurisdictional test to be applied by the court is the character of the offense; and that the continuance of the obstruction, or the likelihood of its repetition, are considerations for the discretion of the legislators in meting out the punishment.

Here, we are concerned not with an extention of congressional privilege, but with vindication of the established and essential

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privilege of requiring the production of evidence. For this purpose, the power to punish for a past contempt is an appropriate means. Compare Ex parte Nugent (C. C.) 1 Brunner, Col. Cas. 296, Fed. Cas No. 10375; Steward vs. Bleine, 1 MacArth. 453. The apprehensions expressed from time to time in congressional debates, in opposition to particular exercise of the contempt power concerned, not the power to punish, as such, but the broad, undefined privileges which it was believed might find sanction in that power. The ground for such fears has since been effectively removed by the decisions of this Court which hold that assertions of congressional privilege are subject to judicial review. Melbourn vs. Thompson, 103 U. S. 168, 26 L. ed. 377, supra; and that the power to punish for contempt may not be extended to slanderous attacks which presents no immediate obstruction to legislative processes. Marshall vs. Gordon, 243 U. S. 521, 61 L. ed. 881, 37 S. Ct. 448, L.R. A. 1917F, Ann. Cas. 1918B, 731 supra.

The principle that Congress or any of its bodies has the power to punish recalcitrant witnesses is founded upon reason and policy. Said power must be considered implied or incidental to the exercise of legislative power, or necessary to effectuate said power. How could a legislative body obtain the knowledge and information on which to base intended legislation if it cannot require and compel the disclosure of such knowledge and information, if it is impotent to punish a defiance of its power and authority? When the framers of the Constitution adopted the principle of separation of powers, making each branch supreme within the realm of its respective authority, it must have intended each department's authority to be full and complete, independently of the other's authority and power. And how could the authority and power become complete if for every act of refusal, every act of defiance, every act of contumacy against it, the legislative body must resort to the judicial department for the appropriate remedy, because it is impotent by itself to

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punish or deal therewith, with the affronts committed against its authority or dignity. The process by which a contumacious witness is dealt with by the legislature in order to enable it to exercise its legislative power or authority must be distinguished from the judicial process by which offenders are brought to the courts of justice for the meting of the punishment which the criminal law imposes upon them. The former falls exclusively within the legislative authority, the latter within the domain of the courts; because the former is a necessary concommitant of the legislative power or process, while the latter has to do with the enforcement and application of the criminal law.

We must also and that provided the contempt is related to the exercise of the legislative power and is committed in the course of the legislative process, the legislature's authority to deal with the defiant and contumacious witness should be supreme, and unless there is a manifest and absolute disregard of discretion and a mere exertion of arbitrary power coming within the reach of constitutional limitations, the exercise of the authority is not subject to judicial interference. (Marshall vs. Gordon, supra).

The next question concerns the claim that the petitioner has purged himself of contempt, because he says he has already answered the original question which he had previously been required to answer. In order that the petitioner may be considered as having purged himself of the contempt, it is necessary that he should have testified truthfully, disclosing the real identity of the person subject of the inquiry. No person guilty of contempt may purge himself by another lie or falsehood; this would be repetition of the offense. It is true that he gave a name, Jess D. Santos, as that of the person to whom delivery of the sum of P440,000 was made. The Senate Committee refused to believe, and justly, that is the real name of the person whose identity is being the subject of the inquiry. The Senate, therefore, held that the act of the petitioner continued the original contempt, or reiterated it. Furthermore, the act further interpreted

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as an affront to its dignity. It may well be taken as insult to the intelligence of the honorable members of the body that conducted the investigation. The act of defiance and contempt could not have been clearer and more evident. Certainly, the Senate resolution declaring the petitioner in contempt may not be claimed as an exertion of an arbitrary power.

One last contention of petitioner remains to be considered. It is the claim that as the period of imprisonment has lasted for a period which exceeded that provided by law punishment for contempt, i. e., 6 months of arresto mayor, the petitioner is now entitled to be released. This claim is not justified by the record. Petitioner was originally confined by Resolution No. 17 on May 15, 1950. On December 13, 1951, he executed his affidavit and thereafter he was called to testify again before the Senate Committee. The latter passed its Resolution No. 114 on November 6, 1952, and he presented the petition for habeas corpus in this case on March 3, 1953, i. e., five months after the last resolution when the Senate found that the petitioner committed another contempt. It is not true, therefore, that the petitioner's punishment is beyond the full period prescribed in the criminal law.

Besides, the last resolution of November 8, 1952 is also of a coersive nature, in the sense that the Senate Committee still demands and requires the disclosure of the fact which the petitioner had obstinately refused to divulge. While the Philippine Senate has not given up hope that the petitioner may ultimately disclose the record, it is improper for the courts to declare that the continued confinement is an abuse of the legislative power and thereby interfere in the exercise of the legislative discretion.

The judgment appealed from should be, as it hereby is, reversed, and the petition for the issuance of the writ of habeas corpus denied. The order of the court allowing the petitioner to give bail is declared null and void and the petitioner is hereby ordered to be

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recommitted to the custody of the respondent. With cost against the petitioner-appellee.

PHILIPPINE JURISPRUDENCE - FULL TEXT The Lawphil Project - Arellano Law Foundation G.R. No. 173034             October 9, 2007PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE PHILIPPINES vs. HEALTH SECRETARY FRANCISCO T. DUQUE III, ET AL.

Republic of the PhilippinesSUPREME COURT

Manila

The Lawphil Project - Arellano Law Foundation

Republic of the PhilippinesSUPREME COURTManila

THIRD DIVISION

G.R. No. 139401             October 2, 2002

JMM PROMOTIONS AND MANAGEMENT, INC., petitioner,

vs.COURT OF APPEALS, EMMANUEL BALANE AND

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CELSO PAGAPOLA-AN, respondents.

D E C I S I O N

CORONA, J.:

In the hope of attaining a better future, many Filipinos succumb to the lure of opportunities in distant shores. Not all, however, are able to realize their dreams. A number of them return with neither money nor glory. For these unlucky souls, they take home with them twice the misery which they yearned to elude in the first place. When the dream is gone, there is nothing left but a bitter pill to swallow.

Before us is a petition for review under Rule 45 of the Rules of Court of the decision1 dated June 25, 1999 of the Court of Appeals, which denied the petition for certiorari of the decision dated January 30, 1996 of the National Labor Relations Commission filed by herein petitioner JMM Promotions and Management, Inc.

This petition is an offshoot of an illegal dismissal case filed by private respondents Emmanuel Balane (Balane) and Celso Pagapola-an (Pagapola-an) in the POEA seeking justice for the plight they suffered as overseas entertainers. Private respondents charged petitioner with causing injury to their rights.

The facts of this case follow.

In March 1993, Sam Jin Entertainment Co. Ltd. (Sam Jin), through its agency, petitioner JMM Promotions and Management, Inc., hired private respondents and Theresa Domatican (Domatican) as entertainers for deployment in Korea. The three entertainers, as a musical band, assumed the name "Fix Trio." Balane played the keyboard while

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Pagapola-an handled the guitar. Domatican was the band’s original vocalist.

The employment contract provided that private respondents were to receive a monthly salary of four hundred thousand won (W400,000) plus a round trip fare for a one-year contract.

The band was set to leave on March 26, 1993. However, a day before the band’s departure, on March 25, 1993, petitioner assigned Bernadette Flores (Flores) instead of Domatican to perform with the band in Korea.

Private respondents, together with Flores, performed as a group for about four months in Seoul, South Korea. Their stint, however, was short-lived because of poor performance. Private respondents laid the blame on Flores’ lack of singing talent. Sam Jin thereafter advised private respondents to return to the Philippines. Flores stayed behind.

On July 23, 1993, private respondents were repatriated to the Philippines. Before their departure from Korea, private respondents signed a statement dated July 21, 1993,2 prepared by their employer, which expressed their agreement to go back home due to some difficulties in their contractual undertaking and another statement dated July 22, 1993,3 which contained their promise to refund petitioner the sum of one hundred forty thousand won (W140,000) representing the balance of their processing fee.

Private respondents, after arrival in the Philippines, filed with the POEA an illegal dismissal case and money claim for the unfinished employment contract against petitioner and Sam Jin. They claimed that petitioner was mainly responsible for

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their aborted stint as a band in Seoul, Korea. The last-minute replacement of Domatican with Flores, a singer of allegedly questionable talent, resulted in the band’s poor performance. This, in turn, led to the premature termination of the band’s contract.

Petitioner denied any liability or responsibility for the untimely termination of private respondents’ employment contract. It mainly anchored its defense to the statements dated July 21, 1993 and July 22, 1993, signed by private respondents, arguing that the latter voluntarily expressed their desire to go back to the Philippines.

The POEA ruled in favor of private respondents, ordering petitioner and Sam Jin to jointly and severally pay private respondents the amount of US$1,049.98 each, representing the compensation for the unfinished portion of the employment contract,4 based on the following:

"After a judicious appraisal of the attendant facts and evaluation of the evidence on record, we find that what actually transpired in this case was an unsuccessful and a losing entertainment business venture on account of the entertainers’ failure to put up a good show or performance before the customers and clients of the club owners. Complainants blamed the respondents for this fiasco by attributing the cause thereof to the inability of the singer to render her part of the trio as she was not a singer nor had she undergone testing or audition before her engagement as such. What was originally contracted for was the real singer/talent and member of the contracted trio, Theresa Domatican. These facts have not been contradicted or explained by the respondents except the allegation that complainants were having difficulty in their employment,

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hence they signed a rescission agreement.

"Respondents’ Annexes ‘A’ and ‘B’, the statements executed by complainants, were however disputed by the latter, claiming that they were forced under the circumstances to sign the same. They were put in a situation where they can not (sic) longer perform effectively because of a singer who cannot sing. If they do not perform, they will not be paid. Thus they were sent home by their employer and as a pre requisite for their repatriation, they were made to sign the aforementioned statements citing difficulty in their employment as cause of their discharge. Complainants were definitely pushed against the wall and had no other recourse but to comply with their employer’s orders in order to be repatriated.

