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Exceptions Curative Laws

EN BANC

[G.R. No. 120295. June 28, 1996]

JUAN G. FRIVALDO, petitioner, vs. COMMISSION ON ELECTIONS, and RAUL R. LEE, respondents.

[G.R. No. 123755. June 28, 1996]

RAUL R. LEE, petitioner, vs. COMMISSION ON ELECTIONS and JUAN G. FRIVALDO, respondents.

DECISION

PANGANIBAN, J.:

The ultimate question posed before this Court in these twin cases is: Who should be declared the rightful governor of Sorsogon

(i) Juan G. Frivaldo, who unquestionably obtained the highest number of votes in three successive elections but who was twice declared by this Court to be disqualified to hold such office due to his alien citizenship, and who now claims to have re-assumed his lost Philippine citizenship thru repatriation;

(ii) Raul R. Lee, who was the second placer in the canvass, but who claims that the votes cast in favor of Frivaldo should be considered void; that the electorate should be deemed to have intentionally thrown away their ballots; and that legally, he secured the most number of valid votes; or

(iii) The incumbent Vice-Governor, Oscar G. Deri, who obviously was not voted directly to the position of governor, but who according to prevailing jurisprudence should take over the said post inasmuch as, by the ineligibility of Frivaldo, a "permanent vacancy in the contested office has occurred"?

In ruling for Frivaldo, the Court lays down new doctrines on repatriation, clarifies/reiterates/amplifies existing jurisprudence on citizenship and elections, and upholds the superiority of substantial justice over pure legalisms.

G.R. No. 123755. This is a special civil action under Rules 65 and 58 of the Rules of Court for certiorari and preliminary injunction to review and annul a Resolution of the respondent Commission on Elections (Comelec), First Division,1 promulgated on December 19,19952 and another Resolution of the Comelec en bane promulgated February 23, 19963 denying petitioner's motion for reconsideration.

The Facts

On March 20, 1995, private respondent Juan G. Frivaldo filed his Certificate of Candidacy for the office of Governor of Sorsogon in the May 8, 1995 elections. On March 23, 1995, petitioner Raul R. Lee, another candidate, filed a petition4 with the Comelec docketed as SPA No. 95-028 praying that Frivaldo "be disqualified from seeking or holding any public office or position by reason of not yet being a citizen of the Philippines," and that his Certificate of Candidacy be cancelled. On May 1, 1995, the Second Division of the Comelec promulgated a Resolution5 granting the petition with the following disposition:6

"WHEREFORE, this Division resolves to GRANT the petition and declares that respondent is DISQUALIFIED to run for the Office of Governor of Sorsogon on the ground that he is NOT a citizen of the Philippines. Accordingly, respondent's certificate of candidacy is cancelled."

The Motion for Reconsideration filed by Frivaldo remained unacted upon until after the May 8, 1995 elections. So, his candidacy continued and he was voted for during the elections held on said date. On May 11, 1995, the Comelec en banc7 affirmed the aforementioned Resolution of the Second Division.

The Provincial Board of Canvassers completed the canvass of the election returns and a Certificate of Votes8.dated May 27, 1995 was issued showing the following votes obtained by the candidates for the position of Governor of Sorsogon:

Antonio H. Escudero, Jr.

51,060

Juan G. Frivaldo

73,440

RaulR.Lee

53,304

Isagani P. Ocampo

1,925

On June 9, 1995, Lee filed in said SPA No. 95-028, a (supplemental) petition9 praying for his proclamation as the duly-elected Governor of Sorsogon.

In an order10 dated June 21, 1995, but promulgated according to the petition "only on June 29, 1995," the Comelec en bane directed "the Provincial Board of Canvassers of Sorsogon to reconvene for the purpose of proclaiming candidate Raul Lee as the winning gubernatorial candidate in the province of Sorsogon on June 29,1995 x x x." Accordingly, at 8:30 in the evening of June 30,1995, Lee was proclaimed governor of Sorsogon.

On July 6, 1995, Frivaldo filed with the Comelec a new petition,11 docketed as SPC No. 95-317, praying for the annulment of the June 30, 1995 proclamation of Lee and for his own proclamation. He alleged that on June 30, 1995, at 2:00 in the afternoon, he took his oath of allegiance as a citizen of the Philippines after "his petition for repatriation under P.D. 725 which he filed with the Special Committee on Naturalization in September 1994 had been granted." As such, when "the said order (dated June 21, 1995) (of the Comelec) x x x was released and received by Frivaldo on June 30, 1995 at 5:30 o'clock in the evening, there was no more legal impediment to the proclamation (of Frivaldo) as governor x x x." In the alternative, he averred that pursuant to the two cases of Labo vs. Comelec,12 the Vice-Governor not Lee should occupy said position of governor.

On December 19, 1995, the Comelec First Division promulgated the herein assailed Resolution13 holding that Lee, "not having garnered the highest number of votes," was not legally entitled to be proclaimed as duly-

elected governor; and that Frivaldo, "having garnered the highest number of votes, and xxx having reacquired his Filipino citizenship by repatriation on June 30, 1995 under the provisions of Presidential Decree No. 725 xxx (is) qualified to hold the office of governor of Sorsogon"; thus:

"PREMISES CONSIDERED, the Commission (First Division), therefore RESOLVES to GRANT the Petition.

Consistent with the decisions of the Supreme Court, the proclamation of Raul R. Lee as Governor of Sorsogon is hereby ordered annulled, being contrary to law, he not having garnered the highest number of votes to warrant his proclamation.

Upon the finality of the annulment of the proclamation of Raul R. Lee, the Provincial Board of Canvassers is directed to immediately reconvene and, on the basis of the completed canvass, proclaim petitioner Juan G. Frivaldo as the duly elected Governor of Sorsogon having garnered the highest number of votes, and he having reacquired his Filipino citizenship by repatriation on June 30,1995 under the provisions of Presidential Decree No. 725 and, thus, qualified to hold the office of Governor of Sorsogon.

Conformably with Section 260 of the Omnibus Election Code (B.P. Blg. 881), the Clerk of the Commission is directed to notify His Excellency the President of the Philippines, and the Secretary of the Sangguniang Panlalawigan of the Province of Sorsogon of this resolution immediately upon the due implementation thereof." On December 26,1995, Lee filed a motion for reconsideration which was denied by the Comelec en banc in its Resolution14 promulgated on February 23, 1996. On February 26, 1996, the present petition was filed. Acting on the prayer for a temporary restraining order, this Court issued on February 27, 1996 a Resolution which inter alia directed the parties "to maintain the status quo prevailing prior to the filing of this petition."

The Issues in G.R. No. 123755

Petitioner Lee's "position on the matter at hand briefly be capsulized in the following propositions":15

"First - The initiatory petition below was so far insufficient in form and substance to warrant the exercise by the COMELEC of its jurisdiction with the result that, in effect, the COMELEC acted without jurisdiction in taking cognizance of and deciding said petition;

Second- The judicially declared disqualification of respondent was a continuing condition and rendered him ineligible to run for, to be elected to and to hold the Office of Governor;

Third - The alleged repatriation of respondent was neither valid nor is the effect thereof retroactive as to cure his ineligibility and qualify him to hold the Office of Governor; and

Fourth - Correctly read and applied, the Labo Doctrine fully supports the validity of petitioner's proclamation as duly elected Governor of Sorsogon."

G.R. No. 120295

This is a petition to annul three Resolutions of the respondent Comelec, the first two of which are also at issue in G.R. No. 123755, as follows:

1. Resolution16 of the Second Division, promulgated on May 1, 1995, disqualifying Frivaldo from running for governor of Sorsogon in the May 8, 1995 elections "on the ground that he is not a citizen of the Philippines";

2. Resolution17 of the Comelec en bane, promulgated on May 11, 1995; and

3. Resolution18 of the Comelec en bane, promulgated also on May 11, 1995 suspending the proclamation of, among others, Frivaldo.

The Facts and the Issue

The facts of this case are essentially the same as those in G.R. No. 123755. However, Frivaldo assails the abovementioned resolutions on a different ground: that under Section 78 of the Omnibus Election Code, which is reproduced hereinunder:

"Section 78. Petition to deny due course or to cancel a certificate of candidacy. A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after notice and hearing, not later than fifteen days before the election." (Italics supplied.)

the Comelec had no jurisdiction to issue said Resolutions because they were not rendered "within the period allowed by law," i.e., "not later than fifteen days before the election."

Otherwise stated, Frivaldo contends that the failure of the Comelec to act on the petition for disqualification within the period of fifteen days prior to the election as provided by law is a jurisdictional defect which renders the said Resolutions null and void.

By Resolution on March 12, 1996, the Court consolidated G.R. Nos. 120295 and 123755 since they are intimately related in their factual environment and are identical in the ultimate question raised, viz., who should occupy the position of governor of the province of Sorsogon.

On March 19, 1995, the Court heard oral argument from the parties and required them thereafter to file simultaneously their respective memoranda.

The Consolidated Issues

From the foregoing submissions, the consolidated issues may be restated as follows:

1. Was the repatriation of Frivaldo valid and legal? If so, did it seasonably cure his lack of citizenship as to qualify him to be proclaimed and to hold the Office of Governor? If not, may it be given retroactive effect? If so, from when?

2. Is Frivaldo's "judicially declared" disqualification for lack of Filipino citizenship a continuing bar to his eligibility to run for, be elected to or hold the governorship of Sorsogon?

3. Did the respondent Comelec have jurisdiction over the initiatory petition in SPC No. 95-317 considering that : said petition is not "a pre-proclamation case, an election protest or a quo warranto case"?

4. Was the proclamation of Lee, a runner-up in the election, valid and legal in light of existing jurisprudence?

5. Did the respondent Commission on Elections exceed its jurisdiction in promulgating the assailed Resolutions, all of which prevented Frivaldo from assuming the governorship of Sorsogon, considering that they were not rendered within ( the period referred to in Section 78 of the Omnibus Election Code, viz., "not later than fifteen days before the elections"?

The First Issue: Frivaldo's Repatriation

The validity and effectivity of Frivaldo's repatriation is the lis mota, the threshold legal issue in this case. All the other matters raised are secondary to this.

The Local Government Code of 199119 expressly requires Philippine citizenship as a qualification for elective local officials, including that of provincial governor, thus:

"Sec. 39. Qualifications. (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect.

(b) Candidates for the position of governor, vice governor or member of the sangguniang panlalawigan, or mayor, vice mayor or member of the sangguniang panlungsod of highly urbanized cities must be at least twentythree (23) years of age on election day.

xxx

xxx

xxx

Inasmuch as Frivaldo had been declared by this Court20 as a non-citizen, it is therefore incumbent upon him to show that he has reacquired citizenship; in fine, that he possesses the qualifications prescribed under the said statute (R. A. 7160).

Under Philippine law,21 citizenship may be reacquired by direct act of Congress, by naturalization or by repatriation. Frivaldo told this Court in G.R. No. 10465422 and during the oral argument in this case that he tried to resume his citizenship by direct act of Congress, but that the bill allowing him to do so "failed to materialize, notwithstanding the endorsement of several members of the House of Representatives" due, according to him, to the "maneuvers of his political rivals." In the same case, his attempt at naturalization was rejected by this Court because of jurisdictional, substantial and procedural defects.

Despite his lack of Philippine citizenship, Frivaldo was overwhelmingly elected governor by the electorate of Sorsogon, with a margin of 27,000 votes in the 1988 elections, 57,000 in 1992, and 20,000 in 1995 over the same opponent Raul Lee. Twice, he was judicially declared a non-Filipino and thus twice disqualified from holding and discharging his popular mandate. Now, he comes to us a third time, with a fresh vote from the people of Sorsogon and a favorable decision from the Commission on Elections to boot. Moreover, he now boasts of having successfully passed through the third and last mode of reacquiring citizenship: by repatriation under P.D. No. 725, with no less than the Solicitor General himself, who was the prime opposing counsel in the previous cases he lost, this time, as counsel for co-respondent Comelec, arguing the validity of his cause (in addition to his able private counsel Sixto S. Brillantes, Jr.). That he took his oath of allegiance under the provisions of said Decree at 2:00 p.m. on June 30, 1995 is not disputed. Hence, he insists that henot Leeshould have been proclaimed as the duly-elected governor of Sorsogon when the Provincial Board of Canvassers met at 8:30 p.m. on the said date since, clearly and unquestionably, he garnered the highest number of votes in the elections and since at that time, he already reacquired his citizenship.

En contrario, Lee argues that Frivaldo's repatriation is tainted ; with serious defects, which we shall now discuss in seriatim.

First, Lee tells us that P.D. No. 725 had "been effectively repealed," asserting that "then President Corazon Aquino exercising legislative powers under the Transitory Provisions of the 1987 Constitution, forbade the grant of citizenship by Presidential Decree or Executive Issuances as the same poses a serious and contentious issue of policy which the present government, in the exercise of prudence and sound discretion, should best leave to the judgment of the first Congress under the 1987 Constitution," adding that in her memorandum dated March 27,1987 to the members of the Special Committee on Naturalization constituted for purposes of Presidential Decree No. 725, President Aquino directed them "to cease and desist from undertaking any and all proceedings

within your functional area of responsibility as defined under Letter of Instructions (LOI) No. 270 dated April 11, 1975, as amended."23

This memorandum dated March 27, 198724 cannot by any stretch of legal hermeneutics be construed as a law sanctioning or authorizing a repeal of P.D. No. 725. Laws are repealed only by subsequent ones25 and a repeal may be express or implied. It is obvious that no express repeal was made because then President Aquino in her memorandum based on the copy furnished us by Lee did not categorically and/or impliedly state that P.D. 725 was being repealed or was being rendered without any legal effect. In fact, she did not even mention it specifically by its number or text. On the other hand, it is a basic rule of statutory construction that repeals by implication are not favored. An implied repeal will not be allowed "unless it is convincingly and unambiguously demonstrated that the two laws are clearly repugnant and patently inconsistent that they cannot co-exist."26

The memorandum of then President Aquino cannot even be regarded as a legislative enactment, for not every pronouncement of the Chief Executive even under the Transitory Provisions of the 1987 Constitution can nor should be regarded as an exercise of her law-making powers. At best, it could be treated as an executive policy addressed to the Special Committee to halt the acceptance and processing of applications for repatriation pending whatever "judgment the first Congress under the 1987 Constitution" might make. In other words, the former President did not repeal P.D. 725 but left it to the first Congress once createdto deal with the matter. If she had intended to repeal such law, she should have unequivocally said so instead of referring the matter to Congress. The fact is she carefully couched her presidential issuance in terms that clearly indicated the intention of "the present government, in the exercise of prudence and sound discretion" to leave the matter of repeal to the new Congress. Any other interpretation of the said Presidential Memorandum, such as is now being proffered to the Court by Lee, would visit unmitigated violence not only upon statutory construction but on common sense as well.

Second. Lee also argues that "serious congenital irregularities flawed the repatriation proceedings," asserting that Frivaldo's application therefor was "filed on June 29, 1995 x x x (and) was approved in just one day or on June 30, 1995 x x x," which "prevented a judicious review and evaluation of the merits thereof." Frivaldo counters that he filed his application for repatriation with the Office of the President in Malacanang Palace on August 17, 1994. This is confirmed by the Solicitor General. However, the Special Committee was reactivated only on June 8, 1995, when presumably the said Committee started processing his application. On June 29, 1995, he filled up and re-submitted the FORM that the Committee required. Under these circumstances, it could not be said that there was "indecent haste" in the processing of his application.

Anent Lee's charge that the "sudden reconstitution of the Special Committee on Naturalization was intended solely for the personal interest of respondent,"27 the Solicitor General explained during the oral argument on

March 19, 1996 that such allegation is simply baseless as there were many others who applied and were considered for repatriation, a list of whom was submitted by him to this Court, through a Manifestation28 filed on April 3, 1996.

On the basis of the parties' submissions, we are convinced that the presumption of regularity in the performance of official duty and the presumption of legality in the repatriation of Frivaldo have not been successfully rebutted by Lee. The mere fact that the proceedings were speeded up is by itself not a ground to conclude that such proceedings were necessarily tainted. After all, the requirements of repatriation under P.D. No. 725 are not difficult to comply with, nor are they tedious and cumbersome. In fact, P.D. 72529 itself requires very little of an applicant, and even the rules and regulations to implement the said decree were left to the Special Committee to promulgate. This is not unusual since, unlike in naturalization where an alien covets a firsttime entry into Philippine political life, in repatriation the applicant is a former natural-born Filipino who is merely seeking to reacquire his previous citizenship. In the case of Frivaldo, he was undoubtedly a natural-born citizen who openly and faithfully served his country and his province prior to his naturalization in the United States a naturalization he insists was made necessary only to escape the iron clutches of a dictatorship he abhorred and could not in conscience embrace and who, after the fall of the dictator and the reestablishment of democratic space, wasted no time in returning to his country of birth to offer once more his talent and services to his people.

So too, the fact that ten other persons, as certified to by the Solicitor General, were granted repatriation argues convincingly and conclusively against the existence of favoritism vehemently posited by Raul Lee. At any rate, any contest on the legality of Frivaldo's repatriation should have been pursued before the Committee itself, and, failing there, in the Office of the President, pursuant to the doctrine of exhaustion of administrative remedies.

Third. Lee further contends that assuming the assailed repatriation to be valid, nevertheless it could only be effective as at 2:00 p.m. of June 30, 1995 whereas the citizenship qualification prescribed by the Local Government Code "must exist on the date of his election, if not when the certificate of candidacy is filed," citing our decision in G.R. 10465430 which held that "both the Local Government Code and the Constitution require that only Philippine citizens can run and be elected to Public office" Obviously, however, this was a mere obiter as the only issue in said case was whether Frivaldo's naturalization was valid or not and NOT the effective date thereof. Since the Court held his naturalization to be invalid, then the issue of when an aspirant for public office should be a citizen was NOT resolved at all by the Court. Which question we shall now directly rule on.

Under Sec. 39 of the Local Government Code, "(a)n elective local official must be:

* a citizen of the Philippines;

* a registered voter in the barangay, municipality, city, or province x x x where he intends to be elected;

* a resident therein for at least one (1) year immediately preceding the day of the election;

* able to read and write Filipino or any other local language or dialect."

* In addition, "candidates for the position of governor x x x must be at least twenty-three (23) years of age on election day."

From the above, it will be noted that the law does not specify any particular date or time when the candidate must possess citizenship, unlike that for residence (which must consist of at least one year's residency immediately preceding the day of election) and age (at least twenty three years of age on election day).

Philippine citizenship is an indispensable requirement for holding an elective public office,31 and the purpose of the citizenship qualification is none other than to ensure that no alien, i.e., no person owing allegiance to another nation, shall govern our people and our country or a unit of territory thereof. Now, an official begins to govern or to discharge his functions only upon his proclamation and on the day the law mandates his term of office to begin. Since Frivaldo re-assumed his citizenship on June 30, 1995the very day32 the term of office of governor (and other elective officials) beganhe was therefore already qualified to be proclaimed, to hold such office and to discharge the functions and responsibilities thereof as of said date. In short, at that time, he was already qualified to govern his native Sorsogon. This is the liberal interpretation that should give spirit, life and meaning to our law on qualifications consistent with the purpose for which such law was enacted. So too, even from a literal (as distinguished from liberal) construction, it should be noted that Section 39 of the Local Government Code speaks of "Qualifications" of "ELECTIVE OFFICIALS," not of candidates. Why then should such qualification be required at the time of election or at the time of the filing of the certificates of candidacies, as Lee insists? Literally, such qualifications unless otherwise expressly conditioned, as in the case of age and residence should thus be possessed when the "elective [or elected] official" begins to govern, i.e., at the time he is proclaimed and at the start of his term in this case, on June 30, 1995. Paraphrasing this Court's ruling in Vasquez vs. Giapand Li Seng Giap & Sons,33 if the purpose of the citizenship requirement is to ensure that our people and country do not end up being governed by aliens, i.e., persons owing allegiance to another nation, that aim or purpose would not be thwarted but instead achieved by construing the citizenship qualification as applying to the time of proclamation of the elected official and at the start of his term.

But perhaps the more difficult objection was the one raised during the oral argument34 to the effect that the citizenship qualification should be possessed at the time the candidate (or for that matter the elected official) registered as a voter. After all, Section 39, apart from requiring the official to be a citizen, also specifies as another item of qualification, that he be a "registered voter." And, under the law35 a "voter" must be a citizen of the Philippines. So therefore, Frivaldo could not have been a voter-much less a validly registered one if he was not a citizen at the time of such registration.

The answer to this problem again lies in discerning the purpose of the requirement. If the law intended the citizenship qualification to be possessed prior to election consistent with the requirement of being a registered voter, then it would not have made citizenship a SEPARATE qualification. The law abhors a redundancy. It therefore stands to reason that the law intended CITIZENSHIP to be a qualification distinct from being a VOTER, even if being a voter presumes being a citizen first. It also stands to reason that the voter requirement was included as another qualification (aside from "citizenship"), not to reiterate the need for nationality but to require that the official be registered as a voter IN THE AREA OR TERRITORY he seeks to govern, i.e., the law states: "a registered voter in the barangay, municipality, city, or province x x x where he intends to be elected." It should be emphasized that the Local Government Code requires an elective official to be a registered voter. It does not require him to vote actually. Hence, registrationnot the actual votingis the core of this "qualification." In other words, the law's purpose in this second requirement is to ensure that the prospective official is actually registered in the area he seeks to govern and not anywhere else.

Before this Court, Frivaldo has repeatedly emphasizedand Lee has not disputed that he "was and is a registered voter of Sorsogon, and his registration as a voter has been sustained as valid by judicial declaration x x x In fact, he cast his vote in his precinct on May 8, 1995."36

So too, during the oral argument, his counsel stead-fastly maintained that "Mr. Frivaldo has always been a registered voter of Sorsogon. He has voted in 1987,1988,1992, then he voted again in 1995. In fact, his eligibility as a voter was questioned, but the court dismissed (sic) his eligibility as a voter and he was allowed to vote as in fact, he voted in all the previous elections including on May 8,1995.37

It is thus clear that Frivaldo is a registered voter in the province where he intended to be elected.

There is yet another reason why the prime issue of citizenship should be reckoned from the date of proclamation, not necessarily the date of election or date of filing of the certificate of candidacy. Section 253 of

the Omnibus Election Code38 gives any voter, presumably including the defeated candidate, the opportunity to question the ELIGIBILITY (or the disloyalty) of a candidate. This is the only provision of the Code that authorizes a remedy on how to contest before the Comelec an incumbent's ineligibility arising from failure to meet the qualifications enumerated under Sec. 39 of the Local Government Code. Such remedy of Quo Warranto can be availed of "within ten days after proclamation" of the winning candidate. Hence, it is only at such time that the issue of ineligibility may be taken cognizance of by the Commission. And since, at the very moment of Lee's proclamation (8:30 p.m., June 30, 1995), Juan G. Frivaldo was already and indubitably a citizen, having taken his oath of allegiance earlier in the afternoon of the same day, then he should have been the candidate proclaimed as he unquestionably garnered the highest number of votes in the immediately preceding elections and such oath had already cured his previous "judicially-declared" alienage. Hence, at such time, he was no longer ineligible.

But to remove all doubts on this important issue, we also hold that the repatriation of Frivaldo RETRO ACTED to the date of the filing of his application on August 17,1994.

It is true that under the Civil Code of the Philippines,39 "(l)aws shall have no retroactive effect, unless the contrary is provided." But there are settled exceptions40 to this general rule, such as when the statute is CURATIVE or REMEDIAL in nature or when it CREATES NEW RIGHTS.

According to Tolentino,41 curative statutes are those which undertake to cure errors and irregularities, thereby validating judicial or administrative proceedings, acts of public officers, or private deeds and contracts which otherwise would not produce their intended consequences by reason of some statutory disability or failure to comply with some technical requirement. They operate on conditions already existing, and are necessarily retroactive in operation. Agpalo,42 on the other hand, says that curative statutes are "healing acts x x x curing defects and adding to the means of enforcing existing obligations x x x (and) are intended to supply defects, abridge superfluities in existing laws, and curb certain evils x x x By their very nature, curative statutes are retroactive xxx (and) reach back to past events to correct errors or irregularities and to render valid and effective attempted acts which would be otherwise ineffective for the purpose the parties intended."

On the other hand, remedial or procedural laws, i.e., those statutes relating to remedies or modes of procedure, which do not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of such rights, ordinarily do not come within the legal meaning of a retrospective law, nor within the general rule against the retrospective operation of statutes.43

A reading of P.D. 725 immediately shows that it creates a new right, and also provides for a new remedy, thereby filling certain voids in our laws. Thus, in its preamble, P.D. 725 expressly recognizes the plight of "many Filipino women (who) had lost their Philippine citizenship by marriage to aliens" and who could not, under the existing law (C. A. No. 63, as amended) avail of repatriation until "after the death of their husbands or the termination of their marital status" and who could neither be benefitted by the 1973 Constitution's new provision allowing "a Filipino woman who marries an alien to retain her Philippine citizenship xxx" because "such provision of the new Constitution does not apply to Filipino women who had married aliens before said constitution took effect." Thus, P.D. 725 granted a new right to these womenthe right to re-acquire Filipino citizenship even during their marital coverture, which right did not exist prior to P.D. 725. On the other hand, said statute also provided a new remedy and a new right in favor of other "natural born Filipinos who (had) lost their Philippine citizenship but now desire to re-acquire Philippine citizenship," because prior to the promulgation of P.D. 725 such former Filipinos would have had to undergo the tedious and cumbersome process of naturalization, but with the advent of P.D. 725 they could now re-acquire their Philippine citizenship under the simplified procedure of repatriation.

The Solicitor General44 argues:

"By their very nature, curative statutes are retroactive, (DBP vs. CA, 96 SCRA 342), since they are intended to supply defects, abridge superfluities in existing laws (Del Castillo vs. Securities and Exchange Commission, 96 Phil. 119) and curb certain evils (Santos vs. Duata, 14 SCRA 1041).

In this case, P.D. No. 725 was enacted to cure the defect in the existing naturalization law, specifically C. A. No. 63 wherein married Filipino women are allowed to repatriate only upon the death of their husbands, and natural-born Filipinos who lost their citizenship by naturalization and other causes faced the difficulty of undergoing the rigid procedures of C.A. 63 for reacquisition of Filipino citizenship by naturalization.

Presidential Decree No. 725 provided a remedy for the aforementioned legal aberrations and thus its provisions are considered essentially remedial and curative."

In light of the foregoing, and prescinding from the wording of the preamble, it is unarguable that the legislative intent was precisely to give the statute retroactive operation. "(A) retrospective operation is given to a statute or amendment where the intent that it should so operate clearly appears from a consideration of the act as a whole, or from the terms thereof."45 It is obvious to the Court that the statute was meant to "reach back" to those persons, events and transactions not otherwise covered by prevailing law and jurisprudence. And inasmuch as it has been held that citizenship is a political and civil right equally as important as the freedom of

speech, liberty of abode, the right against unreasonable searches and seizures and other guarantees enshrined in the Bill of Rights, therefore the legislative intent to give retrospective operation to P.D. 725 must be given the fullest effect possible. "(I)t has been said that a remedial statute must be so construed as to make it effect the evident purpose for -which it was enacted, so that if the reason of the statute extends to past transactions, as well as to those in the future, then it will be so applied although the statute does not in terms so direct, unless to do so would impair some vested right or violate some constitutional guaranty."46 This is all the more true of P.D. 725, which did not specify any restrictions on or delimit or qualify the right of repatriation granted therein.

At this point, a valid question may be raised: How can the retroactivity of P.D. 725 benefit Frivaldo considering that said law was enacted on June 5,1975, while Frivaldo lost his Filipino citizenship much later, on January 20, 1983, and applied for repatriation even later, on August 17, 1994?

While it is true that the law was already in effect at the time that Frivaldo became an American citizen, nevertheless, it is not only the law itself (P.D. 725) which is tobe given retroactive effect, but even the repatriation granted under said law to Frivaldo on June 30, 1995 is to be deemed to have retroacted to the date of his application therefor, August 17, 1994. The reason for this is simply that if, as in this case, it was the intent of the legislative authority that the law should apply to past events i.e., situations and transactions existing even before the law came into being in order to benefit the greatest number of former Filipinos possible thereby enabling them to enjoy and exercise the constitutionally guaranteed right of citizenship, and such legislative intention is to be given the fullest effect and expression, then there is all the more reason to have the law apply in a retroactive or retrospective manner to situations, events and transactions subsequent to the passage of such law. That is, the repatriation granted to Frivaldo on June 30, 1995 can and should be made to take effect as of date of his application. As earlier mentioned, there is nothing in the law that would bar this or would show a contrary intention on the part of the legislative authority; and there is no showing that damage or prejudice to anyone, or anything unjust or injurious would result from giving retroactivity to his repatriation. Neither has Lee shown that there will result the impairment of any contractual obligation, disturbance of any vested right or breach of some constitutional guaranty.

Being a former Filipino who has served the people repeatedly, Frivaldo deserves a liberal interpretation of Philippine laws and whatever defects there were in his nationality should now be deemed mooted by his repatriation.

Another argument for retroactivity to the date of filing is that it would prevent prejudice to applicants. If P.D. 725 were not to be given retroactive effect, and the Special Committee decides not to act, i.e., to delay the processing of applications for any substantial length of time, then the former Filipinos who may be stateless, as Frivaldohaving already renounced his American citizenship was, may be prejudiced for causes outside their

control. This should not be. In case of doubt in the interpretation or application of laws, it is to be presumed that the law-making body intended right and justice to prevail.47

And as experience will show, the Special Committee was able to process, act upon and grant applications for repatriation within relatively short spans of time after the same were filed.48 The fact that such interregna were relatively insignificant minimizes the likelihood of prejudice to the government as a result of giving retroactivity to repatriation. Besides, to the mind of the Court, direct prejudice to the government is possible only where a person's repatriation has the effect of wiping out a liability of his to the government arising in connection with or as a result of his being an alien, and accruing only during the interregnum between application and approval, a situation that is not present in the instant case.

And it is but right and just that the mandate of the people, already twice frustrated, should now prevail. Under the circumstances, there is nothing unjust or iniquitous in treating Frivaldo's repatriation as having become effective as of the date of his application, i.e., on August 17, 1994. This being so, all questions about his possession of the nationality qualification whether at the date of proclamation (June 30, 1995) or the date of election (May 8, 1995) or date of filing his certificate of candidacy (March 20, 1995) would become moot.

Based on the foregoing, any question regarding Frivaldo's status as a registered voter would also be deemed settled. Inasmuch as he is considered as having been repatriatedi.e., his Filipino citizenship restored as of August 17, 1994, his previous registration as a voter is likewise deemed validated as of said date.

It is not disputed that on January 20, 1983 Frivaldo became an American. Would the retroactivity of his repatriation not effectively give him dual citizenship, which under Sec. 40 of the Local Government Code would disqualify him "from running for any elective local position?"49 We answer this question in the negative, as there is cogent reason to hold that Frivaldo was really STATELESS at the time he took said oath of allegiance and even before that, when he ran for governor in 1988. In his Comment, Frivaldo wrote that he "had long renounced and had long abandoned his American citizenshiplong before May 8, 1995. At best, Frivaldo was stateless in the interim when he abandoned and renounced his US citizenship but before he was repatriated to his Filipino citizenship."50

On this point, we quote from the assailed Resolution dated December 19, 1995:51

"By the laws of the United States, petitioner Frivaldo lost his American citizenship when he took his oath of allegiance to the Philippine Government when he ran for Governor in 1988, in 1992, and in 1995. Every certificate of candidacy contains an oath of allegiance to the Philippine Government."

These factual findings that Frivaldo has lost his foreign nationality long before the elections of 1995 have not been effectively rebutted by Lee. Furthermore, it is basic that such findings of the Commission are conclusive upon this Court, absent any showing of capriciousness or arbitrariness or abuse.52

The Second Issue: Is Lack of Citizenship a Continuing Disqualification?

