EN BANC

[G.R. No. 111953. December 12, 1997]

HON. RENATO C. CORONA, in his capacity as Assistant Secretary for Legal Affairs, HON. JESUS B. GARCIA, in his capacity as Acting Secretary, Department of Transportation and Communications, and ROGELIO A. DAYAN, in his capacity as General Manager of Philippine Ports Authority, petitioners, vs. UNITED HARBOR PILOTS ASSOCIATION OF THE PHILIPPINES and MANILA PILOTS ASSOCIATION, respondents. DECISION
ROMERO, J.:

In issuing Administrative Order No. 04-92 (PPA-AO No. 04-92), limiting the term of appointment of harbor pilots to one year subject to yearly renewal or cancellation, did the Philippine Ports Authority (PPA) violate respondents right to exercise their profession and their right to due process of law? The PPA was created on July 11, 1974, by virtue of Presidential Decree No. 505. On December 23, 1975, Presidential Decree No. 857 was issued revising the PPAs charter. Pursuant to its power of control, regulation, and supervision of pilots and the pilotage profession, [1] the PPA promulgated PPA-AO-03-85 [2] on March 21, 1985, which embodied the Rules and Regulations Governing Pilotage Services, the Conduct of Pilots and Pilotage Fees in Philippine Ports. These rules mandate, inter alia, that aspiring pilots must be holders of pilot licenses [3] and must train as probationary pilots in outports for three months and in the Port of Manila for four months. It is only after they have achieved satisfactory performance [4] that they are given permanent and regular appointments by the PPA itself [5] to exercise harbor pilotage until they reach the age of 70, unless sooner removed by reason of mental or physical unfitness by the PPA General Manager.[6] Harbor pilots in every harbor district are further required to organize themselves into pilot associations which would make available such equipment as may be required by the PPA for effective pilotage services. In view of this mandate, pilot associations invested in floating, communications, and office equipment. In fact, every new pilot appointed by the PPA automatically becomes a member of a pilot association and is required to pay a proportionate equivalent equity or capital before being allowed to assume his duties, as reimbursement to the association concerned of the amount it paid to his predecessor. Subsequently, then PPA General Manager Rogelio A. Dayan issued PPA-AO No. 04-92 [7] on July 15, 1992, whose avowed policy was to instill effective discipline and

thereby afford better protection to the port users through the improvement of pilotage services. This was implemented by providing therein that all existing regular appointments which have been previously issued either by the Bureau of Customs or the PPA shall remain valid up to 31 December 1992 only and that all appointments to harbor pilot positions in all pilotage districts shall, henceforth, be only for a term of one (1) year from date of effectivity subject to yearly renewal or cancellation by the Authority after conduct of a rigid evaluation of performance. On August 12, 1992, respondents United Harbor Pilots Association and the Manila Pilots Association, through Capt. Alberto C. Compas, questioned PPA-AO No. 04-92 before the Department of Transportation and Communication, but they were informed by then DOTC Secretary Jesus B. Garcia that the matter of reviewing, recalling or annulling PPAs administrative issuances lies exclusively with its Board of Directors as its governing body. Meanwhile, on August 31, 1992, the PPA issued Memorandum Order No. 0892 [8] which laid down the criteria or factors to be considered in the reappointment of harbor pilots, viz.: (1) Qualifying Factors: [9] safety record and physical/mental medical exam report and (2) Criteria for Evaluation: [10] promptness in servicing vessels, compliance with PPA Pilotage Guidelines, number of years as a harbor pilot, average GRT of vessels serviced as pilot, awards/commendations as harbor pilot, and age. Respondents reiterated their request for the suspension of the implementation of PPA-AO No. 04-92, but Secretary Garcia insisted on his position that the matter was within the jurisdiction of the Board of Directors of the PPA. Compas appealed this ruling to the Office of the President (OP), reiterating his arguments before the DOTC. On December 23, 1992, the OP issued an order directing the PPA to hold in abeyance the implementation of PPA-AO No. 04-92. In its answer, the PPA countered that said administrative order was issued in the exercise of its administrative control and supervision over harbor pilots under Section 6-a (viii), Article IV of P. D. No. 857, as amended, and it, along with its implementing guidelines, was intended to restore order in the ports and to improve the quality of port services. On March 17, 1993, the OP, through then Assistant Executive Secretary for Legal Affairs Renato C. Corona, dismissed the appeal/petition and lifted the restraining order issued earlier. [11]He concluded that PPA-AO No. 04-92 applied to all harbor pilots and, for all intents and purposes, was not the act of Dayan, but of the PPA, which was merely implementing Section 6 of P.D. No. 857, mandating it to control, regulate and supervise pilotage and conduct of pilots in any port district. On the alleged unconstitutionality and illegality of PPA-AO No. 04-92 and its implementing memoranda and circulars, Secretary Corona opined that:

The exercise of ones profession falls within the constitutional guarantee against wrongful deprivation of, or interference with, property rights without due process. In the limited context of this case, PPA-AO 04-92 does not constitute a wrongful interference with, let alone a wrongful deprivation of, the property rights of those affected thereby. As may be noted, the issuance aims no more than to improve

pilotage services by limiting the appointment to harbor pilot positions to one year, subject to renewal or cancellation after a rigid evaluation of the appointees performance. PPA-AO 04-92 does not forbid, but merely regulates, the exercise by harbor pilots of their profession in PPAs jurisdictional area. (Emphasis supplied)
Finally, as regards the alleged absence of ample prior consultation before the issuance of the administrative order, Secretary Corona cited Section 26 of P.D. No. 857, which merely requires the PPA to consult with relevant Government agencies. Since the PPA Board of Directors is composed of the Secretaries of the DOTC, the Department of Public Works and Highways, the Department of Finance, and the Department of Environment and Natural Resources, as well as the Director-General of the National Economic Development Agency, the Administrator of the Maritime Industry Authority (MARINA), and the private sector representative who, due to his knowledge and expertise, was appointed by the President to the Board, he concluded that the law has been sufficiently complied with by the PPA in issuing the assailed administrative order. Consequently, respondents filed a petition for certiorari, prohibition and injunction with prayer for the issuance of a temporary restraining order and damages, before Branch 6 of the Regional Trial Court of Manila, which was docketed as Civil Case No. 93-65673. On September 6, 1993, the trial court rendered the following judgment: [12]

WHEREFORE, for all the foregoing, this Court hereby rules that:
1. Respondents (herein petitioners) have acted in excess of jurisdiction and with grave abuse of discretion and in a capricious, whimsical and arbitrary manner in promulgating PPA Administrative Order 04-92 including all its implementing Memoranda, Circulars and Orders;

2. PPA Administrative Order 04-92 and its implementing Circulars and Orders are declared null and void; 3. The respondents are permanently enjoined from implementing PPA Administrative Order 04-92 and its implementing Memoranda, Circulars and Orders. No costs. SO ORDERED.
The court a quo pointed out that the Bureau of Customs, the precursor of the PPA, recognized pilotage as a profession and, therefore, a property right under Callanta v. Carnation Philippines, Inc. [13] Thus, abbreviating the term within which that privilege may be exercised would be an interference with the property rights of the harbor pilots. Consequently, any withdrawal or alteration of such property right must

be strictly made in accordance with the constitutional mandate of due process of law. This was apparently not followed by the PPA when it did not conduct public hearings prior to the issuance of PPA-AO No. 04-92; respondents allegedly learned about it only after its publication in the newspapers. From this decision, petitioners elevated their case to this Court oncertiorari. After carefully examining the records and deliberating on the arguments of the parties, the Court is convinced that PPA-AO No. 04-92 was issued in stark disregard of respondents right against deprivation of property without due process of law. Consequently, the instant petition must be denied. Section 1 of the Bill of Rights lays down what is known as the due process clause of the Constitution, viz.:
SECTION 1. No person shall be deprived of life, liberty, or property without due process of law, x x x.

In order to fall within the aegis of this provision, two conditions must concur, namely, that there is a deprivation and that such deprivation is done without proper observance of due process. When one speaks of due process of law, however, a distinction must be made between matters of procedure and matters of substance. In essence, procedural due process refers to the method or manner by which the law is enforced, while substantive due process requires that the law itself, not merely the procedures by which the law would be enforced, is fair, reasonable, and just. [14]PPA-AO No. 04-92 must be examined in light of this distinction. Respondents argue that due process was not observed in the adoption of PPA-AO No. 04-92 allegedly because no hearing was conducted whereby relevant government agencies and the pilots themselves could ventilate their views. They are obviously referring to the procedural aspect of the enactment. Fortunately, the Court has maintained a clear position in this regard, a stance it has stressed in the recent case of Lumiqued v. Hon. Exevea, [15] where it declared that (a)s long as a party was given the opportunity to defend his interests in due course, he cannot be said to have been denied due process of law, for this opportunity to be heard is the very essence of due process. Moreover, this constitutional mandate is deemed satisfied if a person is granted an opportunity to seek reconsideration of the action or ruling complained of. In the case at bar, respondents questioned PPA-AO No. 04-92 no less than four times [16] before the matter was finally elevated to this Tribunal. Their arguments on this score, however, fail to persuade. While respondents emphasize that the Philippine Coast Guard, which issues the licenses of pilots after administering the pilots examinations, was not consulted, [17] the facts show that the MARINA, which took over the licensing function of the Philippine Coast Guard, was duly represented in the Board of Directors of the PPA. Thus, petitioners correctly argued that, there being no matters of naval defense involved in the issuance of the administrative order, the Philippine Coast Guard need not be consulted.[18] Neither does the fact that the pilots themselves were not consulted in any way taint the validity of the administrative order. As a general rule, notice and hearing, as the fundamental requirements of procedural due process, are essential only when an

administrative body exercises its quasi-judicial function. In the performance of its executive or legislative functions, such as issuing rules and regulations, an administrative body need not comply with the requirements of notice and hearing. [19] Upon the other hand, it is also contended that the sole and exclusive right to the exercise of harbor pilotage by pilots is a settled issue. Respondents aver that said right has become vested and can only be withdrawn or shortened by observing the constitutional mandate of due process of law. Their argument has thus shifted from the procedural to one of substance. It is here where PPA-AO No. 04-92 fails to meet the condition set by the organic law. There is no dispute that pilotage as a profession has taken on the nature of a property right. Even petitioner Corona recognized this when he stated in his March 17, 1993, decision that (t)he exercise of ones profession falls within the constitutional guarantee against wrongful deprivation of, or interference with, property rights without due process. [20] He merely expressed the opinion that (i)n the limited context of this case, PPA-AO 04-92 does not constitute a wrongful interference with, l et alone a wrongful deprivation of, the property rights of those affected thereby, and that PPA -AO 04-92 does not forbid, but merely regulates, the exercise by harbor pilots of their profession. As will be presently demonstrated, such supposition is gravely erroneous and tends to perpetuate an administrative order which is not only unreasonable but also superfluous. Pilotage, just like other professions, may be practiced only by duly licensed individuals. Licensure is the granting of license especially to practice a profession. It is also the system of granting licenses (as for professional practice) in accordance with established standards. [21] A license is a right or permission granted by some competent authority to carry on a business or do an act which, without such license, would be illegal. [22] Before harbor pilots can earn a license to practice their profession, they literally have to pass through the proverbial eye of a needle by taking, not one but five examinations, each followed by actual training and practice. Thus, the court a quo observed:

Petitioners (herein respondents) contend, and the respondents (herein petitioners) do not deny, that here (sic) in this jurisdiction, before a person can be a harbor pilot, he must pass five (5) government professional examinations, namely, (1) For Third Mate and after which he must work, train and practice on board a vessel for at least a year; (2) For Second Mate and after which he must work, train and practice for at least a year; (3) For Chief Mate and after which he must work, train and practice for at least a year; (4) For a Master Mariner and after which he must work as Captain of vessels for at least two (2) years to qualify for an examination to be a pilot; and finally, of course, that given for pilots.
Their license is granted in the form of an appointment which allows them to engage in pilotage until they retire at the age 70 years. This is a vested right. Under the terms

of PPA-AO No. 04-92, (a)ll existing regular appointments which have been previously issued by the Bureau of Customs or the PPA shall remain valid up to 31 December 1992 only, and (a)ll appointments to harbor pilot positions in all pilotage districts shall, henceforth, be only for a term of one (1) year from date of effectivity subject to renewal or cancellation by the Authority after conduct of a rigid evaluation of performance. It is readily apparent that PPA-AO No. 04-92 unduly restricts the right of harbor pilots to enjoy their profession before their compulsory retirement. In the past, they enjoyed a measure of security knowing that after passing five examinations and undergoing years of on-the-job training, they would have a license which they could use until their retirement, unless sooner revoked by the PPA for mental or physical unfitness. Under the new issuance, they have to contend with an annual cancellation of their license which can be temporary or permanent depending on the outcome of their performance evaluation. Veteran pilots and neophytes alike are suddenly confronted with one-year terms which ipso facto expire at the end of that period. Renewal of their license is now dependent on a rigid evaluation of performance which is conducted only after the license has already been cancelled. Hence, the use of the term renewal. It is this pre-evaluation cancellation which primarily makes PPA-AO No. 04-92 unreasonable and constitutionally infirm. In a real sense, it is a deprivation of property without due process of law. The Court notes that PPA-AO No. 04-92 and PPA-MO No. 08-92 are already covered by PPA-AO No. 03-85, which is still operational. Respondents are correct in pointing out that PPA-AO No. 04-92 is a surplusage [23] and, therefore, an unnecessary enactment. PPA-AO 03-85 is a comprehensive order setting forth the Rules and Regulations Governing Pilotage Services, the Conduct of Pilots and Pilotage Fees in Philippine Ports. It provides, inter alia, for the qualification, appointment, performance evaluation, disciplining and removal of harbor pilots - matters which are duplicated in PPA-AO No. 04-92 and its implementing memorandum order. Since it adds nothing new or substantial, PPA-AO No. 04-92 must be struck down. Finally, respondents insinuation that then PPA General Manager Dayan was responsible for the issuance of the questioned administrative order may have some factual basis; after all, power and authority were vested in his office to propose rules and regulations. The trial courts finding of animosity between him and private respondents might likewise have a grain of truth. Yet the number of cases filed in court between private respondents and Dayan, including cases which have reached this Court, cannot certainly be considered the primordial reason for the issuance of PPA-AO No. 04-92. In the absence of proof to the contrary, Dayan should be presumed to have acted in accordance with law and the best of professional motives. In any event, his actions are certainly always subject to scrutiny by higher administrative authorities. WHEREFORE, the instant petition is hereby DISMISSED and the assailed decision of the court a quo dated September 6, 1993, in Civil Case No. 93-65673 is AFFIRMED. No pronouncement as to costs. SO ORDERED.

Narvasa, C.J., Regalado, Davide, Jr., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco, and Panganiban, JJ., concur. Martinez, J., no part.

[1]

Pilotage is the act of conducting a vessel from the high seas into a port. Usually, pilotage is conducted within a two-mile area offshore to an assigned berthing area and vice versa. Rollo, p. 87. The pilot licensing function itself which used to be exercised by the Philippine Coast Guard pursuant to the Revised Coast Guard Law of 1974 (P. D. No. 601) has been transferred to the Maritime Industry Authority (MARINA) by virtue of Executive Order No. 125, which took effect on January 30, 1987. Determined by an Evaluation Committee. Upon the recommendation of the PPA General Manager. Article IV, Section 20. Rollo, p. 41. Ibid., p. 42. Qualifying factors are requirements which must be met before a pilots application for reappointment is even evaluated by the PPA. These criteria are used for evaluation by the PPA after a pilot has complied with all the requirements to qualify for evaluation. Each criterion is assigned a certain number of points. Rollo, pp. 36-40. Ibid., pp. 29-35. 145 SCRA 268 (1986). De Leon, Textbook on the Philippine Constitution, 1991, p.81. G.R. No. 117565, November 18, 1997, citing Legarda v. Court of Appeals, G.R. No. 94457, October 16, 1997, and Pizza Hut/Progressive Development Corporation v. NLRC, 322 Phil. 573. Questioned twice before the DOTC, appealed to the OP, before finding affirmative relief with the RTC of Manila. Rollo, p. 55. Ibid., p. 163. Philippine Communications Satellite Corporation v. Alcuaz, 180 SCRA 218 (1989), citing 73 C.J.S. 452-453. Rollo, p. 38. Websters Third World International Dictionary, 1993 ed., p. 1304. 53 C.J.S. 445, citing 37 C.J. 168. In Tan v. Director of Forestry, 210 Phil. 244 (1983), the Court defined a license as merely a permit or privilege to do what otherwise would be unlawful. It is not a contract between the authority, federal, state, or municipal, granting it and the person to whom

[2] [3]

[4] [5] [6] [7] [8] [9]

[10]

[11] [12] [13] [14] [15]

[16]

[17] [18] [19]

[20] [21] [22]

it is granted. Neither is it property or a property right, nor does it create a vested right; nor is it taxation.
[23]

Rollo, p. 65.

FIRST DIVISION

[G.R. No. 110223. April 8, 1997]

ARMY AND NAVY CLUB OF MANILA, INC., petitioner, vs. HONORABLE COURT OF APPEALS, HON. WILFREDO D. REYES, as Judge REGIONAL TRIAL COURT OF MANILA, BRANCH 36 (formerly (Branch 17), HON. A. CAESAR SANGCO, as Judge, METROPOLITAN TRIAL COURT, BRANCH 17-MANILA and the CITY OF MANILA, represented herein by MAYOR ALFREDO LIM, respondents. DECISION
KAPUNAN, J.:

The instant petition seeks to annul the decision of the Court of Appeals affirming the decision of the Regional Trial Court, National Capital Region, Branch 36, Manila which affirmed the summary judgment rendered by the Metropolitan Trial Court of Manila, Branch 17. On November 29, 1989 the City of Manila filed an action against herein petitioner with the MTC for ejectment. The complaint alleged that:
1. That plaintiff is a municipal corporation duly organized and existing by virtue of Rep. Act No. 409, as amended, with offices at City Hall Building, Manila, represented in this action by its incumbent City Mayor, Hon. Gemiliano C. Lopez, Jr., with the same address as plaintiff; Defendant is likewise a corporation organized under the laws of the Philippines with offices at the Army and Navy Club Building, Luneta, Manila, where it may be served with summons; 2. That plaintiff is the owner of a parcel of land with an area of 12,705.30 sq. m. located at South Boulevard corner Manila Bay, Manila, covered by TCT No. 156868/1059 of the Register of Deeds of Manila, together with the improvements thereon known as the Army and Navy of Manila; 3. That defendant is occupying the above-described land and the Army and Navy Club Building by virtue of a Contract of Lease executed between plaintiff and defendant in January 1983, copy of which is attached hereto as Annex "A"; 4. That paragraph 1 of the said Contract of Lease provides that:

(1) That the LESSEE shall construct, at its own expense, a modern multi-storied hotel at a cost of not less than FIFTY MILLION PESOS (P50,000.00) (sic), which

shall automatically belong to the LESSOR upon the expiration and/or termination of the lease agreement, without right of the LESSEE for reimbursement for the costs of its construction; PROVIDED, HOWEVER, that construction of the said hotel shall be commenced within one (1) year, and completed as far as practicable within five (5) years, from date of approval by proper government officials of this lease agreement; PROVIDED, FURTHER, that the plans and specification for the same hotel shall be approved first by the LESSOR before actual construction;
5. That in violation of the aforequoted provision, defendant has failed and/or refused to construct a modern multi-storied hotel provided for therein, long after the expiration period therein stipulated and despite demands of plaintiff, to the prejudice of plaintiff who has agreed to defendant's continued retention of the property on a lease-back agreement on the basis of the warranties of defendant to put up a contemporary multi-storied building; 6. That paragraph 3 of the Contract of Lease also stipulates that:

(3) That the LESSEE shall pay a rent of TWO HUNDRED FIFTY THOUSAND PESOS (P250,000.00) a year, which may be paid by the LESSEE in twelve (12) equally monthly installments within the first five (5) days of each month, without the necessity of a demand, subject, however, to rental adjustment after the first five (5) days of each month, without the necessity of a demand, subject, however, to rental adjustment after the first five years of this lease, at the rate of not more than ten per centum (10%) per annum every two years, or on the basis of the increase in the prevailing market value of the leased premises whichever is higher of the two criteria;
7. That defendant also reneged on its rental obligation notwithstanding plaintiff's demand to pay, for its use and occupancy of the plaintiff's property, starting from January 1983 to the present, and its rental account stood at P1,604,166.70 as of May, 1989; 8. That in paragraph 4 of the Contract of Lease, it is also provided that:

(4) That the LESSEE shall pay the realty tax due on the land, including those assessed against the improvements thereon, as well as all government license, permits, fees and charges prescribed by law, Presidential decrees and ordinances for the leased premises, including those for the establishment and operation of a modern multistoried hotel and all constructions and modifications pursuant to the provisions of this Contract;
9. That defendant violated its undertaking to pay the taxes due on the land and improvement, so much so that as of December 1989, its aggregate realty tax liability amounts to P3,818,913.81;

10. That repeated demands of plaintiff had been made upon the defendant to comply with its aforesaid contractual obligations, but defendant however remained unfazed; it still failed to perform any of its contractual obligations. 11. That as a result, plaintiff rescinded their Contract of Lease and demanded defendant to vacate, the last of which was contained in a letter dated May 24, 1989, copy of which is attached hereto as ANNEX "B". To date however, defendant however, has not budged an inch from the property of plaintiff; 12. That the reasonable rental value for defendant's continued use and occupancy of the subject premises which is a prime property along Rozas (sic) Boulevard in Luneta area isP636,467.00 a month in the context of the prevailing rental rates of comparable real property;[1]

On December 29, 1989 or within the reglementary period, petitioner filed its answer to the complaint. Subsequently, on February 22, 1990, it filed a "Motion for Leave to File and for Admission of Amended Answer" allegedly asserting additional special and affirmative defenses. On May 23, 1990, the City of Manila filed a Motion for Summary Judgment [2] on the ground that there exists no genuine triable issue in the case. On July 27, 1990, the MTC denied the petitioner's motion for leave to admit its amended answer for lack of merit. Thus, on October 5, 1990, a decision was rendered with the following dispositive portion:

WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiff, ordering the defendant: a) and all persons claiming rights or title under it, to immediate (sic) vacate and surrender to the plaintiff, the premises more particularly described as the Army and Navy Club Bldg. located at South Boulevard corner Manila Bay, Manila; b) to pay, all with legal interest thereon, its rental arrearages at the rate of P250,000.00 per year with a corresponding ten (10%) percent increase every two years from January, 1983 until it finally vacates and surrenders the premises to the plaintiff; c) the costs of suit.
[3]

SO ORDERED.

