Republic of the Philippines Individual, under Article 315 in relation to Articles 171 and 172 of the Revised Penal
SUPREME COURT Code, as amended.
Manila
THIRD DIVISION
G.R. No. 168617 February 19, 2007
BERNADETTE L. ADASA, petitioner,
vs.
CECILLE S. ABALOS, Respondent.
DECISION
CHICO-NAZARIO, J.:
This Petition for Review under Rule 45 of the Rules of Court, filed by petitioner
Bernadette L. Adasa, seeks to nullify and set aside the 21 July 2004 Decision 1 and 10
June 2005 Resolution2 of the Court of Appeals in CA-G.R. SP No. 76396 which
nullified the Resolutions of the Department of Justice (DOJ). The Resolutions of the
DOJ reversed and set aside the Resolution of the Office of the City Prosecutor of Iligan
City, which found on reinvestigation probable cause against petitioner, and directed the
Office of the City Prosecutor of Iligan City to withdraw the information for Estafa
against petitioner.
The instant case emanated from the two complaints-affidavits filed by respondent
Cecille S. Abalos on 18 January 2001 before the Office of the City Prosecutor of Iligan
City, against petitioner for Estafa.
Respondent alleged in the complaints-affidavits that petitioner, through deceit, received
and encashed two checks issued in the name of respondent without respondents
knowledge and consent and that despite repeated demands by the latter, petitioner failed
and refused to pay the proceeds of the checks.
On 23 March 2001, petitioner filed a counter-affidavit admitting that she received and
encashed the two checks issued in favor of respondent.
In her Supplemental Affidavit filed on 29 March 2001, petitioner, however, recanted
and alleged instead that it was a certain Bebie Correa who received the two checks
which are the subject matter of the complaints and encashed the same; and that said
Bebie Correa left the country after misappropriating the proceeds of the checks.
On 25 April 2001, a resolution was issued by the Office of the City Prosecutor of Iligan
City finding probable cause against petitioner and ordering the filing of two separate
Informations for Estafa Thru Falsification of Commercial Document by a Private
Consequently, two separate criminal cases were filed against petitioner docketed as
Criminal Cases No. 8781 and No. 8782, raffled to Branches 4 and 5, Regional Trial
Court of Iligan City, respectively.
This instant petition pertains only to Criminal Case No. 8782.
On 8 June 2001, upon motion of the petitioner, the trial court in Criminal Case No.
8782 issued an order directing the Office of the City Prosecutor of Iligan City to
conduct a reinvestigation.
After conducting the reinvestigation, the Office of the City Prosecutor of Iligan City
issued a resolution dated 30 August 2001, affirming the finding of probable cause
against petitioner.
Meanwhile, during her arraignment on 1 October 2001 in Criminal Case No. 8782,
petitioner entered an unconditional plea of not guilty.3
Dissatisfied with the finding of the Office of the City Prosecutor of Iligan City,
petitioner filed a Petition for Review before the DOJ on 15 October 2001.
In a Resolution dated 11 July 2002, the DOJ reversed and set aside the 30 August 2001
resolution of the Office of the City Prosecutor of Iligan City and directed the said office
to withdraw the Information for Estafa against petitioner.
The said DOJ resolution prompted the Office of the City Prosecutor of Iligan City to
file a "Motion to Withdraw Information" on 25 July 2002.
On 26 July 2002, respondent filed a motion for reconsideration of said resolution of the
DOJ arguing that the DOJ should have dismissed outright the petition for review since
Section 7 of DOJ Circular No. 70 mandates that when an accused has already been
arraigned and the aggrieved party files a petition for review before the DOJ, the
Secretary of Justice cannot, and should not take cognizance of the petition, or even give
due course thereto, but instead deny it outright. Respondent claimed Section 12 thereof
mentions arraignment as one of the grounds for the dismissal of the petition for review
before the DOJ.
In a resolution dated 30 January 2003, the DOJ denied the Motion for Reconsideration
opining that under Section 12, in relation to Section 7, of DOJ Circular No. 70, the
Secretary of Justice is not precluded from entertaining any appeal taken to him even
where the accused has already been arraigned in court. This is due to the permissive
language "may" utilized in Section 12 whereby the Secretary has the discretion to
entertain an appealed resolution notwithstanding the fact that the accused has been
arraigned.
Meanwhile, on 27 February 2003, the trial court issued an order granting petitioners
"Motion to Withdraw Information" and dismissing Criminal Case No. 8782. No action
was taken by respondent or any party of the case from the said order of dismissal.
Aggrieved by the resolution of the DOJ, respondent filed a Petition for Certiorari
before the Court of Appeals. Respondent raised the following issues before the
appellate court:
1. Whether or not the Department of Justice gravely abused its discretion in
giving due course to petitioners petition for review despite its having been
filed after the latter had already been arraigned;
2. Whether or not there is probable cause that the crime of estafa has been
committed and that petitioner is probably guilty thereof;
3. Whether or not the petition before the Court of Appeals has been rendered
moot and academic by the order of the Regional Trial Court dismissing
Criminal Case No. 8782.