Lee contends that the May 1,1995 Resolution53 of the Comelec Second Division in SPA No. 95-028 as affirmed in toto by Comelec En Banc in its Resolution of May 11, 1995 "became final and executory after five (5) days or on May 17,1995, no restraining order having been issued by this Honorable Court."54 Hence, before Lee "was proclaimed as the elected governor on June 30, 1995, there was already a final and executory judgment disqualifying" Frivaldo. Lee adds that this Court's two rulings (which Frivaldo now concedes were legally "correct") declaring Frivaldo an alien have also become final and executory way before the 1995 elections, and these "judicial pronouncements of his political status as an American citizen absolutely and for all time disqualified (him) from running for, and holding any public office in the Philippines."

We do not agree.

It should be noted that our first ruling in G.R. No. 87193 disqualifying Frivaldo was rendered in connection with the 1988 elections while that in G.R. No. 104654 was in connection with the 1992 elections. That he was disqualified for such elections is final and can no longer be changed. In the words of the respondent Commission (Second Division) in its assailed Resolution:55

"The records show that the Honorable Supreme Court had decided that Frivaldo was not a Filipino citizen and thus disqualified for the purpose of the 1988 and 1992 elections. However, there is no record of any 'final judgment' of the disqualification of Frivaldo as a candidate for the May 8, 1995 elections. What the Commission said in its Order of June 21, 1995 (implemented on June 30, 1995), directing the proclamation of Raul R. Lee, was that Frivaldo was not a Filipino citizen 'having been declared by the Supreme Court in its Order dated March 25, 1995, not a citizen of the Philippines.' This declaration of the Supreme Court, however, was in connection with the 1992 elections."

Indeed, decisions declaring the acquisition or denial of citizenship cannot govern a person's future status with finality. This is because a person may subsequently reacquire, or for that matter lose, his citizenship under any of the modes recognized by law for the purpose. Hence, in Lee vs. Commissioner of Immigration,56 we held:

"Everytime the citizenship of a person is material or indispensable in a judicial or administrative case, whatever the corresponding court or administrative authority decides therein as to such citizenship is generally not considered res judicata, hence it has to be threshed out again and again, as the occasion demands."

The Third Issue: Comelec's Jurisdiction

Over The Petition in SPC No. 95-317

Lee also avers that respondent Comelec had no jurisdiction to entertain the petition in SPC No. 95-317 because the only "possible types of proceedings that may be entertained by the Comelec are a pre-proclamation case, an election protest or a quo warranto case." Again, Lee reminds us that he was proclaimed on June 30, 1995 but that Frivaldo filed SPC No. 95-317 questioning his (Lee's) proclamation only on July 6, 1995 "beyond the 5-day reglementary period." Hence, according to him, Frivaldo's "recourse was to file either an election protest or a quo warranto action."

This argument is not meritorious. The Constitution57 has given the Comelec ample power to "exercise exclusive original jurisdiction over all contests relating to the elections, returns and qualifications of all elective x x x provincial x x x officials." Instead of dwelling at length on the various petitions that Comelec, in the exercise of its constitutional prerogatives, may entertain, suffice

it to say that this Court has invariably recognized the Commission's authority to hear and decide petitions for annulment of proclamations of which SPC No. 95-317 obviously is one.58 Thus, in Mentang vs. COMELEC,59 we ruled:

"The petitioner argues that after proclamation and assumption of office, a pre-proclamation controversy is no longer viable. Indeed, we are aware of cases holding that pre-proclamation controversies may no longer be entertained by the COMELEC after the winning candidate has been proclaimed, (citing Gallardo vs. Rimando, 187

SCRA 463; Salvacion vs. COMELEC, 170 SCRA 513; Casimiro vs. COMELEC, 171 SCRA 468.) This rule, however, is premised on an assumption that the proclamation is no proclamation at all and the proclaimed candidate's assumption of office cannot deprive the COMELEC of the power to make such declaration of nullity. (citing Aguam vs. COMELEC, 23 SCRA 883; Agbayani vs. COMELEC, 186 SCRA 484.)"

The Court however cautioned that such power to annul a proclamation must "be done within ten (10) days following the proclamation." Inasmuch as Frivaldo's petition was filed only six (6) days after Lee's proclamation, there is no question that the Comelec correctly acquired jurisdiction over the same.

The Fourth Issue: Was Lee's Proclamation Valid

Frivaldo assails the validity of the Lee proclamation. We uphold him for the following reasons:

First. To paraphrase this Court in Labo vs. COMELEC,60 "the fact remains that he (Lee) was not the choice of the sovereign will," and in Aquino vs. COMELEC,61 Lee is "a second placer, xxx just that, a second placer."

In spite of this, Lee anchors his claim to the governorship on the pronouncement of this Court in the aforesaid Labo62 case, as follows:

"The rule would have been different if the electorate fully aware in fact and in law of a candidate's disqualification so as to bring such awareness within the realm of notoriety, would nonetheless cast their votes in favor of the ineligible candidate. In such case, the electorate may be said to have waived the validity and efficacy of their votes by notoriously misapplying their franchise or throwing away their votes, in which case, the eligible candidate obtaining the next higher number of votes may be deemed elected."

But such holding is qualified by the next paragraph, thus:

"But this is not the situation obtaining in the instant dispute. It has not been shown, and none was alleged, that petitioner Labo was notoriously known as an ineligible candidate, much less the electorate as having known of such fact. On the contrary, petitioner Labo was even allowed by no less than the Comelec itself in its resolution dated May 10, 1992 to be voted for the office of the city mayor as its resolution dated May 9,1992 denying due

course to petitioner Labo's certificate of candidacy had not yet become final and subject to the final outcome of this case."

The last-quoted paragraph in Labo, unfortunately for Lee, is the ruling appropriate in this case because Frivaldo was in 1995 in an identical situation as Labo was in 1992 when the Comelec's cancellation of his certificate of candidacy was not yet final on election day as there was in both cases a pending motion for reconsideration, for which reason Comelec issued an (omnibus) resolution declaring that Frivaldo (like Labo in 1992) and several others can still be voted for in the May 8, 1995 election, as in fact, he was.

Furthermore, there has been no sufficient evidence presented to show that the electorate of Sorsogon was "fully aware in fact and in law" of Frivaldo's alleged disqualification as to "bring such awareness within the realm of notoriety", in other words, that the voters intentionally wasted their ballots knowing that, in spite of their voting for him, he was ineligible. If Labo has any relevance at all, it is that the vice-governor and not Leeshould be proclaimed, since in losing the election, Lee was, to paraphrase Labo again, "obviously not the choice of the people" of Sorsogon. This is the emphatic teaching of Labo:

"The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the eligible candidate receiving the next highest number of votes to be declared elected. A minority or defeated candidate cannot be deemed elected to the office."

Second. As we have earlier declared Frivaldo to have seasonably re-acquired his citizenship and inasmuch as he obtained the highest number of votes in the 1995 elections, henot Lee should be proclaimed. Hence, Lee's proclamation was patently erroneous and should now be corrected.

The Fifth Issue: Is Section 78 of the Election Code Mandatory?

In G.R. No. 120295, Frivaldo claims that the assailed Resolution of the Comelec (Second Division) dated May 1, 1995 and the confirmatory en banc Resolution of May 11, 1995 disqualifying him for want of citizenship should be annulled because they were rendered beyond the fifteen (15) day period prescribed by Section 78 of the Omnibus Election Code which reads as follows:

"Section 78. Petition to deny due course or to cancel a certificate of candidacy. A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that

any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided after notice and hearing, not later than fifteen days before the election" (italics supplied.)

This claim is now moot and academic inasmuch as these resolutions are deemed superseded by the subsequent ones issued by the Commission (First Division) on December 19, 1995, affirmed en banc63 on February 23, 1996, which both upheld his election. At any rate, it is obvious that Section 78 is merely directory as Section 6 of R.A. No. 6646 authorizes the Commission to try and decide petitions for disqualifications even after the elections, thus:

"SEC. 6. Effect 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 suspension of the proclamation of such candidate whenever the evidence of his guilt is strong." (Italics supplied)

Refutation of Mr. Justice Davide's Dissent

In his dissenting opinion, the esteemed Mr. Justice Hilario G. Davide, Jr. argues that President Aquino's memorandum dated March 27, 1987 should be viewed as a suspension (not a repeal, as urged by Lee) of P.D. 725. But whether it decrees a suspension or a repeal is a purely academic distinction because the said issuance is not a statute that can amend or abrogate an existing law. The existence and subsistence of P.D. 725 were recognized in the first Frivaldo case;64 viz, "(u)nder CA No. 63 as amended by CA No. 473 and P.D. No. 725, Philippine citizenship maybe reacquired by xxx repatriation" He also contends that by allowing Frivaldo to register and to remain as a registered voter, the Comelec and in effect this Court abetted a "mockery" of our two previous judgments declaring him a non-citizen. We do not see such abetting or mockery. The retroactivity of his repatriation, as discussed earlier, legally cured whatever defects there may have been in his registration as a voter for the purpose of the 1995 elections. Such retroactivity did not change his disqualifications in 1988 and 1992, which were the subjects of such previous rulings.

Mr. Justice Davide also believes that Quo Warranto is not the sole remedy to question the ineligibility of a candidate, citing the Comelec's authority under Section 78 of the Omnibus Election Code allowing the denial of a certificate of candidacy on the ground of a false material representation therein as required by Section 74. Citing

Loong, he then states his disagreement with our holding that Section 78 is merely directory. We really have no quarrel. Our point is that Frivaldo was in error in his claim in G.R. No. 120295 that the Comelec Resolutions promulgated on May 1, 1995 and May 11, 1995 were invalid because they were issued "not later than fifteen days before the election" as prescribed by Section 78. In dismissing the petition in G.R. No. 120295, we hold that the Comelec did not commit grave abuse of discretion because "Section 6 of R. A. 6646 authorizes the Comelec to try and decide disqualifications even after the elections." In spite of his disagreement with us on this point, i.e., that Section 78 "is merely directory," we note that just like us, Mr. Justice Davide nonetheless votes to "DISMISS G.R. No. 120295." One other point. Loong, as quoted in the dissent, teaches that a petition to deny due course under Section 78 must be filed within the 25-day period prescribed therein. The present case however deals with the period during which the Comelec may decide such petition. And we hold that it may be decided even after the fifteen day period mentioned in Section 78. Here, we rule that a decision promulgated by the Comelec even after the elections is valid but Loong held that a petition filed beyond the 25-day period is out of time. There is no inconsistency nor conflict.

Mr. Justice Davide also disagrees with the Court's holding that, given the unique factual circumstances of Frivaldo, repatriation may be given retroactive effect. He argues that such retroactivity "dilutes" our holding in the first Frivaldo case. But the first (and even the second Frivaldo) decision did not directly involve repatriation as a mode of acquiring citizenship. If we may repeat, there is no question that Frivaldo was not a Filipino for purposes of determining his qualifications in the 1988 and 1992 elections. That is settled. But his supervening repatriation has changed his political status not in 1988 or 1992, but only in the 1995 elections.

Our learned colleague also disputes our holding that Frivaldo was stateless prior to his repatriation, saying that "informal renunciation or abandonment is not a ground to lose American citizenship." Since our courts are charged only with the duty of the determining who are Philippine nationals, we cannot rule on the legal question of who are or who are not Americans. It is basic in international law that a State determines ONLY those who are its own citizens not who are the citizens of other countries.65 The issue here is: the Comelec made a finding of fact that Frivaldo was stateless and such finding has not been shown by Lee to be arbitrary or whimsical. Thus, following settled case law, such finding is binding and final.

The dissenting opinion also submits that Lee who lost by chasmic margins to Frivaldo in all three previous elections, should be declared winner because "Frivaldo's ineligibility for being an American was publicly known." First, there is absolutely no empirical evidence for such "public" knowledge. Second, even if there is, such knowledge can be true post facto only of the last two previous elections. Third, even the Comelec and now this Court were/are still deliberating on his nationality before, during and after the 1995 elections. How then can there be such "public" knowledge?

Mr. Justice Davide submits that Section 39 of the Local Government Code refers to the qualifications of elective local officials, i.e., candidates, and not elected officials, and that the citizenship qualification [under par. (a) of that section] must be possessed by candidates, not merely at the commencement of the term, but by election day at the latest. We see it differently. Section 39, par. (a) thereof speaks of "elective local official" while par. (b) to (f) refer to "candidates." If the qualifications under par. (a) were intended to apply to "candidates" and not elected officials, the legislature would have said so, instead of differentiating par. (a) from the rest of the paragraphs. Secondly, if Congress had meant that the citizenship qualification should be possessed at election day or prior thereto, it would have specifically stated such detail, the same way it did in pars. (b) to (f) for other qualifications of candidates for governor, mayor, etc.

Mr. Justice Davide also questions the giving of retroactive effect to Frivaldo's repatriation on the ground, among others, that the law specifically provides that it is only after taking the oath of allegiance that applicants shall be deemed to have reacquired Philippine citizenship. We do not question what the provision states. We hold however that the provision should be understood thus: that after taking the oath of allegiance the applicant is deemed to have reacquired Philippine citizenship, which reacquisition (or repatriation) is deemed for all purposes and intents to have retroacted to the date of his application therefor.

In any event, our "so too" argument regarding the literal meaning of the word "elective" in reference to Section 39 of the Local Government Code, as well as regarding Mr. Justice Davide's thesis that the very wordings of P.D. 725 suggest non-retroactivity, were already taken up rather extensively earlier in this Decision.

Mr. Justice Davide caps his paper with a clarion call: "This Court must be the first to uphold the Rule of Law." We agree we must all follow the rule of law. But that is NOT the issue here. The issue is how should the law be interpreted and applied in this case so it can be followed, so it can rule!

At balance, the question really boils down to a choice of philosophy and perception of how to interpret and apply laws relating to elections: literal or liberal; the letter or the spirit; the naked provision or its ultimate purpose; legal syllogism or substantial justice; in isolation or in the context of social conditions; harshly against or gently in favor of the voters' obvious choice. In applying election laws, it would be far better to err in favor of popular sovereignty than to be right in complex but little understood legalisms. Indeed, to inflict a thrice rejected candidate upon the electorate of Sorsogon would constitute unmitigated judicial tyranny and an unacceptable assault upon this Court's conscience.

EPILOGUE

In sum, we rule that the citizenship requirement in the Local Government Code is to be possessed by an elective official at the latest as of the time he is proclaimed and at the start of the term of office to which he has been elected. We further hold P.D. No. 725 to be in full force and effect up to the present, not having been suspended or repealed expressly nor impliedly at any time, and Frivaldo's repatriation by virtue thereof to have been properly granted and thus valid and effective. Moreover, by reason of the remedial or curative nature of the law granting him a new right to resume his political status and the legislative intent behind it, as well as his unique situation of having been forced to give up his citizenship and political aspiration as his means of escaping a regime he abhorred, his repatriation is to be given retroactive effect as of the date of his application therefor, during the pendency of which he was stateless, he having given ' up his U. S. nationality. Thus, in contemplation of law, he possessed the vital requirement of Filipino citizenship as of the start of the term of office of governor, and should have been proclaimed instead of Lee. Furthermore, since his reacquisition of citizenship retroacted to August 17, 1994, his registration as a voter of Sorsogon is deemed to have been validated as of said date as well. The foregoing, of course, are precisely consistent with our holding that lack of the citizenship requirement is not a continuing disability or disqualification to run for and hold public office. And once again, we emphasize herein our previous rulings recognizing the Comelec's authority and jurisdiction to hear and decide petitions for annulment of proclamations.

This Court has time and again liberally and equitably construed the electoral laws of our country to give fullest effect to the manifest will of our people,66 for in case of doubt, political laws must be

interpreted to give life and spirit to the popular mandate freely expressed through the ballot. Otherwise stated, legal niceties and technicalities cannot stand in the way of the sovereign will. Consistently, we have held:

"x x x (L)aws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technical objections (citations omitted)."67

The law and the courts must accord Frivaldo every possible protection, defense and refuge, in deference to the popular will. Indeed, this Court has repeatedly stressed the importance of giving effect to the sovereign will in order to ensure the survival of our democracy. In any action involving the possibility of a reversal of the popular electoral choice, this Court must exert utmost effort to resolve the issues in a manner that would give effect to the will of the majority, for it is merely sound public policy to cause elective offices to be filled by those who are the choice of the majority. To successfully challenge a winning candidate's qualifications, the petitioner must clearly demonstrate that the ineligibility is so patently antagonistic68 to constitutional and legal principles that overriding such ineligibility and thereby giving effect to the apparent will of the people, would ultimately create

greater prejudice to the very democratic institutions and juristic traditions that our Constitution and laws so zealously protect and promote. In this undertaking, Lee has miserably failed.

In Frivaldo's case, it would have been technically easy to find fault with his cause. The Court could have refused to grant retroactivity to the effects of his repatriation and hold him still ineligible due to his failure to show his citizenship at the time he registered as a voter before the 1995 elections. Or, it could have disputed the factual findings of the Comelec that he was stateless at the time of repatriation and thus hold his consequent dual citizenship as a disqualification "from running for any elective local position." But the real essence of justice does not emanate from quibblings over patchwork legal technicality. It proceeds from the spirit's gut consciousness of the dynamic role of law as a brick in the ultimate development of the social edifice. Thus, the Court struggled against and eschewed the easy, legalistic, technical and sometimes harsh anachronisms of the law in order to evoke substantial justice in the larger social context consistent with Frivaldo's unique situation approximating venerability in Philippine political life. Concededly, he sought American citizenship only to escape the clutches of the dictatorship. At this stage, we cannot seriously entertain any doubt about his loyalty and dedication to this country. At the first opportunity, he returned to this land, and sought to serve his people once more. The people of Sorsogon overwhelmingly voted for him three times. He took an oath of allegiance to this Republic every time he filed his certificate of candidacy and during his failed naturalization bid. And let it not be overlooked, his demonstrated tenacity and sheer determination to re-assume his nationality of birth despite several legal setbacks speak more loudly, in spirit, in fact and in truth than any legal technicality, of his consuming intention and burning desire to re-embrace his native Philippines even now at the ripe old age of 81 years. Such loyalty to and love of country as well as nobility of purpose cannot be lost on this Court of justice and equity. Mortals of lesser mettle would have given up. After all, Frivaldo was assured of a life of ease and plenty as a citizen of the most powerful country in the world. But he opted, nay, single-mindedly insisted on returning to and serving once more his struggling but beloved land of birth. He therefore deserves every liberal interpretation of the law which can be applied in his favor. And in the final analysis, over and above Frivaldo himself, the indomitable people of Sorsogon most certainly deserve to be governed by a leader of their overwhelming choice.

WHEREFORE, in consideration of the foregoing:

(1) The petition in G.R. No. 123755 is hereby DISMISSED. The assailed Resolutions of the respondent Commission are AFFIRMED.

(2) The petition in G.R. No. 120295 is also DISMISSED for being moot and academic. In any event, it has no merit.

No costs.

SO ORDERED.

Davide, Jr., J. dissenting opinion

Puno., J. concurring opinion

Francisco, Hermosisima, Jr., and Torres, JJ., concur.

Padilla, Regalado, Romero, and Bellosillo, JJ., pro hac vice.

Melo, Vitug, and Kapunan, JJ., concur in the result.

Narvasa, C.J. and Mendoza, J., took no part.

Emergency Laws

Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. No. L-17277

May 31, 1961

LUCIANO VALENCIA and FRANCISCA OCAMPO, petitioners, vs. HON. JOSE T. SURTIDA, Judge of the Court of First Instance of Camarines Sur, and RUFINA SUBASTIL, respondents.

E. S. Grageda for petitioners. B. M. Calimbang for respondents.

CONCEPCION, J.:

Original action for a writ of certiorari to annul a decision and an order issued by respondent, Hon. Jose T. Surtida as Judge of the Court of First Instance of Camarines Sur, in Civil Case No. 4457 thereof, entitled "Rufina Subastil vs. Luciano Valencia and Francisca Ocampo".

In the complaint filed therein, on or about February 14, 1959, Rufina Subastil, the main respondent herein, alleged that she is the owner and possessor of a riceland situated in Sampaloc, Cainza, Camarines Sur, and more particularly described in said pleading; that, at the inception of the agricultural season, sometime in July 1950, defendants therein, namely, Luciano Valencia and Francisca Ocampo, husband and wife, who are petitioners

herein, entered into a verbal contract with her whereby they agreed to cultivate the southern portion of said lot and pay her five (5) cavanes of clean palay, by way of rental for each agricultural year; and that, after complying with this obligation during the year 1950-1951, petitioners thereafter failed and refused to do so, as well as to vacate the land, despite repeated demands, for which reason Rufina Subastil prayed that petitioners be sentenced to vacate the land and deliver the same to her, as well as to pay her the equivalent of the unsatisfied which may accrue until possession rentals and those shall have been given to her, in addition to P500 as moral, actual and consequential damages, P200 as attorney's fees and the costs.

Not having filed a responsive pleading, petitioners were declared in default on August 24, 1959. Respondent Judge then received the evidence for Rufina Subastil and, later on, rendered judgment, on or about October 27, 1959, finding the petitioners were, since 1950, tenants of Rufina Subastil under a 70-30 sharing basis, representing five (5) cavanes of palay a year for her, which were paid by petitioners during the agricultural year 1950-1951, but not subsequently thereto, and sentencing petitioners to vacate the land and to pay P400.00, as well as the costs, to Rufina Subastil.

Petitioners moved for a reconsideration of said decision upon the ground: (a) that the Court had no jurisdiction over the subject matter of the action, the same being exclusively Cognizable by the Court of Agrarian Relations; (b) that defendants' failure to file their answer was due to fraud, accident, mistake or excusable negligence because, when the papers, presumably consisting of the summons and the complaint, were delivered to petitioner Luciano Valencia around May, 1959, he was bed-ridden, suffering great pains due to a fallen log that had rolled over his legs and broken the same as attested to by a physician whose certificate was appended to said motion because of which, he and his wife forgot all about said papers and were unable to answer the complaint; and (c) that petitioners have a good and valid defense, in that they have proof consisting of a document executed on August 11, 1892 in favor of their parents as well as several tax declarations and tax receipts from 1949 to 1953 showing that the land in question is theirs.

This motion for reconsideration was denied, and, soon thereafter, respondent Judge issued an order directing the execution of said decision, whereupon petitioners instituted this action for certiorari upon the ground that the Court of First Instance of Camarines Sur had no jurisdiction over said case No. 4457, it appearing on the face of the complaint therein that its purpose was to eject the petitioners as tenants of an agricultural land and respondent Judge having, in his aforementioned decision, ordered the ejectment of petitioners herein as such tenants of an agricultural land, which is within the exclusive competence of the Court of Agrarian Relations.

In their answer, respondents herein alleged, inter alia, at there could have been no tenancy relationship between petitioners herein and Rufina Subastil, because petitioners asserted in their motion for reconsideration at the land in question belongs to them; that, assuming at said relationship has existed, non-compliance with the

conditions thereof terminated said relationship; and that, any event, Republic Act No. 1199, which took effect on August 30, 1954, is inapplicable to the parties in said Case 4457, their relationship as landlord and tenants having gun prior thereto.

Respondents' pretense is clearly untenable for Civil Case No. 4457 was begun on or about February 14, 1959, when Republic Act No. 1199 was already in force. The application of this statute to said case would, therefore, prospective in nature, aside from the fact that it is ready settled that laws enacted in the exercise of the police power, to which said Act belongs, may constitutionally effect tenancy relations created before the enactment or effectivity thereof (Viuda de Ongsiako vs. Gamboa, 47 Off. Gaz., 5613).

Again, respondent Judge having found that petitioners are tenants of an agricultural land, it is clear that their ejectment is beyond the jurisdiction of the Court of First Instance of Camarines Sur (Bakit vs. Asperin, L-15700, April 26, 1931), for pursuant to section 21 of Republic Act No. 1199:

All cases involving the dispossession of a tenant by the landholder or by a third party and/or the settlement and disposition of disputes arising from the relationship of landholder and tenant, as well as the violation of any of the provisions of this Act, shall be under the original and exclusive jurisdiction of such court as may now or hereafter be authorized by law to take cognizance of tenancy relations and disputes.

and Republic Act No. 1267, creating the Court of Agrarian Relations, provides, in section 7 thereof, as amended Republic Act No. 1409, that:

The Court shall have original and exclusive jurisdiction over the entire Philippines, to consider, investigate, decide, and settle all questions, matters, controversies or disputes involving all those relationships established by law which determine the varying rights of persons in the cultivation and use of agricultural land where one of the parties works the land: Provided, however, That cases pending in the Court of Industrial Relations upon approval of this Act which are within the jurisdiction of the Court of Agrarian Relations, shall be transferred to, and the proceedings therein continued in, the latter court.

WHEREFORE, the decision complained of is hereby annulled, with cost against respondent Rufina Subastil. It is so ordered.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Paredes, Dizon, De Leon and Natividad, JJ., concur. Barrera J., took no part.

Penal Statutes

Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. No. L-11555

January 6, 1917

THE UNITED STATES, plaintiff-appellee, vs. GABINO SOLIMAN, defendant-appellant.

Francisco Sevilla for appellant. Attorney-General Avancea for appellee.

CARSON, J.:

The evidence of record conclusively discloses that the defendant and appellant in this case, Gabino Soliman, testifying in his on behalf in the course of another criminal case in which he, with several others, was charged with estafa, swore falsely to certain material allegations of fact.

On that occasion he testified falsely that a sworn statement offered in evidence in support of the charge of estafa, which was in effect an extrajudicial confession of his guilt, had not been executed voluntarily, and that its execution had not been procured by the police by the use of force, intimidation and prolonged torture.

The trial judge who presided in the former case acquitted the accused on the ground that there was room for reasonable doubt as to whether the extrajudicial confession had been made voluntarily, and his action in this regard clearly establishes the materiality of the false testimony submitted in that case; moreover, the materiality of the evidence is manifest without considering the judgment in the case in which it was submitted, since, if accepted as true, this false testimony necessarily had the effect of rendering wholly incompetent the evidence as to the extrajudicial confession which otherwise would almost conclusively sustain and necessitate a conviction. (U. S. vs. Estraa, 16 Phil. Rep., 520.)

There can be no doubt that the accused was guilty of the crime of perjury as defined and penalized in section 3 of Act No. 1697 and that the sentence of six months' imprisonment and P300 fine imposed by the trial judge was correctly imposed under the provisions of that statute.

It appears however that since judgment was entered in this case on November 23, 1915, section 3 of Act No. 1697 has been expressly repealed by the enactment of the Administrative Code, which became effective on July 1, 1916, and it has been suggested that the judgment convicting and sentencing the accused under the provisions of that statute should not be sustained, and that the repeal of the statute should be held to have the effect of remitting and extinguishing the criminal responsibility of the accused incurred under the provisions of the repealed law prior to the enactment of the Administrative Code. We cannot agree with the proposition thus stated.

In the case of United States vs. Cuna (12 Phil. Rep., 241), we held as follows:

The rule of interpretation of English and American common law, by virtue of which the repeal of a law prescribing penalties is held to have the effect of remitting or extinguishing any penalty, loss of rights or responsibility incurred under such law, as to all persons who have not been convicted and sentenced under the

provisions of such law prior to the enactment of the repealing law, is not and has not been the accepted doctrine in these Islands. Where an Act of the Commission or of the Philippine Legislature which penalizes an offense, such repeal does not have the effect of thereafter depriving the courts of jurisdiction to try, convict and sentence offenders charged with violations of the old law prior to its repeal.

A question does arise, however, as to the penalty which should be impose upon the convict.

If the repealing statute provides or has the effect of providing new penalties for the commission of the acts penalized under the repealed statute, should the penalty be imposed in accordance with the old or the new statute?

Article 1 of the Penal Code in force in these Islands defines crimes and misdemeanors as voluntary acts or omissions penalized by law; and complementary to this provision, article 21 provides that no crime or misdemeanor shall be punished with a penalty which has not been prescribed by law prior to its commission. In accordance with these provisions the question whether an act is punishable or not depends upon the question whether or not at the time of its commission, there was a law in force which penalized it; this rule being modified, however, by article 22 of the same code, which provides that penal laws shall have a retroactive effect in so far as they favor persons convicted of a crime or misdemeanor. The courts of Spain and the learned commentators on Spanish law have construed these provisions to mean that such penal laws are to be given a retroactive effect only in so far as they favor the defendant charged with a crime or a misdemeanor, and that, when a penal law is enacted repealing a prior law, such repeal does not have the effect of relieving an offender in whole or in part of penalties already incurred under the old law, unless the new law favors the defendant by diminishing the penalty or doing away with it altogether, and then only to the extent to which the new law is favorable to the offender. In other words, that the enactment of new penal laws, notwithstanding the fact that they contain general repealing clauses, doe not deprive the courts of jurisdiction to try, convict and sentence persons charged with violations of the old law prior to the date when the repealing law goes into effect, unless the new law wholly fails to penalties the acts which constituted the offense defined and penalized in the repealed law.

Thus Pacheco, commenting upon the new Penal Code of 1848-1850, of which article 506 provided that all general penal laws were repealed by its publication, says:

At this time when the Penal Code is being put into effect and given force, we have in fact two criminal laws in Spain, and close attention is necessary to apply them properly. There may be prosecutions which it is necessary to dismiss, as, for example, those for sodomy; others which it may be necessary to decide in conformity with the provisions of the new codes, as, for example, those for carrying concealed weapons; and others which must be judged in accordance with the old provisions, as, for example. many cases of robbery. The rules of procedure in one or other manner being furnished us by the former article (article 19 of the Penal Code of Spain identical with article 21 of the Penal Code of the Philippines), and the present article (article 20 of the Penal Code of Spain and article 22 of the Philippine Code). Has the code increased the penalty? Then it is not applicable to crimes committed prior to its enactment. Has it extinguished or diminished them? Then it is clearly applicable to them. (1 Pacheco, 296.)

And a similar construction was placed upon the provisions of the Penal Code of 1870 by the supreme court of Spain. Article 626 of this code (which is substantially identical with article 506 of the Penal Code of 1848 and article 611 of the Penal Code of the Philippine Islands) repealed all general penal laws prior to its promulgation, but the court held that, where a crime was committed prior to the publication of the reformed code, the penalty prescribed by the code of 1850 (the code prior to that of 1870) being more favorable to the accused, that must be applied. (Decision of the supreme court of Spain, 17th of January, 1873.)

We conclude therefore that in any case in which a statute prescribing a penalty for the commission of a specific offense is repealed, and in which the new statute provides new and distinct penalties for the commission of such offense, the penalty which must be imposed on one who committed the offense prior to the enactment of the repealing statute is that one which is more favorable to the convict. (U. S. vs. Cuna, 12 Phil. Rep., 241.)

It seems important, then, to determine whether the repeal of section 3 of Act No. 1697 by the enactment of the Administrative Code had the effect of providing new and distinct penalties for the commission of the crime of perjury, and whether the new penalties are or are not more favorable to the convict in the case at bar than those imposed by the trial judge.

Section 3 of Act No. 1697, which defined and penalized the crime of perjury, repealed the provisions of the Penal Code defining and penalizing the crime of perjury, not expressly, but by implication, and we are of opinion that the repeal of Act No. 1697 revived those provisions of the code. (U. S. vs. Concepcion, 13 Phil. Rep., 424; U. S. vs. Estraa, 16 Phil. Rep., 520.)

In the absence of the most express language to the contrary it will not be presumed that it was the intention of the legislator to let false swearing as to a material matter in a court of justice go unpunished, and such would be

the effect of the repeal of section 3 of Act No. 1697, unless we held that the repeal had the effect of reviving the old statute.

At the common law the repeal of a repealing act revived the former act (6 Co., 199; 1 Gray, 163; 7 W. & S., 263; 2 Blackstone, 32; 54 N. J. L. J., 175); and the Supreme Court of the United States has held that the repeal of a repealing law has this effect, unless the language of the repealing statute or some general statute provides otherwise. (U. S. vs. Otis, 120 U. S., 52 [115].)

Manifestly, with this rule in mind, section 12 of the Administrative Code (Act No. 2657) which is found in Article III, [Chapter I] dealing with the form and effect of laws in general, provides that "when a law which expressly repeals a prior law is itself repealed the law first repealed shall not be thereby revived unless expressly so provided." From which it may fairly be inferred that the old rule continues in force where a law which repeals a prior law, not expressly but by implication, it itself repealed; and that in such cases the repeal of the repealing law revives the prior law, unless the language of the repealing statute provides otherwise.