On appeal, the Regional Trial Court presided by Judge Wilfredo D. Reyes affirmed in toto the summary judgment of the Metropolitan Trial Court.[4] Petitioner elevated its case to the Court of Appeals. On October 30, 1992, the Court of Appeals dismissed the appeal.

On May 18, 1996, the Court of Appeals issued a resolution denying the motion for reconsideration of the decision dated October 30, 1992. At the same time, it also denied the City of Manila's motion for issuance of a writ of execution pending appeal. Petitioner filed the instant petition raising the following issues:

1. RESPONDENT COURTS GRAVELY ERRED IN UPHOLDING THE OUSTER OF HEREIN PETITIONER FROM THE DISPUTED PREMISES WHICH IS A CLEAR TRANSGRESSION OF THE FORMAL DECLARATION OF THE SITE OF HEREIN PETITIONER AS A HISTORICAL LANDMARK. 2. WHETHER OR NOT RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN AFFIRMING THE DECISIONS OF RESPONDENT METROPOLITAN TRIAL COURT (MTC) AND REGIONAL TRIAL COURT (RTC) JUDGES DENYING ADMISSION OF PETITIONER'S AMENDED ANSWER. 3. WHETHER OR NOT RESPONDENT COURT OF APPEALS ERRED IN AFFIRMING THE SUMMARY JUDGMENT RENDERED BY RESPONDENT MTC AND RTC JUDGES. 4. WHETHER OR NOT RESPONDENT COURT OF APPEALS ERRED IN NOT HOLDING THAT PETITIONER WAS DENIED DUE PROCESS BY THE RENDITION OF SUMMARY JUDGMENT AGAINST IT. 5. AS AN INCIDENT TO THE MAIN ISSUE, THE PROPERTY, SUBJECT MATTER OF THIS CASE, IS OF PUBLIC DOMAIN AND THEREFORE, THE CONTRACT OF LEASE EXECUTED BY THE CITY OF MANILA IN FAVOR OF PETITIONER IS VOID.
[5]

There is no merit in the petition. Amidst all the issues raised by the petitioner, the instant case is a simple ejectment suit. There is no dispute that the City of Manila is the owner of a prime parcel of land with an area of 12,705.30 square meters located at South Boulevard corner Manila Bay together with the improvement thereon known as Army and Navy Club of Manila. Petitioner entered into a lease contract with private respondent sometime in January, 1983. In said lease contract, it agreed to: 1) pay an annual a rent of P250,000.00 with a 10% increase every two (2) years; 2) pay the realty tax due on the land; and 3) construct a modern multi-storey hotel provided for therein within five (5) years which shall belong to the City upon expiration or termination of the lease without right of reimbursement for the cost of construction.[6] Petitioner failed to pay the rents for seven (7) consecutive years. As of October, 1989 when the action was filed, rental arrears ballooned to P7.2 million. Real estate

taxes on the land accumulated to P6,551,408.28 as of May, 1971. Moreover, petitioner failed to erect a multi-storey hotel in the site. For violations of the lease contract and after several demands, the City of Manila had no other recourse but to file the action for illegal detainer and demand petitioner's eviction from the premises. Article 1673 of the New Civil Code is explicit:

ART. 1673. causes:

The lessor may judicially eject the lessee for any of the following

(1) When the period agreed upon, or that which is fixed for the duration of leases under articles 1682 and 1687, has expired; (2) Lack of payment of the price stipulated; (3) Violation of any of the conditions agreed upon in the contract; (4) When the lessee devotes the thing leased to any use or service not stipulated which causes the deterioration thereof; or if he does not observe the requirement in No. 2 of article 1657, as regards the use thereof. The ejectment of tenants of agricultural lands is governed by special laws. (emphasis supplied)

Petitioner invokes and capitalizes on the fact that the Army and Navy Club has been declared a national historical landmark by the National Historical Commission on June 29, 1992 which the lower courts allegedly never gave due consideration. Thus, its existence should not in any way be undermined by the simple ejectment suit filed against it. Petitioner contends that all parties are enjoined by law to preserve its existence and site. To support its claim, petitioner presented the Certificate of Transfer and Acceptance of the Historical Marker granted to it pursuant to R.A. 4846, as amended by PD 374 which provides that it shall be "the policy of the State to preserve and protect the important cultural properties and National Cultural Treasures of the nation and to safeguard their intrinsic value."[7] The Marker reads as follows:

CERTIFICATE OF TRANSFER AND ACCEPTANCE OF HISTORICAL MARKER ARMY AND NAVY CLUB TO ALL PERSONS TO WHOM THESE PRESENTS MAY COME: Be it known that the National Historical Institute, in the exercise of its authority vested by law and in compliance with its mandate to honor national heroes and perpetuate the glory of their deeds, and to preserve historical sites, has transferred this

historical marker unto Administration of Army and Navy Club, who has agreed to accept the same and to maintain it as a sacred duty. IN WITNESS WHEREOF, the parties have hereunto set their hands this 29th day of June, 1992, in Manila. NATIONAL HISTORICAL INSTITUTE by: (SGD.) ILLEGIBLE ILLEGIBLE CAPT. VICENTE J. BRILLANTES D. QUIASON Transferee Attested: (SGD) ILLEGIBLE ILLEGIBLE CHIEF SUPT JOSE PERCIVAL ADIONG CASTANEDA (SGD.) AVELINA M. (SGD.) SERAFIN Transferor

SUBSCRIBED AND SWORN to before me in Manila, Philippines, this 29th day of June, 1992 by the affiants. (SGD.) ILLEGIBLE BGEN ANTONIO V. RUSTIA (SGD.) ILLEGIBLE RAMON J. SIYTANGCO, JR. (SGD.) ILLEGIBLE COL MANUEL R. GUEVARA (SGD.) ILLEGIBLE CAPT. DANIEL A. ARREOLA (SGD.) LOPE M. VELASCO NOTARY PUBLIC My Commission Expires Dec. 31, 1993 Not. Reg. No. 297 022088 Page 61 Manila Book II 320197 Series of 1992 Pasig
[8]

PTR 1-2-92, IBP 12-18-91,

While the declaration that it is a historical landmark is not objectionable, the recognition is, however, specious. We take the occasion to elucidate on the views of Fr. Joaquin Bernas who was invited as amicus curiae in the recent case of Manila Prince Hotel v. GSIS[9] where the historical character of Manila Hotel was also dealt with. He stated that:

The country's artistic and historic wealth is therefore a proper subject for the exercise of police power:". . . which the State may regulate." This is a function of the legislature. And once regulation comes in, due process also comes into play. When the classification of property into historical treasures or landmarks will involve the imposition of limits on ownership, the Bill of Rights demands that it be done with due process both substantive and procedural. In recognition of this constitutional principle, the State in fact has promulgated laws, both general and special, on the subject. x x x the current general law on the subject is R.A. 4846, approved on June 18, 1966, and amended by P.D. No. 374. The Act prescribes the manner of classifying historical and cultural properties thus: Sec. 4. The National Museum, hereinafter referred to as the Museum shall be the agency of the government which, shall implement the provisions of this Act. Sec. 5. The Director of the Museum, hereinafter referred to as the Director, shall undertake a census of the important cultural properties of the Philippines, keep a record of their ownership, location, and condition, and maintain an up-to-date register of the same. Private collectors and owners of important cultural properties and public and private schools in possession of these items, shall be required to register their collections with the Museum when required by the Director and to report to the same office when required by the Director any new acquisitions, sales, or transfers thereof. Sec. 6. The Director is authorized to convene panels of experts, as often as the need for their services may arise, each to be composed of three competent men in the specialized fileds of anthropology, natural sciences, history and archives, fine arts, philately and numismatics, and shrines and monuments, etc. Each panel shall, after careful study and deliberation, decide which among the cultural properties in their field of specialization shall be designated as "National Cultural Treasures" or "Important Cultural Properties." The Director is further authorized to convene panels of experts to declassify designated "National Cultural Treasures." The Director shall within ten days of such action by the panel transmit their decision and cause the designation-list to be published in at least two newspapers of general

circulation. The same procedure shall be followed in the declassification of important cultural properties and national treasures. Sec. 7. In designation of a particular cultural property as a "national cultural treasure," the following procedure shall be observed: a. Before the actual designation, the owner, if the property is privately owned, shall be notified at least fifteen days prior to the intended designation, and he shall be invited to attend the deliberation and given a chance to be heard. Failure on the part of the owner to attend the deliberation shall not bar the panel to render its decision. Decision shall be given by the panel within a week after its deliberation. In the event that the owner desires to seek reconsideration of the designation made by the panel, he may do so within days from the date that the decision has been rendered. If no request for reconsideration is filed after this period, the designation is then considered final and executory. Any request for reconsideration filed within thirty days and subsequently again denied by the panel, may be further appealed to another panel chairmanned by the Secretary of Education, with two experts as members appointed by the Secretary of Education. Their decision shall be final and binding. b. Within each kind or class of objects, only the rare and unique objects may be designated as "National Cultural Treasures." The remainder, if any, shall be treated as cultural property. c. Designated "National Cultural Treasures" shall be marked, described, and photographed by the National Museum. The owner retains possession of the same but the Museum shall keep a record containing such information as: name of article, owner, period, source, location, condition, description, photograph, identifying marks, approximate value, and other pertinent data. Thus, for Manila Hotel to be treated as special cultural or historical property, it must go through the procedure described above. Eloquent nationalistic endorsements of classification will not transform a piece of property into a legally recognized historical landmark. . . .
In the case at bar, there is no showing that the above procedure has been complied with. The City of Manila even observed that the signatories thereto are officers and members of the Club[10] making such certification self-serving. It behooves us to think why the declaration was conferred only in 1992, three (3) years after the action for ejectment was instituted. We can only surmise that this was merely an afterthought, an attempt to thwart any legal action taken against the petitioner. Nonetheless, such certification does not give any authority to the petitioner to lay claim of ownership, or any right over the subject property. Nowhere in the law does it state that such recognition grants possessory rights over the property to the petitioner. Nor is the

National Historical Commission given the authority to vest such right of ownership or possession of a private property to the petitioner. The law merely states that it shall be the policy of state to preserve and protect the important cultural properties and National Cultural Treasures of the nation and to safeguard their intrinsic value. In line with this, any restoration, reconstruction or preservation of historical buildings shall only be made under the supervision of the Director of the National Museum.[11] The authority of the National Historical Commission is limited only to the supervision of any reconstruction, restoration or preservation of the architectural design of the identified historical building and nothing more. Even assuming that such recognition made by the National Historical Commission is valid, the historical significance of the Club, if any, shall not be affected if petitioner's eviction from the premises is warranted. Unfortunately, petitioner is merely a lessee of the property. By virtue of the lease contract, petitioner had obligations to fulfill. Petitioner can not just hide behind some recognition bestowed upon it in order to escape from its obligation or remain in possession. It violated the terms and conditions of the lease contract. Thus, petitioner's eviction from the premises is inevitable. Anent the procedural issues raised, the Court finds no reversible error in the summary judgment rendered by the trial court. A summary judgment is one granted by the court upon motion by a party for an expeditious settlement of the case, there appearing from the pleadings, depositions, admissions, and affidavits that there are no important questions or issues of fact involved (except as to the amount of damages), and that therefore the moving party is entitled to a judgment as a matter of law.[12] In the case at bar, there is clearly no substantial triable issue. In the Answer filed on December 29, 1989, petitioner does not deny the existence of the lease contract executed with the City of Manila in January 1983. It admitted that it failed to pay the rents and real estate taxes and construction of a multi-storey building. It put up the defense that it was unable to fulfill its obligations of the contract due to economic recession in 1984 as an aftermath of the Ninoy Aquino assassination. Considering that there is no genuine issue as to any material fact, a summary judgment is proper. The argument that it was declared a historical landmark, is not a substantial issue of fact which does not, in any way, alter or affect the merit of the ejectment suit. Likewise, we find no error much less any abuse of authority on the part of the lower court in not admitting the Amended Answer. Aside from the fact that it was filed one (1) year after the original answer was filed, it put up defenses which are entirely in contradiction to its original answer. This is in contravention of the rules of procedure.[13] Having admitted in the original answer that the City of Manila is the registered owner of the property and that it leased the property from it, petitioner can not now deny such claim of ownership. The Court of Appeals correctly observed on this point:

Be that as it may, at this last stage, after herein petitioner has dealt with the private respondent as the owner of the leased premises and obtained benefits from said

acknowledgment of such ownership for almost half a century, herein petitioner cannot be permitted to assume an inconsistent position by denying said private respondent's ownership of the leased premises when the situation calls for it. Herein petitioner cannot be allowed to double deal, recognizing herein private respondent's title over the leased premises and entering into a lease contract and other covenants, and thereafter after failing to comply with its obligation provided for in the lease agreement attempt to repudiate the ownership of private respondent of the subject property.
[14]

WHEREFORE, the decision of the Court of Appeals is AFFIRMED. The instant petition is DENIED, for lack of merit. SO ORDERED. Padilla, Bellosillo, and Hermosisima, Jr., JJ., concur. Vitug, J., in the result.

[1]

Rollo, pp. 81-84. Id., at 108. Id., at 125. Id., at 127. Id., at 27-28. Id., at 203-204.

[2]

[3]

[4]

[5]

[6]

PRESIDENTIAL DECREE NO. 374 AMENDING CERTAIN SECTIONS OF REPUBLIC ACT NO. 4846. OTHERWISE KNOWN AS THE "CULTURAL PROPERTIES PRESERVATION AND PROTECTION ACT:
[7]

xxx Sec. 2. It is hereby declared to be the policy of the state to preserve and protect the important cultural properties and National Cultural Treasures of the nation and to safeguard their intrinsic value. Sec. 3. x x x a. Cultural properties are old buildings, monuments, shrines, documents, and objects which may be classified as antiques, relics, or artifacts, landmarks, anthropological and historical sites, and specimens of natural history which are of cultural, historical, anthropological or scientific value and significance to the nation; such as physical, anthropological, archaeological and ethnographical materials, meteorites and tektites; historical objects and manuscripts; household and agricultural implements; decorative articles or personal adornment; works of art such as paintings, sculptures, carvings, jewelry, music architecture, sketches, drawings, or illustrations in part or in whole; works of industrial and commercial art such as furniture, pottery, ceramics, wrought iron, gold, bronze, silver, wood or other heraldic items, metals, coins, medals, badges, insignias, coat of arms, crests, flags, arms and armor; vehicles or ships or boats in part or in whole.

b. cultural properties which have been singled out from among the innumerable cultural properties as having exceptional historical and cultural significance to the Philippines, but are not sufficiently outstanding to merit the classification "National Cultural Treasures" are important cultural properties. c. A National Cultural Treasure is a unique object found locally, possessing outstanding historical, cultural artistic and/or scientific value which is highly significant and important to this country and nation. xxx i. A historical site is any place, province, city, town and/or any location and structure which has played a significant and important role in the history of our country and nation. Such significance and importance may be cultural, political, sociological or historical.
[8] [9]

Id., at 193. G.R. No. 122156, February 3, 1997. Comment, Rollo, p. 208.

[10]

[11]

Sec. 13. All restorations, reconstructions, and preservations of government historical buildings, shrines, landmarks, monuments, and sites, which have been designated as 'National Cultural Treasures,' and 'important cultural properties' shall only be undertaken with the written permission of the Director of the National Museum who shall designate the supervision of the same.
[12]

Secs. 1, 2, 3, Rule 34. Philippine National Bank vs. Noah's Ark Sugar Refinery, 226 SCRA 36 (1993); Vergara, Sr. vs. Suelto, 156 SCRA 753 (1987); Mercado v. Court of Appeals, 162 SCRA 75 (1988).
[13]

Rule 10, Sec. 3. Rollo, pp. 75-76.