"It is also worthy to note that one of the complainants, Emmanuel Balane, corroborated their stance by executing a statement in the presence of our Consul at the Philippine Embassy in Seoul, Korea. This statement is further supported by the Statement dated July 22, 1993 (Annex ‘B’, Joint Affidavit of Complainants) which was signed by Kang Ho Suck, Cho Jin Young and Shin Bok Hu."5

The NLRC affirmed the decision of the POEA on appeal, holding that the findings of the POEA were supported by substantial evidence.

Twice thwarted but still unyielding, petitioner filed with the Court of Appeals a petition for certiorari under Rule 65 of the Rules of Court seeking the reversal of the NLRC decision.

Petitioner’s hope of vindication in the Court of Appeals failed as the latter found no reason to disturb the findings of the NLRC. The Court of Appeals attributed fault to the petitioner

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for the band’s poor performance abroad when it replaced the band’s original vocalist Domatican with Flores at the "eleventh hour." Thus, it held:

"The effect of petitioner’s fault should not be used as the excuse to terminate its contract of employment with private respondents."6

Aggrieved by the ruling of the Court of Appeals, petitioner now comes before us with the following –

"GROUNDS IN SUPPORT OF THE PETITION

a - The law is clear that an aggrieved party, before the appellate body may consider such as the findings of facts, been able to substantiate the matter arrived at by preponderance of evidence.

b - That public respondent cannot shied (sic) away from the mandated rule in the appreciation of evidence; the proceedings before the inferior quasi-judicial bodies is one of mere submission of affidavits whereon no open testimony is taken to cross-examine the witnesses; uprightness of the findings is, therefore, questionable and subject to review."7

Petitioner argues that the Court of Appeals erroneously sustained the findings of fact of the NLRC. Private respondents could not have performed with Flores for four months in Korea if they did not initially do well as a band. Fights within and among themselves, therefore, caused their misfortunes.

Petitioner disputes the observation of the Court of Appeals that private respondents were intimidated into signing the quitclaim and request for repatriation. They were paid their

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salaries and they even committed to pay petitioner the amount of W140,000 as reimbursement for expenses incurred in their deployment to Seoul, Korea.

Petitioner also avers that the execution of statements critical of petitioner before the Philippine Consul in Seoul was not reflected in the records. There being no evidence thereof, private respondents’ stories were bereft of factual basis. Furthermore, the identity of the Koreans who allegedly signed and backed up private respondents’ statements was neither ascertained nor proved.

Petitioner asserts that the quitclaims executed by private respondents on July 21, 1993 and July 22, 1993 were valid and binding. The existence of fraud, mistake or duress in their execution has not been established. Thus, documents attesting that a compromise agreement has been reached between the parties remain valid in the absence of any proof to the contrary.

On the other hand, due to alleged financial difficulties,8 private respondent Balane filed his comment through a mere attorney-in-fact and contended that the petition for review is merely a dilatory tactic employed by petitioner.9

Petitioner’s arguments border on despair.

As an overture, clear and unmistakable is the rule that the Supreme Court is not a trier of facts. Just as well entrenched is the doctrine that pure issues of fact may not be the proper subject of appeal by certiorari under Rule 45 of the Revised Rules of Court as this mode of appeal is generally confined to questions of law.10 We therefore take this opportunity again to reiterate that only questions of law, not questions of fact, may be raised before the Supreme Court in a petition

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for review under Rule 45 of the Rules of Court. This Court cannot be tasked to go over the proofs presented by the petitioners in the lower courts and analyze, assess and weigh them to ascertain if the court a quo and the appellate court were correct in their appreciation of the evidence.11

We note that petitioner’s arguments are based on factual and evidentiary matters which the Supreme Court does not inquire into in an appeal on certiorari.12 The issues propounded by petitioner involve only questions of fact previously raised and satisfactorily ruled upon by the courts a quo.

The POEA and the NLRC were one with respect to the finding that private respondents were illegally dismissed. Petitioner’s obstinacy proved futile as the Court of Appeals was likewise in agreement with the labor courts. "Findings of fact by administrative agencies are generally accorded great respect, if not finality, by the courts because of the special knowledge and expertise over matters falling under their jurisdiction."13 Moreover, it is a time-honoured rule that "the factual findings of the Court of Appeals are conclusive on the parties and not reviewable by the Supreme Court – and they carry even more weight when the Court of Appeals affirms the factual findings of the trial court."14 Any exception to these principles, as set forth in the case of Ramos v. Pepsi-Cola Bottling Co.15 must be clearly and convincingly proven. Petitioner, however, failed to prove that this case falls within the exception.

Nonetheless, we find it necessary to discuss the issue of validity of the quitclaims. In the instant case, private respondents claim that they were merely compelled to sign the releases in favor of their employer. Petitioner, on the other hand, asserts that private respondents entered into the

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compromise agreement freely and voluntarily and should not, at this late stage, be permitted to renounce their signed commitments.

No reasonable argument, however, can possibly sustain petitioner’s position. Although quitclaims have long been accepted in this jurisdiction, when the voluntariness of the execution of the quitclaim or release is squarely at issue, then the employee’s claim may still be given due course.16 The law looks with disfavor on quitclaims and releases by employees who have been inveigled or pressured into signing them by unscrupulous employers seeking to evade their legal responsibilities.17

We are not ready to deviate from this rule for the reason that the courts a quo have sufficient factual basis in ruling that private respondents were merely pressured to sign the quitclaims/compromise agreements. The fact that private respondents signed the subject statements releasing petitioner and Sam Jin from any liability and assenting to a refund of the amount allegedly representing the expenses incurred by petitioner, without any objection, does not automatically mean the absence of duress, considering the pathetic circumstances private respondents were in. We find it incredible that, after all the expense and the trouble they went through in seeking greener pastures abroad, private respondents would suddenly and without reason decide to return home and face, as jobless people, a staggering debt of W140,000. The private respondents had no choice but to sign. They were stranded in a foreign land with no work and no income, and with their employer threatening not to give them their return tickets to Manila if they refused to sign.1avvphil.net

Thus, we have time and again held that quitclaims, waivers

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and/or complete releases executed by the employees do not stop them from pursuing their claims arising from unfair labor practice - if there is a showing of undue pressure or duress. The basic reason for this is that such quitclaims, waivers and/or complete releases, being figuratively exacted through the barrel of a gun, are against public policy and therefore null and void ab initio. Accordingly, private respondents’ signatures in the subject waivers or quitclaims never foreclosed their right to pursue a case for illegal dismissal and money claim. Employer and employee were not on equal footing.18 As aptly observed by the Court of Appeals, private respondents’ backs were to the wall. Had they been in a position to object, private respondents would not have agreed to reimburse petitioner the amount of W140,000 as no person in his right mind, specially if he is in dire financial straights, would agree to such an undertaking. Private respondents went abroad precisely to escape poverty. Obviously it was out of desperation and helplessness that private respondents agreed to affix their signatures on the subject waivers. They are therefore deemed not to have waived any of their rights. Renuntiatio non praesumitur."19

This Court sees no compelling reason to reverse the findings of the POEA, the NLRC and respondent Court of Appeals for lack of any showing of error, mistake or misappreciation of facts.20 This assailed decisions are in harmony with the law and the evidence.

WHEREFORE, the petition is hereby DENIED.

SO ORDERED

G.R. No. 111088 June 13, 1997

C & M TIMBER CORPORATION (CMTC), petitioner,

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vs.HON. ANGEL C. ALCALA, Secretary of the Department of Environment & Natural Resources, HON. ANTONIO T. CARPIO, Chief Presidential Legal Counsel, and HON. RENATO C. CORONA, Assistant Executive Secretary for Legal Affairs, respondents.

 

MENDOZA, J.:

This is a petition for certiorari by which C & M Timber Corporation seeks the nullification of the order dated February 26, 1993 and the resolution dated June 7, 1993 of the Office of the President, declaring as of no force and effect Timber License Agreement (TLA) No. 106 issued to petitioner on June 30, 1972. TLA No. 106, with the expiry date June 30, 1997, covers 67,680 hectares of forest land in the municipalities of Dipaculao and Dinalongan in the Province of Aurora and the Municipality of Maddela in Quirino province. 1

It appears that in a letter dated July 20, 1984 2 to President Marcos, Filipinas Loggers Development Corporation (FLDC), through its president and general manager, requested a timber concession over the same area covered by petitioner's TLA No. 106, alleging that the same had been cancelled pursuant to a presidential directive banning all forms of logging in the area. The request was granted in a note dated August 14, 1984 by President Marcos who wrote, as was his wont, on the margin of the letter of FLDC: "Approved." 3

Accordingly, on September 21, 1984, the Ministry of Natural Resources, as it was then called, issued TLA No. 360, with

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the expiry date September 30, 1994, to FLDC, covering the area subject of TLA No. 106. In 1985, FLDC began logging operations.

On June 26, 1986, then Minister of Natural Resources Ernesto M. Maceda suspended TLA No. 360 for FLDC's "gross violation of the terms and conditions thereof, especially the reforestation and selective logging activities and in consonance with the national policy on forest conservation." 4 On July 26, 1986, Minister Maceda issued another order cancelling the license of FLDC on the ground that "in spite of the suspension order dated June 26, 1986, said concessionaire has continued logging operations in violation of forestry rules and regulations." 5

Learning of the cancellation of FLDC's TLA, petitioner, through its officer-in-charge, wrote Minister Maceda a letter dated October 10, 1986, requesting "revalidation" of its TLA No. 106. 6 As FLDC sought a reconsideration of the order cancelling its TLA, petitioner wrote another letter dated February 13, 1987, 7 alleging that because of the log ban imposed by the previous administration it had to stop its logging operations, but that when the ban was lifted on September 21, 1984, its concession area was awarded to FLDC "as a result of [FLDC's] covetous maneuvers and unlawful machinations." (Petitioner was later to say that those behind FLDC, among them being the former President's sister, Mrs. Fortuna Barba, were "very influential because of their very strong connections with the previous Marcos regime." 8) Petitioner prayed that it be allowed to resume logging operations.