Applying this rule, we conclude that the express repeal of section 3 of Act No. 1697 by the enactment of the Administrative Code (Act No. 2657) revived the provisions of the Penal Code touching perjury, which were themselves repealed, not expressly but by implication, by the enactment of Act No. 1697.

A comparison of the penalties prescribed in the Penal Code for the commission of the acts of which the accused in the case at bar was convicted, giving him as we should the benefit of the provisions of Act No. 2142, discloses that the penalty prescribed therein is less than that imposed upon the appellant under the provisions of section 3 of Act No. 1697, and we conclude from what has been said already that the penalty imposed by the court below should be revoked and that in lieu thereof the penalty prescribed in the Penal Code should be imposed upon the convict.

A question has been raised as to whether, admitting that the provisions of the Penal Code touching perjury have been revived, the accused can be convicted and penalized thereunder, it appearing that at the time when he testified falsely he was testifying in his own behalf in a criminal case in which he himself was the accused, on trial for the commission of a grave offense.

In the case of United States vs. Gutierrez (12 Phil. Rep., 529), we said, speaking through Chief Justice Arellano, that, "Perjury committed by a party in his own cause would not be punishable under Spanish legislation, because in said legislation no one was a witness in his own cause, and could not therefore become guilty of

giving false testimony in a civil cause in which he was either the plaintiff or the defendant; but under the procedure in force by virtue of Act No. 190, a party to a suit may testify in his own behalf, and if he declares falsely under oath as a witness in his own cause, like any other witness, he incurs the penalty by which false testimony in civil matters is repressed and punished. This court has so held, it being a settled rule, that the false testimony given by a litigant as a witness constitutes the crime of giving false testimony inasmuch as such a declaration, according to the new laws in force, may determine a judgment in his favor and to the prejudice of the adverse party, and that a litigant who, in sworn testimony given by him as a witness in a civil cause, shall pervert the truth and give false testimony, incurs as such witness the penalties imposed by article 321 of the Penal Code."

Analogous reasoning leads to a like conclusion as to the criminal liability for perjury of a defendant in a criminal case testifying falsely in his own behalf. Under the provisions of General Orders No. 58 an accused person may, if he so desires, testify under oath in his own behalf, and in that event, "if he declares falsely as a witness in his own cause, like any other witness, he incurs the penalty by which false testimony" in criminal matters "is repressed and punished."

It has been suggested that such a ruling will have a tendency to expose accused persons to vexatious criminal prosecutions by prosecuting officers, who, having failed to secure a conviction on the original charge, may be disposed to institute criminal prosecutions for perjury from a vindictive unwillingness to let the defendant escape scot free from the meshes of the law. It is said also that the fear of subsequent prosecution for perjury will tend to embarrass accused persons in their efforts to defend themselves by testifying in their own behalf. But similar objections may be advanced against the prosecution of any of the witnesses called for the defense on charges of perjury, and it must not be forgotten that the right of an accused person to testify under oath in his own behalf is secured to him, not that he may be enabled to introduce false testimony into the record, but to enable him to spread upon the record the truth as to any matter within his knowledge which will tend to establish his innocence.

Of course much must be left to the good sense and sound judgment of the prosecuting officer in determining whether a prosecution for perjury should be instituted against an accused person whose testimony in his own behalf would seem to be perjured.

Due regard for the situation in which an accused person finds himself when testifying in his own behalf in a criminal proceeding will restrain a prudent prosecuting officer from the filing of charges of perjury in every case in which he may have reason to believe that the accused has not adhered strictly to the truth, in his anxiety to shield himself from punishment. But when, as in the case at bar, an accused person voluntarily goes upon the witness stand and falsely imputes some other person the commission of a grave offense, it would seem to be

highly proper that he should be called to account in a criminal action for perjury upon the complaint of the person against whom such false charges are made.

Article 319 of the Penal Code is as follows:

Any person who shall give false testimony in favor of a defendant in a criminal case shall suffer a penalty ranging from arresto mayor in its maximum degree to prision correccional in its medium degree and a fine of not less than three hundred and seventy-five and not more than three thousand seven hundred and fifty pesetas, if the case were for a felony, and the penalty of arresto mayor if it were for a misdemeanor.

We conclude that the judgment of conviction entered in the court below should be affirmed but that the sentence imposed therein should be reversed, and that giving the accused the benefit of the provisions of Act No. 2142, a penalty of 4 months and 1 day of arresto mayor and a fine of P75 with subsidiary imprisonment as prescribed by law should be imposed upon him in lieu of that imposed by the trial judge, with the costs of this instance de officio. So ordered.

Torres, Johnson and Araullo, JJ., concur.

Separate Opinions

MORELAND, J., dissenting:

I agree that the provisions of the Penal Code relative to false swearing were revived by the repeal of Act No. 1697 by the Administrative Code.

I cannot believe, however, that the Penal Code intended to include a defendant in a criminal action among those who are to be punished for false swearing.

The defendant in the case at bar is charged with having sworn falsely when testifying in his own behalf while on trial charged with estafa, in that, on that trial, he testified that a certain written confession of his guilt alleged to

have been made by him and put in evidence against him was false in its statement of the facts and had been obtained from him by threats, intimidation and violence.

On the trial for estafa the court accepted as a true enough of the testimony of the accused as to the manner in which the confession had been obtained to raise in his mind a reasonable doubt as to the voluntary character of the confession; and, there not being other evidence sufficient to sustain a conviction, the accused was acquitted.

I cannot bring myself to believe, as I have already stated, that the provisions of the Penal Code defining false swearing include the false testimony of a defendant in a criminal action given in his own behalf.

In the first place, the wording of the law does not include him. Article 319 provides:

Any person who shall give false testimony in favor of a defendant in a criminal case shall suffer a penalty ranging from arresto mayor in its maximum degree to prision correccional in its medium degree and a fine of not less than three hundred and seventy-five and not more than three thousand seven hundred and fifty pesetas, if the case were for a felony, and the penalty of arresto mayor if it were for a misdemeanor.

The language itself plainly shows that the "person who shall give false testimony" is not the defendant in the action but a different person a witness and not a party, an outsider and not one whose life or liberty depends on the result of the action.

In the second place, the defendant in a criminal action could not be a witness when the Penal Code was adopted and, accordingly, the framers of the Penal Code could not have contemplated him as the "person who shall give false testimony." (U. S. vs. Gutierrez, 12 Phil. Rep., 529.)

Thirdly, there is a reason given by Viada why the Spanish law did not punish a party for false swearing even in those proceedings in which false swearing was punishable and in which he was allowed to testify. In volume 2 of his commentaries on the Penal Code, at page 465 and 466, he puts this question "Will a party who testifies falsely in his answers to interrogatories prepared in a civil case be guilty of false swearing?" And answers it as follows:

It is worth while to consider this question here was we have recently seen a judge in this city order prepared a copy of the testimony given by a defendant in answer to interrogatories prepared in a civil suit as a basis for a criminal action against him because the judge believed that he had testified falsely in answering said interrogatories. A party who testifies falsely in reply to interrogatories cannot be prosecuted for false swearing for the simple reason that he is not a witness, for, as the Digest says, nullus indoneus testis in re sua intelligitur; and, besides, if the legislator had wished to punish the perjury of a party he would have done so by including in the Penal Code a special provision to that effect, as was done in the French Penal Code by art. 366. The Spanish law took into consideration the frailty of human nature; it believed that a false oath given by a party was sufficiently punished by his conscience, especially in view of the fact that, as a learned author has said, for a man to testify against himself for mere love of or respect for the truth is certainly heroic, and by reason of the very fact that it is heroic no one should be condemned criminally for not doing it.

If it is true that it was not the intention of the framers of the Penal Code to make a defendant in a criminal action who should testify falsely in his own behalf guilty of perjury, the mere fact of making him a competent witness in the case is not sufficient to include him within the provisions relating to false swearing, when, but for the fact of being a competent witness, he would not be included. If there is any doubt that a given class of person is included in a penal provision it should be excluded.

For the reason stated, I have grave doubts of the intention of the Spanish lawmakers to include a defendant in a criminal action as one of the "witnesses" who could commit the crime of false swearing; and it is the Spanish law of crimes we are applying and not the American law of the competency of witnesses. The intention of the law being to exclude a party from its operation, that intention cannot logically be held to have been changed by giving the party an additional attribute. Although he may be made a witness he still remains a party; and Viada says that the Spanish law never intended to hold a defendant who testified falsely to save his neck from the gallows to the same responsibility as a mere witness who has absolutely nothing to lose by his testimony.

Groizard makes a suggestion which approaches the question in hand very closely and shows the trend of judicial as well as legislative thought on the subject under discussion. Speaking of the person who, under the Penal Code, may be punished for false swearing, he says "There is one exception which we could have wished our code to make in connection with the matter we are discussing, and that is that its provisions shall not apply to those witnesses whose honor would be sullied by the truth or who, if they testified truthfully, would be exposed to the risk of a criminal prosecution. Nor should he be held to answer to a charge of false swearing who testifies falsely to save his parents, his brothers or sisters, or his relations within the fourth degree. The law should not so far forget the power and influence of personal interest and family ties as to require as a legal duty something which not all regard even as a moral duty. Blood has its law. . . ."

Spanish law and Spanish legal thought are against the position of the court in this case. American law does not expressly, or even clearly, undertake to change it. Making a person a witness does not deprive him of his character as a party; and it is precisely in his character as a party that the Spanish law protects him.

The case of United States vs. Gutierrez, already cited, is not conclusive of the case before us. There the false testimony was given in a civil action. Here it was given in a criminal action.

There is strong doubt in my mind also with respect to the correct resolution of another question presented in this case which has been decided by this court adversely to the defendant. As I have already stated, the defendant in this case is on trial for perjury for having testified falsely in a criminal action in which he was a defendant charged with the crime of estafa. The testimony which he gave and which is alleged in the present action to have been false related, as already stated, to the voluntary and spontaneous character of a written confession which he is alleged to have made with regard to the commission of the crime with which he was charged. He contended, as a witness for himself on his trial for estafa, that the confession was false in its statement of facts and had been obtained from him by threats, intimidation and violence. He was acquitted in that case upon the ground that his testimony in that regard was true, or was of such a character as to produce in the mind of the court doubt sufficient to require an acquittal. The judge who presided at the trial of the accused for estafa presided also at the trial of the accused for perjury. In his opinion acquitting the defendant of the charge of estafa the court said, speaking of the alleged confession and of the testimony relating to it given in that case:

This is not a new occurrence in this court. It is frequently resorted to in important cases, where confessions have been secured by the secret service. We are fully convinced that every precaution is taken by the chief of the Secret Service Bureau with a view to avoiding the maltreatment of persons who have been apprehended by that Bureau, and who are under suspicion of crime, and in the majority of cases we pay no heed to the testimony of criminals who have come to look upon this allegation of maltreatment as a stock defense. But in this case there were some circumstances in connection with the testimony of the defendants which raised a grave doubt at least as to the voluntary character and spontaneity of these confessions, and in view therefore, of this grave doubt, and of the unsatisfactory character of the evidence generally, the defendants are acquitted and the costs are taxed de officio.

In the present case the same judge says with regard to the same matter:

In the case in which the defendant was charged with estafa and in which he is accused of having testified falsely, the case turned largely upon the truth of the confessions of the defendant and his codefendants, which were

alleged to have been made while they were under detention in secret service headquarters. If it were true that such confessions were extracted under threats and torture, it is unnecessary to state that it would be a very serious matter. Indeed the court considered it so serious at the time the accused in question was tried with his codefendants, that it preferred to enter an acquittal rather than to risk a conviction on confessions which appear to be tainted with this suspicion."

I am inclined to believe that the finding of the trial court in the case of estafa with regard to the testimony of the defendant in relation to the confession is a bar to a subsequent trial of the same defendant for perjury for giving the testimony to which the finding of the court relates. In the case of Cooper vs. Commonwealth (106 Ky., 909) it appeared that the appellant in that case and one Libbie Purvis were jointly indicted in the Rowan Circuit Court for the offense of adultery. The trial under that indictment resulted in a verdict of acquittal for appellant. The grand jury of Rowan County thereupon reported an indictment against him in which it was charged that, upon the trial of appellant and Libbie Purvis upon the charge of adultery, "he did knowingly, willfully, and corruptly swear that he had not had carnal sexual intercourse with Libbie Purvis, when same was false and untrue, and was known by him to be false and untrue." The trial under this indictment resulted in a verdict of guilty, and judgment sentencing appellant to confinement in the penitentiary was entered and the case came to the Supreme Court of the State of Kentucky upon an appeal from that judgment. In its opinion for a reversal the court said:

The principal question to be considered is the effect which is to be given to the indictment, trial, verdict and judgment of acquittal of appellant under the indictment for adultery, as it is manifest that appellant can not be guilty in this case if he was innocent of the charge contained in the indictment.

His guilt or innocence of the offense of having had carnal sexual intercourse with Libbie Purvis was the exact question which was tried in the first proceeding, and as a result of that trial the defendant was found not guilty. In order to convict him in this case, it was necessary for the jury to believe that he was guilty of the identical offense for which he had been tried and acquitted under the other indictment, as it is evident that, if he was innocent of having had carnal sexual intercourse with Libbie Parvis, he was not guilty of false swearing when he stated that he had not had such intercourse with her. We therefore have, as a result of the trial of appellant under these two indictments, a verdict and judgment finding him not guilty of the offense of having had carnal sexual intercourse with Libbie Purvis, and in the second case a verdict and judgment finding him guilty of false swearing when he testified that he had not had such intercourse with her; in other words, the first jury found him innocent of the misdemeanor with which he was charged, and the second jury found him guilty of the felony because he testified that he was not guilty of such misdemeanor. It certainly was never intended that the enginery of the law should be used to accomplish such inconsistent results. It appears to us from the conflicting character of the testimony in the case upon the question of defendant's guilt or innocence that a verdict of the jury might have been upheld in the first case whether it found one way or the other, but certainly the finding of

the jury must be conclusive of the fact considered as against the Commonwealth, and preclude any further prosecution which involves the ascertainment of such fact.

xxx

xxx

xxx

Appellant in this case had already been tried and acquitted of the offense of having had carnal sexual intercourse with Libbie Purvis, and the judgment in that case is res judicata against the Commonwealth, and he can not again be put on trial where the truth or falsity of the charge in that indictment is the gist of the question under investigation. It therefore follows that appellant was entitled to a peremptory instruction to the jury to find him not guilty.

In the case of United States vs. Butler (38 Fed. Rep., 498) a defendant, who had been acquitted upon an indictment for selling liquors without payment of the special tax required by law, was subsequently put upon trial for perjury for having sworn upon his preliminary examination before a commissioner that he did not sell. It was held that his acquittal for selling liquor was a conclusive adjudication in his favor upon the subsequent trial for perjury, and that the Government could not show that his oath was false. In that case the court said:

But I am clearly of the opinion that upon the trial of this case the defendant would be entitled to show that he had been acquitted of the offense concerning which he is charged to have committed perjury, and that such acquittal would be conclusive. Whenever the same fact has been put in issue between the same parties, the verdict of the jury upon such issue is a complete estoppel. This case contains all the elements of a plea of res judicata; the parties as the same; the point issue, viz, whether he did in fact sell liquor, is the same, and the quantum of proof requisite in both cases is also the same. Had he sworn before the commissioner that he had paid his tax and had been acquitted by the jury upon the ground that he did not sell liquor, the issue would have been different, and perhaps such difference might have been shown by parol, but in this case the two issues were identically the same.

In Commonwealth vs. Ellis (160 Mass., 165), it was held that the record of the conviction and sentence of a father upon a complaint, under the statute of 1885, c. 176, for unreasonably neglecting to support his minor child, was conclusive evidence that the paternity of the child was determined, and the father was estopped to set up the illegitimacy of the child as a defense to a subsequent complaint under the same statute for a similar offense. In arriving at this conclusion the court said:

The question of the paternity of the child was necessarily involved in the prior conviction of the defendant. That fact having been determined, it cannot again be litigated between the same parties unless a different rule applies to criminal proceedings from that which obtains in civil proceedings. See Sly vs. Hunt, 159 Mass., 15, and cases cited. It is well settled that the rule is the same in both classes of cases. Thus, in Commonwealth vs. Evans, 101 Mass., 25, it was held, on the trial of an indictment for manslaughter, that the record of a conviction of the defendant for the assault which caused the death was conclusive evidence that the assault was unjustifiable. So in Commonwealth vs. Feldman, 131 Mass., 588, where the defendant was indicted for an assault upon a public officer, committed while the defendant was under arrest for drunkenness; it was held that a record of his conviction and sentence for drunkenness at the time of his arrest was conclusive evidence of that fact.

In the case of Coffey vs. United States (116 U. S. 436) the principal question presented for determination was stated by the court as follows:

The principal question is as to the effect of the indictment, trial, verdict and judgment of acquittal set up in the fourth paragraph of the answer. The information is founded on sections 3257, 3450, and 3453; and there is no question, on the averments in the answer, that the fraudulent acts and attempts and intents to defraud, alleged in the prior criminal information and covered by the verdict and judgment of acquittal, embraced all of the acts, attempts and intents averred in the information in this suit.

The question, therefore, is distinctly presented, whether such judgment of acquittal is a bar to this suit. We are of opinion that it is.

It is true that section 3257, after denouncing the single act of a distiller defrauding or attempting to defraud the United States of the tax on the spirits distilled by him, declares the consequences of the commission of the act to be: (1) That certain specific property shall be forfeited, and (2) that the offender shall be fined and imprisoned. It is also true that the proceeding to enforce the forfeiture against the res named must be a proceeding in rem and a civil action; while that to enforce the fine and imprisonment must be a criminal proceeding, as was held by this court in The Palmyra (12 Wheat., 1, 14 [25 U. S., bk. 6, L. ed. 531, 535]). Yet, where an issue raised as to the existence of the act or fact denounced has been tried in a criminal proceeding, instituted by the United States, and a judgment of acquittal has been rendered in favor of a particular person, that judgment is conclusive in favor of such person, on the subsequent trial of a suit in rem by the United States, where, as against him, the existence of the same act or fact is the matter in issue, as a cause for the forfeiture of the property prosecuted in such suit in rem. It is urged as a reason for not allowing such effect to the judgment, that the acquittal in the criminal case may have taken place because of the rule requiring guilt to be proved beyond a reasonable doubt; and that, on the same evidence, on the question of preponderance of proof, there might be a verdict for the United States, in the suit in rem. Nevertheless, the fact or act has been put in issue

and determined against the United States; and all that is imposed by the statute, as a consequence of guilt, is a punishment therefor. There could be no new trial of the criminal prosecution after the acquittal in it; and a subsequent trial of the civil suit amounts substantially to the same thing, with a difference only in the consequences following a judgment adverse to the claimant.

When an acquittal in a criminal prosecution in behalf of the Government is pleaded or offered in evidence, by the same defendant, in an action against him by an individual, the rule does not apply, for the reason that the parties are not the same; and often for the additional reason that a certain intent must be proved to support the indictment, which need not be proved to support the civil action. But upon this record, as we have already seen, the parties and the matter in issue are the same.

Whether a conviction on an indictment under section 3257 could be availed of as conclusive evidence, in law, for a condemnation, in a subsequent suit in rem under that section, and whether a judgment of forfeiture in a suit in rem under it would be conclusive evidence, in law, for a conviction on a subsequent indictment under it, are questions not now presented.

The conclusion we have reached is in consonance with the principles laid down by this court in Gelston vs. Hoyt (3 Wheat., 246 [16 U. S., bk. 4, L. ed., 381]). In that case Hoyt sued Gelston the collector, and Schenck the surveyor, of the Port of New York, in trespass, for taking and carrying away a vessel. The defendants pleaded that they had seized the vessel, by authority of the President, as forfeited for a violation of the statute against fitting out a vessel to commit hostilities against a friendly foreign power, and that she had been so fitted out and was forfeited. At the trial it was shown that after seizure, the vessel was proceeded against by the United States, by libel, in the United States District Court, for the alleged offense, and Hoyt had claimed her and she was acquitted and ordered to be restored, and a certificate of reasonable cause of seizure was denied. The defendants offered to prove facts showing the forfeiture. The trial court excluded the evidence. In this court, the question was presented whether the sentence of the district court was or was not conclusive on the defendants, on the question of forfeiture. This court held that the sentence of acquittal, with a denial of a certificate of reasonable cause of seizure, was conclusive evidence that no forfeiture was incurred, and that the seizure was tortious; and that these questions could not again be litigated in any forum.

This doctrine is peculiarly applicable to a case like the present, where, in both proceedings, criminal and civil, the United States is the party on one side and this claimant the party on the other. The judgment of acquittal in the criminal proceeding ascertained that the facts which were the basis of that proceeding, and are the basis of this one, and which are made by the statute the foundation of any punishment, personal or pecuniary, did not exist. This was ascertained once for all, between the United States and the claimant, in the criminal proceeding, so that the facts can not again be litigated between them, as the basis of any statutory punishment denounced as a

consequence of the existence of the facts. This is a necessary result of the rules laid down in the unanimous opinion of the judges in the case of Rex vs. Duchess of Kingston (20 Howell, St. Tr., 355, 538), and which were formulated thus: the judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea a bar, or as evidence conclusive, between the same parties, upon the same matter directly in question in another court; and the judgment of a court of exclusive jurisdiction, directly upon the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another court for a different purpose. In the present case, the court is the same court and had jurisdiction; and the judgment was directly on the point now involved and between the same parties.

In a case before Mr. Justice Miller and Judge Dillon (U. S. vs. McKee, 4 Dill., 128), the defendant had been convicted and punished under a section of the Revised Statutes, for conspiring with certain distillers to defraud the United States, by unlawfully removing distilled spirits without payment of the taxes thereon. He was afterwards sued in a civil action by the United States, under another section, to recover a penalty of double the amount of the taxes lost by the conspiracy and fraud. The two alleged transactions were but one; and it was held that the suit for the penalty was barred by the judgment in the criminal case. The decision was put on the ground that the defendant could not be twice punished for the same crime, and that the former conviction and judgment were a bar to the suit for the penalty.

I am rather inclined to believe that these decisions cover the case at bar. It is true that the fact determined by the court on the trial for estafa was not a fact necessary to be alleged in the information charging the crime as an essential element thereof; and that consequently it was not one of the facts necessary to be established in order to convict. Reasoning from these facts it might be claimed that, whether the confession offered in evidence in the estafa case was voluntary or was obtained by threat, intimidation and violence, was not the fact in issue on that trial, and that, therefore, the judgment in the estafa case determining that question was not a bar to the presentation of the same question in the present action for perjury. I am of the opinion, however, that the principles enunciated in the cases cited, and especially the Coffey case, are sufficiently broad to cover the case at bar. It is well settled that a right, question or fact definitely put in issue and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be discussed in a subsequent suit between the same parties or their privies; and that even if the second suit is for a different cause of action, the right, question, or fact once so determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified. This is substantially the rule stated in the case of Southern Pacific Railroad vs. United States (168 U. S., 1).

It is clear from the decision of the trial court in the estafa case that the question most strongly fought by the parties in that action was whether or not the confession was voluntary or had been obtained by threats, intimidation and violence. The evidence which the Government was able to produce was, apart from the confession, insufficient to convict; and, as a necessary consequence, whether or not the defendant was convicted in that case depended, in the main, upon the character of the confession. In all respects an issue was

joined by the parties with reference thereto (Lizarraga Hermanos vs. Yap Tico, 24 Phil. Rep., 504). It was accepted by both parties and a large part of the evidence in the estafa case, so far as we can judge from the opinion of the trial court in that case, related to that issue. The question of fact involved was decided adversely to the Government and, as we have seen from the opinion of the trial court in that and the present case, the acquittal was based wholly upon the defeat of the Government on that issue.

It would seem to me, therefore, that the character of the confession was as thoroughly litigated and decided by the trial court as if it had been a fact necessary to have been alleged in the information to describe the crime sought to be charged. If that is so then the Government in the present case cannot be allowed to put that question again in issue and can not be heard to charge that the testimony given by the defendant in relation thereto was false.

For these reason I am of the opinion that the conviction can not stand and that the accused should be acquitted.

Remedial Laws

Republic of the Philippines SUPREME COURT Manila

FIRST DIVISION

G.R. No. L-60316 January 31, 1983

VIOLETA ALDAY and ERNESTO Yu, petitioners, vs. HONORABLE SERAFIN E. CAMILON, as Judge temporarily presiding over Branch XXV of the Court of First Instance of Rizal (Pasig), SHERIFF OF PASIG, respondents.

Moises B. Boquia for petitioners.

Acebes, Del Carmen, Cecilio, Cinco & Ferrer Law Office for respondent Aboitiz.

RESOLUTION MELENCIO-HERRERA, J.:

The issue for resolution is whether or not respondent Judge gravely abused his discretion in issuing a Writ of Execution to enforce the Decision in Civil Case No. 31725 of his Court for a sum of money entitled Aboitiz & Co Inc. v Violets Alday and Ernesto Yu, notwithstanding the fact that petitioners, as defendants aid the losing party below, had timely filed a Notice of Appeal and posted a cash appeal bond, but did not submit any Record on Appeal.

There is no question that the Decision of the lower Court adverse to petitioners was rendered on August 13, 1981. Copy thereof was received by them on September 1, 1981. Within time, petitioners filed on September 4, 1981 a Notice of Appeal and a cash appeal bond, but without a Record on Appeal. On March 25, 1982, respondent Judge issued the questioned Order granting execution since petitioners had not perfected an appeal within the reglementary period for failure on their part to file a Record on Appeal within the prescribed period,

Petitioners justify the non-filing of the Record on Appeal by invoking section 39 of the Judiciary Reorganization Act of 1980 (Batas Pambansa Blg. 129) providing that "no record on appeal shall, be required to take an appeal." They claim that the Act was approved on August 14, 1981 and Section 48 thereof specifically provides that it was to take effect immediately. Petitioners overlook, however, Section 44 of BP Blg. 129 specifically providing that its provisions were to be immediately carried out in accordance with an Executive Order to be issued by the President and that the old Courts would continue to function until the completion of the reorganization as declared by the President. Moreover, it will be recalled that on September 3, 1981, a Petition questioning the constitutionality of that law was instituted before this Court (De la Llana vs. Alba, G.R. No. L-57883). The constitutionality of that law was upheld in our Decision of March 12, 1982 (112 SCRA 294). Consequently, prior to that date, and before the issuance of Executive Order No. 864, dated January 17, 1983, declaring the completion of the reorganization of the Judiciary, BP Big. 129 could not be said to have been in force and effect. It was prematurely for petitioners to have invoked that law to justify their stand in not filing a Record on Appeal, and respondent Judge cannot be

faulted with grave abuse of discretion for having authorized the issuance of the Writ of Execution since, for lack of compliance with the procedure for taking an appeal under the former Rules of Court, the lower Court Decision would have become final.

Nonetheless, in Executive Order No. 864, dated January 17, 1983, the President of the Philippines had declared that the former Courts were deemed automatically abolished as of 12:00 o'clock midnight of January 17, 1983. The reorganization having been declared to have been completed, BP Blg. 129 is now in full force and effect. A Record on Appeal is no longer necessary for taking an appeal. The same proviso appears in Section 18 of the Interim Rules aid Guidelines issued by this Court on January 11, 1983. Being procedural in nature, those provisions may be applied retroactively for the benefit of petitioners, as appellant.

Statutes regulating the procedure of the courts will be construed as applicable to action's pending and undetermined at the time of their passage. Procedural laws are retrospective in that sense and to that extent (People vs. Sumilang, 77 Phil. 764 [1946]).

ACCORDINGLY, the Order of respondent Judge (now an Associate Justice of the Intermediate Appellate Court) granting the issuance of the Writ of Execution is hereby set aside and the branch of the Regional Trial Court to whom the case below has been assigned is hereby directed to give due course to petitioners' appeal even without a Record on Appeal. The temporary Restraining Order heretofore issued by this Tribunal enjoining the enforcement of the Writ of Execution issued by the lower Court is hereby made permanent.

No costs.

SO ORDERED.

Teehankee (Chairman), Vasquez, Relova and Gutierrez, Jr., JJ., concur.

Plana, J., is on leave.

Substantive Laws vs. Procedural Laws

Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. No. L-2068

October 20, 1948

DOMINADOR B. BUSTOS, petitioner, vs. ANTONIO G. LUCERO, Judge of First Instance of Pampanga, respondent.

E. M. Banzali for petitioner. Acting Provincial Fiscal Albino L. Figueroa and Assistant Provincial Fiscal Marcelo L. Mallari for respondent.

TUASON, J.:

The petitioner herein, an accused in a criminal case, filed a motion with the Court of First Instance of Pampanga after he had been bound over to that court for trial, praying that the record of the case be remanded to the justice of the peace court of Masantol, the court of origin, in order that the petitioner might crossexamine the complainant and her witnesses in connection with their testimony, on the strength of which warrant was issued for the arrest of the accused. The motion was denied and that denial is the subject matter of this proceeding.

According to the memorandum submitted by the petitioner's attorney to the Court of First Instance in support of his motion, the accused, assisted by counsel, appeared at the preliminary investigation. In that investigation, the justice of the peace informed him of the charges and asked him if he pleaded guilty or not guilty, upon which he entered the plea of not guilty. "Then his counsel moved that the complainant present her evidence so that she and her witnesses could be examined and cross-examined in the manner and form provided by law." The fiscal and the private prosecutor objected, invoking section 11 of rule 108, and the objection was sustained. "In view thereof, the accused's counsel announced his intention to renounce his right to present evidence," and the justice of the peace forwarded the case to the court of first instance.

Leaving aside the question whether the accused, after renouncing his right to present evidence, and by reason of that waiver he was committed to the corresponding court for trial, is estopped, we are of the opinion that the respondent judge did not act in excess of his jurisdiction or in abuse of discretion in refusing to grant the accused's motion to return the record for the purpose set out therein. In Dequito and Saling Buhay vs. Arellano, G.R. No. L-1336, recently promulgated, in which case the respondent justice of the peace had allowed the accused, over the complaint's objection, to recall the complainant and her witnesses at the preliminary investigation so that they might be cross-examined, we sustained the justice of the peace's order. We said that section 11 of Rule 108 does not curtail the sound discretion of the justice of the peace on the matter. We said that "while section 11 of Rule 108 defines the bounds of the defendant's right in the preliminary investigation, there is nothing in it or any other law restricting the authority, inherent in a court of justice, to pursue a course of action reasonably calculated to bring out the truth."

But we made it clear that the "defendant can not, as a matter of right, compel the complaint and his witnesses to repeat in his presence what they had said at the preliminary examination before the issuance of the order of arrest." We called attention to the fact that "the constitutional right of an accused to be confronted by the witnesses against him does not apply to preliminary hearings' nor will the absence of a preliminary examination be an infringement of his right to confront witnesses." As a matter of fact, preliminary investigation may be done away with entirely without infringing the constitutional right of an accused under the due process clause to a fair trial.

The foregoing decision was rendered by a divided court. The minority went farther than the majority and denied even any discretion on the part of the justice of the peace or judge holding the preliminary investigation to compel the complainant and his witnesses to testify anew.

Upon the foregoing considerations, the present petition is dismissed with costs against the petitioner.

Moran, C.J., Paras, Pablo, Bengzon, and Briones, JJ., concur.

Separate Opinions

FERIA, J., dissenting:

I am sorry to dissent from the decision.

The petitioner in the present case appeared at the preliminary investigation before the Justice of the Peace of Masantol, Pampanga, and after being informed of the criminal charges against him and asked if he pleaded guilty or not guilty, pleaded not guilty. "Then the counsel for the petitioner moved that the complainant present her evidence so that her witnesses could be examined and cross-examined in the manner and form provided by law." The fiscal and the private prosecutor objected to petitioner's motion invoking section 11, Rule 108, and the objection was sustained. In view thereof, the accused refused to present his evidence, and the case was forwarded to the Court of First Instance of Pampanga.