[14]

THIRD DIVISION
[G.R. No. 130442. April 6, 2000]

THE SUMMARY DISMISSAL BOARD AND THE REGIONAL APPELLATE BOARD, PNP, REGION VI, ILOILO CITY, petitioners, vs. C/INSP. LAZARO TORCITA,respondent. DECISION
GONZAGA-REYES, J.: Before us is a Petition for Review by way of Certiorari of the Decision of the Court of Appeals[1] in CA-G.R. SP No. 43872, which set aside the Decision of the Regional Director (RD) of the Philippine National Police (PNP) of Iloilo City, through its Summary Dismissal Board (SDB), suspending herein respondent C/Insp. Lazaro Torcita from the service for twenty (20) days for "Simple Irregularity in the Performance of Duty under Section 41 of R. A. 6975." Sdaad The antecedents are as follows: On July 6, 1994, the following verified complaints were filed against C/Insp. Lazaro Torcita, herein respondent, by Manuel Puey, Jesus Puey, Alex Edwin del Rosario: 1)......Administrative Case Nr. SDHB "B6" -94-01- for Conduct Unbecoming of a Police Officer filed by Jesus H. Puey in a complaint dated June 25, 1994; 2)......Admin. Case Nr. SDHB "B6"-94-02- for Grave Threats filed by Jesus H. Puey; 3)......Admin. Case Nr. SDHB "B6"-94-03 for Abuse of Authority and Illegal Search filed by Jesus H. Puey; 4)......Admin. Case Nr. SDHB "B6"-94-04 for Abuse of Authority and Violation of Domicile filed by Jesus H. Puey; 5)......Admin. Case Nr. SDHB "B6"-94-05 for Abuse of Authority and Violation of COMELEC Gun Ban filed by Jesus H. Puey; 6)......Admin. Case Nr. SDHB "B6" -94-06 for Conduct Unbecoming of a Police Officer filed by Manuel H. Puey;

7)......Admin. Case Nr. SDHB "B6" -94-07 for Illegal Search filed by Manuel H. Puey; 8)......Admin. Case Nr. SDHB "B6" -94-08 for Grave Abuse of Authority and Violation of Domicile filed by Manuel Puey; 9)......Admin. Case Nr. SDHB "B6" -94-09 for Abuse of Authority and Violation of COMELEC Gun Ban filed by Manuel Puey; 10)......Admin. Case Nr. SDHB "B6"-94-10 for Conduct Unbecoming of a Police Officer filed by Alex Edwin del Rosario; 11)......Admin. Case Nr. SDHB "B6"-94-11 for Abuse of Authority and Grave Threats filed by Alex Edwin del Rosario; 12)......Admin. Case Nr. SDHB "B6" 94-12 for Abuse of Authority and Violation of COMELEC Gun Ban filed by Alex Edwin del Rosario. The twelve administrative complaints were the subject of administrative hearings before the Summary Dismissal Board of the PNP. At the pre-trial, the parties and their respective counsels agreed that the twelve cases shall be consolidated into one "major complaint" for "conduct unbecoming of a police officer" under Par. e, Sec. 3, Rule II, Memorandum Circular No. 92-006 pursuant to RA 6975[2]. The statement of the case by the Summary Dismissal Board is as follows: "That sometime last April 26, 1994, after attending the birthday party of Miss Jessie Vasquez Alex Edwin del Rosario, together with Rosita Bistal, Carmen Braganza and Cristita Dawa boarded Mazda pick up with plate nr. HHP-808 and driven by Reynaldo Consejo, proceeded towards the direction of Cadiz City. While nearing Crossing Cadiz in the vicinity of Sitio Puting Tubig, the aforementioned Mazda pick-up driven by Consejo overtook a red Cortina Ford driven by Major Lazaro Torcita; That on board the motor vehicle driven by Torcita were three females sitted at the back; That Major Lazaro Torcita signaled the passengers of the Mazda pick-up to stop, however, the driver of the Mazda pick-up refused to abide by the signal and instead accelerated and proceeded to Hda. Aimee without stopping. Scs daad That upon reaching Hda. Aimee Major Lazaro Torcita, entered the compound and was approached by two persons in civilian clothes which prevented him from further proceeding; Moments after, the patrol car of Cadiz PNP arrived and together with Major Torcita, approached Jesus H.

Puey and Alex Edwin del Rosario, inquiring as to the identity of the persons who accosted him; The complainants alleged that Major Torcita approached and entered the compound of Hda. Aimee, very drunk, with back-up vehicle full of armed policemen, confronted Jesus H. Puey and Alex Edwin del Rosario as who stopped him at the gate, shouting in a very, very loud voice, invectives and remarks; That such act of Major Lazaro Torcita constitute Conduct Unbecoming of an Officer not worth of respect; In his answer, the respondent, Lazaro R. Torcita, while admitting that he entered the premises of the complainants, the same was done on a regular, lawful and proper way for he was in the performance of his official duties in pursuing the suspect who committed a crime in his presence; From the affidavits of the witnesses and testimonies presented by the complainants and the counter affidavits and the counter testimonies of the respondent, the ISSUE before the Board is whether the respondent is guilty of Conduct Unbecoming of a Police Officer under Republic Act 6975 as implemented by Memorandum Circular 92-006 of the National Police Commission under Rule II Section 3, Paragraph C, committed thru a series of illegal acts consisting of Grave Threats, Illegal Search, Abuse of Authority, violation of Domicile and Violation of COMELEC Gun Ban." The complainant presented documentary evidence and witnesses Congressman Manuel Puey, Rosita Bistal, Alex Edwin del Rosario and Reynaldo Consejo. Respondent Torcita testified in his behalf and presented Nehru Java, a member of the PNP Cadiz, who was with him during the incident in question. The Summary Dismissal Board made the following findings of facts: "That sometime last April 26, 1994, at about 10:30 in the evening, a red Cortina Ford, driven by C/Insp. Lazaro H. Torcita, with his aide, PO2 Nehru Java, in the front seat and his wife with two ladies at the backseat, were overtaken by a mazda pick-up, in the vicinity of Sitio Puting Tubig, about 10 kilometers from crossing Cadiz, owned by Congressman Manuel Puey and driven Reynaldo Consejo with four (4) passengers in the persons of Alex Edwin del Rosario, the executive assistant and financial analyst of Congressman Puey, three (3) helpers employed under the Congressman, namely, Rosita Bistal, Carmen Braganza and Cristina Dawa; Sup rema That both parties came from the Municipality of Victorias where they attended some social functions on the occasion of the town fiesta;

After the mazda pick-up has overtaken the red Cortina Ford, it accelerated speed and proceeded to Hda. Aimee, a sugarcane plantation in Cadiz City, also owned by Congressman Manuel Puey; The red Cortina Ford followed also at high speed until it reached Hda. Aimee where C/Insp. Torcita and PO2 Java alighted and the confrontation with Alex Edwin del Rosario and Jesus Puey, occurred; The Complainant tried to establish the fact that nothing unusual occurred or transpired between the parties in the vicinity of Sitio Puting Tubig and that Torcita has no business pursuing them; However the Board is more inclined to give credence to the affidavits (exhibit 5 & 6) and the testimony of C/Insp. Torcita that a vehicular collision almost took place due to reckless driving of the driver of the mazda pick-up; That it was the duty inherent to the position as Chief of Police of Cadiz City and as deputy of the Land Transportation Office to enforce traffic rules and regulation to prevent chaos and accidents in roads and highways of the country (exhibit 13); This observation is further bolstered by the testimony of Reynaldo Consejo, the driver of the mazda pick-up, that he was able to overtake the red Cortina Ford only after the latter car hit the shoulder of the road and after overtaking he increased his speed (tsn page 131, August 30, 1994 ); This sudden increase in speed of a driver involved in a vehicular accident is a classic move for one who wants a fast get away from the scene, to escape responsibility; Further, Alex Edwin del Rosario testified that upon reaching Hda. Aimee, he instructed the guard to be on look-out for a car might be following them and might enter the compound (TSN page 70 August 30, 1994 ). This conduct would show that witness is anticipating that red Cortina Ford would follow them because of the incident in Sitio Puting Tubig which could have ended in a vehicular collision and finally no proof was presented to show that no other reason exist as to why C/Insp. Torcita would pursue the Mazda pick up other than near occurrence of a vehicular collision; Juris The Complainant presented the Joint-Affidavit of Rosita Bistal and Reynaldo Consejo and the Affidavit of Alex Edwin del Rosario, jointly taken, may be considered as proof that C/Insp. Torcita has committed act or series of acts that would constitute Grave Threat, Illegal Search, Abuse of Authority, Violation of Domicile and Violation of COMELEC Resolutions regarding the gun ban, thus CONDUCT UNBECOMING OF A POLICE OFFICER;

That in the Joint-Affidavit of Rosita Bistal and Reynaldo Consejo (exhibit c; exhibit 2), Bistal attempted to establish the fact that C/Insp. Torcita and PO2 Java illegally entered the gate of the compound but were stopped by the guards armed with cane stick or batuta, however in her testimony given during the hearing (tsn page 32, August 30, 1994) she stated that she did not know what transpired between the two men approaching and the guards near the gate because she, together with her companions, were busy unloading kitchen utensil from the pick-up to the kitchen and Consejo categorically stated that this portion of their affidavit, specifically paragraph 7, is NOT TRUE; Alex Edwin del Rosario, in his testimony given in the hearing, corroborated this fact that he also did not see or hear what happened for he was in some distance away and he cannot see them clearly (TSN page 73, August 30, 1994 ); The only piece of evidence presented in connection with the incident which happened near the gate of the compound is the affidavit of C/Insp. Torcita and his testimony given in the hearing of the case that when he was walking towards the compound together with his aide, PO2 Nehru Java, two armed civilian guards stopped and threatened him; He identified himself however, the same had no effect, and PO2 Java whispered that there are armed men around them and that it is dangerous for them to continue. That at this point, they radioed for back-up; Since no proof to the contrary was presented by the Complainant nor was there any witness or witnesses presented to rebut this allegations, the Board had no other choice except to consider these allegations as proof; (Exhibit 5 & 6); The Board also resolve to take note that a metropolitan newspaper with nationwide circulation and with unquestionable credential, had published a news item about the presence of armed security personnel of Congressman Manuel Puey exhibit 14); This evidence give more credence to the fact that there were really armed men in the premises where the aforementioned incident happened; That this is corroborated further by the affidavit of PO2 Nehru Java (exhibit 17); Sc juris This observation of the Board that there were really armed men in the premises of Hda. Aimee, is further enhance by the fact that Major Torcita felt their presence when he desisted from further entering the compound, a feeling which was developed and nurtured by years of living under combat conditions and finally the Board also feels that the presence of armed persons in the offices and properties of high government officials is accepted as a necessary consequence for their protection due to the greater risks they are expose to; That because of the incident in Sitio Puting Tubig which was further aggravated by the confrontation near the gate of the compound of Hda. Aimee, C/Insp. Torcita upon the arrival of the back-up force of PNP Cadiz

City, proceeded to the place where Capt. Jesus Puey and Alex Edwin del Rosario were; This fact is not disputed by the parties; xxx......xxx......xxx Chief Insp. Lazaro Torcita does not deny having taken alcoholic drink; However, not to the point of drunkness; The Board is more inclined to believe this allegation for no sane person will risks the life of a member of his family by deliberately driving when he is mentally and physically incapable; Further, C/Insp. Torcita was able to drive from Victorias to Cadiz City, a distance of forty kilometers, on a dark night and raining and was able to avoid collision of the vehicles involved by sheer reflex action despite the admitted fact that his tire hit the shoulder of the road; Further, at the time Chief Inspector Torcita entered the compound he was fully aware of the presence of armed men and reacted to this by exercising prudence while approaching the compound of Hda. Aimee; The foregoing facts would show that C/Insp. Torcita was in full command of his senses and was not affected by the numbing effect of alcohol for a drunk person does not show any caution and behaves irrationaly." The Board did not find sufficient evidence to establish that Torcita threatened anybody with a gun, nor that a serious confrontation took place between the parties. The Board also found that there was no sufficient evidence that the urinating incident took place, and held that the charges of violation of domicile and illegal search were not proven. The Board found that Lazaro Torcita was "in the performance of his official duties when the incident happened; however, he committed a breach of internal discipline by taking alcoholic drinks while in the performance of same. The dispositive portion of the decision of the Board reads: Juris sc "WHEREFORE, in view of the foregoing, the Complaint for CONDUCT UNBECOMING OF A POLICE OFFICER under Memo Cir. Nr. 92-006 pursuant to Sec. 42, RA 6975, be DISMISSED for lack of sufficient evidence, however finds C/Insp. Lazaro R. Torcita to have committed SIMPLE IRREGULARITY IN THE PERFORMANCE OF DUTY under Sec. 41, RA 6975, in relation to NAPOLCOM Memo Cir. Nr. 91-002 and is hereby ORDERED SUSPENDED for twenty days (20) and forfeiture of salary for the same period of time effective upon receipt of this Decision under Rule 7, Section 2, Sub-par. b of the same Memo Circular." Torcita appealed his conviction to the Regional Appellate Board of the PNP, Region VI, Iloilo City, but the appeal was dismissed for lack of jurisdiction; Thus, "Under the applicable provisions of Section 45 of R. A. 6975, however, the disciplinary action imposed by the Regional Director upon a PNP member shall be final and executory except those involving demotion in rank or

dismissal from the service. The appealed decision being that of suspension from the service with corresponding forfeiture of pay only the same is not subject to review by this Board."[3] Whereupon, C/Insp. Torcita filed a petition for certiorari in the regional trial court of Iloilo City, Branch 31, questioning the legality of the conviction of an offense for which he was not charged, "which conviction is a nullity because of the lack of procedural due process of law." Public respondent filed a motion to dismiss, which was denied. The regional trial court granted the petition for certiorari and annulled the dispositive portion of the questioned decision insofar as it found Torcita guilty of simple irregularity in the performance of duty. Misj uris Public respondent appealed from the above-mentioned decision of the regional trial court, by petition of review to the Court of Appeals, which affirmed the same for the reason that the respondent could not have been guilty of irregularity considering that "the twelve (12) cases treated as Conduct Unbecoming of a Police Officer were eventually dismissed." The instant petition for review on certiorari under Rule 45 seeks the reversal of the aforesaid decision of the Court of Appeals on the following grounds: "1.......THE OFFENSE OF "SIMPLE IRREGULARITY IN THE PERFORMANCE OF DUTY" IS NECESSARILY INCLUDED IN THE CHARGE OF "CONDUCT UNBECOMING OF A POLICE OFFICER." 2.......THE DECISION OF THE SUMMARY DISMISSAL BOARD (SDB) AND THE NAPOLCOM REGIONAL APPELLATE BOARD HAS BECOME FINAL AND EXECUTORY."[4] The petitioners submit that the offense of "Conduct Unbecoming of a Police Officer" is broad enough to include any act of an officer which tends to bring dishonor and disgrace to the PNP organization, and Simple Irregularity in the Performance of Duty is one act which brings such disgrace and dishonor as contemplated by law. Moreover, the dismissal has become final and executory and the trial court erred when it proceeded with the petition in violation of the doctrine of primary jurisdiction. In his comment, respondent Torcita insists that his right to due process of law was "corrosively abridged and impaired", and pleads for an affirmance of the decision of the Court of Appeals. The appeal has no merit. The Court of Appeals did not err in affirming the decision of the trial court granting the petition for certiorari.

The administrative disciplinary machinery for dealing with complaints or charges against any member of the Philippine National Police (PNP) is laid down in Republic Act No. 6975, otherwise known as the "Department of the Interior and Local Government Act of 1990." This law defines the summary dismissal powers of the PNP Chief and Regional Directors, among others in cases, "where the respondent is guilty of conduct unbecoming of a police officer."[5] Memorandum Circular No. 92-006 prescribes the "Rules and Regulations in the conduct of summary dismissal proceedings against erring PNP members" and defines conduct unbecoming of a police officer under Section 3 (c), Rule II, as follows: "Conduct unbecoming of a police officer" refers to any behavior or action of a PNP member, irrespective of rank, done in his official capacity, which, in dishonoring or otherwise disgracing himself as a PNP member, seriously compromise his character and standing as a gentleman in such a manner as to indicate his vitiated or corrupt state of moral character; it may also refer to acts or behavior of any PNP member in an unofficial or private capacity which, in dishonoring or disgracing himself personally as a gentleman, seriously compromises his position as a PNP member and exhibits himself as morally unworthy to remain as a member of the organization." New miso On the other hand, the acts constituting "simple irregularity in the performance of duty" are defined in Memorandum Circular No. 91-002. It is a light offense, incurred, among others, by a member of the PNP who shall, among others, be found to "have the odor or smell of alcohol on his breath while on duty, or possess alcoholic beverages on his person, police vehicle, post or office." (Sec. 2.A, Rule VI) As above-stated, the Summary Dismissal Board absolved the C/Insp. Torcita of the consolidated charge of "conduct unbecoming of a police officer" but found him guilty of simple irregularity in the performance of duty under Sec. 41, R.A. No. 6975, in relation to Napolcom Memorandum Circular No. 91-002 and imposed a penalty of suspension for twenty (20) days and forfeiture of salary for the same period. We are unable to sustain the theory of the petitioners that the definition of "conduct unbecoming of a police officer" as earlier granted, is broad enough to include any act of an officer which tends to bring dishonor and disgrace to the PNP organization, and that there is "no legal prohibition" which would prevent the Summary Dismissal Board from finding petitioner guilty of the lesser offense. While the definition of the more serious offense is broad, and almost all- encompassing a finding of guilt for an offense, no matter how light, for which one is not properly charged and tried cannot be countenanced without violating the rudimentary requirements of due process. The series of twelve complaints filed against C/Insp. Torcita were solely based on the incident that occurred on April 26, 1994 at about 11:00 o'clock in the evening, wherein Torcita, who was off-duty and was in civilian clothes, riding in his private vehicle with members of his family, chased another vehicle which overtook his car in a reckless

manner and in violation of the Traffic Code; the hot pursuit ended at the Hacienda Aimee, where he allegedly entered the place without lawful warrant and while inside, belligerently shouted invectives, challenging everyone to a fight, pointed his gun at somebody and urinated in full view of the persons therein. The Dismissal Board found the above charges unsubstantiated and held that Torcita was in the performance of official duty when the incidents happened. "However, he committed breach of internal discipline by taking alcoholic drinks while in the performance of same." It is glaringly apparent from a reading of the titles of the twelve administrative cases filed against C/Insp. Torcita, earlier quoted, that none of the charges or offenses mentioned or made reference to the specific act of being drunk while in the performance of official duty. The records do not bear out the specific acts or conduct constituting the charge/offense in the twelve cases which were consolidated at the pre-hearing conference into a single case of "Conduct Unbecoming of a Police Officer." Thus, the Board defined the issue before the Board as "whether the respondent is guilty of conduct unbecoming of a police officer under Republic Act 6975, as implemented by Memorandum Circular No. 92-006 of the National Police Commission under Rule II, Section 3, Paragraph c, committed though a series of illegal acts consisting of grave threats, illegal search, abuse of authority, violation of domicile or violation of Comelec Gunban." Notably, there is no indication or warning at all in the summary dismissal proceedings that C/Insp. Torcita was also being charged with breach of internal discipline consisting of taking alcoholic drinks while in the performance of his duties. Acct
mis

The omission is fatal to the validity of the judgment finding him guilty of the offense for which he was not notified nor charged. Summary dismissal proceedings are governed by specific requirements of notification of the charges together with copies of affidavits and other attachments supporting the complaints, and the filing of an answer, together with supporting documents. It is true that consistent with its summary nature, the duration of the hearing is limited, and the manner of conducting the hearing is summary, in that sworn statements may take the place of oral testimonies of witnesses, crossexamination is confined only to material and relevant matters, and prolonged arguments and dilatory proceedings shall not be entertained. (Section 4, Memorandum Circular No. 92-006). However, notification of the charges contemplates that respondent be informed of the specific charges against him. Torcita was entitled to know that he was being charged with being drunk while in the performance of duty, so that he could traverse the accusation squarely and adduce evidence in his defense. Although he was given an opportunity to be heard on the multiple and broad charges initially filed against him, the absence of specification of the offense for which he was eventually found guilty is not a proper observance of due process. There can be no short-cut to the legal process (Alonte vs. Savellano Jr., 287 SCRA 245). It is a requirement of due process that the parties be informed of how the litigation was decided with an explanation of the factual and legal reasons that led to the conclusions of the Court (ABD Overseas Manpower Corp. vs. NLRC, 286 SCRA 454 ). Memorandum Circular No. 92-006 specifically prescribes that the decision shall contain "a brief statement of the material facts and the findings of the summary dismissal

authority as well as the disposition thereof" (Sec. 6). The cursory conclusion of the Dismissal Board that Torcita "committed breach of internal discipline by taking drinks while in the performance of same" should have been substantiated by factual findings referring to this particular offense. As it turned out, the dismissal Board believed his allegation that he was not drunk and found that he was in full command of his senses where he tried to apprehend the driver of the maroon Mazda pick-up. Although Torcita did not deny that he had taken a shot of alcoholic drink at the party which he attended before the incident, the records show that he was then off-duty and the party was at the Municipality of Victorias, which was outside of his area of police jurisdiction. On the other hand, the hot pursuit incident occurred while he was on in his way home to Cadiz City with the members of his family. As observed by the Dismissal Board itself, the hot pursuit was motivated by the duty "inherent to the position as Chief of Police of Cadiz City and as Deputy of the Land Transportation Office to enforce traffic rules and regulations, to prevent chaos and accidents in roads and highways" (Decision, p. 76). The Court of Appeals correctly pointed out that even if he was prosecuted for irregular performance of duty, he could not have been found to have the odor or smell of alcohol while in the performance of duty because he was not on duty at the time that he had a taste of liquor; he was on a private trip fetching his wife. Premises considered, we hold that the Court of Appeals correctly found that the decision of the petitioners Board was rendered without or in excess of jurisdiction, as respondent Torcita was found guilty of an offense for which he was not properly charged. A decision is void for lack of due process if, as a result, a party is deprived of the opportunity of being heard (Palu-ay vs. CA, 293 SCRA 358). A void judgment never acquires finality (Heirs of Mayor Nemencio Galvez vs. CA 255 SCRA 672; Fortich vs. Corona, 298 SCRA 678). Hence, aforementioned decision cannot be deemed to have become final and executory. Mis act WHEREFORE, the assailed decision dated September l, 1997 of the Court of Appeals is AFFIRMED and the instant petition is DISMISSED. SO ORDERED. Melo, (Chairman), Vitug, Panganiban, and Purisima, JJ., concur.