In his order dated May 2, 1988, 9 Secretary Fulgencio Factoran, Jr., of the DENR, declared petitioner's TLA No. 106 as of no more force and effect and consequently denied

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the petition for its restoration, even as he denied FLDC's motion for reconsideration of the cancellation of TLA No. 360. Secretary Factoran, Jr. ruled that petitioner's petition was barred by reason of laches, because petitioner did not file its opposition to the issuance of a TLA to FLDC until February 13, 1987, after FLDC had been logging under its license for almost two years. On the other hand, FLDC's motion for reconsideration was denied, "since the findings on which the cancellation order had been based, notably gross violation of the terms and conditions of its license, such as reforestation and selective logging activities appear to be firmly grounded."

Both petitioner CMTC and FLDC appealed to the Office of the President. Petitioner denied that it was guilty of laches. It alleged that it had sent a letter to the then Minister of Natural Resources Rodolfo del Rosario dated September 24, 1984 protesting the grant of a TLA to FLDC over the area covered by its (petitioner's) TLA and, for this reason, requesting nullification of FLDC's TLA.

In a decision dated March 21, 1991, 10 the Office of the President, through then Executive Secretary Oscar Orbos, affirmed the DENR's order of May 2, 1988. Like the DENR it found petitioner guilty of laches, the alleged filing by petitioner of a protest on September 24, 1984 not having been duly proven. The decision of the Office of the President stated: 11

As disclosed by the records, this Office, in a letter of June 1, 1989, had requested the DENR to issue a certification as to the authenticity/veracity of CMTC's aforesaid Annex "A" to enable it to resolve this case judiciously and expeditiously. Said letter-

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request pertinently reads:

. . . C & M Timber Corporation has attached to its "Supplemental Petition For Review," dated June 1, 1988, a xerox copy of (Annex "A") of its letter to the Minister of Natural Resources Rodolfo del Rosario, dated September 24, 1984, prepared by its counsel, Atty. Norberto J. Quisumbing, protesting against the award of the contested area to Filipinas Loggers Development Corporation and requesting that it be annulled and voided.

Considering that the aforementioned Annex "A" constitutes a vital defense to C & M Timber Corporation and could be a pivotal factor in the resolution by this Office of the instant appeal, may we request your good office for a certification as to the authenticity/veracity of said document (Annex "A") to enable us to resolve the case judiciously and expeditiously.

In reply thereto, the DENR, thru Assistant Secretary for Legal Affairs Romulo D. San Juan, in a letter of July 7, 1989, informed this Office, thus:

xxx xxx xxx

Despite diligent efforts exerted to locate the alleged aforementioned Annex "A", no such document could be found or is on file

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in this Office.

This Office, therefore, regrets that it can not issue the desired certification as to the authenticity/veracity of the document.

On September 10, 1990, this Office requested an updated comment of the DENR on (a) the duplicate original copy of Annex "A"; (b) a xerox copy of Page 164, entry No. 2233, of the MNR's logbook tending to show that the original copy of Annex "A" was received by the MNR; and (c) a xerox copy of Page 201 of the logbook of the BFD indicating that the original copy of Annex "A" was received by BFD from the MNR.

On October 26, 1990, DENR Assistant Secretary San Juan endorsed to this Office the updated comment of Director of Forest Management Bureau (FMB) in a 2nd endorsement of October 25, 1990, which pertinently reads as follows:

Please be informed that this Office is not the addressee and repository of the letter dated September 24, 1984 of Atty. Norberto Quisumbing. This Office was just directed by then Minister Rodolfo del Rosario to act on the purported letter of Atty. Quisumbing and as directed, we prepared a memorandum to the President which was duly complied with as shown by the entries in the logbook. Annex "A", which is the main document of the letter-appeal of C & M Timber Corporation is presumed appended to the records when

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it was acted upon by the BFD (now FMB) and forwarded to the Secretary (then Minister). Therefore this Office is not in a position to certify as to the authenticity of Annex "A".

Clearly therefore, CMTC's reliance on its Annex "A" is misplaced, the authenticity thereof not having been duly proven or established. Significantly, we note that in all the pleadings filed by CMTC in the office a quo, and during the hearing conducted, nothing is mentioned therein about its letter of September 24, 1984 (Annex "A"). Jurisprudence teaches that issues neither averred in the pleadings nor raised during the trial below cannot be raised for the first time on appeal (City of Manila vs. Ebay, 1 SCRA 1086, 1089); that issues of fact not adequately brought to the attention of the trial court need not be considered by a reviewing court, as they cannot be raised for the first time on appeal (Santos v. Intermediate Appellate Court, 145 SCRA 592, 595); and that parties, may not, on appeal, adopt a position inconsistent with what they sustained below (People v. Archilla, 1 SCRA 698, 700-701)

The Office of the President also declined to set aside the DENR's order of July 31, 1986, cancelling FLDC's TLA No. 360, after finding the same to be fully substantiated.

Petitioner and FLDC moved for reconsideration. In its order dated January 25, 1993, 12 the Office of the President, through Chief Presidential Legal Counsel Antonio T. Carpio, denied petitioner's motion for reconsideration. It held that "even assuming that CMTC did file regularly its letter-protest

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of September 24, 1984 with MNR on September 25, 1984, CMTC failed to protect its rights for more than two (2) years until it opposed reinstatement of FLDC's TLA on February 13, 1987. Within that two (2) year period, FLDC logged the area without any opposition from CMTC." In the same order, the Office of the President, however, directed the reinstatement of FLDC's TLA No. 360, in view of the favorable report of the Bureau of Forest Development dated March 23, 1987. Later, the President's office reconsidered its action after the Secretary of Environment and Natural Resources Angel C. Alcala, on February 15, 1993, expressed concern that reinstatement of FLDC's TLA No. 360 "might negate efforts to enhance the conservation and protection of our forest resources." In a new order dated February 26, 1993, 13 the Office of the President reinstated its March 21, 1991 decision.

Petitioner again moved for a reconsideration of the decision dated March 21, 1991 and for its license to be "revived/restored.'' Petitioner's motion was, however, denied by the Office of the President on June 7, 1993 14 in a resolution signed by Assistant Executive Secretary for Legal Affairs Renato C. Corona. The President's office ruled:

The above Order of February 26, 1993 was predicated, as stated therein, on a new policy consideration on forest conservation and protection, unmistakably implied from the President's handwritten instruction. Accordingly, this Order shall be taken not only as an affirmation of the March 21, 1991 decision, but also as a FINAL disposition of the case and ALL matters incident thereto, like CMTC's motion for reconsideration, dated April 16, 1991.

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Hence, this petition. Petitioner contends that laches cannot be imputed to it because it did not incur delay in asserting its rights and even if there was delay, the delay did not work to the prejudice of other parties, particularly FLDC, because the cancellation of the FLDC's TLA was attributable only to its own actions. Petitioner also denies that its license had been suspended by reason of mediocre performance in reforestation by order of then Minister of Natural Resources Teodoro O. Peña. It says that it did not receive any order to this effect. Finally, petitioner claims that the denial of its petition, because of "a new policy consideration on forest conservation and protection, unmistakably implied from the President's handwritten instruction," as stated in the resolution of June 7, 1993 of the Office of the President, would deny it the due process of law. Petitioner points out that there is no total log ban in the country; that Congress has yet to make a pronouncement on the issue; that any notice to this effect "must be stated in good form, not implied"; and that in any case, any new policy consideration should be prospective in application and cannot affect petitioner's vested rights in its TLA No. 106.

We find the petition to be without merit.

First. As already stated, the DENR order of May 2, 1988, declaring petitioner's TLA No. 106 as no longer of any force and effect, was based on its finding that although TLA No. 106's date of expiry was June 30, 1997 it had been suspended on June 3, 1983 because of CMTC's "mediocre performance in reforestation" and petitioner's laches in failing to protest the subsequent award of the same area to FLDC. There is considerable dispute whether there was really an order dated June 3, 1983 suspending petitioner's TLA because of "mediocre performance" in reforestation,

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just as there is a dispute whether there indeed was a letter written on September 24, 1984 on behalf of petitioner protesting the award of the concession covered by its TLA No. 106 to FLDC, so as to show that petitioner did not sleep on its rights.

The alleged order of June 3, 1983 cannot be produced. The Office of the Solicitor General was given until May 14, 1997 to secure a copy of the order but on May 7, 1997 the OSG manifested that the order in question could not be found in the records of this case in which the order might be. 15 Earlier, petitioner requested a copy of the order but the DENR, through Regional Executive Director Antonio G. Principe, said that "based from our records there is no file copy of said alleged order." 16

On the other hand, the alleged letter of September 24, 1984 written by Atty. Norberto J. Quisumbing, protesting the award of the concession in question to FLDC cannot be found in the records of the DENR either. The Assistant Secretary for Legal Affairs of the DENR certified that "Despite diligent efforts exerted to locate the alleged [letter], no such document could be found or is on file in this Office." 17 In a later certification, however, Ofelia Castro Biron of the DENR, claimed that she was a receiving clerk at the Records and Documents Section of the Ministry of Natural Resources and that on September 25, 1984 she received the letter of Atty. Quisumbing and placed on all copies thereof the stamp of the MNR. She stated that the copy in the possession of petitioner was a "faithful copy of the letter" in question. 18

The difficulty of ascertaining the existence of the two documents is indeed a reflection on the sorry state of record keeping in an important office of the executive department.

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Yet these two documents are vital to the presentation of the evidence of both parties in this case. Fortunately, there are extant certain records from which it is possible to determine whether these documents even existed.

With respect to the alleged order of June 3, 1983 suspending petitioner's TLA No. 106 for "mediocre performance" in reforestation, the Court will presume that there is such an order in accordance with the presumption of regularity in the performance of official functions inasmuch as such order is cited both in the order dated May 2, 1988 of the DENR, declaring as of no force and effect TLA No. 106, and in the decision dated March 21, 1991 of the Office of the President affirming the order of the DENR. It is improbable that so responsible officials as the Secretary of the DENR and the Executive Secretary would cite an order that did not exist.