The counsel for the accused petitioner filed a motion with the Court of First Instance praying that the record of the case be remanded to the justice of the peace of Masantol, in order that the petitioner might crossexamine the complainant and her witnesses in connection with their testimony. The motion was denied, and for that reason the present special civil action of mandamus was instituted.

It is evident that the refusal or waiver of the petitioner to present his evidence during the investigation in the justice of the peace, was not a waiver of his alleged right to be confronted with and cross-examine the witnesses for the prosecution, that is, of the preliminary investigation provided for in General Order No. 58 and Act No. 194, to which he claims to be entitled, as shown by the fact that, as soon as the case was forwarded to the Court of First Instance, counsel for the petitioner filed a motion with said court to remand the case to the Justice of the Peace of Masantol ordering the latter to make said preliminary investigation. His motion having been denied, the petitioner has filed the present action in which he squarely attacks the validity of the provision of section 11, Rule 108, on the ground that it deprives him of the right to be confronted with and cross-examine the witnesses for the prosecution, contrary to the provision of section 13, Article VIII, of the Constitution.

In the case of Dequito and Saling Buhay vs. Arellano, No. L-1336, we did not discuss and decide the question of validity or constitutionality of said section 11 in connection with section 1 of Rule 108, because that question was not raised therein, and we merely construed the provisions on preliminary investigation or Rule 108. In said case the writer of this dissenting opinion said:

It may not be amiss to state that, modesty aside, the writer of this dissenting opinion, then a practising attorney, was the one who prepared the draft of the Rules of Court relating to criminal procedure, and the provisions on preliminary investigation in the draft were the same as those of the old law, which gave the defendant the right to be confronted with and to cross-examine the witnesses for the prosecution. But the Supreme Court approved and adopted in toto the draft, except the part referring to preliminary investigation which it modified, by suppressing said right and enacting, in its stead, the provisions of section 11 of Rule 108 in its present form. I prefer the old to the new procedure. But I can not subscribe to the majority decision, which is a judicial legislation and makes the exercise of the right of a defendant to be confronted, with and crossexamine the witnesses against him, to depend entirely upon the whim or caprice of a judge or officer conducting the preliminary investigation.

But now the question of the validity of said section 11, Rule 108, is squarely presented to this Court for decision, we have perforce to pass upon it.

Section 13, Article VIII, of the Constitution prescribes that "the Supreme Court shall have power to promulgate rules concerning pleading, practice and procedure in all courts, but said rules shall not diminish, increase or modify substantive rights." The constitution added the last part of the above-quoted constitutional precept in order to emphasize that the Supreme Court is not empowered, and therefore can not enact or promulgate substantive laws or rules, for it is obvious that rules which diminish, increase or modify substantive rights, are substantive and not adjective laws or rules concerning pleading, practice and procedure.

It does not require an elaborate arguments to show that the right granted by law upon a defendant to be confronted with and cross-examine the witnesses for the prosecuted in preliminary investigation as well as in the trial of the case is a substantive right. It is based on human experience, according to which a person is not prone to tell a lie against another in his presence, knowing fully well that the latter may easily contradict him, and that the credibility of a person or veracity of his testimony may be efficaciously tested by a crossexamination. It is substantive right because by exercising it, an accused person may show, even if he has no evidence in his favor, that the testimonies of the witnesses for the prosecution are not sufficient to indicate that there is a probability that a crime has been committed and he is guilty thereof, and therefore the accused is entitled to be released and not committed to prison, and thus avoid an open and public accusation of crime, the

trouble, expense, and anxiety of a public trial, and the corresponding anxiety or moral suffering which a criminal prosecution always entails.

This right is not a constitutional but a statutory right granted by law to an accused outside of the City of Manila because of the usual delay in the final disposition of criminal cases in provinces. The law does not grant such right to a person charged with offenses triable by the Court of First Instance in the City of Manila, because of the promptness, actual or presumptive, with which criminal cases are tried and disposed of in the Court of First Instance of said city. But this right, though not a constitutional one, can not be modified, abridged, or diminished by the Supreme Court, by virtue of the rule making power conferred upon this Court by the Constitution.

Since the provisions of section 11 of Rule 108 as construed by this Court in several cases, (in which the question of constitutionality or validity of said section had not been squarely raised) do away with the defendant's right under discussion, it follows that said section 11 diminishes the substantive right of the defendant in criminal case, and this Court has no power or authority to promulgate it and therefore is null and void.

The fact that the majority of this Court has ruled in the above cited case of Dequito and Saling Buhay vs. Arellano, that the inferior or justice of the peace courts have discretion to grant a defendant's request to have the witnesses for the prosecution recalled to testify again in the presence of the defendant and be crossexamined by the latter, does not validate said provision; because to make the exercise of an absolute right discretionary or dependent upon the will or discretion of the court or officer making the preliminary investigation, is evidently to diminish or modify it.

Petition is therefore granted.

PERFECTO, J., dissenting:

In our concurring and dissenting opinion in the case of Dequito and Saling Buhay vs. Arellano, No. L-1336, we said:

In our opinion, section 11 of Rule 108 must be read, interpreted, and applied in a way that will not contravene the constitutional provision guaranteeing to all accused the right "to meet the witnesses face to face." (Section 1 [17], Article III.)

Consequently, at the preliminary hearing contemplated by said reglementary section, the defendant is entitled as a matter of fundamental right to her the testimony of the witnesses for the prosecution and to crossexamine them.

Although in such preliminary hearing the accused cannot finally be convicted, he is liable to endure the ordeal eloquently depicted in the decision, and the constitutional guarantee protects defendants, not only from the jeopardy of being finally convicted and punished, but also from the physical, mental and moral sufferings that may unjustly be visited upon him in any one of the stages of the criminal process instituted against him. He must be afforded the opportunities to have the charges against him quashed, not only at the final hearing, but also at the preliminary investigation, if by confronting the witnesses for the prosecution he can convince the court that the charges are groundless. There is no justice in compelling him to undergo the troubles of a final hearing if at the preliminary hearing the case can be terminated in his favor. Otherwise, the preliminary investigation or hearing will be an empty gesture that should not have a place within the framework of dignified and solemn judicial proceedings.

On the strength of the above quoted opinion the opinion should be granted and so we vote.

Petition dismissed.

RESOLUTION

March 8, 1949

TUASON, J.:

This cause is now before us on a motion for reconsideration.

In the decision sought to be reconsidered, we said, citing Dequito and Saling Buhay vs. Arellano, G.R. No. L1336: "The constitutional right of an accused to be confronted by the witnesses against him does not apply to preliminary hearings; nor will the absence of a preliminary examination be an infringement of his right to confront witness. As a matter of fact, preliminary investigation may be done away with entirely without infringing the constitutional right of an accused under the due process clause to a fair trial." We took this ruling to be ample enough to dispose the constitutional question pleaded in the application for certiorari. Heeding the wishes of the petitioner, we shall enlarge upon the subject.

It is contended that section 11 of Rule 108 of the Rules of Court 1 infringes section 13, Article VIII, of the Constitution. 2 It is said that the rule in question deals with substantive matters and impairs substantive rights.

We can not agree with this view. We are of the opinion that section 11 of Rule 108, like its predecessors, is an adjective law and not a substantive law or substantive right. Substantive law creates substantive rights and the two terms in this respect may be said to be synonymous. Substantive rights is a term which includes those rights which one enjoys under the legal system prior to the disturbance of normal relations. (60 C.J., 980.) Substantive law is that part of the law which creates, defines and regulates rights, or which regulates the rights and duties which give rise to a cause of action; that part of the law which courts are established to administer; as opposed to adjective or remedial law, which prescribes the method of enforcing rights or obtains redress for their invasion. (36 C. J., 27; 52 C. J. S., 1026.)

As applied to criminal law, substantive law is that which declares what acts are crimes and prescribes the punishment for committing them, as distinguished from the procedural law which provides or regulates the steps by which one who commits a crime is to be punished. (22 C. J. S., 49.) Preliminary investigation is eminently and essentially remedial; it is the first step taken in a criminal prosecution.

As a rule of evidence, section 11 of Rule 108 is also procedural. Evidence which is the "the mode and manner of proving the competent facts and circumstances on which a party relies to establish the fact in dispute in judicial proceedings" is identified with and forms part of the method by which, in private law, rights are enforced and redress obtained, and, in criminal law, a law transgressor is punished. Criminal procedure refers to pleading, evidence and practice. (State vs. Capaci, 154 So., 419; 179 La., 462.) the entire rules of evidence have been incorporated into the Rules of Court. We can not tear down section 11 of Rule 108 on constitutional grounds without throwing out the whole code of evidence embodied in these Rules.

In Beazell vs. Ohio, 269 U. S., 167, 70 Law. ed., 216, the United States Supreme Court said:

Expressions are to be found in earlier judicial opinions to the effect that the constitutional limitation may be transgressed by alterations in the rules of evidence or procedure. See Calder vs. Bull, 3 Dall. 386, 390, 1 L. ed., 648, 650; Cummings vs. Missouri, 4 Wall. 277, 326, 18 L. ed., 356, 364; Kring vs. Missouri, 107 U. S. 221, 228, 232, 27 L. ed., 507, 508, 510, 2 Ct. Rep., 443. And there may be procedural changes which operate to deny to the accused a defense available under the laws in force at the time of the commission of his offense, or which otherwise affect him in such a harsh and arbitrary manner as to fall within the constitutional prohibition. Kring vs. Missouri, 107 U. S., 221, 27 L. ed., 507, 2 Sup. Ct. Rep., 443; Thompson vs. Utah, 170 U. S., 343, 42 L. ed., 1061, 18 Sup. Ct. Rep., 620. But it is not well settled that statutory changes in the mode of trial or the rules of evidence, which do not deprive the accused of a defense and which operate only in a limited and unsubstantial manner to his disadvantage, are not prohibited. A statute which, after indictment, enlarges the class of persons who may be witnesses at the trial, by removing the disqualification of persons convicted of felony, is not an ex post facto law. Hopt vs. Utah, 110 U. S., 575, 28 L. ed., 263, 4 Sup. Ct. Rep., 202, 4 Am. Crim. Rep. 417. Nor is a statute which changes the rules of evidence after the indictment so as to render admissible against the accused evidence previously held inadmissible, Thompson vs. Missouri, 171 U. S., 380, 43 L. ed., 204, 18 Sup. Ct. Rep., 922; or which changes the place of trial, Gut. vs. Minnesota, 9 Wall. 35, 19 L. ed., 573; or which abolishes a court for hearing criminal appeals, creating a new one in its stead. See Duncan vs. Missouri, 152 U. S., 377, 382, 38 L. ed., 485, 487, 14 sup. Ct. Rep., 570.

Tested by this standard, we do not believe that the curtailment of the right of an accused in a preliminary investigation to cross-examine the witnesses who had given evidence for his arrest is of such importance as to offend against the constitutional inhibition. As we have said in the beginning, preliminary investigation is not an essential part of due process of law. It may be suppressed entirely, and if this may be done, mere restriction of the privilege formerly enjoyed thereunder can not be held to fall within the constitutional prohibition.

While section 11 of Rule 108 denies to the defendant the right to cross-examine witnesses in a preliminary investigation, his right to present his witnesses remains unaffected, and his constitutional right to be informed of the charges against him both at such investigation and at the trial is unchanged. In the latter stage of the proceedings, the only stage where the guaranty of due process comes into play, he still enjoys to the full extent the right to be confronted by and to cross-examine the witnesses against him. The degree of importance of a preliminary investigation to an accused may be gauged by the fact that this formality is frequently waived.

The distinction between "remedy" and "substantive right" is incapable of exact definition. The difference is somewhat a question of degree. (Dexter vs. Edmands, 89 F., 467; Beazell vs. Ohio, supra.) It is difficult to draw a line in any particular case beyond which legislative power over remedy and procedure can pass without touching upon the substantive rights of parties affected, as it is impossible to fix that boundary by general condition. (State vs. Pavelick, 279 P., 1102.) This being so, it is inevitable that the Supreme Court in making rules should

step on substantive rights, and the Constitution must be presumed to tolerate if not to expect such incursion as does not affect the accused in a harsh and arbitrary manner or deprive him of a defense, but operates only in a limited and unsubstantial manner to his disadvantage. For the Court's power is not merely to compile, revise or codify the rules of procedure existing at the time of the Constitution's approval. This power is "to promulgate rules concerning pleading, practice, and procedure in all courts," which is a power to adopt a general, complete and comprehensive system of procedure, adding new and different rules without regard to their source and discarding old ones.

The motion is denied.

Moran, C.J., Paras, Pablo, Bengzon, Briones, and Montemayor, JJ., concur.

FERIA, J., dissenting:

I dissent.

The motion for reconsideration must be granted.

According to the resolution, the right of a defendant to be confronted with and cross-examine the witnesses for the prosecution in a preliminary investigation granted by law or provided for in General Orders, No. 58, as amended, in force prior to the promulgation of the Rules of Court, is not a substantive right but a mere matter of procedure, and therefore this Court can suppress it in section 11, Rule 108, of the Rules of Court, for the following reasons:

First. Because "preliminary investigation is eminently and essentially remedial; it is the first step taken in a criminal prosecution." . . . "As a rule of evidence, section 11 of Rule 108 is also procedural." . . . "The entire rules of evidence have been incorporated into the Rules of Court." And therefore "we can not tear down section 11 of Rule 108 on constitutional grounds without throwing out the whole Code of evidence embodied in these rules."

Secondly. Because, "preliminary investigation is not an essential part of due process of law. It may be suppressed entirely, and if this may be done, mere restriction of the privilege formerly enjoyed thereunder can not be held to fall within the constitutional prohibition."

Lastly. Because, "the distinction between remedy and 'substantive right' is incapable of exact definition. The difference is somewhat a question of degree" . . . It is difficult to draw a line in any particular case beyond which legislative power over remedy and procedure can pass without touching upon the substantive rights of parties affected, as it is impossible to fix that boundary by general condition. . . . "This being so, it is inevitable that the Supreme Court in making rules should step on substantive rights, and the Constitution must be presumed to tolerate if not to expect such incursion as does not affect the accused in a harsh and arbitrary manner or deprive him of a defense, but operates only in a limited and unsubstantial manner to his disadvantage."

Before proceeding it is necessary to distinguish substantive law from procedure, for the distinction is not always well understood. Substantive law is that part of the law which creates, defines, and regulates rights as opposed to objective or procedural law which prescribes the method of enforcing rights. What constitutes practice and procedure in the law is the mode or proceeding by which a legal right is enforced, "that which regulates the formal steps in an action or judicial proceedings; the course of procedure in courts; the form, manner and order in which proceedings have been, and are accustomed to be had; the form, manner and order of carrying on and conducting suits or prosecutions in the courts through their various sages according to the principles of law and the rules laid down by the respective courts." 31 Cyc. Law and Procedure, p. 1153; id., 32, section 405; Rapalje & Lawrence's Law Dictionary; Anderson Law Dictionary; Bouvier's Law Dictionary.

Substantive rights may be created or granted either in the Constitution or in any branch of the law, civil, criminal, administrative or procedural law. In our old Code of Civil Procedure, Act No. 190, as amended, there are provisions which create, define and regulate substantive rights, and many of those provisions such as those relating to guardianship, adoption, evidence and many others are incorporated in the Rules of Court for the sake of convenience and not because this Court is empowered to promulgate them as rules of court. And our old law of Criminal Procedure General Orders No. 58 grants the offended party the right to commence a criminal action or file a complaint against the offender and to intervene in the criminal prosecution against him, and grants the defendant in the Court of First Instance (except in the City of Manila) the right to bail, and to a preliminary investigation including his rights during said investigation, and the rights at the trial, which are now reproduced or incorporated in Rules 106, 108, 110, and 111 of the Rules of Court, except the rights now in question. And all these, and others not necessary for us to mention, are obviously substantive rights.

(1) As to the first argument, the premise "the preliminary investigation is eminently and essentially remedial is not correct. Undoubtedly the majority means to say procedural, in line with the conclusion in the resolution, because remedial law is one thing, and procedural law is another. Obviously they are different branches of the law. "Remedial statute" is "a statute providing a remedy for an injury as distinguished from a penal statute. A statute giving a party a mode of remedy for a wrong where he had none or a different one before. . . . Remedial statutes are those which are made to supply such defects, and abridge such superfluities in the common law, as arise either from the general imperfections of all human law, from change of time and circumstances, from the mistakes and unadvised determination of unlearned (or even learned) judges, or from any other cause whatsoever." (Black's Law Dictionary, third edition, pp. 1525, 1526.)

It is also not correct to affirm that section 11 of Rule 108 relating to right of defendant after arrest "is a rule of evidence and therefore is also procedural." In the first place, the provisions of said section to the effect that "the defendant, after the arrest and his delivery to the court has the right to be informed of the complaint or information filed against him, and also to be informed of the testimony and evidence presented against him, and may be allowed to testify and present witnesses or evidence for him if he so desires," are not rules of evidence; and in the second place, it is evident that most of the rules of evidence, if not all, are substantive laws that define, create or regulate rights, and not procedural. "Rules of evidence are substantive rights found in common law chiefly and growing out of reasoning, experience and common sense of lawyers and courts." (State vs. Pavelich, et al., 279 P., 1102.) "It is true that weighing of evidence and the rules of practice with respect thereto form part of the law of procedure, but the classification of proofs is sometime determined by the substantive law." (U. S. vs. Genato, 15 Phil., 170, 176.) How can the law on judicial notice, conclusive as well as juris tantum presumption, hearsay and best evidence rule, parol evidence rule, interpretation of documents, competency of a person to testify as a witness be considered procedural?

Therefore, the argumentative conclusion that "we can not tear down section 11 of Rule 108 on constitutional grounds without throwing out the whole code of evidence embodied in these Rules," is evidently wrong, not only for the reason just stated, but because our contention that the defendant can not be deprived of his right to be confronted with and cross-examine the witness of the prosecution is a preliminary investigation under consideration would not, if upheld, necessarily tear down said section. Our theory, is that said section 11 should be so construed as to be valid and effective, that is, that if the defendant asks the court to recall the witness or witnesses for the prosecution to testify again in his presence, and to allow the former to crossexamine the latter, the court or officer making the preliminary investigation is under obligation to grant the request. But if the defendant does not so ask the court, he should be considered as waiving his right to be confronted with and cross-examine the witness against him.

(2) With respect to the second argument or reason, it is true that the preliminary investigation as provided for in the General Orders, No. 58, as amended, is not an essential part of due process of law, because "due process of law" is not iron clad in its meaning; its does not necessarily mean a particular procedure. Due process

of law simply requires a procedure that fully protects the life, liberty and property. For that reason the investigation to be made by the City Fiscal of the City of Manila under Act No. 612, now section 2465 of the Administrative Code, before filing an information, was considered by this Court as sufficient to satisfy the due process of law constitutional requirement (U. S. vs. Ocampo, 18 Phil., 1; U. S. vs. Grant and Kennedy, 18 Phil., 122). But it is also true that we have already and correctly held that: "The law having explicitly recognized and established that no person charged with the commission of a crime shall be deprived of his liberty or subjected to trial without prior preliminary investigation (provided for in General orders, No. 58, as amended) that shall show that there are reasonable grounds to believe him guilty, there can be no doubt that the accused who is deprived of his liberty, tried and sentenced without the proper preliminary investigation having been made in his regard, is convicted without the process of law," (United States vs. Banzuela, 31 Phil., 564).

The ruling in Beazell vs. Ohio, 269 U. S. 167, 70 Law. ed., 216, quoted in the resolution, has no application to the present case, for the question involved therein was the power of Congress to alter the rules of evidence and procedure without violating the constitutional precept that prohibits the passing of ex post facto law, while the question herein involved is the power of the Supreme Court to promulgate rules of pleading, practice and procedure, which diminish the substantive right of a defendant, expressly prohibited by the same provision of the Constitution that confers upon this Court the power to promulgate said rules.

(3) The last reason or argument premised on the conclusion that "the distinction between remedy and 'substantive right' is incapable of exact definition;" indeed "the difference is somewhat a question of degree," (Dexter vs. Edmonds, 89 F 487), is immaterial, because, as we have already said in refuting the majority's first reason, remedy and procedure are two completely different things.

As above defined, substantive law is clearly differentiated from procedural law and practice. But even assuming arguendo that it is difficult to draw the line in any particular case beyond which the power of the court over procedure can not pass without touching upon the substantial right of the parties, what this Court should do in that case would be to abstain from promulgating such rule of procedure which many increase, diminish or modify substantive right in order to avoid violating the constitutional prohibition above referred to. Because as this Supreme Court is not empowered by the Constitution to legislate on or abrogate substantive rights, but only to promulgate rules of pleading, practice and procedure which "shall not diminish, increase or modify substantive rights," this Court can not step on them in making the rules, and the Constitution must be presumed not to tolerate nor expect such incursion as would affect the substantive rights of the accused in any manner.

Besides, depriving an accused of his right to be confronted and cross-examine the witness against him in a preliminary investigation would affect the accused not in a limited and unsubstantial but in a harsh and arbitrary manner. The testimony of a witness given in the absence of the defendant and without an opportunity on the

part of the latter to cross-examine him is a hearsay evidence, and it should not be admitted against the defendant in a preliminary investigation that is granted to the latter as a protection against hasty, malicious and oppressive prosecutions (U. S. vs. Grant and Kennedy, supra). Otherwise, an accused who is innocent and should not be arrested, or if arrested should be released immediately a short time after his arrest after the preliminary investigation, would have to be held for trial and wait for a considerable period of time until the case is tried and acquitted after trial by the Courts of First Instance in provinces on account of the admission of such evidence in the preliminary investigation, evidence not admissible at the trial.

Therefore, the motion for reconsideration is granted, and after the necessary proceedings the decision of the majority reversed or modified in accordance with my dissenting opinion.

PERFECTO, J.:

We dissent. Our opinion in the Dequito case still stands. The motion for reconsideration should be granted.

Footnotes

TUASON, J.:

1 Rights of defendant after arrest. After the arrest of the defendant and his delivery to the court, he shall be informed of the complaint or information filed against him. He shall also be informed of the substance of the testimony and evidence presented against him, and, if he desires to testify or to present witnesses or evidence in his favor, he may be allowed to do so. The testimony of the witnesses need not be reduced to writing but that of the defendant shall be taken in writing and subscribed by him.

2 The Supreme Court shall have the power to promulgate rules concerning pleading, practice, and procedure in all courts, and the admission to the practice of law. Said rules shall be uniform for all courts of the same grade and shall not diminish, increase, or modify substantive rights. The existing laws on pleading, practice, and procedure are hereby repealed as statutes, and are declared Rules of Courts, subject to the power of the Supreme Court to alter and modify the same. The National Assembly shall have the power to repeal, alter, or supplement the rules concerning pleading, practice, and procedure, and the admission to the practice of law in the Philippines.

Substantive Laws vs. Procedural Laws

Republic of the Philippines SUPREME COURT Manila

SECOND DIVISION

G.R. No. 110571 March 10, 1994

FIRST LEPANTO CERAMICS, INC., petitioner, vs. THE COURT OF APPEALS and MARIWASA MANUFACTURING, INC., respondents.

Castillo, Laman, Tan & Pantaleon for petitioner.

De Borja, Medialdea, Ata, Bello, Guevarra & Serapio for private respondent.

NOCON, J.:

Brought to fore in this petition for certiorari and prohibition with application for preliminary injunction is the novel question of where and in what manner appeals from decisions of the Board of Investments (BOI) should be filed. A thorough scrutiny of the conflicting provisions of Batas Pambansa Bilang 129, otherwise known as the "Judiciary Reorganization Act of 1980," Executive Order No. 226, also known as the Omnibus Investments Code of 1987 and Supreme Court Circular No. 1-91 is, thus, called for.

Briefly, this question of law arose when BOI, in its decision dated December 10, 1992 in BOI Case No. 92-005 granted petitioner First Lepanto Ceramics, Inc.'s application to amend its BOI certificate of registration by changing the scope of its registered product from "glazed floor tiles" to "ceramic tiles." Eventually, oppositor Mariwasa filed a motion for reconsideration of the said BOI decision while oppositor Fil-Hispano Ceramics, Inc. did not move to reconsider the same nor appeal therefrom. Soon rebuffed in its bid for reconsideration, Mariwasa filed a petition for review with respondent Court of Appeals pursuant to Circular 1-91.

Acting on the petition, respondent court required the BOI and petitioner to comment on Mariwasa's petition and to show cause why no injunction should issue. On February 17, 1993, respondent court temporarily restrained the BOI from implementing its decision. This temporary restraining order lapsed by its own terms on March 9, 1993, twenty (20) days after its issuance, without respondent court issuing any preliminary injunction.

On February 24, 1993, petitioner filed a "Motion to Dismiss Petition and to Lift Restraining Order" on the ground that respondent court has no appellate jurisdiction over BOI Case No. 92-005, the same being exclusively vested with the Supreme Court pursuant to Article 82 of the Omnibus Investments Code of 1987.

On May 25, 1993, respondent court denied petitioner's motion to dismiss, the dispositive portion of which reads as follows:

WHEREFORE, private respondent's motion to dismiss the petition is hereby DENIED, for lack of merit.

Private respondent is hereby given an inextendible period of ten (10) days from receipt hereof within which to file its comment to the petition. 1

Upon receipt of a copy of the above resolution on June 4, 1993, petitioner decided not to file any motion for reconsideration as the question involved is essentially legal in nature and immediately filed a petition for certiorari and prohibition before this Court.

Petitioner posits the view that respondent court acted without or in excess of its jurisdiction in issuing the questioned resolution of May 25, 1993, for the following reasons:

I. Respondent court has no jurisdiction to entertain Mariwasa's appeal from the BOI's decision in BOI Case No. 92-005, which has become final.

II. The appellate jurisdiction conferred by statute upon this Honorable Court cannot be amended or superseded by Circular No. 1-91. 2

Petitioner then concludes that:

III. Mariwasa has lost it right to appeal . . . in this case. 3

Petitioner argues that the Judiciary Reorganization Act of 1980 or Batas Pambansa Bilang 129 and Circular 1-91, "Prescribing the Rules Governing Appeals to the Court of Appeals from a Final Order or Decision of the Court of Tax Appeals and Quasi-Judicial Agencies" cannot be the basis of Mariwasa's appeal to respondent court because the procedure for appeal laid down therein runs contrary to Article 82 of E.O. 226, which provides that appeals from decisions or orders of the BOI shall be filed directly with this Court, to wit:

Judicial relief. All orders or decisions of the Board (of Investments) in cases involving the provisions of this Code shall immediately be executory. No appeal from the order or decision of the Board by the party adversely affected shall stay such an order or decision; Provided, that all appeals shall be filed directly with the Supreme Court within thirty (30) days from receipt of the order or decision.

On the other hand, Mariwasa maintains that whatever "obvious inconsistency" or "irreconcilable repugnancy" there may have been between B.P. 129 and Article 82 of E.O. 226 on the question of venue for appeal has already been resolved by Circular 1-91 of the Supreme Court, which was promulgated on February 27, 1991 or four (4) years after E.O. 226 was enacted.

Sections 1, 2 and 3 of Circular 1-91, is herein quoted below:

1. Scope. These rules shall apply to appeals from final orders or decisions of the Court of Tax Appeals. They shall also apply to appeals from final orders or decisions of any quasi-judicial agency from which an appeal is now allowed by statute to the Court of Appeals or the Supreme Court. Among these agencies are the Securities and Exchange Commission, Land Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer, National Electrification Administration, Energy Regulatory Board, National Telecommunications Commission, Secretary of Agrarian Reform and Special Agrarian Courts under RA 6657, Government Service Insurance System, Employees Compensation Commission, Agricultural Inventions Board, Insurance Commission and Philippine Atomic Energy Commission.

2. Cases not covered. These rules shall not apply to decisions and interlocutory orders of the National Labor Relations Commission or the Secretary of Labor and Employment under the Labor Code of the Philippines, the Central Board of Assessment Appeals, and other quasi-judicial agencies from which no appeal to the courts is prescribed or allowed by statute.

3. Who may appeal and where to appeal. The appeal of a party affected by a final order, decision, or judgment of the Court of Tax Appeals or of a quasi-judicial agency shall be taken to the Court of Appeals within the period and in the manner herein provided, whether the appeal involves questions of fact or of law or mixed questions of fact and law. From final judgments or decisions of the Court of Appeals, the aggrieved party may appeal by certiorari to the Supreme Court as provided in Rule 45 of the Rules of Court.

It may be called that Section 9(3) of B.P. 129 vests appellate jurisdiction over all final judgments, decisions, resolutions, orders or awards of quasi-judicial agencies on the Court of Appeals, to wit:

(3) Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders, awards of Regional Trial Courts and

quasi-judicial agencies, instrumentalities, boards or commissions, except those falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, the provisions of this Act, and of subparagraph (1) of the third paragraph and subparagraph (4) of the fourth paragraph of Section 17 of the Judiciary Act of 1948.

The Intermediate Appellate Court shall have the power to try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual issues raised in cases falling within its original and appellate jurisdiction, including the power to grant and conduct new trials or further proceedings.

These provisions shall not apply to decisions and interlocutory orders issued under the Labor Code of the Philippines and by the Central Board of Assessment Appeals.

Clearly evident in the aforequoted provision of B.P. 129 is the laudable objective of providing a uniform procedure of appeal from decisions of all quasi-judicial agencies for the benefit of the bench and the bar. Equally laudable is the twin objective of B.P. 129 of unclogging the docket of this Court to enable it to attend to more important tasks, which in the words of Dean Vicente G. Sinco, as quoted in our decision in Conde v. Intermediate Appellate Court 4 is "less concerned with the decisions of cases that begin and end with the transient rights and obligations of particular individuals but is more intertwined with the direction of national policies, momentous economic and social problems, the delimitation of governmental authority and its impact upon fundamental rights.

In Development Bank of the Philippines vs. Court of Appeals, 5 this Court noted that B.P. 129 did not deal only with "changes in the rules on procedures" and that not only was the Court of Appeals reorganized, but its jurisdiction and powers were also broadened by Section 9 thereof. Explaining the changes, this Court said:

. . . Its original jurisdiction to issue writs of mandamus, prohibition, certiorari and habeas corpus, which theretofore could be exercised only in aid of its appellate jurisdiction, was expanded by (1) extending it so as to include the writ of quo warranto, and also (2) empowering it to issue all said extraordinary writs "whether or not in aid of its appellate jurisdiction." Its appellate jurisdiction was also extended to cover not only final judgments of Regional Trial Courts, but also "all final judgments, decisions, resolutions, orders or awards of . . . quasijudicial agencies, instrumentalities, boards or commissions, except those falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, the provisions of this Act, and of sub-paragraph (1) of the third paragraph and subparagraph (4) of the fourth paragraph of Section 17 of the Judiciary Act of 1948," it being noteworthy in this connection that the text of the law is broad and comprehensive, and the explicitly stated exceptions have no reference whatever to the Court of Tax Appeals. Indeed, the intention to expand the

original and appellate jurisdiction of the Court of Appeals over quasi-judicial agencies, instrumentalities, boards, or commissions, is further stressed by the last paragraph of Section 9 which excludes from its provisions, only the "decisions and interlocutory orders issued under the Labor Code of the Philippines and by the Central Board of Assessment Appeals." 6

However, it cannot be denied that the lawmaking system of the country is far from perfect. During the transitional period after the country emerged from the Marcos regime, the lawmaking power was lodged on the Executive Department. The obvious lack of deliberation in the drafting of our laws could perhaps explain the deviation of some of our laws from the goal of uniform procedure which B.P. 129 sought to promote.

In exempli gratia, Executive Order No. 226 or the Omnibus Investments Code of 1987 provides that all appeals shall be filed directly with the Supreme Court within thirty (30) days from receipt of the order or decision.