[1]

Seventeenth Division, composed of Associate Justices Angelina-Sandoval-Gutierrez as Chairman, Bernardo LL. Salas, (ponente), and Omar U. Amin; Rollo, 31-47. [2] "An Act Establishing the Philippine National Police under a Reorganized Department of the Interior and Local Government, and for other purposes" otherwise known as the "Department of Interior and Local Government Act of 1990". [3] Order dated January 16, 1995. [4] Rollo, p. 15.

[5]

"Sec. 42. Summary Dismissal Powers of the PNP Chief and Regional Directors. The Chief of the PNP and regional directors, after due notice and summary hearings, may immediately remove or dismiss any respondent PNP member in any of the following cases: Jj lex a.......When the charge is serious and the evidence of guilt is strong; b.......When the respondent is a recidivist or has been repeatedly charged and there are reasonable grounds to believe that he is guilty of the charges; and c.......When the respondent is guilty of conduct unbecoming of a police officer."

EN BANC

[G.R. No. 148560. November 19, 2001]

JOSEPH EJERCITO ESTRADA, petitioner, vs. SANDIGANBAYAN (Third Division) and PEOPLE OF THE PHILIPPINES, respondents. DECISION
BELLOSILLO, J.:

JOHN STUART MILL, in his essay On Liberty, unleashes the full fury of his pen in defense of the rights of the individual from the vast powers of the State and the inroads of societal pressure. But even as he draws a sacrosanct line demarcating the limits on individuality beyond which the State cannot tread - asserting that "individual spontaneity" must be allowed to flourish with very little regard to social interference - he veritably acknowledges that the exercise of rights and liberties is imbued with a civic obligation, which society is justified in enforcing at all cost, against those who would endeavor to withhold fulfillment. Thus he says -

The sole end for which mankind is warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.
Parallel to individual liberty is the natural and illimitable right of the State to selfpreservation. With the end of maintaining the integrity and cohesiveness of the body politic, it behooves the State to formulate a system of laws that would compel obeisance to its collective wisdom and inflict punishment for non-observance. The movement from Mill's individual liberalism to unsystematic collectivism wrought changes in the social order, carrying with it a new formulation of fundamental rights and duties more attuned to the imperatives of contemporary socio-political ideologies. In the process, the web of rights and State impositions became tangled and obscured, enmeshed in threads of multiple shades and colors, the skein irregular and broken. Antagonism, often outright collision, between the law as the expression of the will of the State, and the zealous attempts by its members to preserve their individuality and dignity, inevitably followed. It is when individual rights are pitted against State authority that judicial conscience is put to its severest test. Petitioner Joseph Ejercito Estrada, the highest-ranking official to be prosecuted under RA 7080 (An Act Defining and Penalizing the Crime of Plunder),[1] as amended by RA 7659,[2] wishes to impress upon us that the assailed law is so defectively fashioned that it crosses that thin but distinct line which divides the valid from the constitutionally infirm. He therefore makes a stringent call for this Court to subject the Plunder Law to the crucible of constitutionality mainly because, according to him, (a) it suffers from the vice of vagueness; (b)

it dispenses with the "reasonable doubt" standard in criminal prosecutions; and, (c) it abolishes the element ofmens rea in crimes already punishable under The Revised Penal Code, all of which are purportedly clear violations of the fundamental rights of the accused to due process and to be informed of the nature and cause of the accusation against him. Specifically, the provisions of the Plunder Law claimed by petitioner to have transgressed constitutional boundaries are Secs. 1, par. (d), 2 and 4 which are reproduced hereunder:

Section 1. x x x x (d) "Ill-gotten wealth" means any asset, property, business, enterprise or material possession of any person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies, nominees, agents, subordinates and/or business associates by any combination or series of the following means or similar schemes: (1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; (2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form of pecuniary benefit from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public office concerned; (3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities, or government owned or controlled corporations and their subsidiaries; (4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking; (5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or (6) By taking advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines. Section 2. Definition of the Crime of Plunder, Penalties. - Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts as described in Section 1 (d) hereof, in the aggregate amount or total

value of at least fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death. Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances as provided by the Revised Penal Code shall be considered by the court. The court shall declare any and all ill-gotten wealth and their interests and other incomes and assets including the properties and shares of stocks derived from the deposit or investment thereof forfeited in favor of the State (underscoring supplied). Section 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy (underscoring supplied).
On 4 April 2001 the Office of the Ombudsman filed before the Sandiganbayan eight (8) separate Informations, docketed as: (a) Crim. Case No. 26558, for violation of RA 7080, as amended by RA 7659; (b) Crim. Cases Nos. 26559 to 26562, inclusive, for violation of Secs. 3, par. (a), 3, par. (a), 3, par. (e) and 3, par. (e), of RA 3019 (Anti-Graft and Corrupt Practices Act), respectively; (c) Crim. Case No. 26563, for violation of Sec. 7, par. (d), of RA 6713 (The Code of Conduct and Ethical Standards for Public Officials and Employees); (d) Crim. Case No. 26564, for Perjury (Art. 183 of The Revised Penal Code); and, (e) Crim. Case No. 26565, for Illegal Use Of An Alias (CA No. 142, as amended by RA 6085). On 11 April 2001 petitioner filed an Omnibus Motion for the remand of the case to the Ombudsman for preliminary investigation with respect to specification "d" of the charges in the Information in Crim. Case No. 26558; and, for reconsideration/reinvestigation of the offenses under specifications "a," "b," and "c" to give the accused an opportunity to file counteraffidavits and other documents necessary to prove lack of probable cause. Noticeably, the grounds raised were only lack of preliminary investigation, reconsideration/reinvestigation of offenses, and opportunity to prove lack of probable cause. The purported ambiguity of the charges and the vagueness of the law under which they are charged were never raised in that Omnibus Motion thus indicating the explicitness and comprehensibility of the Plunder Law. On 25 April 2001 the Sandiganbayan, Third Division, issued a Resolution in Crim. Case No. 26558 finding that "a probable cause for the offense of PLUNDER exists to justify the issuance of warrants for the arrest of the accused." On 25 June 2001 petitioner's motion for reconsideration was denied by the Sandiganbayan. On 14 June 2001 petitioner moved to quash the Information in Crim. Case No. 26558 on the ground that the facts alleged therein did not constitute an indictable offense since the law on which it was based was unconstitutional for vagueness, and that the Amended Information for Plunder charged more than one (1) offense. On 21 June 2001 the Government filed

its Opposition to the Motion to Quash, and five (5) days later or on 26 June 2001 petitioner submitted his Reply to the Opposition. On 9 July 2001 the Sandiganbayan denied petitioner's Motion to Quash. As concisely delineated by this Court during the oral arguments on 18 September 2001, the issues for resolution in the instant petition for certiorari are: (a) The Plunder Law is unconstitutional for being vague; (b) The Plunder Law requires less evidence for proving the predicate crimes of plunder and therefore violates the rights of the accused to due process; and, (c) Whether Plunder as defined in RA 7080 is a malum prohibitum, and if so, whether it is within the power of Congress to so classify it. Preliminarily, the whole gamut of legal concepts pertaining to the validity of legislation is predicated on the basic principle that a legislative measure is presumed to be in harmony with the Constitution.[3] Courts invariably train their sights on this fundamental rule whenever a legislative act is under a constitutional attack, for it is the postulate of constitutional adjudication. This strong predilection for constitutionality takes its bearings on the idea that it is forbidden for one branch of the government to encroach upon the duties and powers of another. Thus it has been said that the presumption is based on the deference the judicial branch accords to its coordinate branch - the legislature. If there is any reasonable basis upon which the legislation may firmly rest, the courts must assume that the legislature is ever conscious of the borders and edges of its plenary powers, and has passed the law with full knowledge of the facts and for the purpose of promoting what is right and advancing the welfare of the majority. Hence in determining whether the acts of the legislature are in tune with the fundamental law, courts should proceed with judicial restraint and act with caution and forbearance. Every intendment of the law must be adjudged by the courts in favor of its constitutionality, invalidity being a measure of last resort. In construing therefore the provisions of a statute, courts must first ascertain whether an interpretation is fairly possible to sidestep the question of constitutionality. In La Union Credit Cooperative, Inc. v. Yaranon[4] we held that as long as there is some basis for the decision of the court, the constitutionality of the challenged law will not be touched and the case will be decided on other available grounds. Yet the force of the presumption is not sufficient to catapult a fundamentally deficient law into the safe environs of constitutionality. Of course, where the law clearly and palpably transgresses the hallowed domain of the organic law, it must be struck down on sight lest the positive commands of the fundamental law be unduly eroded. Verily, the onerous task of rebutting the presumption weighs heavily on the party challenging the validity of the statute. He must demonstrate beyond any tinge of doubt that there is indeed an infringement of the constitution, for absent such a showing, there can be no finding of unconstitutionality. A doubt, even if well-founded, will hardly suffice. As tersely put by Justice Malcolm, "To doubt is to sustain."[5] And petitioner has miserably failed in the instant case to discharge his burden and overcome the presumption of constitutionality of the Plunder Law. As it is written, the Plunder Law contains ascertainable standards and well-defined parameters which would enable the accused to determine the nature of his violation. Section 2 is sufficiently explicit in its description of the acts, conduct and conditions required or

forbidden, and prescribes the elements of the crime with reasonable certainty and particularity. Thus -

1. That the offender is a public officer who acts by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons; 2. That he amassed, accumulated or acquired ill-gotten wealth through a combination or series of the following overt or criminal acts: (a) through misappropriation, conversion, misuse, or malversation of public funds or raids on the public treasury; (b) by receiving, directly or indirectly, any commission, gift, share, percentage, kickback or any other form of pecuniary benefits from any person and/or entity in connection with any government contract or project or by reason of the office or position of the public officer; (c) by the illegal or fraudulent conveyance or disposition of assets belonging to the National Government or any of its subdivisions, agencies or instrumentalities of Government owned or controlled corporations or their subsidiaries; (d) by obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form of interest or participation including the promise of future employment in any business enterprise or undertaking; (e) by establishing agricultural, industrial or commercial monopolies or other combinations and/or implementation of decrees and orders intended to benefit particular persons or special interests; or (f) by taking advantage of official position, authority, relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and the Republic of the Philippines; and, 3. That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is at least P50,000,000.00.
As long as the law affords some comprehensible guide or rule that would inform those who are subject to it what conduct would render them liable to its penalties, its validity will be sustained. It must sufficiently guide the judge in its application; the counsel, in defending one charged with its violation; and more importantly, the accused, in identifying the realm of the proscribed conduct. Indeed, it can be understood with little difficulty that what the assailed statute punishes is the act of a public officer in amassing or accumulating ill-gotten wealth of at least P50,000,000.00 through a series or combination of acts enumerated in Sec. 1, par. (d), of the Plunder Law. In fact, the amended Information itself closely tracks the language of the law, indicating with reasonable certainty the various elements of the offense which petitioner is alleged to have committed:

"The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB, Office of the Ombudsman, hereby accuses former PRESIDENT OF THE REPUBLIC OF THE

PHILIPPINES, Joseph Ejercito Estrada, a.k.a. 'ASIONG SALONGA' and a.k.a. 'JOSE VELARDE,' together with Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John DOES & Jane Does, of the crime of Plunder, defined and penalized under R.A. No. 7080, as amended by Sec. 12 of R.A. No. 7659, committed as follows: That during the period from June, 1998 to January 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, CONNECTION, OR INFLUENCE, did then and there willfully, unlawfully and criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, illgotten wealth in the aggregate amount or TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS (P4,097,804,173.17), more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES, through ANY OR A combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows: (a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTYFIVE MILLION PESOS (P545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY HIMSELF AND/OR in connection with co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING; (b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit, public funds in the amount of ONE HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or less, representing a portion of the TWO HUNDRED MILLION PESOS (P200,000,000.00) tobacco excise tax share allocated for the province of Ilocos Sur under R.A. No. 7171, by himself

and/or in connivance with co-accused Charlie 'Atong' Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES & JANE DOES; (italic supplied). (c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND BENEFIT, the Government Service Insurance System (GSIS) TO PURCHASE 351,878,000 SHARES OF STOCKS, MORE OR LESS, and the Social Security System (SSS), 329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY CENTAVOS (P1,102,965,607.50) AND MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS (P744,612,450.00), RESPECTIVELY, OR A TOTAL OF MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS (P1,847,578,057.50); AND BY COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE DOES, COMMISSIONS OR PERCENTAGES BY REASON OF SAID PURCHASES OF SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS (P189,700,000.00) MORE OR LESS, FROM THE BELLE CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME 'JOSE VELARDE;' (d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBACKS, OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, in the amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS (P3,233,104,173.17) AND DEPOSITING THE SAME UNDER HIS ACCOUNT NAME 'JOSE VELARDE' AT THE EQUITABLE-PCI BANK."
We discern nothing in the foregoing that is vague or ambiguous - as there is obviously none - that will confuse petitioner in his defense. Although subject to proof, these factual assertions clearly show that the elements of the crime are easily understood and provide adequate contrast between the innocent and the prohibited acts. Upon such unequivocal assertions, petitioner is completely informed of the accusations against him as to enable him to prepare for an intelligent defense.

Petitioner, however, bewails the failure of the law to provide for the statutory definition of the terms "combination" and "series" in the key phrase "a combination or series of overt or criminal acts" found in Sec. 1, par. (d), and Sec. 2, and the word "pattern" in Sec. 4. These omissions, according to petitioner, render the Plunder Law unconstitutional for being impermissibly vague and overbroad and deny him the right to be informed of the nature and cause of the accusation against him, hence, violative of his fundamental right to due process. The rationalization seems to us to be pure sophistry. A statute is not rendered uncertain and void merely because general terms are used therein, or because of the employment of terms without defining them;[6] much less do we have to define every word we use. Besides, there is no positive constitutional or statutory command requiring the legislature to define each and every word in an enactment. Congress is not restricted in the form of expression of its will, and its inability to so define the words employed in a statute will not necessarily result in the vagueness or ambiguity of the law so long as the legislative will is clear, or at least, can be gathered from the whole act, which is distinctly expressed in the Plunder Law. Moreover, it is a well-settled principle of legal hermeneutics that words of a statute will be interpreted in their natural, plain and ordinary acceptation and signification,[7] unless it is evident that the legislature intended a technical or special legal meaning to those words.[8] The intention of the lawmakers - who are, ordinarily, untrained philologists and lexicographers - to use statutory phraseology in such a manner is always presumed. Thus, Webster's New Collegiate Dictionary contains the following commonly accepted definition of the words "combination" and "series:"

Combination - the result or product of combining; the act or process of combining. To combine is to bring into such close relationship as to obscure individual characters. Series - a number of things or events of the same class coming one after another in spatial and temporal succession.
That Congress intended the words "combination" and "series" to be understood in their popular meanings is pristinely evident from the legislative deliberations on the bill which eventually became RA 7080 or the Plunder Law:

DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7 May 1991 REP. ISIDRO: I am just intrigued again by our definition of plunder. We say THROUGH A COMBINATION OR SERIES OF OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION ONE HEREOF. Now when we say combination, we actually mean to say, if there are two or more means, we mean to say that number one and two or number one and something else are included, how about a series of the same act? For example, through misappropriation, conversion, misuse, will these be included also?

REP. GARCIA: Yeah, because we say a series. REP. ISIDRO: Series. REP. GARCIA: Yeah, we include series. REP. ISIDRO: But we say we begin with a combination. REP. GARCIA: Yes. REP. ISIDRO: When we say combination, it seems that REP. GARCIA: Two. REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means not twice of one enumeration. REP. GARCIA: No, no, not twice. REP. ISIDRO: Not twice? REP. GARCIA: Yes. Combination is not twice - but combination, two acts. REP. ISIDRO: So in other words, thats it. When we say combination, we mean, two different acts. It cannot be a repetition of the same act. REP. GARCIA: That be referred to series, yeah. REP. ISIDRO: No, no. Supposing one act is repeated, so there are two. REP. GARCIA: A series. REP. ISIDRO: Thats not series. Its a combination. Because when we say combination or series, we seem to say that two or more, di ba? REP. GARCIA: Yes, this distinguishes it really from ordinary crimes. That is why, I said, that is a very good suggestion because if it is only one act, it may fall under ordinary crime but we have here a combination or series of overt or criminal acts. So x x x x REP. GARCIA: Series. One after the other eh di.... SEN. TANADA: So that would fall under the term series? REP. GARCIA: Series, oo. REP. ISIDRO: Now, if it is a combination, ano, two misappropriations.... REP. GARCIA: Its not... Two misappropriations will not be combination. Series. REP. ISIDRO: So, it is not a combination? REP. GARCIA: Yes. REP. ISIDRO: When you say combination, two different? REP. GARCIA: Yes. SEN. TANADA: Two different. REP. ISIDRO: Two different acts. REP. GARCIA: For example, ha...

REP. ISIDRO: Now a series, meaning, repetition... DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989 SENATOR MACEDA: In line with our interpellations that sometimes one or maybe even two acts may already result in such a big amount, on line 25, would the Sponsor consider deleting the words a series of overt or, to read, therefore: or conspiracy COMMITTED by criminal acts such as. Remove the idea of necessitating a series. Anyway, the criminal acts are in the plural. SENATOR TANADA: That would mean a combination of two or more of the acts mentioned in this. THE PRESIDENT: Probably two or more would be.... SENATOR MACEDA: Yes, because a series implies several or many; two or more. SENATOR TANADA: Accepted, Mr. President x x x x THE PRESIDENT: If there is only one, then he has to be prosecuted under the particular crime. But when we say acts of plunder there should be, at least, two or more. SENATOR ROMULO: In other words, that is already covered by existing laws, Mr. President.

Thus when the Plunder Law speaks of "combination," it is referring to at least two (2) acts falling under different categories of enumeration provided in Sec. 1, par. (d), e.g., raids on the public treasury in Sec. 1, par. (d), subpar. (1), and fraudulent conveyance of assets belonging to the National Government under Sec. 1, par. (d), subpar. (3). On the other hand, to constitute a series" there must be two (2) or more overt or criminal acts falling under the same category of enumeration found in Sec. 1, par. (d), say, misappropriation, malversation and raids on the public treasury, all of which fall under Sec. 1, par. (d), subpar. (1). Verily, had the legislature intended a technical or distinctive meaning for "combination" and "series," it would have taken greater pains in specifically providing for it in the law. As for "pattern," we agree with the observations of the Sandiganbayan[9] that this term is sufficiently defined in Sec. 4, in relation to Sec. 1, par. (d), and Sec. 2 -

x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a combination or series of overt or criminal acts enumerated in subsections (1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the law, the pattern of overt or criminal acts is directed towards a common purpose or goal which is to enable the public officer to amass, accumulate or acquire ill-gotten wealth. And thirdly, there must either be an 'overall unlawful scheme' or 'conspiracy' to achieve said common goal. As commonly understood, the term 'overall unlawful scheme' indicates a 'general plan of action or method' which the principal accused and public officer and others conniving with him follow to achieve the aforesaid common goal. In the alternative, if there is no such overall scheme or where the schemes or methods used by multiple accused vary, the overt or criminal acts must form part of a conspiracy to attain a common goal.