The Court of Appeals in a Decision dated 21 July 2004 granted respondents petition
and reversed the Resolutions of the DOJ dated 11 July 2002 and 30 January 2003.
In resolving the first issue, the Court of Appeals, relying heavily on Section 7 of DOJ
Circular No. 70 which states "[i]f an information has been filed in court pursuant to the
appealed resolution, the petition shall not be given due course if the accused had already
been arraigned," ruled that since petitioner was arraigned before she filed the petition
for review with the DOJ, it was imperative for the DOJ to dismiss such petition. It
added that when petitioner pleaded to the charge, she was deemed to have waived her
right to reinvestigation and right to question any irregularity that surrounds it.
Anent the second issue, the Court of Appeals declared that the existence of probable
cause or the lack of it, cannot be dealt with by it since factual issues are not proper
subjects of a Petition for Certiorari.
In disposing of the last issue, the Court of Appeals held that the order of the trial court
dismissing the subject criminal case pursuant to the assailed resolutions of the DOJ did
not render the petition moot and academic. It said that since the trial courts order relied
solely on the resolutions of the DOJ, said order is void as it violated the rule which
enjoins the trial court to assess the evidence presented before it in a motion to dismiss
and not to rely solely on the prosecutors averment that the Secretary of Justice had
recommended the dismissal of the case.
Dissatisfied by the Court of Appeals ruling, petitioner filed a Motion for
Reconsideration setting forth the following grounds:
1. that the over-all language of Sections 7 and 12 of Department Circular No.
70 is permissive and directory such that the Secretary of Justice may entertain
an appeal despite the fact that the accused had been arraigned;
2. that the contemporaneous construction by the Secretary of Justice should be
given great weight and respect;
3. that Section 7 of the Circular applies only to resolutions rendered pursuant
to a preliminary investigation, not on a reinvestigation;
4. that the trial courts order of dismissal of the criminal case has rendered the
instant petition moot and academic;
5. that her arraignment was null and void it being conducted despite her
protestations; and
6. that despite her being arraigned, the supposed waiver of her right to
preliminary investigation has been nullified or recalled by virtue of the trial
courts order of reinvestigation.4
The Court of Appeals stood firm by its decision. This time, however, it tried to construe
Section 7 side by side with Section 12 of DOJ Circular No. 70 and attempted to
reconcile these two provisions. According to the appellate court, the phrase "shall not"
in paragraph two, first sentence of Section 7 of subject circular, to wit:
If an information has been filed in court pursuant to the appealed resolution, the
petition shall not be given due course if the accused had already been arraigned. x x x.
(Emphasis supplied.)
employed in the circular denotes a positive prohibition. Applying the principle in
statutory construction - that when a statute or provision contains words of positive
prohibition, such as "shall not," "cannot," or "ought not" or which is couched in
negative terms importing that the act shall not be done otherwise than designated, that
statute or provision is mandatory, thus rendering the provision mandatory it opined
that the subject provision simply means that the Secretary of Justice has no other course
of action but to deny or dismiss a petition before him when arraignment of an accused
had already taken place prior to the filing of the petition for review.
On the other hand, reading Section 12 of the same circular which reads:
The Secretary may reverse, affirm or modify the appealed resolution. He may, motu
proprio or upon motion, dismiss the petition for review on any of the following
grounds:
xxxx
(e) That the accused had already been arraigned when the appeal was taken; x x x.
the Court of Appeals opined that the permissive word "may" in Section 12 would seem
to imply that the Secretary of Justice has discretion to entertain an appeal
notwithstanding the fact that the accused has been arraigned. This provision should not
be treated separately, but should be read in relation to Section 7. The two provisions,
taken together, simply meant that when an accused was already arraigned when the
aggrieved party files a petition for review, the Secretary of Justice cannot, and should
not take cognizance of the petition, or even give due course thereto, but instead dismiss
or deny it outright. The appellate court added that the word "may" in Section 12 should
be read as "shall" or "must" since such construction is absolutely necessary to give
effect to the apparent intention of the rule as gathered from the context.
As to the contemporaneous construction of the Secretary of Justice, the Court of
Appeals stated that the same should not be given weight since it was erroneous.
Anent petitioners argument that Section 7 of the questioned circular applies only to
original resolutions that brought about the filing of the corresponding informations in
court, but not to resolutions rendered pursuant to a motion for reinvestigation, the
appellate court simply brushed aside such contention as having no basis in the circular
questioned.
It also rejected petitioners protestation that her arraignment was forced upon her since
she failed to present any evidence to substantiate the same.
It is petitioners contention that despite her being arraigned, the supposed waiver of her
right to preliminary investigation has been nullified by virtue of the trial courts order or
reinvestigation. On this score, the Court of Appeals rebuffed such argument stating that
there was no "supposed waiver of preliminary investigation" to speak of for the reason
that petitioner had actually undergone preliminary investigation.