On the other hand, with respect to the letter dated September 24, 1984, there are circumstances indicating that it existed. In addition to the aforesaid certification of Ofelia Castro Biron that she was the person who received the letter for the DENR, the logbook of the Ministry of Natural Resources contains entries indicating that the letter was received by the Bureau of Forest Development from the MNR. 19 DENR Assistant Secretary Romulo San Juan likewise informed the Office of the President that the Bureau of Forest Management prepared a memorandum on the aforesaid letter of September 24, 1984, 20 thereby implying that there was such a letter.

On the premise that there was an order dated June 3, 1983, we find that after suspending petitioner's TLA for "mediocre performance" in reforestation under this order, the DENR cancelled the TLA, this time because of a Presidential

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directive imposing a log ban. The records of G.R. No. 76538, entitled "Felipe Ysmael, Jr. & Co. v. Deputy Executive Secretary," the decision in which is reported in 190 SCRA 673 (1990), contain a copy of the memorandum of then Director Edmundo V. Cortes of the Bureau of Forest Development to the Regional Director of Region 2, in Tuguegarao, Cagayan, informing the latter that pursuant to the instruction of the President and the memorandum dated August 18, 1983 of then Minister Teodoro Q. Peña, the log ban previously declared included the concessions of the companies enumerated in Cortes' memorandum, in consequence of which the concessions in question were deemed cancelled. The memorandum of Director Cortes stated:

MEMORANDUM ORDER

TO : The Regional DirectorRegion 2, Tuguegarao, Cagayan.

FROM : The Director

DATE : 24 August 1983

SUBJECT : Stopping of all logging operationsin Nueva Vizcaya and Quirino

REMARKS :

Following Presidential Instructions and Memorandum Order of Minister Teodoro Q. Peña dated 18 August 1983, and in connection

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with my previous radio message, please be informed that the coverage of the logging ban in Quirino and Nueva Vizcaya provinces include the following concessions which are deemed cancelled as of the date of the previous notice:

— Felipe Ysmael Co., Inc.— Industries Dev. Corp.— Luzon Loggers, Inc.— C & M Timber Corporation— Buzon Industrial Dev. Corporation — Dominion Forest Resources Corp. — FCA Timber Development Corp.— Kasibu Logging Corp.

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— RCC Timber Company— Benjamin Cuaresma

You are hereby reminded to insure full compliance with this order to stop logging operations by all licensees above mentioned and submit a report on the pullout of equipment and inventory of logs within five days upon receipt hereof.

ACTIONDESIRED : For your immediate implementation.

EDMUNDO V. CORTE

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S

(Emphasis added)

It thus appears that petitioner's license had been cancelled way back in 1983, a year before its concession was awarded to FLDC. It is noteworthy that petitioner admits that at the time of the award to FLDC in 1984 petitioner was no longer operating its concession because of a log ban although it claims that the suspension of operations was only temporary. As a result of the log ban, the TLA of petitioner, along with those of other loggers in the region, were cancelled and petitioner and others were ordered to stop operations. Petitioner also admits that it received a telegram sent on August 24, 1983 by Director Cortes of the BFD, directing it to "stop all logging operations to conserve our remaining forests." 21 It is then not true, as Atty. Quisumbing stated in protesting the award of the concession to FLDC, that "the logging ban did not cancel [petitioner's] timber license agreement."

Now petitioner did not protest the cancellation of its TLA. Consequently, even if consideration is given to the fact that a year later, on September 24, 1984, its counsel protested the grant of the concession to another party (FLDC), this failure of petitioner to contest first the suspension of its license on June 3, 1983 and later its cancellation on August 24, 1983 must be deemed fatal to its present action.

Second. Except for the letter of its counsel to the Minister of Natural Resources, which it reiterated in its letter to the President of the Philippines, petitioner took no legal steps to protect its interest. After receiving no favorable response to its two letters, petitioner could have brought the necessary action in court for the restoration of its license. It did not.

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Instead it waited until FLDC's concession was cancelled in 1986 by asking for the "revalidation" of its (petitioner's) on TLA No. 106.

Petitioner's excuse before the DENR is that it did not pursue its protest because its president, Ricardo C. Silverio, had been told by President Marcos that the area in question had been awarded to the President's sister, Mrs.Fortuna Barba, and petitioner was afraid to go against the wishes of the former President. 22 This is a poor excuse for petitioner's inaction. In Felipe Ysmael, Jr. & Co., Inc. v. Deputy Executive Secretary, 23 a similar excuse was given that Ysmael & Co's license had been cancelled and its concession awarded to entities controlled or owned by relatives or cronies of then President Marcos. For this reason, after the EDSA Revolution, Ysmael & Co. sought in 1986 the reinstatement of its timber license agreement and the revocation of those issued to the alleged presidential cronies. As its request was denied by the Office of the President, Ysmael & Co. filed a petition for certiorari with this Court. On the basis of the facts stated, this Court denied the petition: (1) because the August 25, 1983 order of the Bureau of Forest Development, cancelling petitioner's timber license agreement had become final and executory. Although petitioner sent a letter dated September 19, 1983 to President Marcos seeking reconsideration of the 1983 order of cancellation of the BFD, the grounds stated there were different from those later relied upon by petitioner for seeking its reinstatement; (2) because "the fact that petitioner failed to seasonably take judicial recourse to have the earlier administrative actions [cancelling its license and granting another one covering the same concession to respondent] reviewed by the court through a petition for certiorari is prejudicial to its cause." Such special civil action

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of certiorari should have been filed within a "reasonable time." And since none was filed within such period, petitioner's action was barred by laches; and (3) because executive evaluation of timber licenses and their consequent cancellation in the process of formulating policies with regard to the utilization of timber lands is a prerogative of the executive department and in the absence of evidence showing save abuse of discretion courts will not interfere with the exercise of that discretion.

This case is governed by the decision in Felipe Ysmael, Jr. & Co., Inc. v. Deputy Executive Secretary.

Third. It is finally contended that any "policy consideration on forest conservation and protection" justifying the decision of the executive department not to reinstate petitioner's license must be formally enunciated and cannot merely be implied from the President's instruction to his subordinates and that, at all events, the new policy cannot be applied to existing licenses such as petitioner's.

The President's order reconsidering the resolution of the Presidential Legal Adviser (insofar as it reinstated the license of FLDC) was prompted by concerns expressed by the then Secretary of Environment and Natural Resources that "said reinstatement [of FLDC's license] may negate our efforts to enhance conservation and protection of our forest resources." There was really no new policy but, as noted in Felipe Ysmael, Jr. & Co., Inc., a mere reiteration of a policy of conservation and protection. The policy is contained in Art. II, §16 of the Constitution which commands the State "to protect and promote the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature." There is therefore no merit in petitioner's contention that no new policy can be applied to

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existing licenses.

As to petitioner's contention that the cancellation of its license constitutes an impairment of the obligation of its contract, suffice it for us to quote what we held in Felipe Ysmael, Jr. & Co. Inc. v. Deputy Executive Secretary: 24

A cursory reading of the assailed orders issued by public respondent Minister Maceda of the MNR, which were affirmed by the Office of the President, will disclose public policy considerations which effectively forestall judicial interference in the case at bar.

Public respondents herein, upon whose shoulders rests the task of implementing the policy to develop and conserve the country's natural resources, have indicated an ongoing department evaluation of all timber license agreements entered into, and permits or licenses issued, under the previous dispensation. . . .

The ongoing administrative reassessment is apparently in response to the renewed and growing global concern over the despoliation of forest lands and the utter disregard of their crucial role in sustaining a balanced ecological system. The legitimacy of such concern can hardly be disputed, most especially in this country. . . .

Thus, while the administration grapples with the complex and multifarious problems caused by unbridled exploitation of these resources, the judiciary will stand clear. . . . More so where, as in the present case, the interests of a private logging

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company are pitted against that of the public at large on the pressing public policy issue of forest conservation. . . . Timber licenses, permits and license agreements are the principal instruments by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. And it can hardly be gainsaid that they merely evidence a privilege granted by the State to qualified entities, and do not vest in the latter a permanent or irrevocable right to the particular concession area and the forest products therein. They may be validly amended, modified, replaced or rescinded by the Chief Executive when national interests so require. Thus, they are not deemed contracts within the purview of the due process of law clause [See Sections 3(33) and 20 of Pres. Decree No. 705, as amended. Also, Tan v. Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302].

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

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.

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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

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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

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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

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

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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 15 does 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

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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

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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

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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 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

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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.

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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

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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.

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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.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

 

G.R. No. 94125 March 3, 1993

MAYOR JESUS MIGUEL YULO, REPRESENTING THE MUNICIPALITY OF CALAMBA, LAGUNA, petitioner, vs.

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THE CIVIL SERVICE COMMISSION, APOLONIO A. ELASIGUE, AND TEOFILO G. MAMPLATA, ET AL., * respondents.

Emilio C. Capulong, Jr. for private respondents.

 

BIDIN, J.:

This petition seeks to set aside Resolution No. 89-939 dated December 7, 1989 and Resolution No. 90-472 dated May 23, 1990 of respondent Civil Service Commission directing petitioner Mayor Jesus Miguel Yulo of Calamba, Laguna to reinstate private respondents Teofilo Mamplata, et al., and to pay their backwages.

On November 24, 1986, private respondent Apolonio A. Elasigue, Officer in-Charge of the Municipality of Calamba, Laguna terminated the services of private respondents Mamplata and forty-three (43) other employees of said municipality based on the reorganization and approval of the new staffing pattern thereof (Annex "A", p. 1; Rollo, p.17).

Private respondents Mamplata and the other separated employees assailed the action of respondent Elasigue before the Inter-Agency Review Committee created under Executive Order No. 17 of the then President Corazon Aquino. Since the private respondents were not removed pursuant to Executive Order No. 17 and there is no showing that the reorganization was undertaken to circumvent the said statute, the Committee referred the case to the Merit Systems Protection Board (MSPB) of respondent Civil Service Commission. Pending disposition of the case by the MSPB, Elasigue lost in the mayoralty election in 1988 to

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petitioner Yulo.