Hence, it cannot plausibly be contended that the law does not give a fair warning and sufficient notice of what it seeks to penalize. Under the circumstances, petitioner's reliance on the "void-for-vagueness" doctrine is manifestly misplaced. The doctrine has been formulated in various ways, but is most commonly stated to the effect that a statute establishing a criminal offense must define the offense with sufficient definiteness that persons of ordinary intelligence can understand what conduct is prohibited by the statute. It can only be invoked against that specie of legislation that is utterly vague on its face, i.e., that which cannot be clarified either by a saving clause or by construction. A statute or act may be said to be vague when it lacks comprehensible standards that men of common intelligence must necessarily guess at its meaning and differ in its application. In such instance, the statute is repugnant to the Constitution in two (2) respects - it violates due process for failure to accord persons, especially the parties targeted by it, fair notice of what conduct to avoid; and, it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle.[10] But the doctrine does not apply as against legislations that are merely couched in imprecise language but which nonetheless specify a standard though defectively phrased; or to those that are apparently ambiguous yet fairly applicable to certain types of activities. The first may be "saved" by proper construction, while no challenge may be mounted as against the second whenever directed against such activities.[11] With more reason, the doctrine cannot be invoked where the assailed statute is clear and free from ambiguity, as in this case. The test in determining whether a criminal statute is void for uncertainty is whether the language conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice.[12] It must be stressed, however, that the "vagueness" doctrine merely requires a reasonable degree of certainty for the statute to be upheld - not absolute precision or mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than meticulous specificity, is permissible as long as the metes and bounds of the statute are clearly delineated. An act will not be held invalid merely because it might have been more explicit in its wordings or detailed in its provisions, especially where, because of the nature of the act, it would be impossible to provide all the details in advance as in all other statutes. Moreover, we agree with, hence we adopt, the observations of Mr. Justice Vicente V. Mendoza during the deliberations of the Court that the allegations that the Plunder Law is vague and overbroad do not justify a facial review of its validity -

The void-for-vagueness doctrine states that "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law."[13] The overbreadth doctrine, on the other hand, decrees that
"a governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms."[14]

A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the

transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity."[15] The possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that the protected speech of others may be deterred and perceived grievances left to fester because of possible inhibitory effects of overly broad statutes. This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech. The overbreadth and vagueness doctrines then have special application only to free speech cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment."[16] In Broadrick v. Oklahoma,[17] the Court ruled that "claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words" and, again, that "overbreadth claims, if entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied to protected conduct." For this reason, it has been held that "a facial challenge to a legislative act is the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid."[18] As for the vagueness doctrine, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications. "A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others."[19] In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for testing "on their faces" statutes in free speech cases or, as they are called in American law, First Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With respect to such statute, the established rule is that "one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional."[20] As has been pointed out, "vagueness challenges in the First Amendment context, like overbreadth challenges typically produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only] 'as applied' to a particular defendant."[21]Consequently, there is no basis for petitioner's claim that this Court review the Anti-Plunder Law on its face and in its entirety.

Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that they might be applied to parties not before the Court whose activities are constitutionally protected.[22] It constitutes a departure from the case and controversy requirement of the Constitution and permits decisions to be made without concrete factual settings and in sterile abstract contexts.[23] But, as the U.S. Supreme Court pointed out inYounger v. Harris[24] [T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided. For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong medicine," to be employed "sparingly and only as a last resort,"[25] and is generally disfavored.[26] In determining the constitutionality of a statute, therefore, its provisions which are alleged to have been violated in a case must be examined in the light of the conduct with which the defendant is charged.[27]
In light of the foregoing disquisition, it is evident that the purported ambiguity of the Plunder Law, so tenaciously claimed and argued at length by petitioner, is more imagined than real. Ambiguity, where none exists, cannot be created by dissecting parts and words in the statute to furnish support to critics who cavil at the want of scientific precision in the law. Every provision of the law should be construed in relation and with reference to every other part. To be sure, it will take more than nitpicking to overturn the well-entrenched presumption of constitutionality and validity of the Plunder Law. A fortiori, petitioner cannot feign ignorance of what the Plunder Law is all about. Being one of the Senators who voted for its passage, petitioner must be aware that the law was extensively deliberated upon by the Senate and its appropriate committees by reason of which he even registered his affirmative vote with full knowledge of its legal implications and sound constitutional anchorage. The parallel case of Gallego v. Sandiganbayan[28] must be mentioned if only to illustrate and emphasize the point that courts are loathed to declare a statute void for uncertainty unless the law itself is so imperfect and deficient in its details, and is susceptible of no reasonable construction that will support and give it effect. In that case, petitioners Gallego and Agoncillo challenged the constitutionality of Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act for being vague. Petitioners posited, among others, that the term "unwarranted" is highly imprecise and elastic with no common law meaning or settled definition by prior judicial or administrative precedents; that, for its vagueness, Sec. 3, par. (e), violates due process in that it does not give fair warning or sufficient notice of what it seeks to penalize. Petitioners further argued that the Information charged them with three (3) distinct offenses, to wit: (a) giving of "unwarranted" benefits through manifest partiality; (b) giving of "unwarranted" benefits through evident bad faith; and, (c) giving of "unwarranted" benefits through gross inexcusable negligence while in

the discharge of their official function and that their right to be informed of the nature and cause of the accusation against them was violated because they were left to guess which of the three (3) offenses, if not all, they were being charged and prosecuted. In dismissing the petition, this Court held that Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act does not suffer from the constitutional defect of vagueness. The phrases "manifest partiality," "evident bad faith," and "gross and inexcusable negligence" merely describe the different modes by which the offense penalized in Sec. 3, par. (e), of the statute may be committed, and the use of all these phrases in the same Information does not mean that the indictment charges three (3) distinct offenses.

The word 'unwarranted' is not uncertain. It seems lacking adequate or official support; unjustified; unauthorized (Webster, Third International Dictionary, p. 2514); or without justification or adequate reason (Philadelphia Newspapers, Inc. v. US Dept. of Justice, C.D. Pa., 405 F. Supp. 8, 12, cited in Words and Phrases, Permanent Edition, Vol. 43-A 1978, Cumulative Annual Pocket Part, p. 19). The assailed provisions of the Anti-Graft and Corrupt Practices Act consider a corrupt practice and make unlawful the act of the public officer in: x x x or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence, x x x (Section 3 [e], Rep. Act 3019, as amended). It is not at all difficult to comprehend that what the aforequoted penal provisions penalize is the act of a public officer, in the discharge of his official, administrative or judicial functions, in giving any private party benefits, advantage or preference which is unjustified, unauthorized or without justification or adequate reason, through manifest partiality, evident bad faith or gross inexcusable negligence.
In other words, this Court found that there was nothing vague or ambiguous in the use of the term "unwarranted" in Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act, which was understood in its primary and general acceptation. Consequently, in that case, petitioners' objection thereto was held inadequate to declare the section unconstitutional. On the second issue, petitioner advances the highly stretched theory that Sec. 4 of the Plunder Law circumvents the immutable obligation of the prosecution to prove beyond reasonable doubt the predicate acts constituting the crime of plunder when it requires only proof of a pattern of overt or criminal acts showing unlawful scheme or conspiracy -

SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary to prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten

wealth, it being sufficient to establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy.
The running fault in this reasoning is obvious even to the simplistic mind. In a criminal prosecution for plunder, as in all other crimes, the accused always has in his favor the presumption of innocence which is guaranteed by the Bill of Rights, and unless the State succeeds in demonstrating by proof beyond reasonable doubt that culpability lies, the accused is entitled to an acquittal.[29] The use of the "reasonable doubt" standard is indispensable to command the respect and confidence of the community in the application of criminal law. It is critical that the moral force of criminal law be not diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs has confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty. This "reasonable doubt" standard has acquired such exalted stature in the realm of constitutional law as it gives life to the Due Process Clause which protects the accused against conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the crime with which he is charged.[30] The following exchanges between Rep. Rodolfo Albano and Rep. Pablo Garcia on this score during the deliberations in the floor of the House of Representatives are elucidating -

DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA 7080, 9 October 1990

MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal law that what is alleged in the information must be proven beyond reasonable doubt. If we will prove only one act and find him guilty of the other acts enumerated in the information, does that not work against the right of the accused especially so if the amount committed, say, by falsification is less than P100 million, but the totality of the crime committed is P100 million since there is malversation, bribery, falsification of public document, coercion, theft? MR. GARCIA: Mr. Speaker, not everything alleged in the information needs to be proved beyond reasonable doubt. What is required to be proved beyond reasonable doubt is every element of the crime charged. For example, Mr. Speaker, there is an enumeration of the things taken by the robber in the information three pairs of pants, pieces of jewelry. These need not be proved beyond reasonable doubt, but these will not prevent the conviction of a crime for which he was charged just because, say, instead of 3 pairs of diamond earrings the prosecution proved two. Now, what is required to be proved beyond reasonable doubt is the element of the offense. MR. ALBANO: I am aware of that, Mr. Speaker, but considering that in the crime of plunder the totality of the amount is very important, I feel that such a series of overt criminal acts has to be taken singly. For instance, in the act of bribery, he was able to accumulate only P50,000 and in the crime of extortion, he was only able to accumulate P1 million. Now, when we add the totality of the other acts as required under this bill through the interpretation on the rule of evidence, it is just one single act, so how can we now convict him? MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving an essential element of the crime, there is a need to prove that element beyond reasonable doubt. For example, one essential element of the crime is that the amount involved is P100 million. Now, in a series of defalcations and other acts of corruption in the enumeration the total amount would be P110 or P120 million,

but there are certain acts that could not be proved, so, we will sum up the amounts involved in those transactions which were proved. Now, if the amount involved in these transactions, proved beyond reasonable doubt, isP100 million, then there is a crime of plunder (underscoring supplied).

It is thus plain from the foregoing that the legislature did not in any manner refashion the standard quantum of proof in the crime of plunder. The burden still remains with the prosecution to prove beyond any iota of doubt every fact or element necessary to constitute the crime. The thesis that Sec. 4 does away with proof of each and every component of the crime suffers from a dismal misconception of the import of that provision. What the prosecution needs to prove beyond reasonable doubt is only a number of acts sufficient to form a combination or series which would constitute a pattern and involving an amount of at least P50,000,000.00. There is no need to prove each and every other act alleged in the Information to have been committed by the accused in furtherance of the overall unlawful scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth. To illustrate, supposing that the accused is charged in an Information for plunder with having committed fifty (50) raids on the public treasury. The prosecution need not prove all these fifty (50) raids, it being sufficient to prove by pattern at least two (2) of the raids beyond reasonable doubt provided only that they amounted to at least P50,000,000.00.[31] A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical conclusion that "pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy" inheres in the very acts of accumulating, acquiring or amassing hidden wealth. Stated otherwise, such pattern arises where the prosecution is able to prove beyond reasonable doubt the predicate acts as defined in Sec. 1, par. (d). Pattern is merely a by-product of the proof of the predicate acts. This conclusion is consistent with reason and common sense. There would be no other explanation for a combination or series of overt or criminal acts to stash P50,000,000.00 or more, than "a scheme or conspiracy to amass, accumulate or acquire ill gotten wealth." The prosecution is therefore not required to make a deliberate and conscious effort to prove pattern as it necessarily follows with the establishment of a series or combination of the predicate acts. Relative to petitioner's contentions on the purported defect of Sec. 4 is his submission that "pattern" is "a very important element of the crime of plunder;" and that Sec. 4 is "two pronged, (as) it contains a rule of evidence and a substantive element of the crime," such that without it the accused cannot be convicted of plunder JUSTICE BELLOSILLO: In other words, cannot an accused be convicted under the Plunder Law without applying Section 4 on the Rule of Evidence if there is proof beyond reasonable doubt of the commission of the acts complained of? ATTY. AGABIN: In that case he can be convicted of individual crimes enumerated in the Revised Penal Code, but not plunder. JUSTICE BELLOSILLO: In other words, if all the elements of the crime are proved beyond reasonable doubt without applying Section 4, can you not have a conviction under the Plunder Law? ATTY. AGABIN: Not a conviction for plunder, your Honor.

JUSTICE BELLOSILLO: Can you not disregard the application of Sec. 4 in convicting an accused charged for violation of the Plunder Law? ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays down a substantive element of the law x x x x JUSTICE BELLOSILLO: What I said is - do we have to avail of Section 4 when there is proof beyond reasonable doubt on the acts charged constituting plunder? ATTY. AGABIN: Yes, your Honor, because Section 4 is two pronged, it contains a rule of evidence and it contains a substantive element of the crime of plunder. So, there is no way by which we can avoid Section 4. JUSTICE BELLOSILLO: But there is proof beyond reasonable doubt insofar as the predicate crimes charged are concerned that you do not have to go that far by applying Section 4? ATTY. AGABIN: Your Honor, our thinking is that Section 4 contains a very important element of the crime of plunder and that cannot be avoided by the prosecution.[32]

We do not subscribe to petitioner's stand. Primarily, all the essential elements of plunder can be culled and understood from its definition in Sec. 2, in relation to Sec. 1, par. (d), and "pattern" is not one of them. Moreover, the epigraph and opening clause of Sec. 4 is clear and unequivocal:

SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder xxxx
It purports to do no more than prescribe a rule of procedure for the prosecution of a criminal case for plunder. Being a purely procedural measure, Sec. 4 does not define or establish any substantive right in favor of the accused but only operates in furtherance of a remedy. It is only a means to an end, an aid to substantive law. Indubitably, even without invoking Sec. 4, a conviction for plunder may be had, for what is crucial for the prosecution is to present sufficient evidence to engender that moral certitude exacted by the fundamental law to prove the guilt of the accused beyond reasonable doubt. Thus, even granting for the sake of argument that Sec. 4 is flawed and vitiated for the reasons advanced by petitioner, it may simply be severed from the rest of the provisions without necessarily resulting in the demise of the law; after all, the existing rules on evidence can supplant Sec. 4 more than enough. Besides, Sec. 7 of RA 7080 provides for a separability clause -

Sec. 7. Separability of Provisions. - If any provisions of this Act or the application thereof to any person or circumstance is held invalid, the remaining provisions of this Act and the application of such provisions to other persons or circumstances shall not be affected thereby.
Implicit in the foregoing section is that to avoid the whole act from being declared invalid as a result of the nullity of some of its provisions, assuming that to be the case although it is not really so, all the provisions thereof should accordingly be treated independently of each other, especially if by doing so, the objectives of the statute can best be achieved. As regards the third issue, again we agree with Justice Mendoza that plunder is a malum in se which requires proof of criminal intent. Thus, he says, in his Concurring Opinion -

x x x Precisely because the constitutive crimes are mala in se the element of mens rea must be proven in a prosecution for plunder. It is noteworthy that the amended information alleges that the crime of plunder was committed "willfully, unlawfully and criminally." It thus alleges guilty knowledge on the part of petitioner. In support of his contention that the statute eliminates the requirement of mens rea and that is the reason he claims the statute is void, petitioner cites the following remarks of Senator Taada made during the deliberation on S.B. No. 733: SENATOR TAADA . . . And the evidence that will be required to convict him would not be evidence for each and every individual criminal act but only evidence sufficient to establish the conspiracy or scheme to commit this crime of plunder.[33] However, Senator Taada was discussing 4 as shown by the succeeding portion of the transcript quoted by petitioner: SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is contained in Section 4, Rule of Evidence, which, in the Gentleman's view, would provide for a speedier and faster process of attending to this kind of cases? SENATOR TAADA: Yes, Mr. President . . .[34] Senator Taada was only saying that where the charge is conspiracy to commit plunder, the prosecution need not prove each and every criminal act done to further the scheme or conspiracy, it being enough if it proves beyond reasonable doubt a pattern of overt or ciminal acts indicative of the overall unlawful scheme or conspiracy. As far as the acts constituting the pattern are concerned, however, the elements of the crime must be proved and the requisite mens rea must be shown. Indeed, 2 provides that Any person who participated with the said public officer in the commission of an offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court. The application of mitigating and extenuating circumstances in the Revised Penal Code to prosecutions under the Anti-Plunder Law indicates quite clearly that mens rea is an element of plunder since the degree of responsibility of the offender is determined by his criminal intent. It is true that 2 refers to "any person who participates with the said public officer in the commission of an offense contributing

to the crime of plunder." There is no reason to believe, however, that it does not apply as well to the public officer as principal in the crime. As Justice Holmes said: "We agree to all the generalities about not supplying criminal laws with what they omit, but there is no canon against using common sense in construing laws as saying what they obviously mean."[35] Finally, any doubt as to whether the crime of plunder is a malum in se must be deemed to have been resolved in the affirmative by the decision of Congress in 1993 to include it among the heinous crimes punishable byreclusion perpetua to death. Other heinous crimes are punished with death as a straight penalty in R.A. No. 7659. Referring to these groups of heinous crimes, this Court held in People v. Echegaray:[36] The evil of a crime may take various forms. There are crimes that are, by their very nature, despicable, either because life was callously taken or the victim is treated like an animal and utterly dehumanized as to completely disrupt the normal course of his or her growth as a human being . . . . Seen in this light, the capital crimes of kidnapping and serious illegal detention for ransom resulting in the death of the victim or the victim is raped, tortured, or subjected to dehumanizing acts; destructive arson resulting in death; and drug offenses involving minors or resulting in the death of the victim in the case of other crimes; as well as murder, rape, parricide, infanticide, kidnapping and serious illegal detention, where the victim is detained for more than three days or serious physical injuries were inflicted on the victim or threats to kill him were made or the victim is a minor, robbery with homicide, rape or intentional mutilation, destructive arson, and carnapping where the owner, driver or occupant of the carnapped vehicle is killed or raped, which are penalized by reclusion perpetua to death, are clearly heinous by their very nature. There are crimes, however, in which the abomination lies in the significance and implications of the subject criminal acts in the scheme of the larger socio-political and economic context in which the state finds itself to be struggling to develop and provide for its poor and underprivileged masses. Reeling from decades of corrupt tyrannical rule that bankrupted the government and impoverished the population, the Philippine Government must muster the political will to dismantle the culture of corruption, dishonesty, greed and syndicated criminality that so deeply entrenched itself in the structures of society and the psyche of the populace. [With the government] terribly lacking the money to provide even the most basic services to its people, any form of misappropriation or misapplication of government funds translates to an actual threat to the very existence of government, and in turn, the very survival of the people it governs over. Viewed in this context, no less heinous are the effects and repercussions of crimes like qualified bribery, destructive arson resulting in death, and drug offenses involving government officials, employees or officers, that

their perpetrators must not be allowed to cause further destruction and damage to society. The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies that it is a malum in se. For when the acts punished are inherently immoral or inherently wrong, they are mala in se[37] and it does not matter that such acts are punished in a special law, especially since in the case of plunder the predicate crimes are mainly mala in se. Indeed, it would be absurd to treat prosecutions for plunder as though they are mere prosecutions for violations of the Bouncing Check Law (B.P. Blg. 22) or of an ordinance against jaywalking, without regard to the inherent wrongness of the acts.
To clinch, petitioner likewise assails the validity of RA 7659, the amendatory law of RA 7080, on constitutional grounds. Suffice it to say however that it is now too late in the day for him to resurrect this long dead issue, the same having been eternally consigned by People v. Echegaray[38] to the archives of jurisprudential history. The declaration of this Court therein that RA 7659 is constitutionally valid stands as a declaration of the State, and becomes, by necessary effect, assimilated in the Constitution now as an integral part of it. Our nation has been racked by scandals of corruption and obscene profligacy of officials in high places which have shaken its very foundation. The anatomy of graft and corruption has become more elaborate in the corridors of time as unscrupulous people relentlessly contrive more and more ingenious ways to bilk the coffers of the government. Drastic and radical measures are imperative to fight the increasingly sophisticated, extraordinarily methodical and economically catastrophic looting of the national treasury. Such is the Plunder Law, especially designed to disentangle those ghastly tissues of grand-scale corruption which, if left unchecked, will spread like a malignant tumor and ultimately consume the moral and institutional fiber of our nation. The Plunder Law, indeed, is a living testament to the will of the legislature to ultimately eradicate this scourge and thus secure society against the avarice and other venalities in public office. These are times that try men's souls. In the checkered history of this nation, few issues of national importance can equal the amount of interest and passion generated by petitioner's ignominious fall from the highest office, and his eventual prosecution and trial under a virginal statute. This continuing saga has driven a wedge of dissension among our people that may linger for a long time. Only by responding to the clarion call for patriotism, to rise above factionalism and prejudices, shall we emerge triumphant in the midst of ferment. PREMISES CONSIDERED, this Court holds that RA 7080 otherwise known as the Plunder Law, as amended by RA 7659, is CONSTITUTIONAL. Consequently, the petition to declare the law unconstitutional is DISMISSED for lack of merit. SO ORDERED. Buena, and De Leon, Jr., JJ., concur. Davide, Jr. C.J., Melo, Quisumbing, JJ., join concurring opinion of J. Mendoza. Puno, Vitug, JJ., concurred and joins J. Mendoza's concurring opinion. Kapunan, Pardo, Sandoval-Gutierrez, Ynares-Santiago, JJ., see dissenting opinion.