Petitioner remained unconvinced with the explanations of the Court of Appeals.
Hence, the instant petition.
Again, petitioner contends that the DOJ can give due course to an appeal or petition for
review despite its having been filed after the accused had already been arraigned. It
asserts that the fact of arraignment of an accused before the filing of an appeal or
petition for review before the DOJ "is not at all relevant" as the DOJ can still take
cognizance of the appeal or Petition for Review before it. In support of this contention,
petitioner set her sights on the ruling of this Court in Crespo v. Mogul,5 to wit:
The rule therefore in this jurisdiction is that once a complaint or information is filed in
Court any disposition of the case as to its dismissal or the conviction or acquittal of the
accused rests in the sound discretion of the Court. Although the fiscal retains the
direction and control of the prosecution of criminal cases even while the case is already
in Court he cannot impose his opinion on the trial court. The Court is the best and sole
judge on what to do with the case before it. The determination of the case is within its
exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal
should be addressed to the Court who has the option to grant or deny the same. It does
not matter if this is done before or after the arraignment of the accused or that the
motion was filed after a reinvestigation or upon instructions of the Secretary of Justice
who reviewed the records of the investigation. (Emphasis supplied.)
To bolster her position, petitioner cites Roberts v. Court of Appeals, 6 which stated:
There is nothing in Crespo vs. Mogul which bars the DOJ from taking cognizance of an
appeal, by way of a petition for review, by an accused in a criminal case from an
unfavorable ruling of the investigating prosecutor. It merely advised the DOJ to, "as far
as practicable, refrain from entertaining a petition for review or appeal from the action
of the fiscal, when the complaint or information has already been filed in Court. x x x.
(Emphasis supplied.)
Petitioner likewise invokes Marcelo v. Court of Appeals7 where this Court declared:
Nothing in the said ruling forecloses the power or authority of the Secretary of Justice
to review resolutions of his subordinates in criminal cases. The Secretary of Justice is
only enjoined to refrain as far as practicable from entertaining a petition for review or
appeal from the action of the prosecutor once a complaint or information is filed in
court. In any case, the grant of a motion to dismiss, which the prosecution may file after
the Secretary of Justice reverses an appealed resolution, is subject to the discretion of
the court.
The Court is unconvinced.
A cursory reading of Crespo v. Mogul reveals that the ruling therein does not concern
the issue of an appeal or petition for review before the DOJ after arraignment. Verily,
the pronouncement therein has to do with the filing of a motion to dismiss and the
courts discretion to deny or grant the same. As correctly pointed out by respondent, the
emphasized portion in the Crespo ruling is a parcel of the entire paragraph which relates
to the duty and jurisdiction of the trial court to determine for itself whether or not to
dismiss a case before it, and which states that such duty comes into play regardless of
whether such motion is filed before or after arraignment and upon whose instructions.
The allusion to the Secretary of Justice as reviewing the records of investigation and
giving instructions for the filing of a motion to dismiss in the cited ruling does not take
into consideration of whether the appeal or petition before the Secretary of Justice was
filed after arraignment. Significantly, in the Crespo case, the accused had not yet been
arraigned when the appeal or petition for review was filed before the DOJ.
Undoubtedly, petitioners reliance on the said case is misplaced.
Also unavailing is petitioners invocation of the cases of Roberts v. Court of Appeals
and Marcelo v. Court of Appeals. As in Crespo v. Mogul, neither Roberts v. Court of
Appeals nor Marcelo v. Court of Appeals took into account of whether the appeal or
petition before the Secretary of Justice was filed after arraignment. Just like in the
Crespo case, the accused in both Roberts v. Court of Appeals and Marcelo v. Court of
Appeals had not yet been arraigned when the appeal or petition for review was filed
before the DOJ.
Moreover, petitioner asserts that the Court of Appeals interpretation of the provisions
of DOJ Circular No. 70 violated three basic rules in statutory construction. First, the
rule that the provision that appears last in the order of position in the rule or regulation
must prevail. Second, the rule that the contemporaneous construction of a statute or
regulation by the officers who enforce it should be given weight. Third, petitioner lifted
a portion from Agpalos Statutory Construction8 where the word "shall" had been
construed as a permissive, and not a mandatory language.
The all too-familiar rule in statutory construction, in this case, an administrative rule 9 of
procedure, is that when a statute or rule is clear and unambiguous, interpretation need
not be resorted to.10 Since Section 7 of the subject circular clearly and categorically
directs the DOJ to dismiss outright an appeal or a petition for review filed after
arraignment, no resort to interpretation is necessary.