The MSPB, finding that there is no sufficient evidence to prove the guilt of private respondents, ordered the reinstatement of Mamplata and twenty eight (28) other employees and the payment of their backwages by the municipality (Rollo, p. 18).

Petitioner Yulo, as the elected mayor of Calamba, Laguna, filed a Motion for Reconsideration but to no avail. On appeal, respondent Commission affirmed the decision of the MSPB. The Motion for Reconsideration filed later on by petitioner was denied by respondent Commission which upheld its earlier ruling but reduced the number of employees to be reinstated to twenty one (21) (CSC Resolution No. 90-472, dated May 23, 1992), namely:

1. Teofilo Mamplata2. Isagani Fameronag3. Teresita Ancheta4. Lourdes Coro5. Elvira Arevale6. Rodolfo Adato7. Gertrudes Terzol8. Maxima Palema9. Lourdes Belolo10. Arturo Samiano11. Bayas Bacobe12. Felipe Lazareto13. Silvino Canillas14. Leoncio Edrozo15. Benigno Alcantara16. Danilo Salustiano17. Saturnino Centeno, Sr. **18. Fernando Ustaris

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19. Elpedio Garcia20. Ricardo Ferrer21. Rafael Alcantara

the reason being that during the pendency of the case before the MSPB and respondent Commission, some were re-employed while two of the dismissed employees, Cresencia Belarmino and Marcial Manila died. Their untimely death notwithstanding, respondent Commission ordered the payment of their backwages up to the time of their respective demise.

Hence, this petition.

The issue in this case is whether the removal of private respondents Mamplata, et al. from office due to the reorganization and approval of a new staffing pattern of the municipal government of Calamba is valid.

Petitioner maintains that the separation of private respondents was valid and in consonance with Section 2, Article III of the Freedom Constitution which provides that:

All elective and appointive officials under the 1973 Constitution shall continue in office until otherwise provided by proclamation or executive order or upon the designation or appointment and qualification of their successors, if such appointment is made within the period of one year from February 25, 1986.

To further support this contention, petitioner cites this Court's ruling in Dario vs. Mison (176 SCRA 84 [1989]) wherein We held that:

By its terms, the authority to remove public officials

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under the Provisional Constitution ended on February 25, 1987, advanced by jurisprudence to February 2, 1987 . . .

Therefore, petitioner argues, the removal of respondents Mamplata, et al., on November 24, 1986 was valid because the same was effected before the expiration of the period above cited.

The argument is devoid of merit. In his narration of facts, petitioner himself admitted that private respondents' services were terminated pursuant to the reorganization and approval of the new staffing pattern of Calamba on November 3, 1986 (Rollo, pp. 4-5). Petitioner's argument to the effect that respondents were separated from the service by virtue of the Freedom Constitution or Executive Order No. 17 is palpably an afterthought. That is why when the respondents appealed their dismissal to the Inter-Agency Review Committee created under Executive Order No. 17, said Committee refused to take cognizance of said appeal on the ground that the dismissal was not made pursuant to the Freedom Constitution or Executive Order No. 17 and instead referred the case on appeal to the MSPB.

It is thus crystal clear that private respondents were not separated from the service based on Section 2, Article III of the Freedom Constitution or Executive Order No. 17 implementing the then basic law. On the contrary, their services were terminated as a "result of the reorganization and approval of the new staffing pattern of the municipality of Calamba on November 3, 1986" stated in the individual notices of termination served upon them by the then OIC Mayor.

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As aptly explained by the respondent Commission:

The first ground, raised by appellant Yulo is devoid of merit. He argued that the separation of said employees was in accordance with the Freedom Constitution of 1986 and the existing laws and jurisprudence on reorganization. It may be reiterated here that the main reason why the then inter-agency Review Committee refused to take cognizance of the instant case was because Mamplata et al. were not removed pursuant to Executive Order No. 17, Said Executive Order prescribed the rules and guidelines for the implementation of Section 2, Article III of the Freedom Constitution. This declaration on the part of the Committee, in essence, meant that said municipal employees were not separated from the service under the Freedom Constitution thereby negating the very foundation of Mayor Yulo's argument. Although, admittedly, there was a reorganization of the Municipal Government of Calamba, Laguna, reorganization per se does not serve as a license for the local chief executive to separate career municipal officials and employees whimsically and indiscriminately. "Reorganization is improper or invalid when effected without observing the prescribed priorities in retention and separation, and without making a fair, just and correct evaluation of the personnel concerned taking into account the relevant factors given" [ABACA, Sisinio, et al., CSC Resolution dated September 20, 1988] (CSC Resolution No. 89-939, p. 2; Rollo, p. 18; emphasis supplied).

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Petitioner Yulo's argument that private respondents were separated by virtue of the Freedom Constitution is therefore erroneous.

Not only that. As records further indicate, the MSPB found that there was no sufficient evidence to prove the guilt of private respondents. As to what were the charges levelled against the dismissed employees, petitioner Yulo could merely insinuate that some of said employees were of "questionable integrity". In support thereof, petitioner submitted sworn statements to that effect (Exhs. "F" to "M"; Rollo, pp. 42-56), belatedly dated either January 24 or 30, 1990.

It is glaringly obvious, therefore, that at the time private respondents were dismissed from the service on November 24, l986, there was no evidence to substantiate the claim of questionable integrity. Simply stated, respondents were removed without cause.

As this Court held in Dario v. Mison (supra):

At this point, we must distinguish removals from separations arising from abolition of office (not by virtue of the Constitution) as a result of reorganization carried out by reason of economy or to remove redundancy of operations. In the latter case, the Government is obliged to prove good faith. In case of removal undertaken to comply with clear and explicit constitutional mandates, the Government is not hard put to prove anything, plainly and simply because the Constitution allows it. (citing Ginson v. Municipality of Murcia, 157 SCRA 1 [1988] and other cases).

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Aside from petitioner's unproven allegation of "questionable integrity", neither has he shown that respondents herein were removed for cause much less that the supposed reorganization was undertaken on the ground of economy or redundancy. While there may be a decrease in the number of positions, i.e., from 285 to 266 as a result of the reorganization, the number of regular employees, on the other hand, increased from 231 to 263 brought about by the appointment of forty-eight (48) new employees. As found by the MSPB, the separated employees were holding permanent appointments at the time of their removal and as such, they enjoy preference in reappointment to a similar position in the new staffing pattern (Rollo, p. 21, citing CSC MC 5, s. 1988).

Be that as it may, it is undeniable that private respondents' employment with the municipality was unlawfully terminated. On this score alone, the dismissed employees ought to and must be reinstated. Illegal removal of career civil service employees in violation of their constitutional right to security of tenure will not be condoned under the guise of reorganization (Pari-an v. Civil Service Commission, 202 SCRA 772 [1991]).

Neither can we sustain petitioner's claim that the overt acts of Mamplata, et al. in filing their separation clearances and accepting terminal leave benefits estop them from further claiming reinstatement.

Incidentally, petitioner presented no evidence before the respondent Commission to prove that private respondents have actually received their separation benefits. It is only at this late instance when it opted to do so (Rollo, pp. 208-225).

In any event, receipt by private respondents of their

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separation benefits does not preclude them from assailing the termination of their services and praying for their reinstatements (Urgelio v. Osmeña, Jr., 10 SCRA 253 [1964].

Petitioner finally argues that if the separation of Mamplata, et al. be declared illegal, the consequent damage in the form of backwages among others, should be the personal liability of private respondent Elasigue and not the innocent taxpayers of Calamba, Laguna.

Petitioner's argument cannot be sustained. It is a rule in this jurisdiction that the government, whether national, provincial or municipal, shall be liable for the acts of its officers or agents only when such officers or agents had acted strictly within the scope of their authority as created, conferred and defined by law (See Mechem, Public Off. & Officers, Secs. 82, 829, 830, 834). However, a public official may be liable in his personal capacity for whatever damage he may have caused by his act done with malice and in bad faith, or beyond the scope of his authority or jurisdiction (Dumlao v. Court of Appeals, 114 SCRA 247 [1982]).

It is worth noting that respondent Elasigue terminated the subject employees as a result of the reorganization and approval of the new staffing pattern of the municipality by the Sangguniang Bayan of Calamba. Otherwise stated, Elasigue in terminating the services of respondent employees acted in his official capacity in the performance of his official duty. In the absence of any proof that a public officer has acted with malice or bad faith, he cannot be charged with personal liability for damages that may thereafter result (Mabutol v. Pascual, 124 SCRA 867 [1983]). Indeed, municipal officers are liable for damages if they act maliciously or wantonly, and if the work which they perform is done to injure an

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individual rather than to discharge a public duty (Rama v. Court of Appeals, 148 SCRA 496 [1987]). Such malice or bad faith on the part of a public officer in the performance of his duties must be shown persuasively.

WHEREFORE, the petition is DISMISSED for lack of merit. Accordingly, the Municipality of Calamba, Laguna is hereby ordered to REINSTATE the twenty (20) personnel named in CSC Resolution No. 90-472 and pay their backwages equivalent to five (5) years (Cristobal v. Melchor, 78 SCRA 175 [1977]; Ginzon v. Municipality of Murcia, 158 SCRA 1 [1988]) less the amount of terminal pay received, it appearing from private respondents manifestation dated January 11, 1993 that they are still jobless from the time of their removal from the service up to the present.

SO ORDERED.

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G.R. No. L-14639            March 25, 1919

ZACARIAS VILLAVICENCIO, ET AL., petitioners, vs.JUSTO LUKBAN, ET AL., respondents.

Alfonso Mendoza for petitioners.City Fiscal Diaz for respondents.