Mendoza, J., please see concurring opinion. Panganiban J., please see separate concurring opinion. Carpio, J., no part. Was one of the complainants before Ombudsman.

[1] [2] [3] [4] [5] [6] [7] [8] [9]

Approved 12 July 1991 and took effect 8 October 1991. Approved 13 December 1993 and took effect 31 December 1993. Lim v. Pacquing, et al., G.R. No. 115044, 27 January 1995, 240 SCRA 644. G.R. No. 87001, 4 December 1989, 179 SCRA 828. Yu Cong Eng v. Trinidad, 47 Phil. 385, 414 (1925). 82 C.J.S. 68, p. 113; People v. Ring, 70 P.2d 281, 26 Cal. App. 2d Supp. 768. Mustang Lumber, Inc. v. Court of Appeals, G.R. No. 104988, 18 June 1996, 257 SCRA 430, 448. PLDT v. Eastern Telecommunications Phil., Inc., G.R. No. 943774, 27 August 1992, 213 SCRA 16, 26. Resolution of 9 July 2001. See People v. Nazario, No. L-44143, 31 August 1988, 165 SCRA 186, 195-196. Ibid. State v. Hill, 189 Kan 403, 369 P2d 365, 91 ALR2d 750.

[10] [11] [12] [13]

Connally v. General Constr. Co., 269 U.S. 385, 391, 70 L. Ed. 328 (1926) cited in Ermita-Malate Hotel and Motel Operators Ass'n. v. City Mayor, 20 SCRA 849, 867 (1967).
[14]

NAACP v. Alabama, 377 U.S. 288, 307, 12, 2 L. Ed 325, 338 (1958); Shelton v. Tucker 364 U.S. 479, 5 L. Ed. 2d 231 (1960).
[15] [16]

Gooding v. Wilson, 405 U.S. 518, 521, 31 L. Ed. 2d 408, 413 (1972) (internal quotation marks omitted).

United States v. Salerno, 481 U.S. 739, 745 95 L. Ed 2d 697, 707 (1987); see also People v. De la Piedra, G.R. No. 121777, 24 January 2001.
[17] [18] [19]

413 U.S. 601, 612-613, 37 L. Ed 2d 830, 840-841 (1973). United States v. Salerno, supra.

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 71 L. Ed. 2d 362, 369 (1982).
[20]

United States v. Raines, 362 U.S. 17, 21, 4 L. Ed. 2d 524, 529 (1960). The paradigmatic case is Yazoo & Mississippi Valley RR. v. Jackson Vinegar Co., 226 U.S. 217, 57 L. Ed. 193 (1912).
[21] [22]

G. Gunther & K. Sullivan, Constitutional Law 1299 (2001).

Id. at 1328. See also Richard H. Fallon, Jr., As Applied and Facial Challenges, 113 Harv. L. Rev. 1321 (2000) arguing that, in an important sense, as applied challenges are the basic building blocks of constitutional adjudication and that determinations that statutes are facially invalid properly occur only as logical outgrowths of ruling on whether statutes may be applied to particular litigants on particular facts.
[23]

Constitution, Art. VIII, 1 and 5. Compare Angara v. Electoral Commission, 63 Phil. 139, 158 (1936); "[T]he power of judicial review is limited to actual cases and controversies to be exercised after full opportunity of argument by the parties, and limited further to be constitutional question raised or the very lis mota presented. Any

attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities."
[24]

401 U.S. 37, 52-53, 27 L. Ed. 2d 669, 680 (1971). Accord, United States v. Raines, 362 U.S. 17, 4 L. Ed. 2d 524 (1960); Board of Trustees, State Univ. of N.Y. v. Fox, 492 U.S. 469, 106 L. Ed. 2d 388 (1989).
[25]

Broadrick v. Oklahoma, 413 U.S. at 613, 37 L. Ed. 2d at 841; National Endowment for the Arts v. Finley, 524 U.S. 569, 580 (1998).
[26]

FW/PBS, Inc. v. City of Dallas, 493 U.S. 223, 107 L. Ed. 2d 603 (1990); Cruz v. Secretary of Environment and Natural Resources, G.R. No. 135385, 6 December 2000 (Mendoza, J., Separate Opinion).
[27] [28] [29] [30] [31]

United States v. National Dairy Prod. Corp., 372 U.S. 29, 32-33, 9 L. Ed. 2d 561, 565-6 (1963). G.R. No. 57841, 30 July 1982, 115 SCRA 793. People v. Ganguso, G.R. No. 115430, 23 November 1995, 250 SCRA 268, 274-275. People v. Garcia, G.R. No. 94187, 4 November 1992, 215 SCRA 349, 360.

Then Senate President Jovito R. Salonga construed in brief the provision, thuswise: If there are lets say 150 crimes all in all, criminal acts, whether bribery, misappropriation, malversation, extortion, you need not prove all those beyond reasonable doubt. If you can prove by pattern, lets say 10, but each must be proved beyond reasonable doubt, you do not have to prove 150 crimes. Thats the meaning of this (Deliberations of Committee on Constitutional Amendments and Revision of Laws, 15 November 1988, cited in the Sandiganbayan Resolution of 9 July 2001).
[32] [33] [34] [35] [36] [37] [38]

TSN, 18 September 2001, pp. 115-121. 4 Record of the Senate 1316, 5 June 1989. Ibid. Roschen v. Ward, 279 U.S. 337, 339, 73 L.Ed. 722, 728 (1929). 267 SCRA 682, 721-2 (1997) (emphasis added). Black's Law Dictionary 959 (1990); Lozano v. Martinez, 146 SCRA 324, 338 (1986). G.R. No. 117472, 7 February 1997, 267 SCRA 682.

Syllabi/Synopsis

SECOND DIVISION

[G.R. No. 125735. August 26, 1999]

LORLENE A. GONZALES, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION, FIFTH DIVISION, CAGAYAN DE ORO CITY, and ATENEO DE DAVAO UNIVERSITY, respondents. DECISION
BELLOSILLO, J.:

By way of certiorari under Rule 65 of the Rules of Court petitioner seeks the nullification of the Decision of public respondent National Labor Relations Commission, Fifth Division, which reversed and set aside that of Executive Labor Arbiter Conchita J. Martinez. Lorlene Gonzales, petitioner, has been a schoolteacher in the Elementary Department of private respondent Ateneo de Davao University (hereafter ATENEO) since 1974 assigned to teach Reading, Mathematics, Language and Pilipino in the Grade VI class, while ATENEO is an educational institution, a corporation duly organized under the laws of the Philippines, with principal address at Jacinto St., Davao City. Sometime in 1991 Fr. Oscar Millar, S.J., Ateneo Grade School Headmaster, sent a letter dated 11 April 1991 informing petitioner Lorlene A. Gonzales of the complaints of two (2) parents for alleged use of corporal punishment on her students. Petitioner claimed that she was not informed of the identity of the parents who allegedly complained of the corporal punishment she purportedly inflicted in school-year 1990-1991. She likewise claimed that she was not confronted about it by private respondent ATENEO in 1991 and that it was only two (2) years after the complaints were made that she discovered, through her students and their parents, that ATENEO was soliciting complainants to lodge written complaints against her. On 31 March 1993 she wrote a letter to Fr. Oscar Millar, S.J., demanding that she be formally informed of the complaint and be duly investigated. On 9 June 1993 petitioner was informed of the composition of an investigative committee organized by Fr. Oscar Millar, S.J., to look into the alleged use of corporal punishment by petitioner in disciplining her students. It can be gleaned from the records that she was duly furnished with the rules of procedure, informed of the schedule of the hearings, and given copies of the affidavits executed by the students who testified against her. Petitioner refused to take part in the investigation unless the rules of procedure laid down by the Committee be revised, contending that the same were violative of her right to due process. Petitioner specifically objected to the provision which stated: x x x 3) Counsel for Ms.

Lorlene Gonzales shall not directly participate in the investigation but will merely advise Ms. Gonzales x x x (par. 3).[1] But the Committee was steadfast in its resolve to adopt the aforementioned rules. In its letter dated 9 August 1993, private respondent informed petitioner that the rules of procedure to be applied were substantially the same rules that were used in the investigation of a former Ateneo employee and therefore we are under legal advice not to change these rules."[2] Over the objection of petitioner the Committee commenced with its investigation without petitioners participation. Out of the twenty -two (22) invitations sent out by ATENEO to petitioners students and their parents to shed light on the matter of corporal punishment allegedly administered by her, eleven (11) appeared and testified before the committee. The eleven (11) witnesses also executed written statements denominated as affidavits. On 10 November 1993 private respondent served a Notice of Termination on petitioner pursuant to the findings and recommendation of the Committee. Thereafter, petitioner received a letter from the president of ATENEO demanding her voluntary resignation a week from receipt of the letter, otherwise, she would be considered resigned from the service. On 29 November 1993 petitioner filed a complaint before the Labor Arbiter for illegal dismissal. After trial, Executive Labor Arbiter Conchita J. Martinez found her dismissal illegal for lack of factual basis and ordered ATENEO to award petitioner separation pay, back wages and 13th month pay. In her decision, the Executive Labor Arbiter opined that although petitioner was afforded procedural due process respondent institution failed to establish substantial evidence as to the guilt of the complainant of the offense charged"[3] thus -

x x x the complainant was afforded procedural due process. There is convincing and sufficient evidence x x x showing respondent complied with the notice and hearing requirement x x x x.[4] After considering the evidence, arguments and counter-arguments of the parties, this office finds that the respondent failed to establish substantial evidence as to the guilt of complainant of the offense charged x x x x.[5] Complainant has sufficiently established that she is a very good teacher. She is equipped with the appropriate educational qualifications, trainings, seminars and work experiences. Such fact was affirmed by her present and former students, their parents, colleagues and the former headmaster of the grade school x x x x[6] As a matter of fact, six (6) out of the nine (9) students and their parents/guardians have retracted and withdrawn their statements x x x x[7]
Both parties appealed to the NLRC which on 25 March 1996 reversed the decision of the Executive Labor Arbiter by declaring petitioners dismissal valid and legal but added that since ATENEO offered petitioner her retirement benefits it was but proper that she be extended said benefits. Petitioner now seeks the reversal of the decision; hence, this petition.

The crux of the controversy is whether the NLRC committed grave abuse of discretion in sustaining as valid and legal the dismissal of petitioner by private respondent ATENEO. The NLRC, in our view, appears to have skirted several important issues raised by petitioner foremost of which is the absence of due process. Upon being notified of her termination, she has the right to demand compliance with the basic requirements of due process. Compliance entails the twin requirements of procedural and substantial due process. Ample opportunity must be afforded the employee to defend herself either personally and/or with assistance of a representative; to know the nature of her offense; and, to cross examine and confront face to face the witnesses against her. Likewise, due process requires that the decision must be based on established facts and on a sound legal foundation. It is precisely to demand compliance with these requirements that petitioner at the very onset of the investigation demanded the revision of the rules laid down by the Investigative Committee. The adamant refusal of the Committee to accede to this demand resulted in her failure to confront and cross-examine her accusers. This is not harping at technicalities as wrongfully pointed out by the NLRC but a serious violation of petitioner's statutory and constitutional right to due process that ultimately vitiated the investigation. Moreover, the failure of ATENEO to refute the contention of petitioner that the joint affidavits executed by the students and parents were "pre-prepared" raises serious doubts as to the probative value of this evidence. As correctly pointed out by the Executive Labor Arbiter, there is more reason to disregard it especially where the same was challenged and has remained unexplained. Hearsay evidence, in the strict sense, has no probative value whether objected to or not. In the instant case, ATENEO failed to prove by substantial evidence that petitioner had inflicted corporal punishment on her students. In Ang Tibay v. CIR, the Court set the measure of evidence to be presented in an administrative investigation when it said, substantial evidence is more than mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The evidence of private respondent did not measure up to this standard. It relied solely on the witnesses affidavits with questionable veracity. Moreover, the affidavit of recantation executed by some students and their parents all the more weakened the case of private respondent. Failure in this regard negates the very existence of the ground for dismissal. On the other hand, petitioner adequately proved, by means of affidavits, letters of petition and manifesto made by her students and co-teachers, that she was a competent and dedicated teacher having spent seventeen (17) years of her life in the service of the very institution which is now seeking her dismissal. In view of the foregoing, the conclusion of the NLRC is unwarranted. Employment is not merely a contractual relationship; it has assumed the nature of property right. It may spell the difference whether or not a family will have food on their table, roof over their heads and education for their children. It is for this reason that the State has taken up measures to protect employees from unjustified dismissals. It is also because of this that the right to security of tenure is not only a statutory right but, more so, a constitutional right. WHEREFORE, the assailed Decision of public respondent National Labor Relations Commission dated 25 March 1996 is REVERSED and SET ASIDE, and the decision of

Executive Labor Arbiter Conchita J. Martinez declaring the dismissal of complainant Lorlene A. Gonzales illegal for lack of factual basis and ordering respondent Ateneo de Davao University to pay complainant separation pay, back wages and 13th month pay in the total amount of TWO HUNDRED SIXTEEN THOUSAND NINE HUNDRED THIRTY-EIGHT and 70/100 PESOS (P216,938.70) x x x [f]urther, ordering respondent to pay 10% of the total monetary award as attorney's fees to counsel for complainant x x x [d]ismissing all other claims for lack of merit, is REINSTATED, AFFIRMED and ADOPTED herein as the decision in the instant case. SO ORDERED. Mendoza, Quisumbing, and Buena JJ., concur.

[1] [2] [3] [4] [5] [6] [7]

Rollo, p. 73. Id., p. 75. Id., p. 61, par. 3. Id., p. 59. Id., p. 61. Id., p. 62. Id., p. 63.

G.R. No. 74457 March 20, 1987 RESTITUTO YNOT, petitioner, vs. INTERMEDIATE APPELLATE COURT, THE STATION COMMANDER, INTEGRATED NATIONAL POLICE, BAROTAC NUEVO, ILOILO and THE REGIONAL DIRECTOR, BUREAU OF ANIMAL INDUSTRY, REGION IV, ILOILO CITY, respondents. Ramon A. Gonzales for petitioner.

CRUZ, J.: The essence of due process is distilled in the immortal cry of Themistocles to Alcibiades "Strike but hear me first!" It is this cry that the petitioner in effect repeats here as he challenges the constitutionality of Executive Order No. 626-A. The said executive order reads in full as follows: WHEREAS, the President has given orders prohibiting the interprovincial movement of carabaos and the slaughtering of carabaos not complying with the requirements of Executive Order No. 626 particularly with respect to age;

WHEREAS, it has been observed that despite such orders the violators still manage to circumvent the prohibition against inter-provincial movement of carabaos by transporting carabeef instead; and WHEREAS, in order to achieve the purposes and objectives of Executive Order No. 626 and the prohibition against interprovincial movement of carabaos, it is necessary to strengthen the said Executive Order and provide for the disposition of the carabaos and carabeef subject of the violation; NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution, do hereby promulgate the following: SECTION 1. Executive Order No. 626 is hereby amended such that henceforth, no carabao regardless of age, sex, physical condition or purpose and no carabeef shall be transported from one province to another. The carabao or carabeef transported in violation of this Executive Order as amended shall be subject to confiscation and forfeiture by the government, to be distributed to charitable institutions and other similar institutions as the Chairman of the National Meat Inspection Commission may ay see fit, in the case of carabeef, and to deserving farmers through dispersal as the Director of Animal Industry may see fit, in the case of carabaos. SECTION 2. This Executive Order shall take effect immediately. Done in the City of Manila, this 25th day of October, in the year of Our Lord, nineteen hundred and eighty. (SGD.) FERDINAND E. MARCOS Preside nt Republic of the Philippines The petitioner had transported six carabaos in a pump boat from Masbate to Iloilo on January 13, 1984, when they were confiscated by the police station commander of Barotac Nuevo, Iloilo, for violation of the above measure. 1The petitioner sued for recovery, and the Regional Trial Court of Iloilo City issued a writ of replevin upon his filing of a supersedeas bond of P12,000.00. After considering the merits of the case, the court sustained the confiscation of the carabaos and, since they could no longer be produced, ordered the confiscation of the bond. The court also declined to rule on the constitutionality of the executive order, as raise by the petitioner, for lack of authority and also for its presumed validity. 2 The petitioner appealed the decision to the Intermediate Appellate Court,* 3 which upheld the trial court, ** and he has now come before us in this petition for review on certiorari. The thrust of his petition is that the executive order is unconstitutional insofar as it authorizes outright confiscation of the carabao or carabeef being transported across provincial boundaries. His claim is that the penalty is invalid because it is imposed without according the owner a right to be heard

before a competent and impartial court as guaranteed by due process. He complains that the measure should not have been presumed, and so sustained, as constitutional. There is also a challenge to the improper exercise of the legislative power by the former President under Amendment No. 6 of the 1973 Constitution. 4 While also involving the same executive order, the case of Pesigan v. Angeles 5 is not applicable here. The question raised there was the necessity of the previous publication of the measure in the Official Gazette before it could be considered enforceable. We imposed the requirement then on the basis of due process of law. In doing so, however, this Court did not, as contended by the Solicitor General, impliedly affirm the constitutionality of Executive Order No. 626-A. That is an entirely different matter. This Court has declared that while lower courts should observe a becoming modesty in examining constitutional questions, they are nonetheless not prevented from resolving the same whenever warranted, subject only to review by the highest tribunal. 6 We have jurisdiction under the Constitution to "review, revise, reverse, modify or affirm on appeal or certiorari, as the law or rules of court may provide," final judgments and orders of lower courts in, among others, all cases involving the constitutionality of certain measures. 7 This simply means that the resolution of such cases may be made in the first instance by these lower courts. And while it is true that laws are presumed to be constitutional, that presumption is not by any means conclusive and in fact may be rebutted. Indeed, if there be a clear showing of their invalidity, and of the need to declare them so, then "will be the time to make the hammer fall, and heavily," 8 to recall Justice Laurel's trenchant warning. Stated otherwise, courts should not follow the path of least resistance by simply presuming the constitutionality of a law when it is questioned. On the contrary, they should probe the issue more deeply, to relieve the abscess, paraphrasing another distinguished jurist, 9 and so heal the wound or excise the affliction. Judicial power authorizes this; and when the exercise is demanded, there should be no shirking of the task for fear of retaliation, or loss of favor, or popular censure, or any other similar inhibition unworthy of the bench, especially this Court. The challenged measure is denominated an executive order but it is really presidential decree, promulgating a new rule instead of merely implementing an existing law. It was issued by President Marcos not for the purpose of taking care that the laws were faithfully executed but in the exercise of his legislative authority under Amendment No. 6. It was provided thereunder that whenever in his judgment there existed a grave emergency or a threat or imminence thereof or whenever the legislature failed or was unable to act adequately on any matter that in his judgment required immediate action, he could, in order to meet the exigency, issue decrees, orders or letters of instruction that were to have the force and effect of law. As there is no showing of any exigency to justify the exercise of that extraordinary power then, the petitioner has reason, indeed, to question the validity of the executive order. Nevertheless, since the determination of the grounds was supposed to have been made by the President "in his judgment, " a phrase that will lead to protracted discussion not really necessary at this time, we reserve resolution of this matter until a more appropriate occasion. For the nonce, we confine ourselves to the more fundamental question of due process. It is part of the art of constitution-making that the provisions of the charter be cast in precise and unmistakable language to avoid controversies that might arise on their correct interpretation. That is the Ideal. In the case of the due process clause, however, this rule was deliberately not followed and the wording was purposely kept ambiguous. In fact, a proposal to delineate it more clearly was submitted in the Constitutional Convention of 1934, but it was rejected by Delegate Jose P. Laurel,