Petitioners reliance to the statutory principle that "the last in order of position in the
rule or regulation must prevail" is not applicable. In addition to the fact that Section 7
of DOJ Circular No. 70 needs no construction, the cited principle cannot apply
because, as correctly observed by the Court of Appeals, there is no irreconcilable
conflict between Section 7 and Section 12 of DOJ Circular No. 70. Section 7 of the
circular provides:
SECTION 7. Action on the petition. The Secretary of Justice may dismiss the petition
outright if he finds the same to be patently without merit or manifestly intended for
delay, or when the issues raised therein are too unsubstantial to require consideration. If
an information has been filed in court pursuant to the appealed resolution, the petition
shall not be given due course if the accused had already been arraigned. Any
arraignment made after the filing of the petition shall not bar the Secretary of Justice
from exercising his power of review. (Italics supplied.)
On the other hand, Section 12 of the same circular states:
SECTION 12. Disposition of the Appeal. The Secretary may reverse, affirm or
modify the appealed resolution. He may, motu proprio or upon motion, dismiss the
petition for review on any of the following grounds:
(a) That the petition was filed beyond the period prescribed in Section 3
hereof;
(b) That the procedure or any of the requirements herein provided has not
been complied with;
(c) That there is no showing of any reversible error;
(d) That the appealed resolution is interlocutory in nature, except when it
suspends the proceedings based on the alleged existence of a prejudicial
question;
(e) That the accused had already been arraigned when the appeal was taken;
(f) That the offense has already prescribed; and
(g) That other legal or factual grounds exist to warrant a dismissal. (Emphases
supplied.)
It is noteworthy that the principle cited by petitioner reveals that, to find application,
the same presupposes that "one part of the statute cannot be reconciled or harmonized
with another part without nullifying one in favor of the other." In the instant case,
however, Section 7 is neither contradictory nor irreconcilable with Section 12. As can be
seen above, Section 7 pertains to the action on the petition that the DOJ must take,
while Section 12 enumerates the options the DOJ has with regard to the disposition of a
petition for review or of an appeal.
As aptly observed by respondent, Section 7 specifically applies to a situation on what
the DOJ must do when confronted with an appeal or a petition for review that is either
clearly without merit, manifestly intended to delay, or filed after an accused has already
been arraigned, i.e., he may dismiss it outright if it is patently without merit or
manifestly intended to delay, or, if it was filed after the acccused has already been
arraigned, the Secretary shall not give it due course.
Section 12 applies generally to the disposition of an appeal. Under said section, the DOJ
may take any of four actions when disposing an appeal, namely:
1. reverse the appealed resolution;
2. modify the appealed resolution;
 3. affirm the appealed resolution;
4. dismiss the appeal altogether, depending on the circumstances and incidents
attendant thereto.
As to the dismissal of a petition for review or an appeal, the grounds are provided for in
Section 12 and, consequently, the DOJ must evaluate the pertinent circumstances and
the facts of the case in order to determine which ground or grounds shall apply.
Thus, when an accused has already been arraigned, the DOJ must not give the appeal or
petition for review due course and must dismiss the same. This is bolstered by the fact
that arraignment of the accused prior to the filing of the appeal or petition for review is
set forth as one of the grounds for its dismissal. Therefore, in such instance, the DOJ,
noting that the arraignment of an accused prior to the filing of an appeal or petition for
review is a ground for dismissal under Section 12, must go back to Section 7 and act
upon as mandated therein. In other words, the DOJ must not give due course to, and
must necessarily dismiss, the appeal.
Likewise, petitioners reliance on the principle of contemporary construction, i.e., the
DOJ is not precluded from entertaining appeals where the accused had already been
arraigned, because it exercises discretionary power, and because it promulgated itself the
circular in question, is unpersuasive. As aptly ratiocinated by the Court of Appeals:
True indeed is the principle that a contemporaneous interpretation or construction by
the officers charged with the enforcement of the rules and regulations it promulgated is
entitled to great weight by the court in the latters construction of such rules and
regulations. That does not, however, make such a construction necessarily controlling or
binding. For equally settled is the rule that courts may disregard contemporaneous
construction in instances where the law or rule construed possesses no ambiguity, where
the construction is clearly erroneous, where strong reason to the contrary exists, and
where the court has previously given the statute a different interpretation.
If through misapprehension of law or a rule an executive or administrative officer called
upon to implement it has erroneously applied or executed it, the error may be corrected
when the true construction is ascertained. If a contemporaneous construction is found
to be erroneous, the same must be declared null and void. Such principle should be as it
is applied in the case at bar.11
Petitioners posture on a supposed exception to the mandatory import of the word
"shall" is misplaced. It is petitioners view that the language of Section 12 is permissive
and therefore the mandate in Section 7 has been transformed into a matter within the
discretion of the DOJ. To support this stance, petitioner cites a portion of Agpalos
Statutory Construction which reads:
For instance, the word "shall" in Section 2 of Republic Act 304 which states that "banks
or other financial institutions owned or controlled by the Government shall, subject to
availability of funds xxx, accept at a discount at not more than two per centum for ten
years such (backpay) certificate" implies not a mandatory, but a discretionary, meaning
because of the phrase "subject to availability of funds." Similarly, the word "shall" in the
provision to the effect that a corporation violating the corporation law "shall, upon such
violation being proved, be dissolved by quo warranto proceedings" has been construed
as "may."12
After a judicious scrutiny of the cited passage, it becomes apparent that the same is not
applicable to the provision in question. In the cited passage, the word "shall" departed
from its mandatory import connotation because it was connected to certain
provisos/conditions: "subject to the availability of funds" and "upon such violation
being proved." No such proviso/condition, however, can be found in Section 7 of the
subject circular. Hence, the word "shall" retains its mandatory import.