Noteworthy is the fact that presently, the Supreme Court entertains ordinary appeals only from decisions of the Regional Trial Courts in criminal cases where the penalty imposed is reclusion perpetua or higher. Judgments of regional trial courts may be appealed to the Supreme Court only by petition for review on certiorari within fifteen (15) days from notice of judgment in accordance with Rule 45 of the Rules of Court in relation to Section 17 of the Judiciary Act of 1948, as amended, this being the clear intendment of the provision of the Interim Rules that "(a)ppeals to the Supreme Court shall be taken by petition for certiorari which shall be governed by Rule 45 of the Rules of Court." Thus, the right of appeal provided in E.O. 226 within thirty (30) days from receipt of the order or decision is clearly not in consonance with the present procedure before this Court. Only decisions, orders or rulings of a Constitutional Commission (Civil Service Commission, Commission on Elections or Commission on Audit), may be brought to the Supreme Court on original petitions for certiorari under Rule 65 by the aggrieved party within thirty (30) days form receipt of a copy thereof. 7

Under this contextual backdrop, this Court, pursuant to its Constitutional power under Section 5(5), Article VIII of the 1987 Constitution to promulgate rules concerning pleading, practice and procedure in all courts, and by way of implementation of B.P. 129, issued Circular 1-91 prescribing the rules governing appeals to the Court of Appeals from final orders or decisions of the Court of Tax Appeals and quasi-judicial agencies to eliminate unnecessary contradictions and confusing rules of procedure.

Contrary to petitioner's contention, although a circular is not strictly a statute or law, it has, however, the force and effect of law according to settled jurisprudence. 8 In Inciong v. de Guia, 9 a circular of this Court was treated as law. In adopting the recommendation of the Investigating Judge to impose a sanction on a judge who violated Circular No. 7 of this Court dated

September 23, 1974, as amended by Circular No. 3 dated April 24, 1975 and Circular No. 20 dated October 4, 1979, requiring raffling of cases, this Court quoted the ratiocination of the Investigating Judge, brushing aside the contention of respondent judge that assigning cases instead of raffling is a common practice and holding that respondent could not go against the circular of this Court until it is repealed or otherwise modified, as "(L)aws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or customs or practice to the contrary." 10

The argument that Article 82 of E.O. 226 cannot be validly repealed by Circular 1-91 because the former grants a substantive right which, under the Constitution cannot be modified, diminished or increased by this Court in the exercise of its rule-making powers is not entirely defensible as it seems. Respondent correctly argued that Article 82 of E.O. 226 grants the right of appeal from decisions or final orders of the BOI and in granting such right, it also provided where and in what manner such appeal can be brought. These latter portions simply deal with procedural aspects which this Court has the power to regulate by virtue of its constitutional rule-making powers.

The case of Bustos v. Lucero 11 distinguished between rights created by a substantive law and those arising from procedural law:

Substantive law creates substantive rights . . . . Substantive rights is a term which includes those rights which one enjoys under the legal system prior to the disturbance of normal relations (60 C.J., 980). Substantive law is that part of the law which creates, defines and regulates rights, or which regulates rights and duties which give rise to a cause of action, as oppossed to adjective or remedial law, which prescribes the method of enforcing rights or obtains a redress for their invasion. 12

Indeed, the question of where and in what manner appeals from decisions of the BOI should be brought pertains only to procedure or the method of enforcing the substantive right to appeal granted by E.O. 226. In other words, the right to appeal from decisions or final orders of the BOI under E.O. 226 remains and continues to be respected. Circular 1-91 simply transferred the venue of appeals from decisions of this agency to respondent Court of Appeals and provided a different period of appeal, i.e., fifteen (15) days from notice. It did not make an incursion into the substantive right to appeal.

The fact that BOI is not expressly included in the list of quasi-judicial agencies found in the third sentence of Section 1 of Circular 1-91 does not mean that said circular does not apply to appeals from final orders or decision of the BOI. The second sentence of Section 1 thereof expressly states that "(T)hey shall also apply to appeals from final orders or decisions of any quasi-judicial agency from which an appeal is now allowed by

statute to the Court of Appeals or the Supreme Court." E.O. 266 is one such statute. Besides, the enumeration is preceded by the words "(A)mong these agencies are . . . ," strongly implying that there are other quasi-judicial agencies which are covered by the Circular but which have not been expressly listed therein. More importantly, BOI does not fall within the purview of the exclusions listed in Section 2 of the circular. Only the following final decisions and interlocutory orders are expressly excluded from the circular, namely, those of: (1) the National Labor Relations Commission; (2) the Secretary of Labor and Employment; (3) the Central Board of Assessment Appeals and (4) other quasi-judicial agencies from which no appeal to the courts is prescribed or allowed by statute. Since in DBP v. CA 13 we upheld the appellate jurisdiction of the Court of Appeals over the Court of Tax Appeals despite the fact that the same is not among the agencies reorganized by B.P. 129, on the ground that B.P. 129 is broad and comprehensive, there is no reason why BOI should be excluded from Circular 1-91, which is but implementary of said law.

Clearly, Circular 1-91 effectively repealed or superseded Article 82 of E.O. 226 insofar as the manner and method of enforcing the right to appeal from decisions of the BOI are concerned. Appeals from decisions of the BOI, which by statute was previously allowed to be filed directly with the Supreme Court, should now be brought to the Court of Appeals.

WHEREFORE, in view of the foregoing reasons, the instant petition for certiorari and prohibition with application for temporary restraining order and preliminary injunction is hereby DISMISSED for lack of merit. The Temporary Restraining Order issued on July 19, 1993 is hereby LIFTED.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado and Puno, JJ. concur.

BASIC REMEDIAL LAW Jurisdiction and Venue o Definition of Jurisdiction

EN BANC

[G.R. No. 162318. October 25, 2004]

1LT. JULIUS R. NAVALES, 1LT. EMERSON L. MARGATE, 2LT. RYAN H. QUISAI, TSG. ELMER D. COLON, CAPT. JULIUS W. ESPORO, SGT. NOLI FORONDA, SGT. GIL P. LOZADA, SGT. RAYMUND DUMAGO and PFC. REGIE A. ALAGABAN, petitioners, vs. GEN. NARCISO ABAYA, as Chief of Staff of the Armed Forces of the Philippines (AFP), B.GEN. MARIANO M. SARMIENTO, JR., as Judge Advocate General (JAG) of the AFP, and OTHER PERSONS ACTING UNDER THEIR AUTHORITY, respondents.

[G.R. No. 162341. October 25, 2004]

IN THE MATTER OF THE PETITION FOR THE HABEAS CORPUS OF CPT. RUPERTO L. REASO, LTSG. NORBERTO E. SANTIAGO, 1LT. DANNY C. CANAVERAL, 1LT. JULIUS R. NAVALES, 1LT. EMERSON L. MARGATE, 1LT. JEFFREY GAUGUIRAN, LTJG. CEFERINO CHECA, LTJG. MARCO ANGELO J. ANCHETA, LTJG. ELMER TORRIADO, LTJG. RONALD A. GALICIA, 2LT. LAUREFEL P. DABALES, 2LT. MARY JAMES A. TAYABAN, 2LT. JASON P. PANALIGAN, 2LT. RYAN QUISAI, 2LT. NESTOR JASON CAMBA, 2LT. ARCHIBALD RANEL, 2LT. RESINO S. ORTEZA, 2LT. NOEL F. TOMENGLAY, 2LT. LEOPOLDO APELLANES, JR., 2LT. JONATHAN D. COSTALES, 2LT. OSWALD IAN DIRA, 2LT. SAMSUDIN T. LINTONGAN, 2LT. ALQUIN CANSON, 2LT. JUNIBERT S. TUBO, 2LT. EDWIN DUETAO, 2LT. MARK P. DAMASO, 2LT. JIOVANNI PALLIAN, 2LT. EDGARDO AGUILAR, 2LT. NORMAN SPENCER, 2LT. LARRY S. CENDANA, 2LT. AVELINO SAHLI, 2LT. LEXINGTON ALONZO, 2LT. FILMORE RULL, ENS. VICTOR ODULLO, ENS. IAN LUIS BADECAO, ENS. RONALD E. DISO, ENS. ARJOHN ELUMBA, ENS. BRIAN BABANG, ENS. ANTONIO BOSCH, ENS. TED CEREZO, ENS. HAROLD DAVE PRE, ENS. JEFFREY BANGSA, ENS. JONAH ARUGAY, ENS. JONATHAN J. ADLAWAN, ENS. EMERSON ROSALES, ENS. ELMER CRUZ, ENS. REX P. CALLANO, ENS. JUVENAL AZURIN, ENS. LYLE ROSOS, ENS. CESAR CARMEL TAMBA, CPO. LEONIDO FERNIN, EM3 RONNIE GUMIA, PO3 ROULEX MAGISA, TSG. JESUCRAIS SOLEDAD, SSG. NORBERTO MARTINEZ, SSG. BERTING CABANA, SSG. JOERY ROJO, PO2 EDWARD ABUAC, SSG. LEO GAPAYAO, SSG. ROMAR ARQUERO, SSG. RALLON BEBASA, SSG. LORENZO GLORIOSO, SSG. NOEL AGGALUT, SSG. PHILIP VITALES, SSG. FRANCISCO BOSI, JR., SSG. BONIFACIO BARRION, SSG. RUBEN

SORIANO, SSG. RONALD REYES, SSG. WILFREDO LEAL, SSG. GUILLERMO LAVITORES, SGT. ALFREDO ALEGADO, JR., SGT. GREGORIO SANDAGON, SGT. JIGGER PACULBA SGT. JOJO ABANDO, SGT. JUANITO JILBURY, SGT. ERIC CASTINO, SGT. ANTONIO CARABATA, SGT.REYNANTE DANTE ESCATRON, SGT. NOLI FORONDA, SGT. JERAN TABUJARA, SGT. RESTITUTO DEBORJA, SGT. NILO ENASO, SGT. JULIUS WESFIRO, SGT. ROLDAN ANDO, SGT. LORENZO CARRANZA, SGT. DANTE SANTOS, SGT. WALTER MANALANSAN, SGT. JUDE ARQUISOLA, SGT. HERMAN LINDE, SGT. ALEXANDER SICAT, SGT. FLORANTE ROSETTE, SGT. ROMELO SY, SGT. JOEY MEMBREVE, SGT. ADONIS PRADO, PO3 JESSMAR LANDONG, PO3 ROBERTO TRIPULCA, PO3 SONNY MADARANG, PO3 RHOMMEL LORETE, PO3 CARISTOFEIL TIKTIK, PO3 RENATO BUSTILLO, PO3 JERRY ASUNCION, PO3 LUDIVICO CLEMENTE, CPL. REY RUBIOS, CPL. EMMANUEL TIRADOR, CPL. OLIVER COMBAUCER, CPL. JOEL ABAYA, CPL. RANDEL CENO, CPL. RONALD RETUTA, CPL. JULIUS TANALLON, CPL. FILOMENO RAMIREZ, CPL. JIGGER ALAMEDA, CPL. RAYMUND DUMAGAO, CPL. EDGAR VELASCO, CPL. RAMONCITO TAMPON, SN1 ALLAN DULAP, SN1 JERRY REGALARIO, SN1 JOEL MASENAS, SN1 JONATHAN PEREZ, S1HM ROMUALDO GANANCIAL, SN1 ROEL GADON, F1EM GARY PAYOS, SN1 ZANDRIX GACU, SN1 ROMMEL ANONUEVO, SN1 WILLIAM ABLITER, SN1 GERMINIO FERNANDEZ, SN1 ARNEL CAPUNO, SN1 CLEOFAS PAMIENTA, S1HM TIMOTEO ABARRACOSO, S1CD GERARDO DEDICATORIA, SN1 LEONOR FORTE, JR., CPL. JEOBAL GONZALES, CPL. ALADIN GOMEZ, CPL. HARDY GLAGARA, CPL. CESAR A. PADILLA, CPL. JERSON ALABATA, CPL. OLIVER GERIO, CPL. TEDDY ANTONIO, CPL. DENNIS LOPEZ, CPL. RUEL MOLINA, CPL. ALVIN CELESTINO, CPL. BENJAMIN RAMBOYONG, JR., CPL. GERRY CALINGACION, CPL. ALEXANDER RODRIGUEZ, CPL. JONATHAN DAGOHOY, CPL. CLECARTE DAHAN, CPL. RAYMOND PASTRETA, CPL. LORENZO BIAO, CPL. ALEX PENA, CPL. ROGUN OLIVIDO, CPL. MONCHITO LUSTERIO, CPL. GEORGE GANADOS, CPL. MICHAEL BALISTA, PVT. 1ST CLASS MAXINIAR BALANAY, PVT. 1ST CLASS BONIFACIO CAOALO, PVT. 1ST CLASS REGGIE ALAGABAN, PVT. 1ST CLASS ANGELO MARQUEZ, PVT. 1ST CLASS JOHN GAIHAN, PVT. 1ST CLASS MARCIAL CAISA, PVT. 1ST CLASS CARLOS FILLIOS, PVT. 1ST CLASS PATROCENIO PATENO, PVT. 1ST CLASS ROLLY BERNAL, PVT. 1ST CLASS NOVIDA RUIZ, PVT. 1ST CLASS MELCHOR ALOOS, PVT. 1ST CLASS JOEL MALALAY, PVT. 1ST CLASS JULIETO BANAS, JR., PVT. 1ST CLASS ROLAND BANAAG, PVT. 1ST CLASS NIXON MAGALLIS, PVT. 1ST CLASS RICHARD LARCE, PVT. 1ST CLASS SINDY BONOTAN, PVT. 1ST CLASS ARNOLD PULPULAAN, PVT. 1ST CLASS ABRAHAM APOSTOL, PFC. CHARLES AGNER, S2RM JULIUS CEAZAR ALFUENTE, PFC. EDILON ANDALEON, PFC. RONALDO BAYOS, PFC. MARCIAL BAYSA, S2EM ABRAHAM BILLONES, CPL. ABNER BIRAL, PFC. JEFFREY BOLALIN, SN2 JEFFREY BONCACAS, 1LT PATRICIO BUMIDANG, JR., S2BM JOSEPH BUSCATO, CPT. EINSTEIN CALAOA, JR., PFC. EDWIN CANETE, SN2 EZRA JERRY CARUMBA, S2PH GLENN CARUMBA, SGT. ARIMATEO B. CEDENO, SN2 ALEX CHAN, PO3 COCARI GONZALES, FN2 ALEX DEL CALLE, PFC. HANZEL DELA TORRE, SN2 SONNY DELA VEGA, PFC. JOSE DEMONTEVERDE, 1LT. JOSE ENRICO M. DINGLE, PFC. ALADINO DOGOMEO, ENS. DENNIS DONGA, PFC. RUEL ESPINILLA, PFC. RODRIGO FERNANDEZ, SN2 JULIUS GARCIA, SGT. ALLAN INOCENCIO, TSQ. JESUCRAIS SOLEDAD, PFC. JERSON LABILLES, CPL. DANILO LAGRIMAS, SN2 ALLAN LEONOR, 2LT. NORMAN SPENCER LO, S2BM JERIC LORENA, S2DP ANGELITO LOYLOY, PFC. LUIS NOVIDA, SN2 EMMANUEL LUMACANG, CPL. RIZAL MANIMTIM, PFC. GALIB MOHAMMAD, SSG. GIL MONTOJO, PFC. BENJAMIN NANGGAN, PFC. ARNOLD NIALLA, SN2 FERNANDO PACARDO, SGT. JOVITO PACLEB, PFC. CHRISTOPHER PEREZ, LTJG. JENNIFER PILI, PFC. CARLOS PILLOS, PFC. JOCIL REGULACION, S2DC GARY REYES, S2EM VALENTIN SAMAR, LT/SG. NORBERTO SANTIAGO, JR., FN2 FRANCISCO SEVILLA, JR., SN2 MIKE SOLAR, SN2 ROMMEL SOLIS, PFC. JOJIT SORIANO, CPT. EDMAR B. SORIOSO, SSG. JUAN TUQUIB, SN2 JOEL TYBACO, S1BM RONALDO URBANO, S2HM EDGAR VASQUEZ, SGT. IGNACIO VIGAR, ROBERTO RAFAEL (ROEL) PULIDO, petitioner, vs. GEN. NARCISO ABAYA, as Chief of Staff of the Armed Forces of the Philippines, BRIG. GEN. MARIANO M. SARMIENTO, JR., as AFP Judge Advocate General, and ALL PERSONS ACTING IN THEIR STEAD AND UNDER THEIR AUTHORITY, respondents.

DECISION

CALLEJO, SR, J.:

Before the Court are two petitions essentially assailing the jurisdiction of the General Court-Martial to conduct the court-martial proceedings involving several junior officers and enlisted men of the Armed Forces of the Philippines (AFP) charged with violations of the Articles of War (Commonwealth Act No. 408, as amended) in connection with their participation in the take-over of the Oakwood Premier Apartments in Ayala Center, Makati City on July 27, 2003.

In G.R. No. 162341, Roberto Rafael Pulido, a lawyer, filed with this Court a Petition for Habeas Corpus seeking the release of his clients, junior officers and enlisted men of the AFP, who are allegedly being unlawfully detained by virtue of the Commitment Order[1] dated August 2, 2003 issued by General Narciso L. Abaya, Chief of Staff of the AFP, pursuant to Article 70 of the Articles of War. Under the said commitment order, all the Major Service Commanders and the Chief of the Intelligence Service of the Armed Forces of the Philippines (ISAFP) were directed to take custodial responsibility of all the military personnel involved in the 27 July 2003 mutiny belonging to their respective commands. This included all the junior officers and enlisted men (hereinafter referred to as Capt. Reaso,[2] et al.) who are subject of the instant petition for habeas corpus. The commitment order, however, expressly stated that LtSG. Antonio F. Trillanes, LtSG. James A. Layug, Capt. Garry C. Alejano, Capt. Milo D. Maestrecampo, Capt. Gerardo O. Gambala, and Capt. Nicanor E. Faeldon would remain under the custody of the Chief of the ISAFP.[3]

In G.R. No. 162318, the petitioners (hereinafter referred to as 1Lt. Navales, et al.), seven of the detained junior officers and enlisted men, filed with this Court a Petition for Prohibition under Rule 65 of the Rules of Court seeking to enjoin the General Court-Martial from proceeding with the trial of the petitioners and their coaccused for alleged violations of the Articles of War.

Named as respondents in the two petitions are General Narciso Abaya who, as Chief of Staff of the AFP, exercises command and control over all the members and agencies of the AFP, and Brigadier General Mariano Sarmiento, Jr., the Judge Advocate General of the AFP and officer in command of the Judge Advocate General Office (JAGO), the agency of the AFP tasked to conduct the court-martial proceedings.

Background[4]

At past 1:00 a.m. of July 27, 2003, more than three hundred junior officers and enlisted men, mostly from the elite units of the AFP the Philippine Armys Scout Rangers and the Philippine Navys Special Warfare Group (SWAG) quietly entered the premises of the Ayala Center in Makati City. They disarmed the security guards and took over the Oakwood Premier Apartments (Oakwood). They planted explosives around the building and in its vicinity. Snipers were posted at the Oakwood roof deck.

The soldiers, mostly in full battle gear and wearing red arm bands, were led by a small number of junior officers, widely known as the Magdalo Group. The leaders were later identified as including Navy LtSG. Antonio Trillanes IV, Army Capt. Gerardo Gambala, Army Capt. Milo Maestrecampo, Navy LtSG. James Layug, and Marine Capt. Gary Alejano.

Between 4:00 to 5:00 a.m., the soldiers were able to issue a public statement through the ABS-CBN News (ANC) network. They claimed that they went to Oakwood to air their grievances against the administration of President Gloria Macapagal Arroyo. Among those grievances were: the graft and corruption in the military, the sale of arms and ammunition to the enemies of the State, the bombings in Davao City which were allegedly ordered by Brig. Gen. Victor Corpus, Chief of the ISAFP, in order to obtain more military assistance from the United States government, and the micro-management in the AFP by then Department of National Defense (DND) Secretary Angelo Reyes. They declared their withdrawal of support from the chain of command and demanded the resignation of key civilian and military leaders of the Arroyo administration.

Around 9:00 a.m., Pres. Arroyo gave the soldiers until 5:00 p.m. to give up their positions peacefully and return to barracks. At about 1:00 p.m., she declared the existence of a state of rebellion and issued an order to use reasonable force in putting down the rebellion. A few hours later, the soldiers again went on television reiterating their grievances. The deadline was extended twice, initially to 7:00 p.m., and later, indefinitely.

In the meantime, a series of negotiations ensued between the soldiers and the Government team led by Ambassador Roy Cimatu. An agreement was forged between the two groups at 9:30 p.m. Shortly thereafter, Pres. Arroyo announced that the occupation of Oakwood was over. The soldiers agreed to return to barracks and were out of the Oakwood premises by 11:00 p.m.

The Filing of Charges

Under the Information[5] dated August 1, 2003 filed with the Regional Trial Court (RTC) of Makati City, the Department of Justice (DOJ) charged 321 of those soldiers who took part in the Oakwood Incident with violation of Article 134-A (coup detat) of the Revised Penal Code.[6] Among those charged were petitioners 1Lt. Navales, et al. (G.R. No. 162318) and those who are subject of the petition for habeas corpus Capt. Reaso, et al. (G.R. No. 162341). The case, entitled People v. Capt. Milo Maestrecampo, et al., was docketed as Criminal Case No. 03-2784 and raffled to Branch 61 presided by Judge Romeo F. Barza.

On September 12, 2003, several (243 in number) of the accused in Criminal Case No. 03-2784 filed with the RTC (Branch 61) an Omnibus Motion praying that the trial court:

1. [A]ssume jurisdiction over all the charges filed before the military tribunal in accordance with Republic Act No. 7055; and

2. Order the prosecution to present evidence to establish probable cause against 316 of the 321 accused and, should the prosecution fail to do so, dismiss the case as against the 316 other accused.[7]

While the said motion was pending resolution, the DOJ issued the Resolution dated October 20, 2003 finding probable cause for coup detat[8] against only 31 of the original 321 accused and dismissing the charges against the other 290 for insufficiency of evidence.

Thus, upon the instance of the prosecution, the RTC (Branch 61), in its Order[9] dated November 14, 2003, admitted the Amended Information[10] dated October 30, 2003 charging only 31 of the original accused with the crime of coup detat defined under Article 134-A of the Revised Penal Code.[11] Only the following were charged under the Amended Information: CPT. MILO D. MAESTRECAMPO, LTSG. ANTONIO F. TRILLANES IV, CPT. GARY C. ALEJANO, LTSG. JAMES A. LAYUG, CPT. LAURENCE LUIS B. SOMERA, CPT. GERARDO O. GAMBALA, CPT. NICANOR FAELDON, CPT. ALBERT T. BALOLOY, CPT. SEGUNDINO P. ORFIANO, JR., CPT. JOHN P. ANDRES, CPT. ALVIN H. EBREO, 1LT. FLORENTINO B. SOMERA, 1LT. CLEO B. DUNGGA-AS, 1LT. SONNY S. SARMIENTO, 1LT. AUDIE S. TOCLOY, 1LT. VON RIO TAYAB, 1LT. REX C. BOLO, 1LT. LAURENCE R. SAN JUAN, 1LT. WARREN LEE G. DAGUPON, 1LT. NATHANIEL N. RABONZA, 2LT. KRISTOFFER BRYAN M. YASAY, 1LT. JONNEL P. SANGGALANG, 1LT. BILLY S. PASCUA, 1LT. FRANCISCO ACEDILLO, LTSG. MANUEL G. CABOCHAN, LTSG. EUGENE LOUIE GONZALES, LTSG. ANDY G. TORRATO, LTJG. ARTURO S. PASCUA, JR., ENS. ARMAND PONTEJOS, PO3 JULIUS J. MESA, PO3 CESAR GONZALES, and several JOHN DOES and JANE DOES. Further, the said Order expressly stated that the case against the other 290 accused, including petitioners 1Lt. Navales, et al. and those who are subject

of the petition for habeas corpus, Capt. Reaso, et al., was dismissed. In another Order dated November 18, 2003, the RTC (Branch 61) issued commitment orders against those 31 accused charged under the Amended Information and set their arraignment.

Meanwhile, 1Lt. Navales, et al. and Capt. Reaso, et al., who were earlier dropped as accused in Criminal Case No. 03-2784, were charged before the General Court-Martial with violations of the Articles of War (AW), particularly: AW 67 (Mutiny), AW 97 (Conduct Prejudicial to Good Order and Military Discipline), AW 96 (Conduct Unbecoming an Officer and a Gentleman), AW 63 (Disrespect to the President, the Secretary of Defense, etc.) and AW 64 (Disrespect Towards Superior Officer).[12] On the other hand, Capt. Maestrecampo and the 30 others who remained charged under the Amended Information were not included in the charge sheets for violations of the Articles of War.

Thereafter, Criminal Case No. 03-2784 was consolidated with Criminal Case No. 03-2678, entitled People v. Ramon Cardenas, pending before Branch 148 of the RTC of Makati City, presided by Judge Oscar B. Pimentel.

On February 11, 2004, acting on the earlier Omnibus Motion filed by the 243 of the original accused under the Information dated August 1, 2003, the RTC (Branch 148) issued an Order, the dispositive portion of which reads:

WHEREFORE, premises considered, in view of the Orders dated November 14 and 18, 2003 of Judge Romeo Barza, the Omnibus Motion to: 1) Assume jurisdiction over all charges filed before the Military Courts in accordance with R.A. 7055; and 2) Implement the August 7, 2003 Order of the Court requiring the prosecution to produce evidence to establish probable cause are hereby considered MOOT AND ACADEMIC and, lastly, all charges before the court-martial against the accused (those included in the Order of November 18, 2003) as well as those former accused (those included in the Order of November 14, 2003) are hereby declared not serviceconnected, but rather absorbed and in furtherance to the alleged crime of coup detat.[13]

In the Notice of Hearing dated March 1, 2004, the General Court-Martial set on March 16, 2004 the arraignment/trial of those charged with violations of the Articles of War in connection with the July 27, 2003 Oakwood Incident.

The present petitions were then filed with this Court. Acting on the prayer for the issuance of temporary restraining order in the petition for prohibition in G.R. No. 162318, this Court, in the Resolution dated March 16, 2004, directed the parties to observe the status quo prevailing before the filing of the petition.[14]

The Petitioners Case

In support of the petitions for prohibition and for habeas corpus, the petitioners advance the following arguments:

I. UNDER REPUBLIC ACT NO. 7055, THE RESPONDENTS AND THE GENERAL COURT-MARTIAL ARE WITHOUT ANY JURISDICTION TO FURTHER CONDUCT PROCEEDINGS AGAINST THE PETITIONERS AND THEIR COLLEAGUES BECAUSE THE REGIONAL TRIAL COURT HAS ALREADY DETERMINED THAT THE OFFENSES ARE NOT SERVICERELATED AND ARE PROPERLY WITHIN THE JURISDICTION OF THE CIVILIAN COURTS;[15] and

II. THE RESPONDENTS HAVE NO AUTHORITY TO FURTHER DETAIN THE JUNIOR OFFICERS AND ENLISTED MEN AS THE CHARGES FOR COUP DETAT BEFORE THE REGIONAL TRIAL COURT HAVE BEEN DISMISSED FOR LACK OF EVIDENCE UPON MOTION OF THE DEPARTMENT OF JUSTICE.[16]

Citing Section 1[17] of Republic Act No. 7055,[18] the petitioners theorize that since the RTC (Branch 148), in its Order dated February 11, 2004, already declared that the offenses for which all the accused were charged were not service-connected, but absorbed and in furtherance of the crime of coup detat, the General Court-Martial no longer has jurisdiction over them. As such, respondents Gen. Abaya and the JAGO have no authority to constitute the General Court-Martial, to charge and prosecute the petitioners and their co-accused for violations of the Articles of War in connection with the July 27, 2003 Oakwood Incident. The petitioners posit that, as a corollary, there is no longer any basis for their continued detention under the Commitment Order dated August 2, 2003 issued by Gen. Abaya considering that the charge against them for coup detat had already been dismissed.

In G.R. No. 162318, the petitioners pray that the respondents be enjoined from constituting the General CourtMartial and from further proceeding with the court-martial of the petitioners and their co-accused for violations of the Articles of War in connection with the Oakwood Incident of July 27, 2003. In G.R. No. 162341, the petitioner prays that the respondents be ordered to explain why the detained junior officers and enlisted men subject of the petition for habeas corpus should not be released without delay.

The Respondents Arguments

The respondents, through the Office of the Solicitor General, urge the Court to dismiss the petitions. The respondents contend that the Order dated February 11, 2004 promulgated by the RTC (Branch 148), insofar as it resolved the Omnibus Motion and declared that the charges against all the accused, including those excluded in the Amended Information, were not service-connected, is null and void. They aver that at the time that the said motion was resolved, petitioners 1Lt. Navales, et al. and Capt. Reaso, et al. (as movants therein) were no longer parties in Criminal Case No. 03-2784 as the charge against them was already dismissed by the RTC (Branch 61) in the Order dated November 14, 2003. Thus, 1Lt. Navales, et al. and Capt. Reaso, et al. no longer had any personality to pursue the Omnibus Motion since one who has no right or interest to protect cannot invoke the jurisdiction of the court. In other words, the petitioners were not real parties in interest at the time that their Omnibus Motion was resolved by the RTC (Branch 148).

The respondents further claim denial of due process as they were not given an opportunity to oppose or comment on the Omnibus Motion. Worse, they were not even given a copy of the Order dated February 11, 2004. As such, the same cannot be enforced against the respondents, especially because they were not parties to Criminal Case No. 03-2784.

The respondents, likewise, point out a seeming ambiguity in the February 11, 2004 Order as it declared, on one hand, that the charges filed before the court-martial were not service-connected, but on the other hand, it ruled that the Omnibus Motion was moot and academic. According to the respondents, these two pronouncements cannot stand side by side. If the Omnibus Motion was already moot and academic, because the accused who filed the same were no longer being charged with coup detat under the Amended Information, then the trial court did not have any authority to further resolve and grant the same Omnibus Motion.

The respondents maintain that since 1Lt. Navales, et al. and Capt. Reaso, et al. were not being charged with coup detat under the Amended Information, the trial court could not make a finding that the charges filed against them before the General Court-Martial were in furtherance of coup detat. For this reason, the declaration contained in the dispositive portion of the February 11, 2004 Order - that charges filed against the accused before the court-martial were not service-connected - cannot be given effect.

Similarly invoking Section 1 of Rep. Act No. 7055, the respondents vigorously assert that the charges against 1Lt. Navales, et al. and Capt. Reaso, et al. filed with the General Court-Martial, i.e., violations of the Articles of War 63, 64, 67, 96 and 97, are, in fact, among those declared to be service-connected under the second paragraph of this provision. This means that the civil court cannot exercise jurisdiction over the said offenses, the same being properly cognizable by the General Court-Martial. Thus, the RTC (Branch 148) acted without or in excess of jurisdiction when it declared in its February 11, 2004 Order that the charges against those accused before the

General Court-Martial were not service-connected, but absorbed and in furtherance of the crime of coup detat. Said pronouncement is allegedly null and void.

The respondents denounce the petitioners for their forum shopping. Apparently, a similar petition (petition for habeas corpus, prohibition with injunction and prayer for issuance of a temporary restraining order) had been filed by the petitioners co-accused with the Court of Appeals, docketed as CA-G.R. SP No. 82695. The case was resolved against the petitioners therein.

The respondents pray that the petitions be dismissed for lack of merit.

Issue

The sole issue that needs to be resolved is whether or not the petitioners are entitled to the writs of prohibition and habeas corpus.

The Courts Ruling

We rule in the negative.

We agree with the respondents that the sweeping declaration made by the RTC (Branch 148) in the dispositive portion of its Order dated February 11, 2004 that all charges before the court-martial against the accused were not service-connected, but absorbed and in furtherance of the crime of coup detat, cannot be given effect. For reasons which shall be discussed shortly, such declaration was made without or in excess of jurisdiction; hence, a nullity.

The trial courts declaration was

made when the Omnibus Motion

had already been rendered moot

and academic with respect to

1Lt. Navales, et al. and Capt.

Reaso, et al. by reason of the

dismissal of the charge of coup

detat against them

The Order dated February 11, 2004 was issued purportedly to resolve the Omnibus Motion, which prayed for the trial court to, inter alia, acquire jurisdiction over all the charges filed before the military courts in accordance with Rep. Act No. 7055. The said Omnibus Motion was filed on September 12, 2003 by 243 of the original accused under the Information dated August 1, 2003. However, this information was subsequently superseded by the Amended Information dated October 20, 2003 under which only 31 were charged with the crime of coup detat. In the November 14, 2003 Order of the RTC (Branch 61), the Amended Information was admitted and the case against the 290 accused, including 1Lt. Navales, et al. and Capt. Reaso, et al., was dismissed. The said Order became final and executory since no motion for reconsideration thereof had been filed by any of the parties.