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MALCOLM, J.:

The annals of juridical history fail to reveal a case quite as remarkable as the one which this application for habeas corpus submits for decision. While hardly to be expected to be met with in this modern epoch of triumphant democracy, yet, after all, the cause presents no great difficulty if there is kept in the forefront of our minds the basic principles of popular government, and if we give expression to the paramount purpose for which the courts, as an independent power of such a government, were constituted. The primary question is — Shall the judiciary permit a government of the men instead of a government of laws to be set up in the Philippine Islands?

Omitting much extraneous matter, of no moment to these proceedings, but which might prove profitable reading for other departments of the government, the facts are these: The Mayor of the city of Manila, Justo Lukban, for the best of all reasons, to exterminate vice, ordered the segregated district for women of ill repute, which had been permitted for a number of years in the city of Manila, closed. Between October 16 and October 25, 1918, the women were kept confined to their houses in the district by the police. Presumably, during this period, the city authorities quietly perfected arrangements with the Bureau of Labor for sending the women to Davao, Mindanao, as laborers; with some government office for the use of the coastguard cutters Corregidor and Negros, and with the Constabulary for a guard of soldiers. At any rate, about midnight of October 25, the police, acting pursuant to orders from the chief of police, Anton Hohmann and the Mayor of the city of Manila, Justo Lukban, descended upon the houses, hustled some 170 inmates into patrol wagons, and placed them

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aboard the steamers that awaited their arrival. The women were given no opportunity to collect their belongings, and apparently were under the impression that they were being taken to a police station for an investigation. They had no knowledge that they were destined for a life in Mindanao. They had not been asked if they wished to depart from that region and had neither directly nor indirectly given their consent to the deportation. The involuntary guests were received on board the steamers by a representative of the Bureau of Labor and a detachment of Constabulary soldiers. The two steamers with their unwilling passengers sailed for Davao during the night of October 25.

The vessels reached their destination at Davao on October 29. The women were landed and receipted for as laborers by Francisco Sales, provincial governor of Davao, and by Feliciano Yñigo and Rafael Castillo. The governor and the hacendero Yñigo, who appear as parties in the case, had no previous notification that the women were prostitutes who had been expelled from the city of Manila. The further happenings to these women and the serious charges growing out of alleged ill-treatment are of public interest, but are not essential to the disposition of this case. Suffice it to say, generally, that some of the women married, others assumed more or less clandestine relations with men, others went to work in different capacities, others assumed a life unknown and disappeared, and a goodly portion found means to return to Manila.

To turn back in our narrative, just about the time the Corregidor and the Negros were putting in to Davao, the attorney for the relatives and friends of a considerable number of the deportees presented an application for habeas corpus to a member of the Supreme Court.

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Subsequently, the application, through stipulation of the parties, was made to include all of the women who were sent away from Manila to Davao and, as the same questions concerned them all, the application will be considered as including them. The application set forth the salient facts, which need not be repeated, and alleged that the women were illegally restrained of their liberty by Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, and by certain unknown parties. The writ was made returnable before the full court. The city fiscal appeared for the respondents, Lukban and Hohmann, admitted certain facts relative to sequestration and deportation, and prayed that the writ should not be granted because the petitioners were not proper parties, because the action should have been begun in the Court of First Instance for Davao, Department of Mindanao and Sulu, because the respondents did not have any of the women under their custody or control, and because their jurisdiction did not extend beyond the boundaries of the city of Manila. According to an exhibit attached to the answer of the fiscal, the 170 women were destined to be laborers, at good salaries, on the haciendas of Yñigo and Governor Sales. In open court, the fiscal admitted, in answer to question of a member of the court, that these women had been sent out of Manila without their consent. The court awarded the writ, in an order of November 4, that directed Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Francisco Sales, governor of the province of Davao, and Feliciano Yñigo, an hacendero of Davao, to bring before the court the persons therein named, alleged to be deprived of their liberty, on December 2, 1918.

Before the date mentioned, seven of the women had returned to Manila at their own expense. On motion of

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counsel for petitioners, their testimony was taken before the clerk of the Supreme Court sitting as commissioners. On the day named in the order, December 2nd, 1918, none of the persons in whose behalf the writ was issued were produced in court by the respondents. It has been shown that three of those who had been able to come back to Manila through their own efforts, were notified by the police and the secret service to appear before the court. The fiscal appeared, repeated the facts more comprehensively, reiterated the stand taken by him when pleading to the original petition copied a telegram from the Mayor of the city of Manila to the provincial governor of Davao and the answer thereto, and telegrams that had passed between the Director of Labor and the attorney for that Bureau then in Davao, and offered certain affidavits showing that the women were contained with their life in Mindanao and did not wish to return to Manila. Respondents Sales answered alleging that it was not possible to fulfill the order of the Supreme Court because the women had never been under his control, because they were at liberty in the Province of Davao, and because they had married or signed contracts as laborers. Respondent Yñigo answered alleging that he did not have any of the women under his control and that therefore it was impossible for him to obey the mandate. The court, after due deliberation, on December 10, 1918, promulgated a second order, which related that the respondents had not complied with the original order to the satisfaction of the court nor explained their failure to do so, and therefore directed that those of the women not in Manila be brought before the court by respondents Lukban, Hohmann, Sales, and Yñigo on January 13, 1919, unless the women should, in written statements voluntarily made before the judge of first instance of Davao or the clerk of that court, renounce the right, or unless the respondents should demonstrate some

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other legal motives that made compliance impossible. It was further stated that the question of whether the respondents were in contempt of court would later be decided and the reasons for the order announced in the final decision.

Before January 13, 1919, further testimony including that of a number of the women, of certain detectives and policemen, and of the provincial governor of Davao, was taken before the clerk of the Supreme Court sitting as commissioner and the clerk of the Court of First Instance of Davao acting in the same capacity. On January 13, 1919, the respondents technically presented before the Court the women who had returned to the city through their own efforts and eight others who had been brought to Manila by the respondents. Attorneys for the respondents, by their returns, once again recounted the facts and further endeavored to account for all of the persons involved in the habeas corpus. In substance, it was stated that the respondents, through their representatives and agents, had succeeded in bringing from Davao with their consent eight women; that eighty-one women were found in Davao who, on notice that if they desired they could return to Manila, transportation fee, renounced the right through sworn statements; that fifty-nine had already returned to Manila by other means, and that despite all efforts to find them twenty-six could not be located. Both counsel for petitioners and the city fiscal were permitted to submit memoranda. The first formally asked the court to find Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez and Fernando Ordax, members of the police force of the city of Manila, Feliciano Yñigo, an hacendero of Davao, Modesto Joaquin, the attorney for the Bureau of Labor, and Anacleto Diaz, fiscal of the city of Manila, in contempt of court. The city fiscal requested that the replica

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al memorandum de los recurridos, (reply to respondents' memorandum) dated January 25, 1919, be struck from the record.

In the second order, the court promised to give the reasons for granting the writ of habeas corpus in the final decision. We will now proceed to do so.

One fact, and one fact only, need be recalled — these one hundred and seventy women were isolated from society, and then at night, without their consent and without any opportunity to consult with friends or to defend their rights, were forcibly hustled on board steamers for transportation to regions unknown. Despite the feeble attempt to prove that the women left voluntarily and gladly, that such was not the case is shown by the mere fact that the presence of the police and the constabulary was deemed necessary and that these officers of the law chose the shades of night to cloak their secret and stealthy acts. Indeed, this is a fact impossible to refute and practically admitted by the respondents.

With this situation, a court would next expect to resolve the question — By authority of what law did the Mayor and the Chief of Police presume to act in deporting by duress these persons from Manila to another distant locality within the Philippine Islands? We turn to the statutes and we find —

Alien prostitutes can be expelled from the Philippine Islands in conformity with an Act of congress. The Governor-General can order the eviction of undesirable aliens after a hearing from the Islands. Act No. 519 of the Philippine Commission and section 733 of the Revised Ordinances of the city of Manila provide for the conviction and punishment by a court of justice of any person who is a common prostitute. Act No.

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899 authorizes the return of any citizen of the United States, who may have been convicted of vagrancy, to the homeland. New York and other States have statutes providing for the commitment to the House of Refuge of women convicted of being common prostitutes. Always a law! Even when the health authorities compel vaccination, or establish a quarantine, or place a leprous person in the Culion leper colony, it is done pursuant to some law or order. But one can search in vain for any law, order, or regulation, which even hints at the right of the Mayor of the city of Manila or the chief of police of that city to force citizens of the Philippine Islands — and these women despite their being in a sense lepers of society are nevertheless not chattels but Philippine citizens protected by the same constitutional guaranties as are other citizens — to change their domicile from Manila to another locality. On the contrary, Philippine penal law specifically punishes any public officer who, not being expressly authorized by law or regulation, compels any person to change his residence.

In other countries, as in Spain and Japan, the privilege of domicile is deemed so important as to be found in the Bill of Rights of the Constitution. Under the American constitutional system, liberty of abode is a principle so deeply imbedded in jurisprudence and considered so elementary in nature as not even to require a constitutional sanction. Even the Governor-General of the Philippine Islands, even the President of the United States, who has often been said to exercise more power than any king or potentate, has no such arbitrary prerogative, either inherent or express. Much less, therefore, has the executive of a municipality, who acts within a sphere of delegated powers. If the mayor and the chief of police could, at their mere behest or even for the most praiseworthy of motives, render the liberty of the citizen so

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insecure, then the presidents and chiefs of police of one thousand other municipalities of the Philippines have the same privilege. If these officials can take to themselves such power, then any other official can do the same. And if any official can exercise the power, then all persons would have just as much right to do so. And if a prostitute could be sent against her wishes and under no law from one locality to another within the country, then officialdom can hold the same club over the head of any citizen.

Law defines power. Centuries ago Magna Charta decreed that — "No freeman shall be taken, or imprisoned, or be disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we pass upon him nor condemn him, but by lawful judgment of his peers or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right." (Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1 eng. stat. at Large, 7.) No official, no matter how high, is above the law. The courts are the forum which functionate to safeguard individual liberty and to punish official transgressors. "The law," said Justice Miller, delivering the opinion of the Supreme Court of the United States, "is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives." (U.S. vs. Lee [1882], 106 U.S., 196, 220.) "The very idea," said Justice Matthews of the same high tribunal in another case, "that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself."