At this juncture, the Court of Appeals disquisition in this matter is enlightening:
Indeed, if the intent of Department Circular No. 70 were to give the Secretary of Justice
a discretionary power to dismiss or to entertain a petition for review despite its being
outrightly dismissible, such as when the accused has already been arraigned, or where
the crime the accused is being charged with has already prescribed, or there is no
reversible error that has been committed, or that there are legal or factual grounds
warranting dismissal, the result would not only be incongruous but also irrational and
even unjust. For then, the action of the Secretary of Justice of giving due course to the
petition would serve no purpose and would only allow a great waste of time. Moreover,
to give the second sentence of Section 12 in relation to its paragraph (e) a directory
application would not only subvert the avowed objectives of the Circular, that is, for the
expeditious and efficient administration of justice, but would also render its other
mandatory provisions - Sections 3, 5, 6 and 7, nugatory.13
In her steadfast effort to champion her case, petitioner contends that the issue as to
whether the DOJ rightfully entertained the instant case, despite the arraignment of the
accused prior to its filing, has been rendered moot and academic with the order of
dismissal by the trial court dated 27 February 2003. Such contention deserves scant
consideration.
It must be stressed that the trial court dismissed the case precisely because of the
Resolutions of the DOJ after it had, in grave abuse of its discretion, took cognizance of
the petition for review filed by petitioner. Having been rendered in grave abuse of its
discretion, the Resolutions of the DOJ are void. As the order of dismissal of the trial
court was made pursuant to the void Resolutions of the DOJ, said order was likewise
void. The rule in this jurisdiction is that a void judgment is a complete nullity and
without legal effect, and that all proceedings or actions founded thereon are themselves
regarded as invalid and ineffective for any purpose.14 That respondent did not file a
motion for reconsideration or appeal from the dismissal order of the trial court is of no
moment. Since the dismissal was void, there was nothing for respondent to oppose.
Petitioner further asserts that Section 7 of DOJ Circular No. 70 applies only to appeals
from original resolution of the City Prosecutor and does not apply in the instant case
where an appeal is interposed by petitioner from the Resolution of the City Prosecutor
denying her motion for reinvestigation. This claim is baseless.1avvphi1.net

A reading of Section 7 discloses that there is no qualification given by the same

provision to limit its application to appeals from original resolutions and not to
resolutions on reinvestigation. Hence, the rule stating that "when the law does not
distinguish, we must not distinguish"15 finds application in this regard.

Petitioner asserts that her arraignment was null and void as the same was improvidently
conducted. Again, this contention is without merit. Records reveal that petitioners
arraignment was without any restriction, condition or reservation. 16 In fact she was
assisted by her counsels Atty. Arthur Abudiente and Atty. Maglinao when she pleaded
to the charge.17

Moreover, the settled rule is that when an accused pleads to the charge, he is deemed to
have waived the right to preliminary investigation and the right to question any
irregularity that surrounds it.18 This precept is also applicable in cases of reinvestigation
as well as in cases of review of such reinvestigation. In this case, when petitioner
unconditionally pleaded to the charge, she effectively waived the reinvestigation of the
case by the prosecutor as well as the right to appeal the result thereof to the DOJ
Secretary. Thus, with the arraignment of the petitioner, the DOJ Secretary can no longer
entertain the appeal or petition for review because petitioner had already waived or
abandoned the same.

Lastly, while there is authority19 permitting the Court to make its own determination of
probable cause, such, however, cannot be made applicable in the instant case. As earlier
stated, the arraignment of petitioner constitutes a waiver of her right to preliminary
investigation or reinvestigation. Such waiver is tantamount to a finding of probable
cause. For this reason, there is no need for the Court to determine the existence or non-
existence of probable cause.

Besides, under Rule 45 of the Rules of Court, only questions of law may be raised in,
and be subject of, a petition for review on certiorari since this Court is not a trier of
facts. This being the case, this Court cannot review the evidence adduced by the parties
before the prosecutor on the issue of the absence or presence of probable cause.20

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated
21 July 2004 and its Resolution dated 10 June 2005 in CA-G.R. SP No. 76396 are
AFFIRMED. Costs against petitioner.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 158960 November 24, 2006
LORNA FRANCES FILIPINO, Petitioner,
vs.