Thus, when the RTC (Branch 148) eventually resolved the Omnibus Motion on February 11, 2004, the said motion had already been rendered moot by the November 14, 2003 Order of the RTC (Branch 61) admitting the Amended Information under which only 31 of the accused were charged and dismissing the case as against the other 290. It had become moot with respect to those whose charge against them was dismissed, including 1Lt. Navales, et al. and Capt. Reaso, et al., because they were no longer parties to the case. This was conceded by the RTC (Branch 148) itself as it stated in the body of its February 11, 2004 Order that:

Now, after going over the records of the case, the Court is of the view that the movants first concern in their omnibus motion, i.e., assume jurisdiction over all charges filed before military courts in accordance with R.A. 7055, has been rendered moot and academic by virtue of the Order dated November 14, 2003 dismissing the

case against TSg. Leonel M. Alnas, TSg. Ramon B. Norico, SSg. Eduardo G. Cedeno, et al. and finding probable cause in the Order dated November 18, 2003 against accused Cpt. Milo D. Maestrecampo, LtSg. Antonio F. Trillanes IV, et al., issued by Judge Barza.

In view of the Order of Judge Barza dated November 14, 2003 dismissing the case against aforesaid accused, the Court, therefore, can no longer assume jurisdiction over all charges filed before the military courts and this Court cannot undo nor reverse the Order of November 14, 2003 of Judge Barza, there being no motion filed by the prosecution to reconsider the order or by any of the accused.[19]

Accordingly, in the dispositive portion of the said Order, the RTC (Branch 148) held that the Omnibus Motion was considered moot and academic. And yet, in the same dispositive portion, the RTC (Branch 148) still proceeded to declare in the last clause thereof that all the charges before the court-martial against the accused (those included in the Order of November 18, 2003) as well as those former accused (those included in the Order of November 14, 2003) are hereby declared not service-connected, on its perception that the crimes defined in and penalized by the Articles of War were committed in furtherance of coup detat; hence, absorbed by the latter crime.

As earlier explained, insofar as those whose case against them was dismissed, there was nothing else left to resolve after the Omnibus Motion was considered moot and academic. Indeed, as they were no longer parties to the case, no further relief could be granted to them. 1Lt. Navales, et al. and Capt. Reaso, et al. could be properly considered as strangers to the proceedings in Criminal Case No. 03-2784. And in the same manner that strangers to a case are not bound by any judgment rendered by the court,[20] any rulings made by the trial court in Criminal Case No. 03-2784 are no longer binding on 1Lt. Navales, et al. and Capt. Reaso, et al. The RTC (Branch 148) itself recognized this as it made the statement, quoted earlier, that in view of the Order of Judge Barza dated November 14, 2003 dismissing the case against aforesaid accused, the Court, therefore, can no longer assume jurisdiction over all charges filed before the military courts and this Court cannot undo nor reverse the Order of November 14, 2003 of Judge Barza there being no motion filed by the prosecution to reconsider the order or by any of the accused.[21]

Thus, 1Lt. Navales, et al. and Capt. Reaso, et al., who are no longer charged with coup detat, cannot find solace in the declaration of the RTC (Branch 148) that the charges filed before the General Court-Martial against them were not service-connected. The same is a superfluity and cannot be given effect for having been made by the RTC (Branch 148) without or in excess of its jurisdiction.

Such declaration was made by the

RTC (Branch 148) in violation of

Section 1, Republic Act No. 7055

Section 1 of Rep. Act No. 7055 reads in full:

Section 1. Members of the Armed Forces of the Philippines and other persons subject to military law, including members of the Citizens Armed Forces Geographical Units, who commit crimes or offenses penalized under the Revised Penal Code, other special penal laws, or local government ordinances, regardless of whether or not civilians are co-accused, victims, or offended parties which may be natural or juridical persons, shall be tried by the proper civil court, except when the offense, as determined before arraignment by the civil court, is serviceconnected, in which case the offense shall be tried by court-martial: Provided, That the President of the Philippines may, in the interest of justice, order or direct at any time before arraignment that any such crimes or offenses be tried by the proper civil courts.

As used in this Section, service-connected crimes or offenses shall be limited to those defined in Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97 of Commonwealth Act No. 408, as amended.

In imposing the penalty for such crimes or offenses, the court-martial may take into consideration the penalty prescribed therefor in the Revised Penal Code, other special laws, or local government ordinances.

The second paragraph of the above provision explicitly specifies what are considered service-connected crimes or offenses under Commonwealth Act No. 408 (CA 408), as amended, also known as the Articles of War, to wit:

Articles 54 to 70:

Art. 54. Fraudulent Enlistment.

Art. 55. Officer Making Unlawful Enlistment.

Art. 56. False Muster.

Art. 57. False Returns.

Art. 58. Certain Acts to Constitute Desertion.

Art. 59. Desertion.

Art. 60. Advising or Aiding Another to Desert.

Art. 61. Entertaining a Deserter.

Art. 62. Absence Without Leave.

Art. 63. Disrespect Toward the President, Vice-President, Congress of the Philippines, or Secretary of National Defense.

Art. 64. Disrespect Toward Superior Officer.

Art. 65. Assaulting or Willfully Disobeying Superior Officer.

Art. 66. Insubordinate Conduct Toward Non-Commissioned Officer.

Art. 67. Mutiny or Sedition.

Art. 68. Failure to Suppress Mutiny or Sedition.

Art. 69. Quarrels; Frays; Disorders.

Art. 70. Arrest or Confinement.

Articles 72 to 92

Art. 72. Refusal to Receive and Keep Prisoners.

Art. 73. Report of Prisoners Received.

Art. 74. Releasing Prisoner Without Authority.

Art. 75. Delivery of Offenders to Civil Authorities.

Art. 76. Misbehavior Before the Enemy.

Art. 77. Subordinates Compelling Commander to Surrender.

Art. 78. Improper Use of Countersign.

Art. 79. Forcing a Safeguard.

Art. 80. Captured Property to be Secured for Public Service.

Art. 81. Dealing in Captured or Abandoned Property.

Art. 82. Relieving, Corresponding With, or Aiding the Enemy.

Art. 83. Spies.

Art. 84. Military Property. Willful or Negligent Loss, Damage or Wrongful Disposition.

Art. 85. Waste or Unlawful Disposition of Military Property Issued to Soldiers.

Art. 86. Drunk on Duty.

Art. 87. Misbehavior of Sentinel.

Art. 88. Personal Interest in Sale of Provisions.

Art. 88-A. Unlawfully Influencing Action of Court.

Art. 89. Intimidation of Persons Bringing Provisions.

Art. 90. Good Order to be Maintained and Wrongs Redressed.

Art. 91. Provoking Speeches or Gestures.

Art. 92. Dueling.

Articles 95 to 97:

Art. 95. Frauds Against the Government.

Art. 96. Conduct Unbecoming an Officer and Gentleman.

Art. 97 General Article.

Further, Section 1 of Rep. Act No. 7055 vests on the military courts the jurisdiction over the foregoing offenses. The following deliberations in the Senate on Senate Bill No. 1468, which, upon consolidation with House Bill No. 31130, subsequently became Rep. Act No. 7055, are instructive:

Senator Shahani. I would like to propose an addition to Section 1, but this will have to be on page 2. This will be in line 5, which should be another paragraph, but still within Section 1. This is to propose a definition of what service-connected means, because this appears on line 8. My proposal is the following:

SERVICE-CONNECTED OFFENSES SHALL MEAN THOSE COMMITTED BY MILITARY PERSONNEL PURSUANT TO THE LAWFUL ORDER OF THEIR SUPERIOR OFFICER OR WITHIN THE CONTEXT OF A VALID MILITARY EXERCISE OR MISSION.

I believe this amendment seeks to avoid any confusion as to what service-connected offense means. Please note that service-connected offense, under this bill, remains within the jurisdiction of military tribunals.

So, I think that is an important distinction, Mr. President.

Senator Taada. Yes, Mr. President. I would just want to propose to the Sponsor of this amendment to consider, perhaps, defining what this service-related offenses would be under the Articles of War. And so, I would submit for her consideration the following amendment to her amendment which would read as follows: AS USED IN THIS SECTION, SERVICE-CONNECTED CRIMES OR OFFENSES SHALL BE LIMITED TO THOSE DEFINED IN ARTICLES 54 TO 70, ARTICLES 72 TO 75, ARTICLES 76 TO 83 AND ARTICLES 84 TO 92, AND ARTICLES 95 TO 97, COMMONWEALTH ACT NO. 408 AS AMENDED.

This would identify, I mean, specifically, what these service-related or connected offenses or crimes would be.

The President. What will happen to the definition of service-connected offense already put forward by Senator Shahani?

Senator Taada. I believe that would be incorporated in the specification of the Article I have mentioned in the Articles of War.

SUSPENSION OF THE SESSION

The President. Will the Gentleman kindly try to work it out between the two of you? I will suspend the session for a minute, if there is no objection. [There was none.]

It was 5:02 p.m.

RESUMPTION OF THE SESSION

At 5:06 p.m., the session was resumed.

The President. The session is resumed.

Senator Taada. Mr. President, Senator Shahani has graciously accepted my amendment to her amendment, subject to refinement and style.

The President. Is there any objection? [Silence] There being none, the amendment is approved.[22]

In the same session, Senator Wigberto E. Taada, the principal sponsor of SB No. 1468, emphasized:

Senator Taada. Section 1, already provides that crimes of offenses committed by persons subject to military law ... will be tried by the civil courts, except, those which are service-related or connected. And we specified which would be considered service-related or connected under the Articles of War, Commonwealth Act No. 408.[23]

It is clear from the foregoing that Rep. Act No. 7055 did not divest the military courts of jurisdiction to try cases involving violations of Articles 54 to 70, Articles 72 to 92 and Articles 95 to 97 of the Articles of War as these are considered service-connected crimes or offenses. In fact, it mandates that these shall be tried by the courtmartial.

Indeed, jurisdiction is the power and authority of the court to hear, try and decide a case.[24] Moreover, jurisdiction over the subject matter or nature of the action is conferred only by the Constitution or by law.[25] It cannot be (1) granted by the agreement of the parties; (2) acquired, waived, enlarged or diminished by any act or omission of the parties; or (3) conferred by the acquiescence of the courts.[26] Once vested by law on a particular court or body, the jurisdiction over the subject matter or nature of the action cannot be dislodged by any body other than by the legislature through the enactment of a law. The power to change the jurisdiction of the courts is a matter of legislative enactment which none but the legislature may do. Congress has the sole power to define, prescribe and apportion the jurisdiction of the courts.[27]

In view of the clear mandate of Rep. Act No. 7055, the RTC (Branch 148) cannot divest the General Court-Martial of its jurisdiction over those charged with violations of Articles 63 (Disrespect Toward the President etc.), 64 (Disrespect Toward Superior Officer), 67 (Mutiny or Sedition), 96 (Conduct Unbecoming an Officer and a Gentleman) and 97 (General Article) of the Articles of War, as these are specifically included as serviceconnected offenses or crimes under Section 1 thereof. Pursuant to the same provision of law, the military courts have jurisdiction over these crimes or offenses.

There was no factual and legal basis for the RTC (Branch 148) to rule that violations of Articles 63, 64, 67, 96, and 97 of the Articles of War were committed in furtherance of coup detat and, as such, absorbed by the latter crime. It bears stressing that, after a reinvestigation, the Panel of Prosecutors found no probable cause for coup detat against the petitioners and recommended the dismissal of the case against them. The trial court approved the recommendation and dismissed the case as against the petitioners. There is, as yet, no evidence on record that the petitioners committed the violations of Articles 63, 64, 96, and 97 of the Articles of War in furtherance of coup detat.

In fine, in making the sweeping declaration that these charges were not service-connected, but rather absorbed and in furtherance of the crime of coup detat, the RTC (Branch 148) acted without or in excess of jurisdiction. Such declaration is, in legal contemplation, necessarily null and void and does not exist.[28]

At this point, a review of its legislative history would put in better perspective the raison detre of Rep. Act No. 7055. As early as 1938, jurisdiction over offenses punishable under CA 408, as amended, also known as the Articles of War, committed by persons subject to military law was vested on the military courts. Thereafter, then President Ferdinand E. Marcos promulgated Presidential Decree (PD) Nos. 1822,[29] 1850[30] and 1852.[31] These presidential decrees transferred from the civil courts to the military courts jurisdiction over all offenses committed by members of the AFP, the former Philippine Constabulary, the former Integrated National Police, including firemen, jail guards and all persons subject to military law.

In 1991, after a series of failed coup detats, Rep. Act No. 7055 was enacted. In his sponsorship speech, Senator Taada explained the intendment of the law, thus:

Senator Taada. The long and horrible nightmare of the past continues to haunt us to this present day. Its vestiges remain instituted in our legal and judicial system. Draconian decrees which served to prolong the past dictatorial regime subsist to rule our new-found lives. Two of these decrees, Presidential Decree No. 1822 and Presidential Decree No. 1850, as amended, remain intact as laws, in spite of the fact that four years have passed since we regained our democratic freedom.

The late Mr. Chief Justice Claudio Teehankee enunciated in the case of Olaguer vs. Military Commission No. 34 that the greatest threat to freedom is the shortness of human memory.

PD No. 1822 and PD No. 1850 made all offenses committed by members of the Armed Forces of the Philippines, the Philippine Constabulary, the Integrated National Police, including firemen and jail guards, and all persons

subject to military law exclusively triable by military courts though, clearly, jurisdiction over common crimes rightly belongs to civil courts.

Article II, Section 3 of the 1987 Constitution provides that civilian authority is, at all times, supreme over the military. Likewise, Article VIII, Section 1 declares that the judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

In the case of Anima vs. The Minister of National Defense, (146 Supreme Court Reports Annotated, page 406), the Supreme Court through Mr. Justice Gutierrez declared:

The jurisdiction given to military tribunals over common crimes at a time when all civil courts were fully operational and freely functioning constitutes one of the saddest chapters in the history of the Philippine Judiciary. The downgrading of judicial prestige caused by the glorification of military tribunals ... the many judicial problems spawned by extended authoritarian rule which effectively eroded judicial independence and selfrespect will require plenty of time and determined efforts to cure.

The immediate return to civil courts of all cases which properly belong to them is only a beginning.

...

Thus, as long as the civil courts in the land remain open and are regularly functioning, military tribunals cannot try and exercise jurisdiction over military men for criminal offenses committed by them which are properly cognizable by the civil courts. ...[32]

Clearly, in enacting Rep. Act No. 7055, the lawmakers merely intended to return to the civilian courts the jurisdiction over those offenses that have been traditionally within their jurisdiction, but did not divest the military courts jurisdiction over cases mandated by the Articles of War.

Conclusion

The writs of prohibition (G.R. No. 162318) and habeas corpus (G.R. No. 162341) prayed for by the petitioners must perforce fail. As a general rule, the writ of habeas corpus will not issue where the person alleged to be restrained of his liberty is in the custody of an officer under a process issued by the court which has jurisdiction to do so.[33] Further, the writ of habeas corpus should not be allowed after the party sought to be released had been charged before any court or quasi-judicial body.[34] The term court necessarily includes the General Court-Martial. These rules apply to Capt. Reaso, et al., as they are under detention pursuant to the Commitment Order dated August 2, 2003 issued by respondent Chief of Staff of the AFP pursuant to Article 70[35] of the Articles of War.

On the other hand, the office of the writ of prohibition is to prevent inferior courts, corporations, boards or persons from usurping or exercising a jurisdiction or power with which they have not been vested by law.[36] As earlier discussed, the General Court-Martial has jurisdiction over the charges filed against petitioners 1Lt. Navales, et al. under Rep. Act No. 7055. A writ of prohibition cannot be issued to prevent it from exercising its jurisdiction.

WHEREFORE, premises considered, the petitions are hereby DISMISSED.

SO ORDERED.

Davide, Jr. C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Tinga, Chico-Nazario, Garcia, JJ., concur.

Azcuna, J., on leave.

Republic of the Philippines SUPREME COURT Manila

SECOND DIVISION

G.R. Nos. 159104-05

October 5, 2007

RODOLFO M. CUENCA and CUENCA INVESTMENT CORP., petitioners, vs. THE PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT, INDEPENDENT REALTY CORP., and UNIVERSAL HOLDINGS CORP., respondents.

DECISION

VELASCO, JR., J.:

The Case In this Petition for Review on Certiorari under Rule 45, petitioners assail the January 6, 2003 Decision1 of the Court of Appeals (CA) in consolidated cases CA-G.R. CV No. 603382 and CA-G.R. SP No. 496863 which upheld the jurisdiction of Sandiganbayan over a dispute involving the transfer of stocks and subscription rights of respondent Universal Holdings Corporation (UHC), a sequestered company, in favor of petitioners Rodolfo M. Cuenca and Cuenca Investment Corporation (CIC); and its July 15, 2003 Resolution4 denying petitioners Motion for Reconsideration.5 The consolidated cases originated from Civil Case No. 91-2721 entitled Rodolfo M. Cuenca, et al. v. Independent Realty Corp., et al. filed before the Makati City Regional Trial Court (RTC), Branch 61CAG.R. CV No. 60338 being an appeal from the April 23, 1998 Decision rendered by the Makati City RTC, and CAG.R. SP No. 49686 being a special civil action formerly filed as a petition for certiorari before the Supreme Court, but was remanded to the CA for a review of the denial of the motion for intervention filed by respondent Presidential Commission on Good Government (PCGG).

The Facts

Respondent UHC is a wholly owned subsidiary of Independent Realty Corporation (IRC). UHC had an authorized capital stock of PhP 200,000,000 of which 401,995 shares worth PhP 40,199,500 were subscribed and PhP 10,050,000 was paid up by IRC. Five stockholders of IRC held qualifying shares in UHC and served in its Board of Directors. UHC became an inactive holding company until the later months of 1978.

In 1978, petitioner Rodolfo M. Cuenca and his familys holding company, petitioner CIC, negotiated and reached an agreement with respondents IRC and UHC, whereby petitioners Cuenca and CIC would purchase all the shares of stock and subscription rights of IRC in UHC for PhP 10,000,000 and assume IRCs unpaid subscription of PhP 30,000,000. Petitioners Cuenca and CIC were then the controlling stockholders of the Construction and Development Corporation of the Philippines (CDCP), now the Philippine National Construction Corporation (PNCC), Sta. Ines Melale Forest Products Corporation (Sta. Ines), and Resort Hotels Corporation (Resort Hotels). In order to build up UHC as his flagship company, petitioner Cuenca transferred to UHC the shares of stocks in CDCP, Sta. Ines, and Resort Hotels worth PhP 67,233,405, with UHC assuming Cuencas various bank obligations, some or all of which were secured by pledges or liens on the stocks.

On October 21, 1978, petitioner Cuenca was elected Chairperson and President of UHC at a special stockholders meeting in accordance with the acquisition plan, and through UHC, Cuenca continued to control and manage CDCP, Sta. Ines, and Resort Hotels. Pursuant to the acquisition plan and agreement with IRC, Cuenca and CIC transferred their shares of stock in CDCP, Sta. Ines, and Resort Hotels to UHC, which in turn paid PhP 10,000,000 to IRC. In addition, petitioners assumed IRCs unpaid subscription of PhP 30,000,000 in UHC. The only remaining matter to be accomplished was the transfer of the stocks and subscription rights of IRC in UHC to petitioners, but despite demand, IRC did not comply.

In 1986, the instant controversy between petitioners and respondent IRC was overtaken by dramatic political events. President Marcos was ousted in a bloodless revolution and left behind an unbelievably large amount of funds and assets that were sequestered by the new government of President Aquino through PCGG. In July 1987, because of Marcos nominee Jose Yao Campos sworn statement, respondent PCGG directed Santos Luis Diego, President of IRC, to dissolve all the boards of directors of IRCs fully-owned subsidiaries. A year later, it turned over IRC and its subsidiary, UHC, to the Asset Privatization Trust (APT) for rehabilitation, conservation, or disposition, enabling APT to assign one share of stock in IRC and in each of its 25 subsidiaries, including UHC, to Paterno Bacani, Jr.

Amidst this state of affairs, petitioners filed the October 2, 1991 Complaint6 against IRC, UHC, APT, and Bacani before the Makati City RTC, which was docketed as Civil Case No. 91-2721, to compel IRC to transfer all its stock and subscription rights in UHC to them or order IRC and UHC to return and re-convey to them all the assets and shares of stock in CDCP, Sta. Ines, and Resort Hotels that they had transferred to UHC.

The Ruling of the Regional Trial Court

On November 29, 1991, respondents IRC and UHC filed a Joint Motion to Dismiss7 on the ground of lack of jurisdiction, claiming that the exclusive jurisdiction was lodged in the Sandiganbayan and not in the RTC. Meanwhile, on December 9, 1991, respondents IRC and UHC, represented by respondent PCGG, filed another Motion to Dismiss8 on the ground of litis pendentia as petitioner Cuenca had a pending case filed by respondent PCGG before the Sandiganbayan and docketed as Civil Case No. 0016 entitled Republic of the Philippines v. Rodolfo M. Cuenca, et al., which involved respondent UHC and several other corporations beneficially owned or controlled by petitioner Cuenca for and in behalf of the Marcoses. Meanwhile, in the May 14, 1992 Order, the trial court dismissed the Complaint against APT and Bacani, and dropped them as defendants on October 16, 1992.9 On March 25, 1993, the trial court, however, denied both motions to dismiss on the ground that respondent PCGG was not impleaded in the instant case and that the transaction involved specific performance of a contract entered into in 1978 before the PCGG came into existence.

Consequently, on August 19, 1993, respondents IRC and UHC filed their Answer with Counterclaim.10 Before pre-trial, petitioners sent their Interrogatories11 to IRC and UHC, which were answered by IRC on July 25, 1994.12 After considerable time had elapsed without UHC filing its answer to the interrogatories, and unsatisfied with IRCs answer not accomplished, duly signed, and sworn to by a competent and responsible IRC officer as only IRCs counsel signed it, petitioners filed on August 30, 1994 a Motion to Compel UHC to Answer Interrogatories13 to which the trial court issued two related Orders, the first dated January 17, 1995 directing IRC to submit proper and complete answers and UHC to answer the interrogatories,14 and the second dated February 10, 1995 granting respondents IRC and UHC an extension of 15 days to file their answers to the interrogatories.15

On September 29, 1995, petitioners filed a Motion to Declare Defendants in Default16 for non-compliance with Section 5 of Rule 29,17 Revised Rules of Civil Procedure. Respondents IRC and UHC filed their respective Answers to Interrogatories18 on October 17, 1995 or only after the motion to declare them in default was filed and served. Consequently, the trial court issued its February 7, 1996 Order of default, which also granted petitioners the right to adduce their evidence ex-parte.19 On September 9, 1996, the trial court likewise denied20 the Motion for Reconsideration and/or Lift Order of Default21 filed by respondents IRC and UHC.

Subsequently, respondent PCGG filed its Motion for Leave to Intervene with Motion to Dismiss on December 18, 1996, which was denied by the trial court only on April 20, 1998.22

Parenthetically, on October 22, 1996, petitioners filed an Urgent Ex-Parte Application for Receivership which was granted through an October 28, 1996 Order, appointing Jaime C. Laya as UHCs receiver. After posting the requisite bond, the trial court issued on November 5, 1996 an Order approving the bond, and receiver Laya submitted his November 13, 1996 Oath of Office.

Petitioners adduced their evidence and presented the testimonies of petitioner Rodolfo Cuenca and Lourdes G. Labao, a supervisor of Caval Securities Registry, Inc., who testified on the transfers of shares of stock of CDCP, Sta. Ines, and Resort Hotels from Cuenca and CIC to UHC. On March 20, 1998, petitioners filed their Formal Offer of Exhibits.23

On April 23, 1998, the trial court rendered a Decision in favor of petitioners. The fallo reads:

Accordingly, JUDGMENT is hereby rendered in favor of plaintiffs and as against defendants IRC and UHC, who are hereby ordered to immediately return and reconvey to plaintiffs all of the shares of stocks and stock subscriptions in Philippine National Construction Corporation (formerly known as Construction and Development [Corporation] of the Philippines), Resort Hotels Corporation and Sta. Ines Melale Forest Products Corporation, including those transferred by plaintiffs to UHC such as the 24,780,746 shares in CDCP/PNCC, the 468,062 shares in Resort Hotels Corporation and the 23,748,932 shares in Sta. Ines Melale Forest Products Corporation plus all fruits thereof such as stock and cash dividends and stock splits.

The plaintiffs prayer for damages and attorneys fees are hereby DENIED.

The counterclaim of defendants UHC and IRC for damages and attorneys fees is hereby DENIED for lack of evidence.

The appointment of JAIME C. LAYA as Receiver of defendant UHC is hereby MAINTAINED until finality of this Decision and full execution of this Decision or full compliance herewith by defendants.24

From the adverse Decision, respondents IRC and UHC appealed to the CA, which was docketed as CA-G.R. CV No. 60338. On the other hand, after the trial court denied respondent PCGGs Motion for Reconsideration25 through its July 22, 1998 Order,26 PCGG brought the instant case before this Court in G.R. No. 13516. Said PCGG special civil action was remanded to the CA and docketed as CA-G.R. SP No. 49686 entitled Presidential Commission on Good Government (PCGG) v. Hon. Fernando V. Gorospe, as Presiding Judge RTC of Makati City, Branch 61, et al. In the petition before the CA, PCGG also assailed the April 20, 1998 Order of the trial court denying its motion for intervention in Civil Case No. 91-2721. Thus, the petition for certiorari (CA-G.R. SP No. 49686) and the appeal (CA-G.R. CV No. 60338) were consolidated.

The Ruling of the Court of Appeals

Through its assailed Decision, the appellate court reversed the Makati City RTCs Decision, granted the petition filed by PCGG, and dismissed the instant case for lack of jurisdiction. The appellate court ratiocinated that the Sandiganbayan had exclusive jurisdiction to hear the instant case involving petitioners and the sequestered respondents corporations. It held that the recourse of parties, petitioners in the instant case, who wish to challenge respondent PCGGs acts or orders, would be to the Sandiganbayan pursuant to Executive Order No. (EO) 14 issued on May, 7, 1986,27 which ordained that this body alone had the original jurisdiction over all of respondent PCGGs cases, civil or criminal, citing PCGG v. Pea28 as authority. The appellate court applied Republic v. Sandiganbayan29 on the issue of sequestration by respondent PCGG of UHC, CIC, and CDCP (now PNCC) against petitioner Cuenca, the Marcos spouses, their relatives, friends, and colleagues.

The CA applied the doctrine of conclusiveness of judgment that any rule which had already been authoritatively established in a previous litigation should be deemed the law of the case between the same parties. As such, the appellate court adopted the ruling in Republic on the continuing force of the order of sequestration and concluded that, indeed, respondent UHC is a sequestered company. The CA did not find merit in petitioners contention that sequestration did not affect their transaction with respondents as it arose before PCGG was created.

Even if petitioners had initially a cause of action, the CA ruled that the complaint was certainly affected by the passage of the law charging respondent PCGG with the performance of certain tasks over the subject matter of the action; and that the same subject matter had become subject to the new exclusive jurisdiction vested in the Sandiganbayan at the time petitioners filed the instant case.

Aggrieved, petitioners filed their Motion for Reconsideration30 which was denied by the assailed July 15, 2003 CA Resolution.31 Hence, they filed this petition for review.

The Issues

Petitioners raise the following grounds for our consideration:

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN DISMISSING CIVIL CASE NO. 91-2721 BELOW ON THE GROUND THAT THE SANDIGANBAYAN HAS EXCLUSIVE JURISDICTION OVER THE SUBJECT MATTER OF THE CASE.

A.

THE FACT ALONE THAT RESPONDENT UHC MAY HAVE BEEN SEQUESTERED DID NOT DIVEST THE REGIONAL TRIAL COURT OF ITS JURISDICTION OVER THE SUBJECT MATTER OF PETITIONERS COMPLAINT IN CIVIL CASE NO. 912721 BELOW.

B.

THE COURT OF APPEALS RELIANCE ON THE CASE OF REPUBLIC VS. SANDIGANBAYAN, 240 SCRA 376 (1995), IS MISPLACED.

C.

THE COURT OF APPEALS APPLICATION OF THE DOCTRINE OF CONCLUSIVENESS OF JUDGMENT IS ERRONEOUS.32

The Courts Ruling

The petition must fail.

The core issue before us is that of jurisdiction. In gist, petitioners argue that UHC was not sequestered, and even if it was sequestered, the trial court still has the jurisdiction to hear the case for rescission of contract or specific performance, and conclude that the doctrine of conclusiveness of judgment does not apply in the instant case.

Issue of Jurisdiction

Jurisdiction is defined as the power and authority of a court to hear, try, and decide a case.33 Jurisdiction over the subject matter is conferred by the Constitution or by law while jurisdiction over the person is acquired by his/her voluntary submission to the authority of the court or through the exercise of its coercive processes. Jurisdiction over the res is obtained by actual or constructive seizure placing the property under the orders of the court.34

We are primarily concerned here with the first kind of jurisdiction, that is, jurisdiction over the subject matter.

Petitioners contend that even if UHC was indeed sequestered, jurisdiction over the subject matter of petitioners Complaint for enforcement or rescission of contract between petitioners and respondents belonged to the RTC and not the Sandiganbayan. Petitioners cited Philippine Amusement and Gaming Corporation v. Court of Appeals,35 involving Philippine Casino Operators Corporation (PCOC) which was sequestered on March 19, 1986. In said case, this Court held that the fact of sequestration alone did not automatically oust the RTC of jurisdiction to decide upon the question of ownership of the disputed gaming and office equipment as PCGG must be a party to the suit in order that the Sandiganbayans exclusive jurisdiction may be correctly invoked, and as Section 236 of EO 14 was duly applied in PCGG v. Pea37 and PCGG v. Nepomuceno,38 which ineluctably spoke of respondent PCGG as a party-litigant.

Likewise, petitioners cited Holiday Inn (Phils.), Inc. v. Sandiganbayan,39 which also involved a sequestered company, New Riviera Hotel and Development Co., Inc. (NRHDCI), where this Court held that there is a distinction between an action for the recovery of ill-gotten wealth, as well as all incidents arising from, incidental to, or related to such cases, and cases filed by those who wish to question or challenge respondent PCGGs acts or orders in such cases vis--vis ordinary civil cases that do not pertain to the Sandiganbayan. As such, petitioners contend that the instant ordinary civil case for the enforcement or rescission of the 1978 contract between petitioners and respondents UHC and IRC is distinct from and has absolutely no bearing with the unrelated issue of the sequestration of respondents UHC and IRC. Thus, petitioners strongly contend that the trial court indeed had jurisdiction over the instant case. Besides, petitioners point out that PCGG was not

impleaded as a defendant in Civil Case No. 91-2721, and that the Complaint "does not question the PCGGs alleged sequestration of respondent UHC x x x or any other act or order of the PCGG."40

Sandiganbayan has exclusive jurisdiction over the instant case

A rigorous examination of the antecedent facts and existing records at hand shows that Sandiganbayan has exclusive jurisdiction over the instant case.

Thus, the petition must fail for the following reasons:

First, it is a fact that the shares of stock of UHC and CDCP, the subject matter of Civil Case No. 91-2721 before the Makati City RTC, were also the subject matter of an ill-gotten wealth case, specifically Civil Case No. 0016 before the Sandiganbayan. In Civil Case No. 91-2721 of the Makati City RTC, petitioners prayed for a judgment either transferring the UHC shares or restoring and reconveying the PNCC shares to them. In the event a final judgment is rendered in said Makati City RTC case in favor of petitioners, then such adjudication tends to render moot and academic the judgment to be rendered in Sandiganbayan Civil Case No. 0016 considering that the legal ownership of either the UHC or PNCC shares would now be transferred to petitioners Rodolfo Cuenca and CIC. Such adverse judgment would run counter to the rights of ownership of the government over the UHC and PNCC shares in question. It must be remembered that on March 21, 1986, a Sworn Statement41 executed by Mr. Jose Y. Campos in Vancouver, Canada, whereby Mr. Campos, a crony and close business associate of the deposed President Marcos, named and identified IRC and UHC (a wholly-owned subsidiary of IRC) as among the several corporations organized, established, and managed by him and other business associates for and in behalf of the former President Marcos. Subsequently, the UHC and IRC shares were surrendered and turned over by Mr. Campos to PCGG, transferring, in effect, the ownership of the shares to the Government.