Chairman of the Committee on the Bill of Rights, who forcefully argued against it. He was sustained by the body. 10 The due process clause was kept intentionally vague so it would remain also conveniently resilient. This was felt necessary because due process is not, like some provisions of the fundamental law, an "iron rule" laying down an implacable and immutable command for all seasons and all persons. Flexibility must be the best virtue of the guaranty. The very elasticity of the due process clause was meant to make it adapt easily to every situation, enlarging or constricting its protection as the changing times and circumstances may require. Aware of this, the courts have also hesitated to adopt their own specific description of due process lest they confine themselves in a legal straitjacket that will deprive them of the elbow room they may need to vary the meaning of the clause whenever indicated. Instead, they have preferred to leave the import of the protection open-ended, as it were, to be "gradually ascertained by the process of inclusion and exclusion in the course of the decision of cases as they arise." 11 Thus, Justice Felix Frankfurter of the U.S. Supreme Court, for example, would go no farther than to define due process and in so doing sums it all up as nothing more and nothing less than "the embodiment of the sporting Idea of fair play." 12 When the barons of England extracted from their sovereign liege the reluctant promise that that Crown would thenceforth not proceed against the life liberty or property of any of its subjects except by the lawful judgment of his peers or the law of the land, they thereby won for themselves and their progeny that splendid guaranty of fairness that is now the hallmark of the free society. The solemn vow that King John made at Runnymede in 1215 has since then resounded through the ages, as a ringing reminder to all rulers, benevolent or base, that every person, when confronted by the stern visage of the law, is entitled to have his say in a fair and open hearing of his cause. The closed mind has no place in the open society. It is part of the sporting Idea of fair play to hear "the other side" before an opinion is formed or a decision is made by those who sit in judgment. Obviously, one side is only one-half of the question; the other half must also be considered if an impartial verdict is to be reached based on an informed appreciation of the issues in contention. It is indispensable that the two sides complement each other, as unto the bow the arrow, in leading to the correct ruling after examination of the problem not from one or the other perspective only but in its totality. A judgment based on less that this full appraisal, on the pretext that a hearing is unnecessary or useless, is tainted with the vice of bias or intolerance or ignorance, or worst of all, in repressive regimes, the insolence of power. The minimum requirements of due process are notice and hearing 13 which, generally speaking, may not be dispensed with because they are intended as a safeguard against official arbitrariness. It is a gratifying commentary on our judicial system that the jurisprudence of this country is rich with applications of this guaranty as proof of our fealty to the rule of law and the ancient rudiments of fair play. We have consistently declared that every person, faced by the awesome power of the State, is entitled to "the law of the land," which Daniel Webster described almost two hundred years ago in the famous Dartmouth College Case, 14 as "the law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial." It has to be so if the rights of every person are to be secured beyond the reach of officials who, out of mistaken zeal or plain arrogance, would degrade the due process clause into a worn and empty catchword. This is not to say that notice and hearing are imperative in every case for, to be sure, there are a number of admitted exceptions. The conclusive presumption, for example, bars the admission of contrary evidence as long as such presumption is based on human experience or there is a rational connection between the fact proved and the fact ultimately presumed therefrom. 15 There are

instances when the need for expeditions action will justify omission of these requisites, as in the summary abatement of a nuisance per se, like a mad dog on the loose, which may be killed on sight because of the immediate danger it poses to the safety and lives of the people. Pornographic materials, contaminated meat and narcotic drugs are inherently pernicious and may be summarily destroyed. The passport of a person sought for a criminal offense may be cancelled without hearing, to compel his return to the country he has fled. 16 Filthy restaurants may be summarily padlocked in the interest of the public health and bawdy houses to protect the public morals. 17 In such instances, previous judicial hearing may be omitted without violation of due process in view of the nature of the property involved or the urgency of the need to protect the general welfare from a clear and present danger. The protection of the general welfare is the particular function of the police power which both restraints and is restrained by due process. The police power is simply defined as the power inherent in the State to regulate liberty and property for the promotion of the general welfare. 18 By reason of its function, it extends to all the great public needs and is described as the most pervasive, the least limitable and the most demanding of the three inherent powers of the State, far outpacing taxation and eminent domain. The individual, as a member of society, is hemmed in by the police power, which affects him even before he is born and follows him still after he is dead from the womb to beyond the tomb in practically everything he does or owns. Its reach is virtually limitless. It is a ubiquitous and often unwelcome intrusion. Even so, as long as the activity or the property has some relevance to the public welfare, its regulation under the police power is not only proper but necessary. And the justification is found in the venerable Latin maxims, Salus populi est suprema lex and Sic utere tuo ut alienum non laedas, which call for the subordination of individual interests to the benefit of the greater number. It is this power that is now invoked by the government to justify Executive Order No. 626-A, amending the basic rule in Executive Order No. 626, prohibiting the slaughter of carabaos except under certain conditions. The original measure was issued for the reason, as expressed in one of its Whereases, that "present conditions demand that the carabaos and the buffaloes be conserved for the benefit of the small farmers who rely on them for energy needs." We affirm at the outset the need for such a measure. In the face of the worsening energy crisis and the increased dependence of our farms on these traditional beasts of burden, the government would have been remiss, indeed, if it had not taken steps to protect and preserve them. A similar prohibition was challenged in United States v. Toribio, 19 where a law regulating the registration, branding and slaughter of large cattle was claimed to be a deprivation of property without due process of law. The defendant had been convicted thereunder for having slaughtered his own carabao without the required permit, and he appealed to the Supreme Court. The conviction was affirmed. The law was sustained as a valid police measure to prevent the indiscriminate killing of carabaos, which were then badly needed by farmers. An epidemic had stricken many of these animals and the reduction of their number had resulted in an acute decline in agricultural output, which in turn had caused an incipient famine. Furthermore, because of the scarcity of the animals and the consequent increase in their price, cattle-rustling had spread alarmingly, necessitating more effective measures for the registration and branding of these animals. The Court held that the questioned statute was a valid exercise of the police power and declared in part as follows: To justify the State in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. ...

From what has been said, we think it is clear that the enactment of the provisions of the statute under consideration was required by "the interests of the public generally, as distinguished from those of a particular class" and that the prohibition of the slaughter of carabaos for human consumption, so long as these animals are fit for agricultural work or draft purposes was a "reasonably necessary" limitation on private ownership, to protect the community from the loss of the services of such animals by their slaughter by improvident owners, tempted either by greed of momentary gain, or by a desire to enjoy the luxury of animal food, even when by so doing the productive power of the community may be measurably and dangerously affected. In the light of the tests mentioned above, we hold with the Toribio Case that the carabao, as the poor man's tractor, so to speak, has a direct relevance to the public welfare and so is a lawful subject of Executive Order No. 626. The method chosen in the basic measure is also reasonably necessary for the purpose sought to be achieved and not unduly oppressive upon individuals, again following the above-cited doctrine. There is no doubt that by banning the slaughter of these animals except where they are at least seven years old if male and eleven years old if female upon issuance of the necessary permit, the executive order will be conserving those still fit for farm work or breeding and preventing their improvident depletion. But while conceding that the amendatory measure has the same lawful subject as the original executive order, we cannot say with equal certainty that it complies with the second requirement, viz., that there be a lawful method. We note that to strengthen the original measure, Executive Order No. 626-A imposes an absolute ban not on theslaughter of the carabaos but on their movement, providing that "no carabao regardless of age, sex, physical condition or purpose (sic) and no carabeef shall be transported from one province to another." The object of the prohibition escapes us. The reasonable connection between the means employed and the purpose sought to be achieved by the questioned measure is missing We do not see how the prohibition of the inter-provincial transport of carabaos can prevent their indiscriminate slaughter, considering that they can be killed anywhere, with no less difficulty in one province than in another. Obviously, retaining the carabaos in one province will not prevent their slaughter there, any more than moving them to another province will make it easier to kill them there. As for the carabeef, the prohibition is made to apply to it as otherwise, so says executive order, it could be easily circumvented by simply killing the animal. Perhaps so. However, if the movement of the live animals for the purpose of preventing their slaughter cannot be prohibited, it should follow that there is no reason either to prohibit their transfer as, not to be flippant dead meat. Even if a reasonable relation between the means and the end were to be assumed, we would still have to reckon with the sanction that the measure applies for violation of the prohibition. The penalty is outright confiscation of the carabao or carabeef being transported, to be meted out by the executive authorities, usually the police only. In the Toribio Case, the statute was sustained because the penalty prescribed was fine and imprisonment, to be imposed by the court after trial and conviction of the accused. Under the challenged measure, significantly, no such trial is prescribed, and the property being transported is immediately impounded by the police and declared, by the measure itself, as forfeited to the government. In the instant case, the carabaos were arbitrarily confiscated by the police station commander, were returned to the petitioner only after he had filed a complaint for recovery and given a supersedeas bond of P12,000.00, which was ordered confiscated upon his failure to produce the carabaos when ordered by the trial court. The executive order defined the prohibition, convicted the petitioner and immediately imposed punishment, which was carried out forthright. The measure

struck at once and pounced upon the petitioner without giving him a chance to be heard, thus denying him the centuries-old guaranty of elementary fair play. It has already been remarked that there are occasions when notice and hearing may be validly dispensed with notwithstanding the usual requirement for these minimum guarantees of due process. It is also conceded that summary action may be validly taken in administrative proceedings as procedural due process is not necessarily judicial only. 20 In the exceptional cases accepted, however. there is a justification for the omission of the right to a previous hearing, to wit, the immediacy of the problem sought to be corrected and the urgency of the need to correct it. In the case before us, there was no such pressure of time or action calling for the petitioner's peremptory treatment. The properties involved were not even inimical per se as to require their instant destruction. There certainly was no reason why the offense prohibited by the executive order should not have been proved first in a court of justice, with the accused being accorded all the rights safeguarded to him under the Constitution. Considering that, as we held in Pesigan v. Angeles, 21 Executive Order No. 626-A is penal in nature, the violation thereof should have been pronounced not by the police only but by a court of justice, which alone would have had the authority to impose the prescribed penalty, and only after trial and conviction of the accused. We also mark, on top of all this, the questionable manner of the disposition of the confiscated property as prescribed in the questioned executive order. It is there authorized that the seized property shall "be distributed to charitable institutions and other similar institutions as the Chairman of the National Meat Inspection Commissionmay see fit, in the case of carabeef, and to deserving farmers through dispersal as the Director of Animal Industrymay see fit, in the case of carabaos." (Emphasis supplied.) The phrase "may see fit" is an extremely generous and dangerous condition, if condition it is. It is laden with perilous opportunities for partiality and abuse, and even corruption. One searches in vain for the usual standard and the reasonable guidelines, or better still, the limitations that the said officers must observe when they make their distribution. There is none. Their options are apparently boundless. Who shall be the fortunate beneficiaries of their generosity and by what criteria shall they be chosen? Only the officers named can supply the answer, they and they alone may choose the grantee as they see fit, and in their own exclusive discretion. Definitely, there is here a "roving commission," a wide and sweeping authority that is not "canalized within banks that keep it from overflowing," in short, a clearly profligate and therefore invalid delegation of legislative powers. To sum up then, we find that the challenged measure is an invalid exercise of the police power because the method employed to conserve the carabaos is not reasonably necessary to the purpose of the law and, worse, is unduly oppressive. Due process is violated because the owner of the property confiscated is denied the right to be heard in his defense and is immediately condemned and punished. The conferment on the administrative authorities of the power to adjudge the guilt of the supposed offender is a clear encroachment on judicial functions and militates against the doctrine of separation of powers. There is, finally, also an invalid delegation of legislative powers to the officers mentioned therein who are granted unlimited discretion in the distribution of the properties arbitrarily taken. For these reasons, we hereby declare Executive Order No. 626-A unconstitutional. We agree with the respondent court, however, that the police station commander who confiscated the petitioner's carabaos is not liable in damages for enforcing the executive order in accordance with its mandate. The law was at that time presumptively valid, and it was his obligation, as a member of the police, to enforce it. It would have been impertinent of him, being a mere subordinate of the President, to declare the executive order unconstitutional and, on his own responsibility alone,

refuse to execute it. Even the trial court, in fact, and the Court of Appeals itself did not feel they had the competence, for all their superior authority, to question the order we now annul. The Court notes that if the petitioner had not seen fit to assert and protect his rights as he saw them, this case would never have reached us and the taking of his property under the challenged measure would have become afait accompli despite its invalidity. We commend him for his spirit. Without the present challenge, the matter would have ended in that pump boat in Masbate and another violation of the Constitution, for all its obviousness, would have been perpetrated, allowed without protest, and soon forgotten in the limbo of relinquished rights. The strength of democracy lies not in the rights it guarantees but in the courage of the people to invoke them whenever they are ignored or violated. Rights are but weapons on the wall if, like expensive tapestry, all they do is embellish and impress. Rights, as weapons, must be a promise of protection. They become truly meaningful, and fulfill the role assigned to them in the free society, if they are kept bright and sharp with use by those who are not afraid to assert them. WHEREFORE, Executive Order No. 626-A is hereby declared unconstitutional. Except as affirmed above, the decision of the Court of Appeals is reversed. The supersedeas bond is cancelled and the amount thereof is ordered restored to the petitioner. No costs. SO ORDERED. Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Gancayco, Padilla Bidin Sarmiento and Cortes, JJ., concur. Melencio-Herrera and Feliciano, JJ., are on leave.

Footnotes 1 Rollo, pp. 7, 28, 29, 34. 2 Ibid, pp. 6-7; Annex B. * Justices Coquia, Bartolome and Ejercito. 3 Rollo, pp. 6, 27, 33. ** Judge Bethel Katalbas-Moscardon. 4 Ibid., pp. 10; 11, 14-16, 76. 5 129 SCRA 174. 6 Espiritu vs. Fugoso, 81 Phil. 637. 7 Sec. 5[2(a)], Art. X, 1973 Constitution; Sec. 5[2(a)], Art.VIII, 1987 Constitution. 8 J. Laurel, concurring opinion, Zandueta v. dela Costa, 66 Phil. 615, 627.

9 US v. Bustos, 37 Phil. 731. 10 I Aruego, The Framing of the Constitution (1936), pp. 153-159. 11 Twinning vs. New Jersey, 211 U.S. 78. 12 Frankfurter, Mr. Justice Holmes and the Supreme Court, pp. 32-33. 13 David vs. Aquilizan, 94 SCRA 707; Montemayor vs. Araneta Univ. Foundation, 77 SCRA 321; Lentelera vs. Amores, 70 SCRA 37; Flores vs. Buencamino, 74 SCRA 332; DBP vs. Bautista, 26 SCRA 366; Ong Su Han vs. Gutierrez David, 76 Phil. 546; Banco-Espanol Filipino vs. Palanca, 37 Phil. 921. 14 Dartmouth College vs. Woodward, 4 Wheaton 518. 15 Manley v. Georgia, 279 U.S. 1; 1 Cooley 639. 16 Suntay vs. People, 101 Phil. 833. 17 12 C.J. 1224. 18 People v. Vera Reyes, 67 Phil. 190; Ermita-Malate Hotel & Motel Operators Ass. v. City Mayor, 20 SCRA 849; Primicias v. Fugoso 80 Phil. 75; U.S. v. Ling Su Tan, 10 Phil. 114; Collins v. Wolfe 5 Phil. 297; U.S. v. Gomez Jesus, 31 Phil. 225; Churchill v. Rafferty 32 Phil. 603. 19 15 Phil. 85. 20 New Filipino Maritime Agencies, Inc. vs. Rivera, 83 SCRA 602; Gas Corp. of the Phil. vs. Inciong93 SCRA 653. 21 supra.

EN BANC
[G.R. No. 100152. March 31, 2000]

ACEBEDO OPTICAL COMPANY, INC., petitioner, vs. THE HONORABLE COURT OF APPEALS, Hon. MAMINDIARA MANGOTARA, in his capacity as Presiding Judge of the RTC, 12th Judicial Region, Br. 1, Iligan City; SAMAHANG OPTOMETRIST Sa PILIPINAS - Iligan City Chapter, LEO T. CAHANAP, City Legal Officer, and Hon. CAMILO P. CABILI, City Mayor of Iligan, respondents. DECISION
PURISIMA, J.: At bar is a petition for review under Rule 45 of the Rules of Court seeking to nullify the dismissal by the Court of Appeals of the original petition for certiorari, prohibition and mandamus filed by the herein petitioner against the City Mayor and City Legal Officer of Iligan and the Samahang Optometrist sa Pilipinas - Iligan Chapter (SOPI, for brevity). The antecedent facts leading to the filing of the instant petition are as follows: Petitioner applied with the Office of the City Mayor of Iligan for a business permit. After consideration of petitioners application and the opposition interposed thereto by local optometrists, respondent City Mayor issued Business Permit No. 5342 subject to the following conditions: 1. Since it is a corporation, Acebedo cannot put up an optical clinic but only a commercial store; 2. Acebedo cannot examine and/or prescribe reading and similar optical glasses for patients, because these are functions of optical clinics; 3. Acebedo cannot sell reading and similar eyeglasses without a prescription having first been made by an independent optometrist (not its employee) or independent optical clinic. Acebedo can only sell directly to the public, without need of a prescription, Ray-Ban and similar eyeglasses; 4. Acebedo cannot advertise optical lenses and eyeglasses, but can advertise Ray-Ban and similar glasses and frames;

5. Acebedo is allowed to grind lenses but only upon the prescription of an independent optometrist.[1] On December 5, 1988, private respondent Samahan ng Optometrist Sa Pilipinas (SOPI), Iligan Chapter, through its Acting President, Dr. Frances B. Apostol, lodged a complaint against the petitioner before the Office of the City Mayor, alleging that Acebedo had violated the conditions set forth in its business permit and requesting the cancellation and/or revocation of such permit. Acting on such complaint, then City Mayor Camilo P. Cabili designated City Legal Officer Leo T. Cahanap to conduct an investigation on the matter. On July 12, 1989, respondent City Legal Officer submitted a report to the City Mayor finding the herein petitioner guilty of violating all the conditions of its business permit and recommending the disqualification of petitioner from operating its business in Iligan City. The report further advised that no new permit shall be granted to petitioner for the year 1989 and should only be given time to wind up its affairs. On July 19, 1989, the City Mayor sent petitioner a Notice of Resolution and Cancellation of Business Permit effective as of said date and giving petitioner three (3) months to wind up its affairs. On October 17, 1989, petitioner brought a petition for certiorari, prohibition and mandamus with prayer for restraining order/preliminary injunction against the respondents, City Mayor, City Legal Officer and Samahan ng Optometrists sa PilipinasIligan City Chapter (SOPI), docketed as Civil Case No. 1497 before the Regional Trial Court of Iligan City, Branch I. Petitioner alleged that (1) it was denied due process because it was not given an opportunity to present its evidence during the investigation conducted by the City Legal Officer; (2) it was denied equal protection of the laws as the limitations imposed on its business permit were not imposed on similar businesses in Iligan City; (3) the City Mayor had no authority to impose the special conditions on its business permit; and (4) the City Legal Officer had no authority to conduct the investigation as the matter falls within the exclusive jurisdiction of the Professional Regulation Commission and the Board of Optometry. Respondent SOPI interposed a Motion to Dismiss the Petition on the ground of nonexhaustion of administrative remedies but on November 24, 1989, Presiding Judge Mamindiara P. Mangotara deferred resolution of such Motion to Dismiss until after trial of the case on the merits. However, the prayer for a writ of preliminary injunction was granted. Thereafter, respondent SOPI filed its answer. On May 30, 1990, the trial court dismissed the petition for failure to exhaust administrative remedies, and dissolved the writ of preliminary injunction it earlier issued. Petitioners motion for reconsideration met the same fate. It was denied by an Order dated June 28, 1990.