F. WALTER R. MACABUHAY, representing DRUGMAKERS
LABORATORIES, INC., Respondent.
DECISION
YNARES-SANTIAGO, J.:
This petition for review1 assails the August 22, 2002 Decision2 of the Court of Appeals
in CA-G.R. SP No. 54974 which affirmed the June 11, 1999 Decision 3 of the Office of
the Ombudsman in OMB-ADM-0-97-0481 dismissing petitioner Atty. Lorna Frances
Filipino from government service pursuant to Sections 7(d) 4 and 11(b)5 of Republic Act
(R.A.) No. 6713 (1989);6 and its July 3, 2003 Resolution7 denying petitioners motion for
reconsideration.
On October 5, 1995, respondent F. Walter R. Macabuhay, representing Drugmakers
Laboratories, Inc., filed before the Ombudsman a Complaint-Affidavit8 charging
petitioner Lorna Frances Filipino, former Chief of the Legal Information and
Compliance Division of the Bureau of Food and Drugs Administration (BFAD), with
soliciting a loan from the company, in violation of R.A. No. 6713, R.A. No. 3019
(1960),9 and Presidential Decree (P.D.) No. 807 (1975).10
Respondent alleged that sometime in January 1993, petitioner demanded a loan from
the company in the amount of P110,000.00. Because of petitioners disciplinary power
and supervisory authority, the company succumbed to her demands and issued United
Coconut Planters Bank (UCPB) Check No. 331512 in the amount of P110,000.00,
supported by Cash Voucher No. 3620311 in petitioners name. The check, however, was
issued to a certain Marites L. Vilchez upon petitioners request.
In her Counter-Affidavit, petitioner denied respondents allegations and claimed that the
transaction was purely between Drugmakers and Vilchez; that she did not receive any
demand letter from respondent; and that Vilchez had fully paid the loan as evidenced by
an Acknowledgment Receipt dated May 2, 1997.12 In support of her contentions,
petitioner submitted the February 7, 1997 Affidavit13 of Vilchez where the latter attested
that she was the debtor of the subject loan; that she came to know of respondent
through a friend, Arlene Piago; and that respondent loaned her P110,000.00 in exchange
for jewelry obtained by Evangeline C. Del Mundo, a principal officer of the company. 14
In an Affidavit dated September 1, 1997, Del Mundo denied Vilchez allegations and
claimed that respondent company is not engaged in the business of financing or
lending. She denied knowing Piago and alleged that the amount of P110,000.00 was
loaned to petitioner. She denied buying any jewelry from Vilchez and claimed that it
would be absurd for her to issue a company check for her personal transactions, more
so for goods she has not received.15
During the preliminary conference on November 25, 1997, petitioner made a
reservation that a formal hearing be held to give her the opportunity to cross-examine
the witnesses and evaluate the documentary evidence against her.16
In the scheduled hearing on May 19, 1998, however, petitioner filed a Motion to
Dismiss17 on the ground that respondents cause of action has prescribed considering
that more than one year has passed from the alleged commission of the act on January
26, 1993 to the filing of the Complaint-Affidavit on October 5, 1995. The Ombudsman
denied the motion in an Order18 dated June 10, 1998, stating that its rules are merely
directory and that public policy and interest dictate inquiry into the case. In the same
Order, the formal investigation was set on July 1, 1998.
The hearing scheduled on July 1, 1998 did not push through as petitioner moved for
reconsideration of the June 10, 1998 Order which was denied and the parties were
required to submit the case for adjudication in an Order dated November 19,
1998.19 Petitioner thereafter filed a Memorandum20 on February 22, 1999.
On April 20, 1999, petitioner filed an Urgent Motion21 to set the case for formal
investigation and/or hearing but the Ombudsman denied the same holding that
petitioners submission of a Memorandum was a waiver of her right to a formal
investigation.
On June 11, 1999, the Ombudsman rendered a Decision dismissing petitioner from
government service, the dispositive portion of which states:
WHEREFORE, in view of all the foregoing, respondent Lorna Frances Filipino, also
known as Lorna Frances Cabanlas, is hereby found guilty as charged of the offense of
"contracting loans of money or other property from persons with whom her office has
business relations" and "soliciting or accepting directly or indirectly any loan or anything
of monetary value." Pursuant to Section 22 (j) and (k), Rule XIV, Omnibus Rules
Implementing Book V of Executive Order No. 292 prescribing the penalties for
administrative offenses and Section 7 (d) in relation to Section 11 (b), Republic Act No.
6713, otherwise known as the "Code of Conduct and Ethical Standards for Public
Officials Employees," she is hereby ordered DISMISSED from the service upon her
receipt of a copy of this Decision.
SO RESOLVED.22
Petitioner filed a petition for review before the Court of Appeals alleging that she was
deprived of due process and that the findings of the Ombudsman were not supported
by substantial evidence. On August 22, 2002, the Court of Appeals rendered the assailed
Decision, the dispositive portion of which states:
WHEREFORE, the instant petition is hereby DENIED. Accordingly, the assailed
Decision dated June 11, 1999 of the Office of the Ombudsman is hereby AFFIRMED.