Moreover, inasmuch as UHC was impleaded in Civil Case No. 0016 as a defendant and was listed among the corporations beneficially owned or controlled by petitioner Cuenca, the issue of the latters right to acquire ownership of UHC shares is inexorably intertwined with the right of the Republic of the Philippines, through PCGG, to retain ownership of said UHC shares.

It must be borne in mind that the Sandiganbayan was created in 1978 pursuant to Presidential Decree No. (PD) 1606.42 Said law has been amended during the interim period after the Edsa Revolution of 1986 and before the 1987 Constitution was drafted, passed, and ratified. Thus, the executive issuances during such period before the ratification of the 1987 Constitution had the force and effect of laws. Specifically, then President Corazon C.

Aquino issued the following Executive Orders which amended PD 1606 in so far as the jurisdiction of the Sandiganbayan over civil and criminal cases instituted and prosecuted by the PCGG is concerned, viz:

a) EO 1, entitled "Creating the Presidential Commission on Good Government," dated February 28, 1986;

b) EO 2, entitled "Regarding the Funds, Moneys, Assets, and Properties Illegally Acquired or Misappropriated by Former President Ferdinand E. Marcos, Mrs. Imelda Romualdez Marcos, Their Close Relatives, Subordinates, Business Associates, Dummies, Agents, or Nominees," dated March 12, 1986;

c) EO 14, entitled "Defining the Jurisdiction over Cases Involving the Ill-gotten Wealth of Former President Ferdinand E. Marcos, Mrs. Imelda R. Marcos, Members of their Immediate Family, Close Relatives, Subordinates, Close and/or Business Associates, Dummies, Agents and Nominees," dated May 7, 1986; and

d) EO 14-A, entitled "Amending Executive Order No. 14," dated August 18, 1986.

Bearing on the jurisdiction of the Sandiganbayan over cases of ill-gotten wealth, EO 14, Secs. 1 and 2 provide:

SECTION 1. Any provision of the law to the contrary notwithstanding, the Presidential Commission on Good Government with the assistance of the Office of the Solicitor General and other government agencies, is hereby empowered to file and prosecute all cases investigated by it under Executive Order No. 1, dated February 28, 1986 and Executive Order No. 2, dated March 12, 1986, as may be warranted by its findings.

SECTION 2. The Presidential Commission on Good Government shall file all such cases, whether civil or criminal, with the Sandiganbayan, which shall have exclusive and original jurisdiction thereof. (Emphasis supplied.)

Notably, these amendments had been duly recognized and reflected in subsequent amendments to PD 1606, specifically Republic Act Nos. 797543 and 8249.44

In the light of the foregoing provisions, it is clear that it is the Sandiganbayan and not the Makati City RTC that has jurisdiction over the disputed UHC and PNCC shares, being the alleged "ill-gotten wealth" of former

President Ferdinand E. Marcos and petitioner Cuenca. The fact that the Makati City RTC civil case involved the performance of contractual obligations relative to the UHC shares is of no importance. The benchmark is whether said UHC shares are alleged to be ill-gotten wealth of the Marcoses and their perceived cronies. More importantly, the interests of orderly administration of justice dictate that all incidents affecting the UHC shares and PCGGs right of supervision or control over the UHC must be addressed to and resolved by the Sandiganbayan. Indeed, the law and courts frown upon split jurisdiction and the resultant multiplicity of suits, which result in much lost time, wasted effort, more expenses, and irreparable injury to the public interest.

Second, the UHC shares in dispute were sequestered by respondent PCGG. Sequestration is a provisional remedy or freeze order issued by the PCGG designed to prevent the disposal and dissipation of ill-gotten wealth.45 The power to sequester property means to

place or cause to be placed under [PCGGs] possession or control said property, or any building or office wherein any such property or any records pertaining thereto may be found, including business enterprises and entities, for the purpose of preventing the destruction of, and otherwise conserving and preserving the same, until it can be determined, through appropriate judicial proceedings, whether the property was in truth ill-gotten. (Silverio v. PCGG, 155 SCRA 60 [1987]).46

Considering that the UHC shares were already sequestered, enabling the PCGG to exercise the power of supervision, possession, and control over said shares, then such power would collide with the legal custody of the Makati City RTC over the UHC shares subject of Civil Case No. 91-2721. Whatever the outcome of Civil Case No. 91-2721, whether from enforcement or rescission of the contract, would directly militate on PCGGs control and management of IRC and UHC, and consequently hamper or interfere with its mandate to recover ill-gotten wealth. As aptly pointed out by respondents, petitioners action is inexorably entwined with the Governments action for the recovery of ill-gotten wealththe subject of the pending case before the Sandiganbayan. Verily, the transfer of shares of stock of UHC to petitioners or the return of the shares of stock of CDCP (now PNCC) will wreak havoc on the sequestration case as both UHC and CDCP are subject of sequestration by PCGG.

Third, Philippine Amusement and Gaming Corporation and Holiday Inn (Phils.), Inc.47 are not analogous to the case at bar. The first dealt with ownership of gaming and office equipment, which is distinct from and will not impact on the sequestration issue of PCOC. The second dealt with an ordinary civil case for performance of a contractual obligation which did not in any way affect the sequestration proceeding of NRHDCI; thus, the complaint-in-intervention of Holiday Inn (Phils.), Inc. was properly denied for lack of jurisdiction over the subject matter.

In both cases cited by petitioners, there was a substantial distinction between the sequestration proceedings and the subject matter of the actions. This does not prevail in the instant case, as the ownership of the shares of stock of the sequestered companies, UHC and CDCP, is the subject matter of a pending case and thus addressed to the exclusive jurisdiction of the Sandiganbayan.

Sec. 2 of EO 14 pertinently provides: "The Presidential Commission on Good Government shall file all such cases, whether civil or criminal, with the Sandiganbayan, which shall have exclusive and original jurisdiction thereof."

The above proviso has been squarely applied in Pea,48 where this Court held that the exclusive jurisdiction conferred on the Sandiganbayan would evidently extend not only to the principal causes of action, that is, recovery of alleged ill-gotten wealth, but also to all incidents arising from, incidental to, or related to such cases, including a dispute over the sale of the shares, the propriety of the issuance of ancillary writs of relative provisional remedies, and the sequestration of the shares, which may not be made the subject of separate actions or proceedings in another forum. Indeed, the issue of the ownership of the sequestered companies, UHC and PNCC, as well as IRCs ownership of them, is undeniably related to the recovery of the alleged ill-gotten wealth and can be squarely addressed via the exclusive jurisdiction of the Sandiganbayan.

Fourth, while it is clear that the exclusive jurisdiction of the Sandiganbayan only encompasses cases where PCGG is impleaded, such requirement is satisfied in the instant case. The appellate court clearly granted PCGGs petition for certiorari in CA-G.R. SP No. 49686, assailing the trial courts denial of its Motion for Leave to Intervene with Motion to Dismiss. Thus, the trial courts April 20, 1998 Order was reversed and set aside by the appellate court through its assailed Decision. Consequently, PCGG was granted the right to intervene and thus became properly impleaded in the instant case. Without doubt, the trial court has no jurisdiction to hear and decide Civil Case No. 91-2721.

Respondent UHC duly sequestered by PCGG

The trial court ruled that respondent PCGG could not stop the transfer of the shares of respondent UHC in CDCP to petitioners as there was no proof of sequestration except a writ of sequestration of Cuencas stocks in CDCP. On the other hand, petitioners contend that the appellate courts reliance on Republic49 is misplaced. They point out that neither PCGG nor respondent corporations relied on said case. Besides, petitioners contend that the Courts statements in said case did not constitute a ruling but mere references to unproven allegations by PCGG in its complaint against Cuenca in Sandiganbayan Civil Case No. 0016; and as such, it cannot be relied upon to hold that UHC was a sequestered corporation. As it is, petitioners conclude that it was a mere obiter

dictum which was not essential to the disposition of the aforecited case and thus, it is not binding upon the parties for purposes of res judicata or conclusiveness of judgment.

We are not moved by petitioners submission.

While it may be true that in Republic, our statement on Civil Case No. 0016, as cited by PCGG, refers to the allegations in the complaint filed by PCGG against petitioner Cuenca,50 we nonetheless stated in said case the fact of the sequestration of the assets and records of Rodolfo Cuenca, UHC, CIC, CDCP, San Mariano Mining Corp., etc. on May 23, 1986 and July 23, 1987. We took factual notice of the sequestration of various companies and properties in said case, thus:a

III. Orders of Sequestration issued by PCGG

During 1986 and 1987 numerous orders of sequestration, freezing or provisional takeover of companies or properties, real or personal, were issued and implemented. Among those were the orders handed out against the firms or assets hereunder listed, with the dates of sequestration, freezing or take-over, to wit:

SUBJECTS/OBJECTS OF SEQUESTRATION DATE

xxxx

i. Assets and records of Rodolfo Cuenca, May 23, 1986, Universal Holdings Corp., Cuenca July 23, 1987 Investment Corporation, Philippine National Construction Corp. (formerly CDCP), San Mariano Mining Corp., etc.51

From the foregoing account, we concluded that UHC had indeed been sequestered by the PCGG in 1986 and 1987. Consequently, the appellate court properly applied Republic as basis for its finding that UHC was a

sequestered company. Since the issue of sequestration has been resolved, we see no need to delve into the issue of conclusiveness of judgment. Suffice it to say that with the unequivocal finding that UHC was indeed sequestered, then it is the Sandiganbayan, not the Makati City RTC, that has exclusive jurisdiction over the subject matter of Civil Case No. 91-2721.

WHEREFORE, the instant petition is DISMISSED for lack of merit. The January 6, 2003 Decision and July 15, 2003 Resolution of the CA in CA-G.R. CV No. 60338 and CA-G.R. SP No. 49686 are AFFIRMED in toto. No costs.

SO ORDERED.

Carpio Morales,Acting Chairperson, Tinga, Puno, Ynares-Santiago, JJ., concur.

THIRD DIVISION

[G.R. No. 105308. September 25, 1998]

HERBERT CANG, petitioner, vs. COURT OF APPEALS and Spouses RONALD V. CLAVANO and MARIA CLARA CLAVANO, respondents.

DECISION

ROMERO, J.:

Can minor children be legally adopted without the written consent of a natural parent on the ground that the latter has abandoned them? The answer to this interesting query, certainly not one of first impression, would have to be reached, not solely on the basis of law and jurisprudence, but also the hard reality presented by the facts of the case.

This is the question posed before this Court in this petition for review on certiorari of the Decision[1] of the Court of Appeals affirming the decree of adoption issued by the Regional Trial Court of Cebu City, Branch 14,[2] in Special Proceedings No. 1744-CEB, In the Matter of the Petition for Adoption of the minors Keith, Charmaine and Joseph Anthony, all surnamed Cang, Spouses Ronald V. Clavano and Maria Clara Diago Clavano, petitioners.

Petitioner Herbert Cang and Anna Marie Clavano who were married on January 27, 1973, begot three children, namely: Keith, born on July 3, 1973; Charmaine, born on January 23, 1977, and Joseph Anthony, born on January 3, 1981.

During the early years of their marriage, the Cang couples relationship was undisturbed. Not long thereafter, however, Anna Marie learned of her husbands alleged extramarital affair with Wilma Soco, a family friend of the Clavanos.

Upon learning of her husbands alleged illicit liaison, Anna Marie filed a petition for legal separation with alimony pendente lite[3] with the then Juvenile and Domestic Relations Court of Cebu[4] which rendered a decision[5] approving the joint manifestation of the Cang spouses providing that they agreed to live separately and apart or from bed and board. They further agreed:

(c) That the children of the parties shall be entitled to a monthly support of ONE THOUSAND PESOS (P1,000.00) effective from the date of the filing of the complaint. This shall constitute a first lien on the net proceeds of the house and lot jointly owned by the parties situated at Cinco Village, Mandaue City;

(d) That the plaintiff shall be entitled to enter into any contract or agreement with any person or persons, natural or juridical without the written consent of the husband; or any undertaking or acts that ordinarily requires husbands consent as the parties are by this agreement legally separated;[6]

Petitioner then left for the United States where he sought a divorce from Anna Marie before the Second Judicial District Court of the State of Nevada. Said court issued the divorce decree that also granted sole custody of the three minor children to Anna Marie, reserving rights of visitation at all reasonable times and places to petitioner.[7]

Thereafter, petitioner took an American wife and thus became a naturalized American citizen. In 1986, he divorced his American wife and never remarried.

While in the United States, petitioner worked in Tablante Medical Clinic earning P18,000.00 to P20,000.00 a month[8] a portion of which was remitted to the Philippines for his childrens expenses and another, deposited in the bank in the name of his children.

Meanwhile, on September 25, 1987, private respondents Ronald V. Clavano and Maria Clara Diago Clavano, respectively the brother and sister-in-law of Anna Marie, filed Special Proceedings No. 1744-CEB for the adoption of the three minor Cang children before the Regional Trial Court of Cebu. The petition bears the signature of then 14-year-old Keith signifying consent to his adoption. Anna Marie likewise filed an affidavit of consent alleging that her husband had evaded his legal obligation to support his children; that her brothers and sisters including Ronald V. Clavano, had been helping her in taking care of the children; that because she would be going to the United States to attend to a family business, leaving the children would be a problem and would naturally hamper (her) job-seeking venture abroad; and that her husband had long forfeited his parental rights over the children for the following reasons:

1. The decision in Civil Case No. JD-707 allowed her to enter into any contract without the written consent of her husband;

2. Her husband had left the Philippines to be an illegal alien in the United States and had been transferring from one place to another to avoid detection by Immigration authorities, and

3. Her husband had divorced her.

Upon learning of the petition for adoption, petitioner immediately returned to the Philippines and filed an opposition thereto, alleging that, although private respondents Ronald and Maria Clara Clavano were financially capable of supporting the children while his finances were too meager compared to theirs, he could not in conscience, allow anybody to strip him of his parental authority over his beloved children.

Pending resolution of the petition for adoption, petitioner moved to reacquire custody over his children alleging that Anna Marie had transferred to the United States thereby leaving custody of their children to private respondents. On January 11, 1988, the Regional Trial Court of Cebu City, Branch 19, issued an order finding that Anna Marie had, in effect, relinquished custody over the children and, therefore, such custody should be transferred to the father. The court then directed the Clavanos to deliver custody over the minors to petitioner.

On March 27, 1990, the Regional Trial Court of Cebu City, Branch 14, issued a decree of adoption with a dispositive portion reading as follows:

WHEREFORE, premises considered, the petition for adoption of the minors Keith, Charmaine and Joseph Anthony all surnamed Cang, by the petitioners-spouses Ronald V. Clavano and Maria Clara Diago Clavano is hereby granted and approved. These children shall henceforth be known and called as Keith D. Clavano, Charmaine D. Clavano and Joseph Anthony D. Clavano respectively. Moreover, this Decree of Adoption shall:

(1) Confer upon the adopted children the same rights and duties as though they were in fact the legitimate children of the petitioners;

(2)

Dissolve the authority vested in the parents by nature, of the children; and,

(3)

Vest the same authority in the petitioners.

Furnish the Local Civil Registrar of Cebu City, Philippines with a copy of this Decree of Adoption for registration purposes.

SO ORDERED.

In so ruling, the lower court was impelled by these reasons:

(1) The Cang children had, since birth, developed close filial ties with the Clavano family, especially their maternal uncle, petitioner Ronald Clavano.

(2) Ronald and Maria Clara Clavano were childless and, with their printing press, real estate business, export business and gasoline station and mini-mart in Rosemead, California, U.S.A., had substantial assets and income.

(3) The natural mother of the children, Anna Marie, nicknamed Menchu, approved of the adoption because of her heart ailment, near-fatal accident in 1981, and the fact that she could not provide them a secure and happy future as she travels a lot.

(4) The Clavanos could provide the children moral and spiritual direction as they would go to church together and had sent the children to Catholic schools.

(5) The children themselves manifested their desire to be adopted by the Clavanos Keith had testified and expressed the wish to be adopted by the Clavanos while the two younger ones were observed by the court to have snuggled close to Ronald even though their natural mother was around.

On the other hand, the lower court considered the opposition of petitioner to rest on a very shaky foundation because of its findings that:

(1) Petitioner was morally unfit to be the father of his children on account of his being an improvident father of his family and an undisguised Lothario. This conclusion is based on the testimony of his alleged paramour, mother of his two sons and close friend of Anna Marie, Wilma Soco, who said that she and petitioner lived as husband and wife in the very house of the Cangs in Opao, Mandaue City.

(2) The alleged deposits of around $10,000 that were of comparatively recent dates were attempts at verisimilitude as these were joint deposits the authenticity of which could not be verified.

(3) Contrary to petitioners claim, the possibility of his reconciliation with Anna Marie was dim if not nil because it was petitioner who devised, engineered and executed the divorce proceedings at the Nevada Washoe County court.

(4) By his naturalization as a U.S. citizen, petitioner is now an alien from the standpoint of Philippine laws and therefore, how his new attachments and loyalties would sit with his (Filipino) children is an open question.

Quoting with approval the evaluation and recommendation of the RTC Social Worker in her Child Study Report, the lower court concluded as follows:

Simply put, the oppositor Herbert Cang has abandoned his children. And abandonment of a child by its (sic) parent is commonly specified by statute as a ground for dispensing with his consent to its (sic) adoption (Re Cozza, 163 Cal. 514 P. 161, Ann. [As. 1914A, 214]). Indeed, in such case, adoption will be allowed not only without the consent of the parent, but even against his opposition (Re McKeag, 141 Cal. 403, 74 P. 1039, 99 Am. St. Rep. 80; Re Camp. 131 Cal. 469, 63 P. 736, 82 Am. St. Rep. 371; Graham v. Francis, 83 Colo. 346, 265 P. 690, citing R.C.L.; Seibert, 170 Iowa, 561, 153 N.W. 160, citing R.C.L.; Stearns v. Allen, 183 Mass. 404, 67 N.E. 349; 97 Am. St. Rep. 441; Wilson v. Otis, 71 N.H. 483, 53 A. 439, 93 Am. St. Rep. 564; Nugent v. Powell, 4 Wyo. 173, 33 P. 23, 20 L.R.A. 199, 62 Am. St. Rep. 17.)[9]

Before the Court of Appeals, petitioner contended that the lower court erred in holding that it would be in the best interest of the three children if they were adopted by private respondents Ronald and Maria Clara Clavano. He asserted that the petition for adoption was fatally defective and tailored to divest him of parental authority because: (a) he did not have a written consent to the adoption; (b) he never abandoned his children; (c) Keith and Charmaine did not properly give their written consent; and (d) the petitioners for adoption did not present as witness the representative of the Department of Social Welfare and Development who made the case study report required by law.

The Court of Appeals affirmed the decree of adoption stating: Article 188 of the Family Code requires the written consent of the natural parents of the child to be adopted. It has been held however that the consent of the parent who has abandoned the child is not necessary (Dayrit vs. Piccio, 92 Phil. 729; Santos vs. Ananzanso, 16 SCRA 344). The question therefore is whether or not oppositor may be considered as having abandoned the children. In adoption cases, abandonment connotes any conduct on the part of the parent to forego parental duties and relinquish parental claims to the child, or the neglect or refusal to perform the natural and legal obligations which parents owe their children (Santos vs. Ananzanso, supra), or the withholding of the parents presence, his care and the opportunity to display voluntary affection. The issue of abandonment is amply covered by the discussion of the first error.

Oppositor argues that he has been sending dollar remittances to the children and has in fact even maintained bank accounts in their names. His duty to provide support comes from two judicial pronouncements. The first, the decision in JD-707 CEB, supra, obliges him to pay the children P1,000.00 a month. The second is mandated by the divorce decree of the Nevada, U.S.A. Federal Court which orders him to pay monthly support of US$50.00 for each child. Oppositor has not submitted any evidence to show compliance with the decision in JD-101 CEB, but he has submitted 22 cancelled dollar checks (Exhs. 24 to 45) drawn in the childrens names totalling $2,126.98. The last remittance was on October 6, 1987 (Exh. 45). His obligation to provide support commenced under the divorce decree on May 5, 1982 so that as of October 6, 1987, oppositor should have made 53

remittances of $150.00, or a total of $7,950.00. No other remittances were shown to have been made after October 6, 1987, so that as of this date, oppositor was woefully in arrears under the terms of the divorce decree. And since he was totally in default of the judgment in JD-707 CEB, the inevitable conclusion is oppositor had not really been performing his duties as a father, contrary to his protestations.

True, it has been shown that oppositor had opened three accounts in different banks, as follows

Acct. No.

1) 118-606437-4

2) 73-166-8

3) 564-146883

Date Opened

July 23, 1985

Oct. 29, 1987

March 5, 1986

Oct. 26, 1987

December 31, 1986

Oct. 29, 1987

Balance

$5,018.50 3,129.00 2,622.19

Name of Bank

Great Western Savings, Daly City, Cal., U.S.A.

Matewan National Bank of Williamson, West Virginia, U.S.A.

Security Pacific National Bank, Daly City, Cal., U.S.A.

The first and third accounts were opened however in oppositors name as trustee for Charmaine Cang and Joseph Anthony Cang, respectively. In other words, the accounts are operated and the amounts withdrawable by oppositor himself and it cannot be said that they belong to the minors. The second is an `or account, in the names of Herbert Cang or Keith Cang. Since Keith is a minor and in the Philippines, said account is operable only by oppositor and the funds withdrawable by him alone.

The bank accounts do not really serve what oppositor claimed in his offer of evidence `the aim and purpose of providing for a better future and security of his family.[10]

Petitioner moved to reconsider the decision of the Court of Appeals. He emphasized that the decree of legal separation was not based on the merits of the case as it was based on a manifestation amounting to a compromise agreement between him and Anna Marie. That he and his wife agreed upon the plan for him to leave for the United States was borne out by the fact that prior to his departure to the United States, the family lived with petitioners parents. Moreover, he alone did not instigate the divorce proceedings as he and his wife initiated the joint complaint for divorce.

Petitioner argued that the finding that he was not fit to rear and care for his children was belied by the award to him of custody over the children in Civil Case No. JD-707. He took exception to the appellate courts findings that as an American citizen he could no longer lay claim to custody over his children because his citizenship would not take away the fact that he is still a father to his children. As regards his alleged illicit relationship with another woman, he had always denied the same both in Civil Case No. JD-707 and the instant adoption case. Neither was it true that Wilma Soco was a neighbor and family friend of the Clavanos as she was residing in Mandaue City seven (7) kilometers away from the Clavanos who were residents of Cebu City. Petitioner insisted that the testimony of Wilma Soco should not have been given weight for it was only during the hearing of the petition for adoption that Jose Clavano, a brother of Ronald, came to know her and went to her residence in Iligan City to convince her to be a witness for monetary considerations. Lastly, petitioner averred that it would be hypocritical of the Clavanos to claim that they could love the children much more than he could.[11]

His motion for reconsideration having been denied, petitioner is now before this Court, alleging that the petition for adoption was fatally defective as it did not have his written consent as a natural father as required by Article 31 (2) of Presidential Decree No. 603, the Child and Youth Welfare Code, and Article 188 (2) of the Family Code.

Article 31 of P.D. No. 603 provides -

ART. 31. Whose Consent is Necessary. The written consent of the following to the adoption shall be necessary:

(1) The person to be adopted, if fourteen years of age or over;

(2) The natural parents of the child or his legal guardian of the Department of Social Welfare or any duly licensed child placement agency under whose care the child may be;

(3) The natural children, fourteen years and above, of the adopting parents. (Underscoring supplied)

On December 17, 1986, then President Corazon C. Aquino issued Executive Order No. 91 amending Articles 27, 28, 29, 31, 33 and 35 of the Child and Youth Welfare Code. As thus amended, Article 31 read:

ART. 31. Whose Consent is Necessary. The written consent of the following to the adoption shall be necessary:

(1) The person to be adopted, if fourteen years of age or over;

(2) The natural parents of the child or his legal guardian after receiving counselling and appropriate social services from the Ministry of Social Services and Development or from a duly licensed child-placement agency;

(3) The Ministry of Social Services and Development or any duly licensed child-placement agency under whose care and legal custody the child may be;

(4) The natural children, fourteen years and above, of the adopting parents. (Underscoring supplied)

Jurisdiction being a matter of substantive law, the established rule is that the statute in force at the time of the commencement of the action determines the jurisdiction of the court.[12] As such, when private respondents filed the petition for adoption on September 25, 1987, the applicable law was the Child and Youth Welfare Code, as amended by Executive Order No. 91.

During the pendency of the petition for adoption or on August 3, 1988, the Family Code which amended the Child and Youth Welfare Code took effect. Article 256 of the Family Code provides for its retroactivity insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws. As amended by the Family Code, the statutory provision on consent for adoption now reads:

Art. 188. The written consent of the following to the adoption shall be necessary:

(1) The person to be adopted, if ten years of age or over;

(2) The parents by nature of the child, the legal guardian, or the proper government instrumentality;

(3) The legitimate and adopted children, ten years of age or over, of the adopting parent or parents;

(4) The illegitimate children, ten years of age or over, of the adopting parents, if living with said parent and the latters spouse, if any; and

(5) The spouse, if any, of the person adopting or to be adopted. (Underscoring supplied)

Based on the foregoing, it is thus evident that notwithstanding the amendments to the law, the written consent of the natural parent to the adoption has remained a requisite for its validity. Notably, such requirement is also embodied in Rule 99 of the Rules of Court as follows:

SEC. 3. Consent to adoption. There shall be filed with the petition a written consent to the adoption signed by the child, if fourteen years of age or over and not incompetent, and by the childs spouse, if any, and by each of its known living parents who is not insane or hopelessly intemperate or has not abandoned the child, or if there are no such parents by the general guardian or guardian ad litem of the child, or if the child is in the custody of an orphan asylum, childrens home, or benevolent society or person, by the proper officer or officers of such asylum, home, or society, or by such persons; but if the child is illegitimate and has not been recognized, the consent of its father to the adoption shall not be required. (Underscoring supplied)

As clearly inferred from the foregoing provisions of law, the written consent of the natural parent is indispensable for the validity of the decree of adoption. Nevertheless, the requirement of written consent can be dispensed with if the parent has abandoned the child[13] or that such parent is insane or hopelessly intemperate. The court may acquire jurisdiction over the case even without the written consent of the parents or one of the parents provided that the petition for adoption alleges facts sufficient to warrant exemption from

compliance therewith. This is in consonance with the liberality with which this Court treats the procedural aspect of adoption. Thus, the Court declared:

x x x. The technical rules of pleading should not be stringently applied to adoption proceedings, and it is deemed more important that the petition should contain facts relating to the child and its parents, which may give information to those interested, than that it should be formally correct as a pleading. Accordingly, it is generally held that a petition will confer jurisdiction if it substantially complies with the adoption statute, alleging all facts necessary to give the court jurisdiction.[14]

In the instant case, only the affidavit of consent of the natural mother was attached to the petition for adoption. Petitioners consent, as the natural father is lacking. Nonetheless, the petition sufficiently alleged the fact of abandonment of the minors for adoption by the natural father as follows:

3. That the childrens mother, sister of petitioner RONALD V. CLAVANO, has given her express consent to this adoption, as shown by Affidavit of Consent, Annex `A. Likewise, the written consent of Keith Cang, now 14 years of age appears on page 2 of this petition; However, the father of the children, Herbert Cang, had already left his wife and children and had already divorced the former, as evidenced by the xerox copy of the DECREE OF DIVORCE issued by the County of Washoe, State of Nevada, U.S.A. (Annex `B) which was filed at the instance of Mr. Cang, not long after he abandoned his family to live in the United States as an illegal immigrant.[15]

The allegations of abandonment in the petition for adoption, even absent the written consent of petitioner, sufficiently vested the lower court with jurisdiction since abandonment of the child by his natural parents is one of the circumstances under which our statutes and jurisprudence[16] dispense with the requirement of written consent to the adoption of their minor children.

However, in cases where the father opposes the adoption primarily because his consent thereto was not sought, the matter of whether he had abandoned his child becomes a proper issue for determination. The issue of abandonment by the oppositor natural parent is a preliminary issue that an adoption court must first confront. Only upon failure of the oppositor natural father to prove to the satisfaction of the court that he did not abandon his child may the petition for adoption be considered on its merits.

As a rule, factual findings of the lower courts are final and binding upon this Court.[17] This Court is not expected nor required to examine or contrast the oral and documentary evidence submitted by the parties.[18]

However, although this Court is not a trier of facts, it has the authority to review and reverse the factual findings of the lower courts if it finds that these do not conform to the evidence on record.[19]

In Reyes v. Court of Appeals,[20] this Court has held that the exceptions to the rule that factual findings of the trial court are final and conclusive and may not be reviewed on appeal are the following: (1) when the inference made is manifestly mistaken, absurd or impossible; (2) when there is a grave abuse of discretion; (3) when the finding is grounded entirely on speculations, surmises or conjectures; (4) when the judgment of the Court of Appeals is based on misapprehension of facts; (5) when the findings of fact are conflicting; (6) when the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee; (7) when the findings of the Court of Appeals are contrary to those of the trial court; (8) when the findings of fact are conclusions without citation of specific evidence on which they are based; (9) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a different conclusion and (10) when the findings of fact of the Court of Appeals are premised on the absence of evidence and are contradicted by the evidence on record.

This Court finds that both the lower court and the Court of Appeals failed to appreciate facts and circumstances that should have elicited a different conclusion[21] on the issue of whether petitioner has so abandoned his children, thereby making his consent to the adoption unnecessary.

In its ordinary sense, the word abandon means to forsake entirely, to forsake or renounce utterly. The dictionaries trace this word to the root idea of putting under a ban. The emphasis is on the finality and publicity with which a thing or body is thus put in the control of another, hence, the meaning of giving up absolutely, with intent never to resume or claim ones rights or interests.[22] In reference to abandonment of a child by his parent, the act of abandonment imports any conduct of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child. It means neglect or refusal to perform the natural and legal obligations of care and support which parents owe their children.[23]

In the instant case, records disclose that petitioners conduct did not manifest a settled purpose to forego all parental duties and relinquish all parental claims over his children as to constitute abandonment. Physical estrangement alone, without financial and moral desertion, is not tantamount to abandonment.[24] While admittedly, petitioner was physically absent as he was then in the United States, he was not remiss in his natural and legal obligations of love, care and support for his children. He maintained regular communication with his wife and children through letters and telephone. He used to send packages by mail and catered to their whims.

Petitioners testimony on the matter is supported by documentary evidence consisting of the following handwritten letters to him of both his wife and children:

1. Exh. 1 a 4-page undated letter of Menchu (Anna Marie) addressed to Dear Bert on a C.Westates Carbon Phil. Corp. stationery. Menchu stated therein that it had been a long time since the last time youve heard from me excluding that of the phone conversation weve had. She discussed petitioners intention to buy a motorbike for Keith, expressing apprehension over risks that could be engendered by Keiths use of it. She said that in the last phone conversation she had with petitioner on the birthday of Ma, she forgot to tell petitioner that Keiths voice had changed; he had become a bagito or a teen-ager with many fans who sent him Valentines cards. She told him how Charmaine had become quite a talkative almost dalaga who could carry on a conversation with her angkong and how pretty she was in white dress when she won among the candidates in the Flores de Mayo after she had prayed so hard for it. She informed him, however, that she was worried because Charmaine was vain and wont to extravagance as she loved clothes. About Joeton (Joseph Anthony), she told petitioner that the boy was smart for his age and quite spoiled being the youngest of the children in Lahug. Joeton was mischievous but Keith was his idol with whom he would sleep anytime. She admitted having said so much about the children because they might not have informed petitioner of some happenings and spices of life about themselves. She said that it was just very exciting to know how theyve grown up and very pleasant, too, that each of them have (sic) different characters. She ended the letter with the hope that petitioner was at the best of health. After extending her regards to all, she signed her name after the word Love. This letter was mailed on July 9, 1986 from Cebu to petitioner whose address was P.O. Box 2445, Williamson, West Virginia 25661 (Exh. 1-D).