On October 3, 1990, instead of taking an appeal, petitioner filed a petition for certiorari, prohibition and mandamus with the Court of Appeals seeking to set aside the questioned Order of Dismissal, branding the same as tainted with grave abuse of discretion on the part of the trial court. On January 24, 1991, the Ninth Division[2] of the Court of Appeals dismissed the petition for lack of merit. Petitioners motion reconsideration was also denied in the Resolution dated May 15, 1991. Undaunted, petitioner has come before this court via the present petition, theorizing that:
A.

THE RESPONDENT COURT, WHILE CORRECTLY HOLDING THAT THE RESPONDENT CITY MAYOR ACTED BEYOND HIS AUTHORITY IN IMPOSING THE SPECIAL CONDITIONS IN THE PERMIT AS THEY HAD NO BASIS IN ANY LAW OR ORDINANCE, ERRED IN HOLDING THAT THE SAID SPECIAL CONDITIONS NEVERTHELESS BECAME BINDING ON PETITIONER UPON ITS ACCEPTANCE THEREOF AS A PRIVATE AGREEMENT OR CONTRACT.
B.

THE RESPONDENT COURT OF APPEALS ERRED IN HOLDING THAT THE CONTRACT BETWEEN PETITIONER AND THE CITY OF ILIGAN WAS ENTERED INTO BY THE LATTER IN THE PERFORMANCE OF ITS PROPRIETARY FUNCTIONS. The petition is impressed with merit. Although petitioner agrees with the finding of the Court of Appeals that respondent City Mayor acted beyond the scope of his authority in imposing the assailed conditions in subject business permit, it has excepted to the ruling of the Court of Appeals that the said conditions nonetheless became binding on petitioner, once accepted, as a private agreement or contract. Petitioner maintains that the said special conditions are null and void for being ultra vires and cannot be given effect; and therefore, the principle of estoppel cannot apply against it. On the other hand, the public respondents, City Mayor and City Legal Officer, private respondent SOPI and the Office of the Solicitor General contend that as a valid exercise of police power, respondent City Mayor has the authority to impose, as he did, special conditions in the grant of business permits. Police power as an inherent attribute of sovereignty is the power to prescribe regulations to promote the health, morals, peace, education, good order or safety and general welfare of the people.[3] The State, through the legislature, has delegated the

exercise of police power to local government units, as agencies of the State, in order to effectively accomplish and carry out the declared objects of their creation.[4] This delegation of police power is embodied in the general welfare clause of the Local Government Code which provides: Sec. 16. General Welfare. - Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced ecology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace and order, and preserve the comfort and convenience of their inhabitants. The scope of police power has been held to be so comprehensive as to encompass almost all matters affecting the health, safety, peace, order, morals, comfort and convenience of the community. Police power is essentially regulatory in nature and the power to issue licenses or grant business permits, if exercised for a regulatory and not revenue-raising purpose, is within the ambit of this power.[5] The authority of city mayors to issue or grant licenses and business permits is beyond cavil. It is provided for by law. Section 171, paragraph 2 (n) of Batas Pambansa Bilang 337 otherwise known as the Local Government Code of 1983, reads: Sec. 171. The City Mayor shall: xxx n) Grant or refuse to grant, pursuant to law, city licenses or permits, and revoke the same for violation of law or ordinance or the conditions upon which they are granted. However, the power to grant or issue licenses or business permits must always be exercised in accordance with law, with utmost observance of the rights of all concerned to due process and equal protection of the law. Succinct and in point is the ruling of this Court, that:

"x x x While a business may be regulated, such regulation must, however, be within the bounds of reason, i. e., the regulatory ordinance must be reasonable, and its provision cannot be oppressive amounting to an arbitrary interference with the business or calling subject of regulation. A lawful business or calling may not, under the guise of regulation, be unreasonably interfered with even by the exercise of police power. xxx xxx xxx xxx xxx The exercise of police power by the local government is valid unless it contravenes the fundamental law of the land or an act of the legislature, or unless it is against public policy or is unreasonable, oppressive, partial, discriminating or in derogation of a common right."[6] In the case under consideration, the business permit granted by respondent City Mayor to petitioner was burdened with several conditions. Petitioner agrees with the holding by the Court of Appeals that respondent City Mayor acted beyond his authority in imposing such special conditions in its permit as the same have no basis in the law or ordinance. Public respondents and private respondent SOPI, on the other hand, are one in saying that the imposition of said special conditions on petitioners business permit is well within the authority of the City Mayor as a valid exercise of police power. As aptly discussed by the Solicitor General in his Comment, the power to issue licenses and permits necessarily includes the corollary power to revoke, withdraw or cancel the same. And the power to revoke or cancel, likewise includes the power to restrict through the imposition of certain conditions. In the case of Austin-Hardware, Inc. vs. Court of Appeals,[7] it was held that the power to license carries with it the authority to provide reasonable terms and conditions under which the licensed business shall be conducted. As the Solicitor General puts it: "If the City Mayor is empowered to grant or refuse to grant a license, which is a broader power, it stands to reason that he can also exercise a lesser power that is reasonably incidental to his express power, i. e. to restrict a license through the imposition of certain conditions, especially so that there is no positive prohibition to the exercise of such prerogative by the City Mayor, nor is there any particular official or body vested with such authority"[8] However, the present inquiry does not stop there, as the Solicitor General believes. The power or authority of the City Mayor to impose conditions or restrictions in the business permit is indisputable. What petitioner assails are the conditions imposed in its particular case which, it complains, amount to a confiscation of the business in which petitioner is engaged. Distinction must be made between the grant of a license or permit to do business and the issuance of a license to engage in the practice of a particular profession. The first is

usually granted by the local authorities and the second is issued by the Board or Commission tasked to regulate the particular profession. A business permit authorizes the person, natural or otherwise, to engage in business or some form of commercial activity. A professional license, on the other hand, is the grant of authority to a natural person to engage in the practice or exercise of his or her profession. In the case at bar, what is sought by petitioner from respondent City Mayor is a permit to engage in the business of running an optical shop. It does not purport to seek a license to engage in the practice of optometry as a corporate body or entity, although it does have in its employ, persons who are duly licensed to practice optometry by the Board of Examiners in Optometry. The case of Samahan ng Optometrists sa Pilipinas vs. Acebedo International Corporation, G.R. No. 117097,[9] promulgated by this Court on March 21, 1997, is in point. The factual antecedents of that case are similar to those of the case under consideration and the issue ultimately resolved therein is exactly the same issue posed for resolution by this Court en banc. In the said case, the Acebedo International Corporation filed with the Office of the Municipal Mayor an application for a business permit for the operation of a branch of Acebedo Optical in Candon, Ilocos Sur. The application was opposed by the Samahan ng Optometrists sa Pilipinas-Ilocos Sur Chapter, theorizing that Acebedo is a juridical entity not qualified to practice optometry. A committee was created by the Office of the Mayor to study private respondents application. Upon recommendation of the said committee, Acebedos application for a business permit was denied. Acebedo filed a petition with the Regional Trial Court but the same was dismissed. On appeal, however, the Court of Appeals reversed the trial courts disposition, prompting the Samahan ng Optometrists to elevate the matter to this Court. The First Division of this Court, then composed of Honorable Justice Teodoro Padilla, Josue Bellosillo, Jose Vitug and Santiago Kapunan, with Honorable Justice Regino Hermosisima, Jr. asponente, denied the petition and ruled in favor of respondent Acebedo International Corporation, holding that "the fact that private respondent hires optometrists who practice their profession in the course of their employment in private respondents optical shops, does not translate into a practice of optometry by private respondent itself."[10] The Court further elucidated that in both the old and new Optometry Law, R.A. No. 1998, superseded by R.A. No. 8050, it is significant to note that there is no prohibition against the hiring by corporations of optometrists. The Court concluded thus: "All told, there is no law that prohibits the hiring by corporations of optometrists or considers the hiring by corporations of optometrists as a practice by the corporation itself of the profession of optometry." In the present case, the objective of the imposition of subject conditions on petitioners business permit could be attained by requiring the optometrists in petitioners employ to

produce a valid certificate of registration as optometrist, from the Board of Examiners in Optometry. A business permit is issued primarily to regulate the conduct of business and the City Mayor cannot, through the issuance of such permit, regulate the practice of a profession, like that of optometry. Such a function is within the exclusive domain of the administrative agency specifically empowered by law to supervise the profession, in this case the Professional Regulations Commission and the Board of Examiners in Optometry. It is significant to note that during the deliberations of the bicameral conference committee of the Senate and the House of Representatives on R.A. 8050 (Senate Bill No. 1998 and House Bill No. 14100), the committee failed to reach a consensus as to the prohibition on indirect practice of optometry by corporations. The proponent of the bill, former Senator Freddie Webb, admitted thus: "Senator Webb: xxx xxx xxx The focus of contention remains to be the proposal of prohibiting the indirect practice of optometry by corporations. We took a second look and even a third look at the issue in the bicameral conference, but a compromise remained elusive." [11] Former Senator Leticia Ramos-Shahani likewise voted her reservation in casting her vote: "Senator Shahani: Mr. President The optometry bills have evoked controversial views from the members of the panel. While we realize the need to uplift the standards of optometry as a profession, the consensus of both Houses was to avoid touching sensitive issues which properly belong to judicial determination. Thus, the bicameral conference committee decided to leave the issue of indirect practice of optometry and the use of trade names open to the wisdom of the Courts which are vested with the prerogative of interpreting the laws."[12] From the foregoing, it is thus evident that Congress has not adopted a unanimous position on the matter of prohibition of indirect practice of optometry by corporations, specifically on the hiring and employment of licensed optometrists by optical corporations. It is clear that Congress left the resolution of such issue for judicial determination, and it is therefore proper for this Court to resolve the issue. Even in the United States, jurisprudence varies and there is a conflict of opinions among the federal courts as to the right of a corporation or individual not himself licensed, to hire and employ licensed optometrists.[13] Courts have distinguished between optometry as a learned profession in the category of law and medicine, and optometry as a mechanical art. And, insofar as the courts regard

optometry as merely a mechanical art, they have tended to find nothing objectionable in the making and selling of eyeglasses, spectacles and lenses by corporations so long as the patient is actually examined and prescribed for by a qualified practitioner. [14] The primary purpose of the statute regulating the practice of optometry is to insure that optometrical services are to be rendered by competent and licensed persons in order to protect the health and physical welfare of the people from the dangers engendered by unlicensed practice. Such purpose may be fully accomplished although the person rendering the service is employed by a corporation.[15] Furthermore, it was ruled that the employment of a qualified optometrist by a corporation is not against public policy.[16] Unless prohibited by statutes, a corporation has all the contractual rights that an individual has[17] and it does not become the practice of medicine or optometry because of the presence of a physician or optometrist. [18] The manufacturing, selling, trading and bartering of eyeglasses and spectacles as articles of merchandise do not constitute the practice of optometry. [19] In the case of Dvorine vs. Castelberg Jewelry Corporation,[20] defendant corporation conducted as part of its business, a department for the sale of eyeglasses and the furnishing of optometrical services to its clients. It employed a registered optometrist who was compensated at a regular salary and commission and who was furnished instruments and appliances needed for the work, as well as an office. In holding that the corporation was not engaged in the practice of optometry, the court ruled that there is no public policy forbidding the commercialization of optometry, as in law and medicine, and recognized the general practice of making it a commercial business by advertising and selling eyeglasses. To accomplish the objective of the regulation, a state may provide by statute that corporations cannot sell eyeglasses, spectacles, and lenses unless a duly licensed physician or a duly qualified optometrist is in charge of, and in personal attendance at the place where such articles are sold.[21] In such a case, the patients primary and essential safeguard lies in the optometrists control of the "treatment" by means of prescription and preliminary and final examination.[22] In analogy, it is noteworthy that private hospitals are maintained by corporations incorporated for the purpose of furnishing medical and surgical treatment. In the course of providing such treatments, these corporations employ physicians, surgeons and medical practitioners, in the same way that in the course of manufacturing and selling eyeglasses, eye frames and optical lenses, optical shops hire licensed optometrists to examine, prescribe and dispense ophthalmic lenses. No one has ever charged that these corporations are engaged in the practice of medicine. There is indeed no valid basis for treating corporations engaged in the business of running optical shops differently. It also bears stressing, as petitioner has pointed out, that the public and private respondents did not appeal from the ruling of the Court of Appeals. Consequently, the

holding by the Court of Appeals that the act of respondent City Mayor in imposing the questioned special conditions on petitioners business permit is ultra vires cannot be put into issue here by the respondents. It is well-settled that: "A party who has not appealed from the decision may not obtain any affirmative relief from the appellate court other than what he had obtain from the lower court, if any, whose decision is brought up on appeal.[23] xxx an appellee who is not an appellant may assign errors in his brief where his purpose is to maintain the judgment on other grounds, but he cannot seek modification or reversal of the judgment or affirmative relief unless he has also appealed."[24] Thus, respondents submission that the imposition of subject special conditions on petitioners business permit is not ultra vires cannot prevail over the finding and ruling by the Court of Appeals from which they (respondents) did not appeal. Anent the second assigned error, petitioner maintains that its business permit issued by the City Mayor is not a contract entered into by Iligan City in the exercise of its proprietary functions, such that although petitioner agreed to such conditions, it cannot be held in estoppel since ultra vires acts cannot be given effect. Respondents, on the other hand, agree with the ruling of the Court of Appeals that the business permit in question is in the nature of a contract between Iligan City and the herein petitioner, the terms and conditions of which are binding upon agreement, and that petitioner is estopped from questioning the same. Moreover, in the Resolution denying petitioners motion for reconsideration, the Court of Appeals held that the contract between the petitioner and the City of Iligan was entered into by the latter in the performance of its proprietary functions. This Court holds otherwise. It had occasion to rule that a license or permit is not in the nature of a contract but a special privilege. "xxx a license or a permit is not a contract between the sovereignty and the licensee or permitee, and is not a property in the constitutional sense, as to which the constitutional proscription against impairment of the obligation of contracts may extend. A license is rather in the nature of a special privilege, of a permission or authority to do what is within its terms. It is not in any way vested, permanent or absolute." [25] It is therefore decisively clear that estoppel cannot apply in this case. The fact that petitioner acquiesced in the special conditions imposed by the City Mayor in subject business permit does not preclude it from challenging the said imposition, which is ultra vires or beyond the ambit of authority of respondent City Mayor. Ultra vires acts or acts which are clearly beyond the scope of ones authority a re null and void and cannot be

given any effect. The doctrine of estoppel cannot operate to give effect to an act which is otherwise null and void or ultra vires. The Court of Appeals erred in adjudging subject business permit as having been issued by respondent City Mayor in the performance of proprietary functions of Iligan City. As hereinabove elaborated upon, the issuance of business licenses and permits by a municipality or city is essentially regulatory in nature. The authority, which devolved upon local government units to issue or grant such licenses or permits, is essentially in the exercise of the police power of the State within the contemplation of the general welfare clause of the Local Government Code. WHEREFORE, the petition is GRANTED; the Decision of the Court of Appeals in CAGR SP No. 22995 REVERSED; and the respondent City Mayor is hereby ordered to reissue petitioners business permit in accordance with law and with this disposition. No pronouncement as to costs. SO ORDERED. Bellosillo, Puno, Mendoza, Quisumbing, Buena, Gonzaga-Reyes, YnaresSantiago, and De Leon, Jr., JJ., concur. Kapunan, J., see concurring opinion. Vitug, J., please see dissent. Davide, Jr., C.J., Melo, Panganiban, and Pardo, JJ., joined Mr. Justice Vitug in his dissent.

[1] [2]

Annex A to Memorandum of Respondent City Mayor and City Legal Officer of Iligan, Rollo, p. 231-232. Associate Justice Luis Javellana, ponente; Associate Justice Alfredo Marigomen and Associate Justice Artemon Luna, members. [3] Binay vs. Domingo, 201 SCRA 508. [4] Tatel vs. Municipality of Virac, 207 SCRA 157. [5] Procter and Gamble Phils. vs. The Municipality of Jagna, 94 SCRA 894. [6] Balacuit vs. CFI of Agusan del Norte, 163 SCRA 182. [7] 69 SCRA 564. [8] Comment by the Solicitor General, p. 8; Rollo, p. 78. [9] 270 SCRA 298. [10] Ibid, p. 306. [11] Saturday, June 3, 1995, "Approval of the Conference Committee Report on S. No. 1998 and H. No. 14100, Record of the Senate, p. 847. [12] Ibid. [13] 128 ALR 586. [14] House of $8.50 Eyeglasses, Inc. vs. State Board of Optometry, 288 Ala 349, 261 So 2d 27; State ex rel. Board of Optometry vs. Sears Roebuck and Co., 102 Ariz 175, 427 Pd 126. [15] Silver v. Lansburgh and Brother, 72 App DC 77, 11 F2d 518, 128 ALR 582; 61 Am Jur 2d 289.

Georgia State Examiners v. Friedmans Jewelers (183 Ga 669, 189 SE 238). State ex rel McKittrick vs. Gate City Optical Co., 339 Mo 427, 97 SW 2d 89). [18] Dickson vs. Flynn, 246 App Div 341, 286 NYS 225. [19] State ex rel. Brother vs. Beck Jewelry Enterprises, Inc., 220 Ind. 276, 41 NE 2d 622, 141 ALR 876) (61 Am Jur 187); Kindy Opticians, Inc. vs. State Board of Examiners in Optometry, 1939, 291 Mich 152, 289 NW 112, 113; New Jersey State Bd. of Optometrists vs. S.S. Kresge Co., 113 NJL 287, 174 A 353). [20] Dvorine vs. Castelberg Jewelry Corp., 170 Md. 661, 185 A 562. [21] Roschen vs. Ward, 279 US 337, 73 L Ed 722, 49 S Ct 336. [22] Small and Maine Board of Registration and examination in Optometry, 293 A 2d 786. [23] Policarpio vs. CA, 269 SCRA 344; Pison-Arceo Agricultural and Development Corporation vs. NLRC, 279 SCRA 312; Quintanilla vs. CA, 279 SCRA 397. [24] La Campana Food Products, Inc. vs. Philippine Commercial and Industrial Bank, 142 SCRA 394, 398. [25] Gonzalo Sy Trading vs. Central Bank, 70 SCRA 570.
[16] [17]