SO ORDERED.23
Petitioner moved for reconsideration but was denied, hence this petition for review
raising the following issues:
I
THE HONORABLE COURT OF APPEALS ERRED WHEN IT FOUND
THAT THE FINDINGS OF THE OFFICE OF THE OMBUDSMAN IS
(SIC) SUPPORTED BY SUBSTANTIAL EVIDENCE.
II
THE HONORABLE COURT OF APPEALS ERRONEOUSLY HELD
THAT PETITIONER NEVER PURSUED THE REMEDY OF FORMAL
INVESTIGATION BEFORE THE OFFICE OF THE OMBUDSMAN.
III
THE HONORABLE COURT OF APPEALS ERRONEOUSLY HELD
THAT PETITIONER WAS NOT DENIED DUE PROCESS SINCE SHE
FILED HER MEMORANDUM.
IV
THE HONORABLE COURT OF APPEALS ERRONEOUSLY HELD
THAT THE PRESUMPTION OF REGULARITY IN SENDING A COPY
OF THE ORDER RESOLVING THE MOTION FOR
DISQUALIFICATION WAS NOT REBUTTED BY PETITIONER.
V
THE PETITIONER BELIEVES THAT THE COMPLAINT SHO(U)LD
BE DISMISSED PURSUANT TO SEC. 20[5] OF RA 6770.24
Petitioner contends that the complaint should be dismissed on the grounds of
prescription; denial of due process; and lack of substantial evidence showing that she
was guilty of contracting loans from respondent with whom her office has business
relations.
Meanwhile, respondent failed to comment on the instant petition despite several notices
sent by the Court. Thus, we dispensed with the filing of the same.
The issues for resolution are: 1) whether the complaint is barred by prescription; 2)
whether petitioner was denied due process; and 3) whether there is substantial evidence
showing petitioners participation in the loan transaction.
The petition lacks merit.
Section 20 of R.A. No. 6770, otherwise known as The Ombudsman Act of 1989, states:
Sec. 20. Exceptions. - The Office of the Ombudsman may not conduct the necessary
investigation of any administrative act or omission complained of if it believes that:
xxxx
(5) The complaint was filed after one (1) year from the occurrence of the act or
omission complained of.
Petitioner argues that based on the abovementioned provision, respondents complaint
is barred by prescription considering that it was filed more than one year after the
alleged commission of the acts complained of.
Petitioners argument is without merit.
The use of the word "may" clearly shows that it is directory in nature and not
mandatory as petitioner contends.25When used in a statute, it is permissive only and
operates to confer discretion; while the word "shall" is imperative, operating to impose
a duty which may be enforced.26 Applying Section 20 (5), therefore, it is discretionary
upon the Ombudsman whether or not to conduct an investigation on a complaint even
if it was filed after one year from the occurrence of the act or omission complained of.
In fine, the complaint is not barred by prescription.
As regards the second issue, we find that petitioner was not deprived of due process. It
is well-settled that the essence of due process in administrative proceedings is that a
party be afforded a reasonable opportunity to be heard and to submit any evidence he
may have in support of his defense.27 Deprivation of due process cannot be successfully
invoked where a party was given the chance to be heard and given the opportunity to
present his side.28 In Samalio v. Court of Appeals,29 we held:
Due process in an administrative context does not require trial-type proceedings similar
to those in courts of justice. Where opportunity to be heard either through oral
arguments or through pleadings is accorded, there is no denial of procedural due
process. A formal or trial-type hearing is not at all times and in all instances essential.
The requirements are satisfied where the parties are afforded fair and reasonable
opportunity to explain their side of the controversy at hand. The standard of due
process that must be met in administrative tribunals allows a certain degree of latitude as
long as fairness is not ignored. In other words, it is not legally objectionable for being
violative of due process for an administrative agency to resolve a case based solely on
position papers, affidavits or documentary evidence submitted by the parties as
affidavits of witnesses may take the place of their direct testimony.30
In the instant case, petitioner had the opportunity to present her side as well as submit
countervailing evidence to refute respondents claims. She participated in all levels of
the proceedings, from the Ombudsman to this Court. The records show that petitioner
submitted before the Ombudsman the following: a) Counter-Affidavit refuting all the
charges against her; b) Motion to Dismiss the complaint; c) Motion for Reconsideration
of the order of denial of the Motion to Dismiss; d) Memorandum; e) Urgent Motion to
set case for a formal investigation and/or hearing; and f) Motion for Disqualification
and/or Inhibition. The Ombudsman also considered petitioners motion for
reconsideration of the June 11, 1999 Decision while the Court of Appeals heard her
appeal.