2. Exh. 2 letter dated 11/13/84 on a green stationery with golden print of a note from Menchu on the left upper corner. Anna Marie stated that we wrote to petitioner on Oct. 2, 1984 and that Keith and Joeton were very excited when petitioner called up last time. She told him how Joeton would grab the phone from Keith just so petitioner would know what he wanted to order. Charmaine, who was asleep, was so disappointed that she missed petitioners call because she also wanted something that petitioner should buy. Menchu told petitioner that Charmaine wanted a pencil sharpener, light-colored T-shirts for her walking shorts and a (k)nap sack. Anna Marie informed petitioner that the kids were growing up and so were their needs. She told petitioner to be very fatherly about the childrens needs because those were expensive here. For herself, Anna Marie asked for a subscription of Glamour and Vogue magazines and that whatever expenses he would incur, she would replace these. As a postscript, she told petitioner that Keith wanted a size 6 khaki-colored Sperry topsider shoes.

3. Exh. 3 an undated note on a yellow small piece of paper that reads:

Dear Herbert,

Hi, how was Christmas and New Year? Hope you had a wonderful one.

By the way thanks for the shoes, it was a nice one. Its nice to be thought of at Xmas. Thanks again.

Sincerely,

Menchu

4. Exh. 4 a two-page undated letter of Keith on stationery of Jose Clavano, Inc. addressed to Dear Dad. Keith told his father that they tried to tell their mother to stay for a little while, just a few weeks after classes start(s) on June 16. He informed petitioner that Joeton would be in Kinder I and that, about the motorbike, he had told his mother to write petitioner about it and well see what youre (sic) decision will be. He asked for chocolates, nuts, basketball shirt and shorts, rubber shoes, socks, headband, some clothes for outing and perfume. He told petitioner that they had been going to Lahug with their mother picking them up after Angkong or Ama had prepared lunch or dinner. From her aerobics, his mother would go for them in Lahug at about 9:30 or 10:00 oclock in the evening. He wished his father luck and the best of health and that they prayed for him and their other relatives. The letter was ended with Love Keith.

5. Exh. 5 another undated long letter of Keith. He thanked his father for the Christmas card with $40.00, $30.00 and $30.00 and the card of Joeton with $5.00 inside. He told petitioner the amounts following his fathers instructions and promise to send money through the mail. He asked his father to address his letter directly to him because he wanted to open his own letters. He informed petitioner of activities during the Christmas season that they enjoyed eating, playing and giving surprises to their mother. He apprised him of his daily schedule and that their mother had been closely supervising them, instructing them to fold their blankets and pile up their pillows. He informed petitioner that Joeton had become very smart while Charmaine, who was also smart, was very demanding of their mother. Because their mother was leaving for the United States on February 5, they would be missing her like they were missing petitioner. He asked for his things and $200.00. He told petitioner more anecdotes about Joeton like he would make the sign of the cross even when they would pass by the Iglesia ni Cristo church and his insistence that Aquino was not dead because he had seen him on the betamax machine. For Keith, Charmaine had become very maldita who was not always satisfied with her dolls and things but Joeton was full of surprises. He ended the letter with Love your son, Keith. The letter was mailed on February 6, 1985 (Exh. 5-D).

6. Exh. 6 an undated letter Charmaine. She thanked petitioner for the bathing suit, key chain, pencil box, socks, half shirt, pencil sharpener and $50.00. She reminded him of of her birthday on January 23 when she would turn 9 years old. She informed him that she wore size 10 and the size of her feet was IM. They had fun at Christmas in Lahug but classes would start on January 9 although Keiths classes had started on January 6. They would feel sad again because Mommy would be leaving soon. She hoped petitioner would keep writing them. She signed, Love, Charmaine.

7. Exh . 7 an undated letter of Keith. He explained to petitioner that they had not been remiss in writing letters to him. He informed him of their trip to Manila they went to Malacaang, Tito Doy Laurels house, the Ministry of Foreign Affairs, the executive house, Tagaytay for three days and Baguio for one week. He informed him that he got honors, Charmaine was 7th in her class and Joeton had excellent grades. Joeton would be enrolled in Sacred Heart soon and he was glad they would be together in that school. He asked for his reward from petitioner and so with Charmaine and Joeton. He asked for a motorbike and dollars that he could save. He told petitioner that he was saving the money he had been sending them. He said he missed petitioner and wished him the best. He added that petitioner should call them on Sundays.

8. Exh. 8 a letter from Joeton and Charmaine but apparently written by the latter. She asked for money from petitioner to buy something for the school and something else. She promised not to spend so much and to save some. She said she loved petitioner and missed him. Joeton said hi! to petitioner. After ending the letter with Love, Joeton and Charmaine, she asked for her prize for her grades as she got seventh place.

9. Exh. 9 undated letter of Keith. He assured petitioner that he had been writing him; that he would like to have some money but he would save them; that he learned that petitioner had called them up but he was not around; that he would be going to Manila but would be back home May 3; that his Mommy had just arrived Thursday afternoon, and that he would be the official altar boy. He asked petitioner to write them soon.

10. Exh. 10 Keith thanked petitioner for the money he sent. He told petitioner that he was saving some in the bank and he was proud because he was the only one in his group who saved in the bank. He told him that Joeton had become naughty and would claim as his own the shirts sent to Keith by petitioner. He advised petitioner to send pants and shirts to Joeton, too, and asked for a pair of topsider shoes and candies. He informed petitioner that he was a member of the basketball team and that his mom would drive for his group. He asked him to call them often like the father of Ana Christie and to write them when he would call so that they could wait for it. He informed petitioner that they had all grown bigger and heavier. He hoped petitioner would be happy with the letter that had taken him so long to write because he did not want to commit any mistakes.

He asked petitioner to buy him perfume (Drakkar) and, after thanking petitioner, added that the latter should buy something for Mommy.

11. Exh. 11 a Christmas card For My Wonderful Father dated October 8, 1984 from Keith, Charmaine and Joeton.

12. Exh. 12 another Christmas card, Our Wish For You with the year 83 written on the upper right hand corner of the inside page, from Keith, Charmaine and Joeton.

13. Exh. 13 a letter of Keith telling petitioner that he had written him even when their Mom was there where she bought them clothes and shoes. Keith asked petitioner for $300.00. Because his mother would not agree to buy him a motorbike, he wanted a Karaoke unit that would cost P12,000.00. He informed petitioner that he would go to an afternoon disco with friends but their grades were all good with Joeton receiving stars for excellence. Keith wanted a bow and arrow Rambo toys and G.I. Joe. He expressed his desire that petitioner would come and visit them someday.

14. Exh. 14 a letter of Keith with one of the four pages bearing the date January 1986. Keith told his father that they had received the package that the latter sent them. The clothes he sent, however, fitted only Keith but not Charmaine and Joeton who had both grown bigger. Keith asked for grocery items, toys and more clothes. He asked, in behalf of his mother, for low-heeled shoes and a dress to match, jogging pants, tights and leotards that would make her look sexy. He intimated to petitioner that he had grown taller and that he was already ashamed to be asking for things to buy in the grocery even though his mother had told him not to be shy about it.

Aside from these letters, petitioner also presented certifications of banks in the U.S.A. showing that even prior to the filing of the petition for adoption, he had deposited amounts for the benefit of his children.[25] Exhibits 24 to 45 are copies of checks sent by petitioner to the children from 1985 to 1989.

These pieces of evidence are all on record. It is, therefore, quite surprising why the courts below simply glossed over these, ignoring not only evidence on financial support but also the emotional exchange of sentiments between petitioner and his family. Instead, the courts below emphasized the meagerness of the amounts he sent to his children and the fact that, as regards the bank deposits, these were withdrawable by him alone. Simply put, the courts below attached a high premium to the prospective adopters financial status but totally

brushed aside the possible repercussion of the adoption on the emotional and psychological well-being of the children.

True, Keith had expressed his desire to be adopted by his uncle and aunt. However, his seeming steadfastness on the matter as shown by his testimony is contradicted by his feelings towards his father as revealed in his letters to him. It is not at all farfetched to conclude that Keiths testimony was actually the effect of the filing of the petition for adoption that would certainly have engendered confusion in his young mind as to the capability of his father to sustain the lifestyle he had been used to.

The courts below emphasized respondents emotional attachment to the children. This is hardly surprising for, from the very start of their young lives, the children were used to their presence. Such attachment had persisted and certainly, the young ones act of snuggling close to private respondent Ronald Clavano was not indicative of their emotional detachment from their father. Private respondents, being the uncle and aunt of the children, could not but come to their succor when they needed help as when Keith got sick and private respondent Ronald spent for his hospital bills.

In a number of cases, this Court has held that parental authority cannot be entrusted to a person simply because he could give the child a larger measure of material comfort than his natural parent. Thus, in David v. Court of Appeals,[26] the Court awarded custody of a minor illegitimate child to his mother who was a mere secretary and market vendor instead of to his affluent father who was a married man, not solely because the child opted to go with his mother. The Court said:

Daisie and her children may not be enjoying a life of affluence that private respondent promises if the child lives with him. It is enough, however, that petitioner is earning a decent living and is able to support her children according to her means.

In Celis v. Cafuir[27] where the Court was confronted with the issue of whether to award custody of a child to the natural mother or to a foster mother, this Court said:

This court should avert the tragedy in the years to come of having deprived mother and son of the beautiful associations and tender, imperishable memories engendered by the relationship of parent and child. We should not take away from a mother the opportunity of bringing up her own child even at the cost of extreme sacrifice due to poverty and lack of means; so that afterwards, she may be able to look back with pride and a sense of satisfaction at her sacrifices and her efforts, however humble, to make her dreams of her little boy come true.

We should not forget that the relationship between a foster mother and a child is not natural but artificial. If the child turns out to be a failure or forgetful of what its foster parents had done for him, said parents might yet count and appraise (sic) all that they have done and spent for him and with regret consider all of it as a dead loss, and even rue the day they committed the blunder of taking the child into their hearts and their home. Not so with a real natural mother who never counts the cost and her sacrifices, ever treasuring memories of her associations with her child, however unpleasant and disappointing. Flesh and blood count. x x x.

In Espiritu v. Court of Appeals,[28] the Court stated that (I)n ascertaining the welfare and best interests of the child, courts are mandated by the Family Code to take into account all relevant considerations. Thus, in awarding custody of the child to the father, the Court said:

A scrutiny of the pleadings in this case indicates that Teresita, or at least, her counsel are more intent on emphasizing the `torture and agony of a mother separated from her children and the humiliation she suffered as a result of her character being made a key issue in court rather than the feelings and future, the best interests and welfare of her children. While the bonds between a mother and her small child are special in nature, either parent, whether father or mother, is bound to suffer agony and pain if deprived of custody. One cannot say that his or her suffering is greater than that of the other parent. It is not so much the suffering, pride, and other feelings of either parent but the welfare of the child which is the paramount consideration. (Italics supplied)[29]

Indeed, it would be against the spirit of the law if financial consideration were to be the paramount consideration in deciding whether to deprive a person of parental authority over his children. There should be a holistic approach to the matter, taking into account the physical, emotional, psychological, mental, social and spiritual needs of the child.[30] The conclusion of the courts below that petitioner abandoned his family needs more evidentiary support other than his inability to provide them the material comfort that his admittedly affluent in-laws could provide. There should be proof that he had so emotionally abandoned them that his children would not miss his guidance and counsel if they were given to adopting parents. The letters he received from his children prove that petitioner maintained the more important emotional tie between him and his children. The children needed him not only because he could cater to their whims but also because he was a person they could share with their daily activities, problems and triumphs.

The Court is thus dismayed that the courts below did not look beyond petitioners meager financial support to ferret out other indications on whether petitioner had in fact abandoned his family. The omission of said courts has led us to examine why the children were subjected to the process of adoption, notwithstanding the proven ties that bound them to their father. To our consternation, the record of the case bears out the fact that the

welfare of the children was not exactly the paramount consideration that impelled Anna Marie to consent to their adoption.

In her affidavit of consent, Anna Marie expressly said that leaving the children in the country, as she was wont to travel abroad often, was a problem that would naturally hamper her job-seeking abroad. In other words, the adoption appears to be a matter of convenience for her because Anna Marie herself is financially capable of supporting her children.[31] In his testimony, private respondent Ronald swore that Anna Marie had been out of the country for two years and came home twice or three times,[32] thereby manifesting the fact that it was she who actually left her children to the care of her relatives. It was bad enough that their father left their children when he went abroad, but when their mother followed suit for her own reasons, the situation worsened. The Clavano family must have realized this. Hence, when the family first discussed the adoption of the children, they decided that the prospective adopter should be Anna Maries brother Jose. However, because he had children of his own, the family decided to devolve the task upon private respondents.[33]

This couple, however, could not always be in Cebu to care for the children. A businessman, private respondent Ronald Clavano commutes between Cebu and Manila while his wife, private respondent Maria Clara, is an international flight stewardess.[34] Moreover, private respondent Ronald claimed that he could take care of the children while their parents are away,[35] thereby indicating the evanescence of his intention. He wanted to have the childrens surname changed to Clavano for the reason that he wanted to take them to the United States as it would be difficult for them to get a visa if their surname were different from his.[36] To be sure, he also testified that he wanted to spare the children the stigma of being products of a broken home.

Nevertheless, a close analysis of the testimonies of private respondent Ronald, his sister Anna Marie and their brother Jose points to the inescapable conclusion that they just wanted to keep the children away from their father. One of the overriding considerations for the adoption was allegedly the state of Anna Maries health she was a victim of an almost fatal accident and suffers from a heart ailment. However, she herself admitted that her health condition was not that serious as she could still take care of the children.[37] An eloquent evidence of her ability to physically care for them was her employment at the Philippine Consulate in Los Angeles[38]- she could not have been employed if her health were endangered. It is thus clear that the Clavanos attempt at depriving petitioner of parental authority apparently stemmed from their notion that he was an inveterate womanizer. Anna Marie in fact expressed fear that her children would never be at ease with the wife of their father.[39]

Petitioner, who described himself as single in status, denied being a womanizer and father to the sons of Wilma Soco.[40] As to whether he was telling the truth is beside the point. Philippine society, being comparatively conservative and traditional, aside from being Catholic in orientation, it does not countenance womanizing on

the part of a family man, considering the baneful effects such irresponsible act visits on his family. Neither may the Court place a premium on the inability of a man to distinguish between siring children and parenting them. Nonetheless, the actuality that petitioner carried on an affair with a paramour cannot be taken as sufficient basis for the conclusion that petitioner was necessarily an unfit father.[41] Conventional wisdom and common human experience show that a bad husband does not necessarily make a bad father. That a husband is not exactly an upright man is not, strictly speaking, a sufficient ground to deprive him as a father of his inherent right to parental authority over the children.[42] Petitioner has demonstrated his love and concern for his children when he took the trouble of sending a telegram[43] to the lower court expressing his intention to oppose the adoption immediately after learning about it. He traveled back to this country to attend to the case and to testify about his love for his children and his desire to unite his family once more in the United States.[44]

Private respondents themselves explained why petitioner failed to abide by the agreement with his wife on the support of the children. Petitioner was an illegal alien in the United States. As such, he could not have procured gainful employment. Private respondents failed to refute petitioners testimony that he did not receive his share from the sale of the conjugal home,[45] pursuant to their manifestation/compromise agreement in the legal separation case. Hence, it can be reasonably presumed that the proceeds of the sale redounded to the benefit of his family, particularly his children. The proceeds may not have lasted long but there is ample evidence to show that thereafter, petitioner tried to abide by his agreement with his wife and sent his family money, no matter how meager.

The liberality with which this Court treats matters leading to adoption insofar as it carries out the beneficent purposes of the law to ensure the rights and privileges of the adopted child arising therefrom, ever mindful that the paramount consideration is the overall benefit and interest of the adopted child, should be understood in its proper context and perspective. The Courts position should not be misconstrued or misinterpreted as to extend to inferences beyond the contemplation of law and jurisprudence.[46] The discretion to approve adoption proceedings is not to be anchored solely on best interests of the child but likewise, with due regard to the natural rights of the parents over the child.[47]

In this regard, this Court notes private respondents reliance on the manifestation/compromise agreement between petitioner and Anna Marie which became the basis of the decree of legal separation. According to private respondents counsel,[48] the authority given to Anna Marie by that decree to enter into contracts as a result of the legal separation was all embracing[49] and, therefore, included giving her sole consent to the adoption. This conclusion is however, anchored on the wrong premise that the authority given to the innocent spouse to enter into contracts that obviously refer to their conjugal properties, shall include entering into agreements leading to the adoption of the children. Such conclusion is as devoid of a legal basis as private respondents apparent reliance on the decree of legal separation for doing away with petitioners consent to the adoption.

The transfer of custody over the children to Anna Marie by virtue of the decree of legal separation did not, of necessity, deprive petitioner of parental authority for the purpose of placing the children up for adoption. Article 213 of the Family Code states: . . . in case of legal separation of parents, parental authority shall be exercised by the parent designated by the court. In awarding custody, the court shall take into account all relevant considerations, especially the choice of the child over seven years of age, unless the parent chosen is unfit.

It should be noted, however, that the law only confers on the innocent spouse the exercise of parental authority. Having custody of the child, the innocent spouse shall implement the sum of parental rights with respect to his rearing and care. The innocent spouse shall have the right to the childs services and earnings, and the right to direct his activities and make decisions regarding his care and control, education, health and religion.[50]

In a number of cases, this Court has considered parental authority, the joint exercise of which is vested by the law upon the parents,[51] as

x x x a mass of rights and obligations which the law grants to parents for the purpose of the childrens physical preservation and development, as well as the cultivation of their intellect and the education of their hearts and senses. As regards parental authority, `there is no power, but a task; no complex of rights, but a sum of duties; no sovereignty but a sacred trust for the welfare of the minor.

Parental authority and responsibility are inalienable and may not be transferred or renounced except in cases authorized by law. The right attached to parental authority, being purely personal, the law allows a waiver of parental authority only in cases of adoption, guardianship and surrender to a childrens home or an orphan institution. When a parent entrusts the custody of a minor to another, such as a friend or godfather, even in a document, what is given is merely temporary custody and it does not constitute a renunciation of parental authority. Even if a definite renunciation is manifest, the law still disallows the same.

The father and mother, being the natural guardians of unemancipated children, are duty-bound and entitled to keep them in their custody and company.[52] (Italics supplied)

As such, in instant case, petitioner may not be deemed as having been completely deprived of parental authority, notwithstanding the award of custody to Anna Marie in the legal separation case. To reiterate, that award was arrived at by the lower court on the basis of the agreement of the spouses.

While parental authority may be waived, as in law it may be subject to a compromise,[53] there was no factual finding in the legal separation case that petitioner was such an irresponsible person that he should be deprived of custody of his children or that there are grounds under the law that could deprive him of parental authority. In fact, in the legal separation case, the court thereafter ordered the transfer of custody over the children from Anna Marie back to petitioner. The order was not implemented because of Anna Maries motion for reconsideration thereon. The Clavano family also vehemently objected to the transfer of custody to the petitioner, such that the latter was forced to file a contempt charge against them.[54]

The law is clear that either parent may lose parental authority over the child only for a valid reason. No such reason was established in the legal separation case. In the instant case for adoption, the issue is whether or not petitioner had abandoned his children as to warrant dispensation of his consent to their adoption. Deprivation of parental authority is one of the effects of a decree of adoption.[55] But there cannot be a valid decree of adoption in this case precisely because, as this Court has demonstrated earlier, the finding of the courts below on the issue of petitioners abandonment of his family was based on a misappreciation that was tantamount to non-appreciation, of facts on record.

As regards the divorce obtained in the United States, this Court has ruled in Tenchavez v. Escao[56] that a divorce obtained by Filipino citizens after the effectivity of the Civil Code is not recognized in this jurisdiction as it is contrary to State policy. While petitioner is now an American citizen, as regards Anna Marie who has apparently remained a Filipino citizen, the divorce has no legal effect.

Parental authority is a constitutionally protected State policy borne out of established customs and tradition of our people. Thus, in Silva v. Court of Appeals,[57] a case involving the visitorial rights of an illegitimate parent over his child, the Court expressed the opinion that:

Parents have the natural right, as well as the moral and legal duty, to care for their children, see to their upbringing and safeguard their best interest and welfare. This authority and responsibility may not be unduly denied the parents; neither may it be renounced by them. Even when the parents are estranged and their affection for each other is lost, the attachment and feeling for their offsprings invariably remain unchanged. Neither the law nor the courts allow this affinity to suffer absent, of course, any real, grave and imminent threat to the well-being of the child.

Since the incorporation of the law concerning adoption in the Civil Code, there has been a pronounced trend to place emphasis in adoption proceedings, not so much on the need of childless couples for a child, as on the paramount interest of a child who needs the love and care of parents. After the passage of the Child and Youth Welfare Code and the Family Code, the discernible trend has impelled the enactment of Republic Act No. 8043 on Intercountry Adoption[58] and Republic Act No. 8552 establishing the rules on the domestic adoption of Filipino children.[59]

The case at bar applies the relevant provisions of these recent laws, such as the following policies in the Domestic Adoption Act of 1998:

(a) To ensure that every child remains under the care and custody of his/her parent(s) and be provided with love, care, understanding and security towards the full and harmonious development of his/her personality.[60]

(b) In all matters relating to the care, custody and adoption of a child, his/her interest shall be the paramount consideration in accordance with the tenets set forth in the United Nations (UN) Convention on the Rights of the Child.[61]

(c) To prevent the child from unnecessary separation from his/her biological parent(s).[62]

Inasmuch as the Philippines is a signatory to the United Nations Convention on the Rights of the Child, the government and its officials are duty bound to comply with its mandates. Of particular relevance to instant case are the following provisions:

States Parties shall respect the responsibilities, rights and duties of parents . . . to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.[63]

States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the childs best interests.[64]

A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents . . .[65]

States Parties shall respect the rights and duties of the parents . . . to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.[66]

Underlying the policies and precepts in international conventions and the domestic statutes with respect to children is the overriding principle that all actuations should be in the best interests of the child. This is not, however, to be implemented in derogation of the primary right of the parent or parents to exercise parental authority over him. The rights of parents vis--vis that of their children are not antithetical to each other, as in fact, they must be respected and harmonized to the fullest extent possible.

Keith, Charmaine and Joseph Anthony have all grown up. Keith and Charmaine are now of legal age while Joseph Anthony is approaching eighteen, the age of majority. For sure, they shall be endowed with the discretion to lead lives independent of their parents. This is not to state that this case has been rendered moot and academic, for their welfare and best interests regarding their adoption, must be determined as of the time that the petition for adoption was filed.[67] Said petition must be denied as it was filed without the required consent of their father who, by law and under the facts of the case at bar, has not abandoned them.

WHEREFORE, the instant petition for review on certiorari is hereby GRANTED. The questioned Decision and Resolution of the Court of Appeals, as well as the decision of the Regional Trial Court of Cebu, are SET ASIDE thereby denying the petition for adoption of Keith, Charmaine and Joseph Anthony, all surnamed Cang, by the spouse respondents Ronald and Maria Clara Clavano. This Decision is immediately executory.

SO ORDERED.

Narvasa, C.J., (Chairman), Kapunan, and Purisima, JJ., concur.

Original and Exclusive Jurisdiction

Republic of the Philippines SUPREME COURT Manila

THIRD DIVISION

G.R. No. 166833

December 5, 2006

FELIXBERTO CUBERO, NERISSA C. NATIVIDAD, JUDY U. LIM, MANUEL R. LAHOZ, SOTERO DIOLA and BELLE CORPORATION, petitioners, vs. LAGUNA WEST MULTI-PURPOSE COOPERATIVE, INC., and ATTY. ABRAHAM BERMUDEZ, in his capacity as Registrar of Deeds, Tanauan City, Batangas, respondents.

DECISION

CARPIO MORALES, J.:

The present petition raises the issue of jurisdiction over the subject matter.

Individual petitioners Felixberto Cubero, Nerrisa1 C. Natividad, Judy U. Lim, Manuel R. Lahoz and Sotero Diola are the registered owners of various parcels of land covered by twelve (12) Transfer Certificates of Title (TCTs).2 The properties cover a total land area of about 78,178 square meters located in Barangay Suplang, Tanauan, Batangas.

In August 2003, each of the individual petitioners entered into a Joint Venture Development Agreement with copetitioner Belle Corporation to develop the properties as part of an agricultural farm lot subdivision project known as "Plantation Hills at Tagaytay Greenlands Phase I" (the Project) for eventual sale to the public.3

With the development of the Project in full swing in mid-2004, respondent Laguna West Multi-Purpose Cooperative, Inc. (Laguna West Cooperative) filed 9 ex-parte petitions4 with the Regional Trial Court (RTC) of Tanauan City, for inscription of an adverse claim, the annotation of which the Registrar of Deeds allegedly failed to carry over to the TCTs of individual petitioners under the Property Registration Decree5.

In its petitions before the RTC, respondent Laguna West Cooperative claimed that as early as April 1996 it entered into separate Joint Venture Agreements (JVAs) with the herein individual petitioners' predecessors-ininterest Zacarias P. Narvaez, Filizardo6 N. Contreras, Eladio Contreras, Anacleto P. Narvaez, Victor P. Ortilla, Rafael Maranan, Felipe Maranan, Elino B. Mangubat, Joaquin N. Olaes and Salvador Alberto;7 and that it registered the JVAs in August 2000 on the previous owners' titles by way of an Adverse Claim under Entry No. 199352 and/or 168016.

Laguna West Cooperative added that the petitions were filed to rectify the omission or error and to protect its vested, subsisting and valid rights under the JVAs.

Accompanying the petitions were Notices of Lis Pendens8 addressed to the Register of Deeds, Tanauan, Batangas.9

Getting wind of the petitions filed by Laguna West Cooperative, petitioners also filed a Complaint10 with the RTC of Tanauan, for "Annulment of Joint Venture Agreements with prayer for the issuance of a TRO and/or writs of Preliminary Injunction and Preliminary Mandatory Injunction and for Damages" against herein respondents Laguna West Cooperative and Atty. Abraham Bermudez11 in the latter's capacity as Registrar of Deeds of Tanauan.

In their Complaint, petitioners asserted that the April 1996 JVAs between Laguna West Cooperative and individual petitioners' predecessors-in-interest are void ab initio since they were executed within the 10-year prohibitory period under Republic Act No. 6657 (Comprehensive Agrarian Reform Law of 1988),12 the titles covering the properties having emanated from emancipation patents granted in November 1988 pursuant to Presidential Decree No. 27.

Petitioners alleged too in their complaint that the JVAs fall under management contracts prohibited under Republic Act No. 6657.

Invoking Article 140913 of the Civil Code, petitioners urged the RTC to declare the JVAs inexistent and void for being contrary to law and public policy.

By Order of September 15, 2004, the RTC dismissed petitioners' complaint, finding

. . . that [as] the JVAs cover or involve land grants under the Presidential Decree No. 27 and allied agrarian reform laws, the Department of Agrarian Reform, through its adjudication board (DARAB), has primary jurisdiction to determine the validity or invalidity thereof.14

For lack of merit, the RTC denied petitioners' motion for reconsideration, hence, the present petition for review on certiorari which raises a pure question of law.

The petition fails.

It is axiomatic that what determines the nature of an action, as well as which court has jurisdiction over it, are the allegations in the complaint and the character of the relief sought.15 In the determination of jurisdiction, the status or relationship of the parties, as well as the nature of the question that is the subject of their controversy, is also considered.16

The Department of Agrarian Reform (DAR) is vested with primary jurisdiction to determine and adjudicate agrarian reform matters, with exclusive original jurisdiction over all matters involving the implementation of agrarian reform except those falling under the exclusive jurisdiction of the Department of Agriculture and the Department of Environment and Natural Resources.17 Original jurisdiction means jurisdiction to take cognizance of a cause at its inception, try it and pass judgment upon the law and facts, while exclusive jurisdiction precludes the idea of co-existence and refers to jurisdiction possessed to the exclusion of others.18

The DARAB has been created to assume the adjudicative powers and functions of the DAR.19 Thus, the DARAB has been vested with jurisdiction to try and decide all agrarian disputes, cases, controversies, and matters or incidents involving the implementation of the Comprehensive Agrarian Reform Program (CARP).20 Its jurisdiction encompasses cases involving the "rights and obligations of persons, whether natural or juridical, engaged in the management, cultivation and use of all agricultural lands" covered by Republic Act No. 6657 and other agrarian laws.21

The RTC amplified its dismissal of petitioners' complaint in this wise:

There is no question that the instant case does not involve agrarian dispute and that the parties have no tenurial relationship. The Court dismissed the complaint not because the subject of the questioned JVAs is an agricultural land as erroneously assumed by the plaintiffs. The complaint was dismissed because it involves controversy or issue in the implementation of R.A. 6657 that is whether or not the agricultural land beneficiaries has reneged its (sic) obligation by entering in the joint venture agreements and whether the terms thereof are violative of Sections 27 and 73 of the said Act including the restrictions annotated on the emancipation patents certificates[.]22 (Underscoring supplied)

The finding of the RTC that petitioners' complaint does not involve an agrarian dispute is a narrow and restrictive view of the nature of an agrarian dispute. In the recent case of Islanders CARP-Farmers Beneficiaries Multi-Purpose Cooperative Development, Inc. v. Lapanday Agricultural and Development Corp.,23 this Court elucidated on the scope of an agrarian dispute, viz:

The Department of Agrarian Reform Adjudication Board (DARAB) has jurisdiction to determine and adjudicate all agrarian disputes involving the implementation of the Comprehensive Agrarian Reform Law (CARL). Included in the definition of agrarian disputes are those arising from other tenurial arrangements beyond the traditional landowner-tenant or lessor-lessee relationship. Expressly, these arrangements are recognized by Republic Act No. 6657 as essential parts of agrarian reform. Thus, the DARAB has jurisdiction over disputes arising from the instant Joint Production Agreement entered into by the present parties.24 (Emphasis and underscoring supplied).

In that case, the petitioner filed with the RTC a complaint for declaration of nullity of a Joint Production Agreement. Upon motion, the case was dismissed for lack of jurisdiction. The Court of Appeals affirmed the dismissal. The petitioner elevated the matter to this Court, contending that there being no tenancy or leasehold relationship between the parties, the case does not constitute an agrarian dispute cognizable by the DARAB.

In denying the petition in Islanders, this Court held that while the relationship between the parties was not one of tenancy or agricultural leasehold, the controversy nonetheless fell within the sphere of agrarian disputes, citing, among other authorities, Department of Agrarian Reform v. Cuenca,25 which held:

All controversies on the implementation of the Comprehensive Agrarian Reform Program (CARP) fall under the jurisdiction of the Department of Agrarian Reform (DAR), even though they raise questions that are also legal or constitutional in nature. All doubts should be resolved in favor of the DAR, since the law has granted it special and original authority to hear and adjudicate agrarian matters.26

The JVAs subject of the petition for annulment of petitioners precisely involve the development and utilization of the subject agricultural lands. As successors-in-interest of the beneficiaries of the agricultural lands, individual petitioners seek to nullify the JVAs. Since the controversy involves the rights and obligations of persons engaged in the management, cultivation and use of an agricultural land covered by CARP, the case falls squarely within the jurisdictional ambit of the DAR.27

It bears emphasis that a resolution of the instant case principally entails a determination of the alleged commission of prohibited acts under Sections 27 and 7328 of Republic Act No. 6645. In cases where allegations of violation or circumvention of land reform laws have been raised, this Court has declined to address them, it stating that petitioners must first plead their case with the DARAB.29 There is no reason why this Court should now hold otherwise.

WHEREFORE, the petition is hereby DENIED.

SO ORDERED.

Quisumbing, J., Chairperson, Carpio, Tinga, and Velasco, Jr., JJ., concur.