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(Yick Wo vs. Hopkins [1886], 118 U.S., 356, 370.) All this explains the motive in issuing the writ of habeas corpus, and makes clear why we said in the very beginning that the primary question was whether the courts should permit a government of men or a government of laws to be established in the Philippine Islands.

What are the remedies of the unhappy victims of official oppression? The remedies of the citizen are three: (1) Civil action; (2) criminal action, and (3) habeas corpus.

The first is an optional but rather slow process by which the aggrieved party may recoup money damages. It may still rest with the parties in interest to pursue such an action, but it was never intended effectively and promptly to meet any such situation as that now before us.

As to criminal responsibility, it is true that the Penal Code in force in these Islands provides:

Any public officer not thereunto authorized by law or by regulations of a general character in force in the Philippines who shall banish any person to a place more than two hundred kilometers distant from his domicile, except it be by virtue of the judgment of a court, shall be punished by a fine of not less than three hundred and twenty-five and not more than three thousand two hundred and fifty pesetas.

Any public officer not thereunto expressly authorized by law or by regulation of a general character in force in the Philippines who shall compel any person to change his domicile or residence shall suffer the penalty of destierro and a fine of not less than six hundred and twenty-five and not more than six thousand two hundred

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and fifty pesetas. (Art. 211.)

We entertain no doubt but that, if, after due investigation, the proper prosecuting officers find that any public officer has violated this provision of law, these prosecutors will institute and press a criminal prosecution just as vigorously as they have defended the same official in this action. Nevertheless, that the act may be a crime and that the persons guilty thereof can be proceeded against, is no bar to the instant proceedings. To quote the words of Judge Cooley in a case which will later be referred to — "It would be a monstrous anomaly in the law if to an application by one unlawfully confined, ta be restored to his liberty, it could be a sufficient answer that the confinement was a crime, and therefore might be continued indefinitely until the guilty party was tried and punished therefor by the slow process of criminal procedure." (In the matter of Jackson [1867], 15 Mich., 416, 434.) The writ of habeas corpus was devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom. Any further rights of the parties are left untouched by decision on the writ, whose principal purpose is to set the individual at liberty.

Granted that habeas corpus is the proper remedy, respondents have raised three specific objections to its issuance in this instance. The fiscal has argued (l) that there is a defect in parties petitioners, (2) that the Supreme Court should not a assume jurisdiction, and (3) that the person in question are not restrained of their liberty by respondents. It was finally suggested that the jurisdiction of the Mayor and the chief of police of the city of Manila only extends to the city limits and that perforce they could not bring the women from Davao.

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The first defense was not presented with any vigor by counsel. The petitioners were relatives and friends of the deportees. The way the expulsion was conducted by the city officials made it impossible for the women to sign a petition for habeas corpus. It was consequently proper for the writ to be submitted by persons in their behalf. (Code of Criminal Procedure, sec. 78; Code of Civil Procedure, sec. 527.) The law, in its zealous regard for personal liberty, even makes it the duty of a court or judge to grant a writ of habeas corpus if there is evidence that within the court's jurisdiction a person is unjustly imprisoned or restrained of his liberty, though no application be made therefor. (Code of Criminal Procedure, sec. 93.) Petitioners had standing in court.

The fiscal next contended that the writ should have been asked for in the Court of First Instance of Davao or should have been made returnable before that court. It is a general rule of good practice that, to avoid unnecessary expense and inconvenience, petitions for habeas corpus should be presented to the nearest judge of the court of first instance. But this is not a hard and fast rule. The writ of habeas corpus may be granted by the Supreme Court or any judge thereof enforcible anywhere in the Philippine Islands. (Code of Criminal Procedure, sec. 79; Code of Civil Procedure, sec. 526.) Whether the writ shall be made returnable before the Supreme Court or before an inferior court rests in the discretion of the Supreme Court and is dependent on the particular circumstances. In this instance it was not shown that the Court of First Instance of Davao was in session, or that the women had any means by which to advance their plea before that court. On the other hand, it was shown that the petitioners with their attorneys, and the two original respondents with their attorney, were in Manila; it was shown that the case involved parties situated in different

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parts of the Islands; it was shown that the women might still be imprisoned or restrained of their liberty; and it was shown that if the writ was to accomplish its purpose, it must be taken cognizance of and decided immediately by the appellate court. The failure of the superior court to consider the application and then to grant the writ would have amounted to a denial of the benefits of the writ.

The last argument of the fiscal is more plausible and more difficult to meet. When the writ was prayed for, says counsel, the parties in whose behalf it was asked were under no restraint; the women, it is claimed, were free in Davao, and the jurisdiction of the mayor and the chief of police did not extend beyond the city limits. At first blush, this is a tenable position. On closer examination, acceptance of such dictum is found to be perversive of the first principles of the writ of habeas corpus.

A prime specification of an application for a writ of habeas corpus is restraint of liberty. 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. The forcible taking of these women from Manila by officials of that city, who handed them over to other parties, who deposited them in a distant region, deprived these women of freedom of locomotion just as effectively as if they had been imprisoned. Placed in Davao without either money or personal belongings, they were prevented from exercising the liberty of going when and where they pleased. The restraint of liberty which began in Manila continued until the aggrieved parties were returned to Manila and released or until they freely and truly waived his right.

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Consider for a moment what an agreement with such a defense would mean. The chief executive of any municipality in the Philippines could forcibly and illegally take a private citizen and place him beyond the boundaries of the municipality, and then, when called upon to defend his official action, could calmly fold his hands and claim that the person was under no restraint and that he, the official, had no jurisdiction over this other municipality. We believe the true principle should be that, if the respondent is within the jurisdiction of the court and has it in his power to obey the order of the court and thus to undo the wrong that he has inflicted, he should be compelled to do so. Even if the party to whom the writ is addressed has illegally parted with the custody of a person before the application for the writ is no reason why the writ should not issue. If the mayor and the chief of police, acting under no authority of law, could deport these women from the city of Manila to Davao, the same officials must necessarily have the same means to return them from Davao to Manila. The respondents, within the reach of process, may not be permitted to restrain a fellow citizen of her liberty by forcing her to change her domicile and to avow the act with impunity in the courts, while the person who has lost her birthright of liberty has no effective recourse. The great writ of liberty may not thus be easily evaded.

It must be that some such question has heretofore been presented to the courts for decision. Nevertheless, strange as it may seem, a close examination of the authorities fails to reveal any analogous case. Certain decisions of respectable courts are however very persuasive in nature.

A question came before the Supreme Court of the State of Michigan at an early date as to whether or not a writ of

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habeas corpus would issue from the Supreme Court to a person within the jurisdiction of the State to bring into the State a minor child under guardianship in the State, who has been and continues to be detained in another State. The membership of the Michigan Supreme Court at this time was notable. It was composed of Martin, chief justice, and Cooley, Campbell, and Christiancy, justices. On the question presented the court was equally divided. Campbell, J., with whom concurred Martin, C. J., held that the writ should be quashed. Cooley, J., one of the most distinguished American judges and law-writers, with whom concurred Christiancy, J., held that the writ should issue. Since the opinion of Justice Campbell was predicated to a large extent on his conception of the English decisions, and since, as will hereafter appear, the English courts have taken a contrary view, only the following eloquent passages from the opinion of Justice Cooley are quoted:

I have not yet seen sufficient reason to doubt the power of this court to issue the present writ on the petition which was laid before us. . . .

It would be strange indeed if, at this late day, after the eulogiums of six centuries and a half have been expended upon the Magna Charta, and rivers of blood shed for its establishment; after its many confirmations, until Coke could declare in his speech on the petition of right that "Magna Charta was such a fellow that he will have no sovereign," and after the extension of its benefits and securities by the petition of right, bill of rights and habeas corpus acts, it should now be discovered that evasion of that great clause for the protection of personal liberty, which is the life and soul of the whole instrument, is so easy as is claimed here. If

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it is so, it is important that it be determined without delay, that the legislature may apply the proper remedy, as I can not doubt they would, on the subject being brought to their notice. . . .

The second proposition — that the statutory provisions are confined to the case of imprisonment within the state — seems to me to be based upon a misconception as to the source of our jurisdiction. It was never the case in England that the court of king's bench derived its jurisdiction to issue and enforce this writ from the statute. Statutes were not passed to give the right, but to compel the observance of rights which existed. . . .

The important fact to be observed in regard to the mode of procedure upon this writ is, that it is directed to and served upon, not the person confined, but his jailor. It does not reach the former except through the latter. The officer or person who serves it does not unbar the prison doors, and set the prisoner free, but the court relieves him by compelling the oppressor to release his constraint. The whole force of the writ is spent upon the respondent, and if he fails to obey it, the means to be resorted to for the purposes of compulsion are fine and imprisonment. This is the ordinary mode of affording relief, and if any other means are resorted to, they are only auxiliary to those which are usual. The place of confinement is, therefore, not important to the relief, if the guilty party is within reach of process, so that by the power of the court he can be compelled to release his grasp. The difficulty of affording redress is not increased by the confinement being beyond the limits of the state, except as greater distance may affect it. The important

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question is, where the power of control exercised? And I am aware of no other remedy. (In the matter of Jackson [1867], 15 Mich., 416.)

The opinion of Judge Cooley has since been accepted as authoritative by other courts. (Rivers vs. Mitchell [1881], 57 Iowa, 193; Breene vs. People [1911], Colo., 117 Pac. Rep., 1000; Ex parte Young [1892], 50 Fed., 526.)

The English courts have given careful consideration to the subject. Thus, a child had been taken out of English by the respondent. A writ of habeas corpus was issued by the Queen's Bench Division upon the application of the mother and her husband directing the defendant to produce the child. The judge at chambers gave defendant until a certain date to produce the child, but he did not do so. His return stated that the child before the issuance of the writ had been handed over by him to another; that it was no longer in his custody or control, and that it was impossible for him to obey the writ. He was found in contempt of court. On appeal, the court, through Lord Esher, M. R., said:

A writ of habeas corpus was ordered to issue, and was issued on January 22. That writ commanded the defendant to have the body of the child before a judge in chambers at the Royal Courts of Justice immediately after the receipt of the writ, together with the cause of her being taken and detained. That is a command to bring the child before the judge and must be obeyed, unless some lawful reason can be shown to excuse the nonproduction of the child. If it could be shown that by reason of his having lawfully parted with the possession of the child before the issuing of the writ, the defendant had no longer power to produce the child, that might be an answer; but in the absence of any lawful reason he is

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bound to produce the child, and, if he does not, he is in contempt of the Court for not obeying the writ without lawful excuse. Many efforts have been made in argument to shift the question of contempt to some anterior period for the purpose of showing that what was done at some time prior to the writ cannot be a contempt. But the question is not as to what was done before the issue of the writ. The question is whether there has been a contempt in disobeying the writ it was issued by not producing the child in obedience to its commands. (The Queen vs. Bernardo [1889], 23 Q. B. D., 305. See also to the same effect the Irish case of In re Matthews, 12 Ir. Com. Law Rep. [N. S.], 233; The Queen vs. Barnardo, Gossage's Case [1890], 24 Q. B. D., 283.)

A decision coming from the Federal Courts is also of interest. A habeas corpus was directed to the defendant to have before the circuit court of the District of Columbia three colored persons, with the cause of their detention. Davis, in his return to the writ, stated on oath that he had purchased the negroes as slaves in the city of Washington; that, as he believed, they were removed beyond the District of Columbia before the service of the writ of habeas corpus, and that they were then beyond his control and out of his custody. The evidence tended to show that Davis had removed the negroes because he suspected they would apply for a writ of habeas corpus. The court held the return to be evasive and insufficient, and that Davis was bound to produce the negroes, and Davis being present in court, and refusing to produce them, ordered that he be committed to the custody of the marshall until he should produce the negroes, or be otherwise discharged in due course of law. The court afterwards ordered that Davis be released upon

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the production of two of the negroes, for one of the negroes had run away and been lodged in jail in Maryland. Davis produced the two negroes on the last day of the term. (United States vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas. No. 14926. See also Robb vs. Connolly [1883], 111 U.S., 624; Church on Habeas, 2nd ed., p. 170.)

We find, therefore, both on reason and authority, that no one of the defense offered by the respondents constituted a legitimate bar to the granting of the writ of habeas corpus.

There remains to be considered whether the respondent complied with the two orders of the Supreme Court awarding the writ of habeas corpus, and if it be found that they did not, whether the contempt should be punished or be taken as purged.

The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and Feliciano Yñigo to present the persons named in the writ before the court on December 2, 1918. The order was dated November 4, 1918. The respondents were thus given ample time, practically one month, to comply with the writ. As far as the record discloses, the Mayor of the city of Manila waited until the 21st of November before sending a telegram to the provincial governor of Davao. According to the response of the attorney for the Bureau of Labor to the telegram of his chief, there were then in Davao women who desired to return to Manila, but who should not be permitted to do so because of having contracted debts. The half-hearted effort naturally resulted in none of the parties in question being brought before the court on the day named.

For the respondents to have fulfilled the court's order, three optional courses were open: (1) They could have produced

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the bodies of the persons according to the command of the writ; or (2) they could have shown by affidavit that on account of sickness or infirmity those persons could not safely be brought before the court; or (3) they could have presented affidavits to show that the parties in question or their attorney waived the right to be present. (Code of Criminal Procedure, sec. 87.) They did not produce the bodies of the persons in whose behalf the writ was granted; they did not show impossibility of performance; and they did not present writings that waived the right to be present by those interested. Instead a few stereotyped affidavits purporting to show that the women were contended with their life in Davao, some of which have since been repudiated by the signers, were appended to the return. That through ordinary diligence a considerable number of the women, at least sixty, could have been brought back to Manila is demonstrated to be found in the municipality of Davao, and that about this number either returned at their own expense or were produced at the second hearing by the respondents.

The court, at the time the return to its first order was made, would have been warranted summarily in finding the respondents guilty of contempt of court, and in sending them to jail until they obeyed the order. Their excuses for the non-production of the persons were far from sufficient. The, authorities cited herein pertaining to somewhat similar facts all tend to indicate with what exactitude a habeas corpus writ must be fulfilled. For example, in Gossage's case, supra, the Magistrate in referring to an earlier decision of the Court, said: "We thought that, having brought about that state of things by his own illegal act, he must take the consequences; and we said that he was bound to use every effort to get the child back; that he must do much more than

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write letters for the purpose; that he must advertise in America, and even if necessary himself go after the child, and do everything that mortal man could do in the matter; and that the court would only accept clear proof of an absolute impossibility by way of excuse." In other words, the return did not show that every possible effort to produce the women was made by the respondents. That the court forebore at this time to take drastic action was because it did not wish to see presented to the public gaze the spectacle of a clash between executive officials and the judiciary, and because it desired to give the respondents another chance to demonstrate their good faith and to mitigate their wrong.

In response to the second order of the court, the respondents appear to have become more zealous and to have shown a better spirit. Agents were dispatched to Mindanao, placards were posted, the constabulary and the municipal police joined in rounding up the women, and a steamer with free transportation to Manila was provided. While charges and counter-charges in such a bitterly contested case are to be expected, and while a critical reading of the record might reveal a failure of literal fulfillment with our mandate, we come to conclude that there is a substantial compliance with it. Our finding to this effect may be influenced somewhat by our sincere desire to see this unhappy incident finally closed. If any wrong is now being perpetrated in Davao, it should receive an executive investigation. If any particular individual is still restrained of her liberty, it can be made the object of separate habeas corpus proceedings.

Since the writ has already been granted, and since we find a substantial compliance with it, nothing further in this connection remains to be done.

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The attorney for the petitioners asks that we find in contempt of court Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez, and Fernando Ordax, members of the police force of the city of Manila, Modesto Joaquin, the attorney for the Bureau of Labor, Feliciano Yñigo, an hacendero of Davao, and Anacleto Diaz, Fiscal of the city of Manila.

The power to punish for contempt of court should be exercised on the preservative and not on the vindictive principle. Only occasionally should the court invoke its inherent power in order to retain that respect without which the administration of justice must falter or fail. Nevertheless when one is commanded to produce a certain person and does not do so, and does not offer a valid excuse, a court must, to vindicate its authority, adjudge the respondent to be guilty of contempt, and must order him either imprisoned or fined. An officer's failure to produce the body of a person in obedience to a writ of habeas corpus when he has power to do so, is a contempt committed in the face of the court. (Ex parte Sterns [1888], 77 Cal., 156; In re Patterson [1888], 99 N. C., 407.)

With all the facts and circumstances in mind, and with judicial regard for human imperfections, we cannot say that any of the respondents, with the possible exception of the first named, has flatly disobeyed the court by acting in opposition to its authority. Respondents Hohmann, Rodriguez, Ordax, and Joaquin only followed the orders of their chiefs, and while, under the law of public officers, this does not exonerate them entirely, it is nevertheless a powerful mitigating circumstance. The hacendero Yñigo appears to have been drawn into the case through a misconstruction by counsel of telegraphic communications.

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The city fiscal, Anacleto Diaz, would seem to have done no more than to fulfill his duty as the legal representative of the city government. Finding him innocent of any disrespect to the court, his counter-motion to strike from the record the memorandum of attorney for the petitioners, which brings him into this undesirable position, must be granted. When all is said and done, as far as this record discloses, the official who was primarily responsible for the unlawful deportation, who ordered the police to accomplish the same, who made arrangements for the steamers and the constabulary, who conducted the negotiations with the Bureau of Labor, and who later, as the head of the city government, had it within his power to facilitate the return of the unfortunate women to Manila, was Justo Lukban, the Mayor of the city of Manila. His intention to suppress the social evil was commendable. His methods were unlawful. His regard for the writ of habeas corpus issued by the court was only tardily and reluctantly acknowledged.

It would be possible to turn to the provisions of section 546 of the Code of Civil Procedure, which relates to the penalty for disobeying the writ, and in pursuance thereof to require respondent Lukban to forfeit to the parties aggrieved as much as P400 each, which would reach to many thousands of pesos, and in addition to deal with him as for a contempt. Some members of the court are inclined to this stern view. It would also be possible to find that since respondent Lukban did comply substantially with the second order of the court, he has purged his contempt of the first order. Some members of the court are inclined to this merciful view. Between the two extremes appears to lie the correct finding. The failure of respondent Lukban to obey the first mandate of the court tended to belittle and embarrass the administration of justice to such an extent that his later

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activity may be considered only as extenuating his conduct. A nominal fine will at once command such respect without being unduly oppressive — such an amount is P100.

In resume — as before stated, no further action on the writ of habeas corpus is necessary. The respondents Hohmann, Rodriguez, Ordax, Joaquin, Yñigo, and Diaz are found not to be in contempt of court. Respondent Lukban is found in contempt of court and shall pay into the office of the clerk of the Supreme Court within five days the sum of one hundred pesos (P100). The motion of the fiscal of the city of Manila to strike from the record the Replica al Memorandum de los Recurridos of January 25, 1919, is granted. Costs shall be taxed against respondents. So ordered.

In concluding this tedious and disagreeable task, may we not be permitted to express the hope that this decision may serve to bulwark the fortifications of an orderly government of laws and to protect individual liberty from illegal encroachment.

Arellano, C.J., Avanceña and Moir, JJ., concur.Johnson, and Street, JJ., concur in the result.

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i [1] Rollo, pp. 44-67. Penned by Associate Justice Cancio C. Garcia, with Associate Justices B.A. Adefuin-De la Cruz, and Renato C. Dacudao concurring.

ii [2] CA Rollo, pp. 140-175.

iii [3] Supra, note 1 at 408. Penned by Associate Justice Cancio C. Garcia, with Associate Justices B.A. Adefuin-De la Cruz, and Renato C. Dacudao, concurring.

iv [4] Id. at 69.

v [5] Id. at 96.

vi [6] Id. at 92.