From the foregoing, it is clear that the requirements of due process were satisfied in the
instant case. Petitioner was never deprived of an opportunity to a formal investigation
as in fact hearings were scheduled, but petitioner opted to file several pleadings instead
of proceeding with the formal investigation.
submitted a signed handwritten note34 showing petitioners personal details as well as
the terms of payment for the subject loan. Moreover, the testimonies of Evangeline Del
Mundo and F. Walter R. Macabuhay were straightforward and consistent.
On the other hand, petitioner relied on bare denials. And while it appears that petitioner
initially denied acquaintance with Vilchez, she eventually admitted knowing her during
the Senate proceedings on April 11, 1996.35 Likewise, we agree with the findings of the
Ombudsman that Vilchez account of the loan transaction is "incredible" and "highly
suspect."36 That respondent would allow its officers to use company funds for their
personal purchases is implausible.
In view of all the foregoing, the Ombudsman correctly gave credence to the evidence
presented by respondent. Needless to say, findings of fact by the Office of the
Ombudsman when supported by substantial evidence, as in the instant case, are
conclusive.37 Further, when the administrative bodies factual findings have been
affirmed by the Court of Appeals, as in this case, said findings are generally conclusive
and binding upon this Court. It is not the function of this Court to analyze and weigh
the parties evidence all over again except when there is serious ground to believe that a
possible miscarriage of justice would thereby result. Our task in an appeal by petition
for review on certiorari is limited, as a jurisdictional matter, to reviewing errors of law
that might have been committed by the Court of Appeals. 38
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in
CA-G.R. SP No. 54974 affirming the June 11, 1999 Decision of the Office of the
Ombudsman in OMB-ADM-0-97-0481 dismissing petitioner Atty. Lorna Frances
Filipino from government service, and its July 3, 2003 Resolution denying petitioners
motion for reconsideration, are AFFIRMED.

Further, pursuant to the November 19, 1998 Order of the Ombudsman, petitioner filed SO ORDERED.
a Memorandum on February 22, 1999 without reservation. She did not move for
reconsideration of the said Order which categorically stated that after the parties
submission of memoranda, the case would be considered ripe for resolution.31 The
Urgent Motion to set case for formal investigation and/or hearing was filed only on
April 20, 1999, long after the case had been deemed submitted for resolution. Thus,
petitioner impliedly waived her right to a formal hearing.

Finally, the Ombudsman and the Court of Appeals correctly held that there is
substantial evidence proving petitioners liability under R.A. No. 6713. Substantial
evidence is such relevant evidence as a reasonable mind may accept as adequate to
support a conclusion.32 The requirement is satisfied where there is reasonable ground to
believe that the petitioner is guilty of misconduct, even if the evidence might not be
overwhelming.33

The evidence on record sufficiently established petitioners participation in the loan

transaction with respondent company. Cash Voucher No. 36230 shows that the amount
of P110,000.00 was disbursed by respondent in favor of petitioner. Respondent also

SECOND DIVISION
COMMISSIONER OFCUSTOMS, G.R. No. 183868
Petitioner,
Present:
CARPIO, J., Chairperson,
DE CASTRO,*
- versus - PERALTA,
ABAD, and
MENDOZA, JJ.
MARINA SALES, INC.,
Respondent. Promulgated:
November 22, 2010
X -------------------------------------------------------------------------------------- X
DECISION
MENDOZA, J.:
In this petition for review on certiorari[1] under Rule 45, the Commissioner of
Customs (Commissioner), represented by the Office of the Solicitor General (OSG), assails
the April 11, 2008 Resolution[2] of the Court of Tax Appeals En Banc (CTA-En Banc),
in C.T.A. E.B. No. 333, dismissing his petition for review for his failure to file a motion
for reconsideration before the Court of Tax Appeals Division (CTA-Division).
Respondent Marina Sales, Inc. (Marina) is engaged in the manufacture of
Sunquick juice concentrates. It was appointed by CO-RO Food A/S of Denmark,
maker of Sunquick Juice Concentrates, to be its manufacturing arm in
the Philippines. As such, Marina usually imports raw materials into the country for the
purpose. In the past, the Bureau of Customs (BOC) assessed said type of importations
under Tariff Heading H.S. 2106.90 10 with a 1% import duty rate.[3]
On March 6, 2003, Marinas importation, labeled as Import Entry No. C-33771-03,
arrived at the Manila International Container Port (MICP) on board the vessel APL Iris
V-111.Said Import Entry No. C-33771-03 consisted of a 1 x 20 container STC with a
total of 80 drums: (a) 56 drums of 225 kilograms Sunquick Orange Concentrate; and (b)
24 drums of 225 kilograms of Sunquick Lemon Concentrate.[4] It was supported by the
following documents: (a) Bill of Lading No. APLU 800452452 dated February 2,
2003;[5] and (b) CO-RO Food A/S of Denmark Invoice No. 1619409 dated January 27,
2003.[6]
Marina computed and paid the duties under Tariff Harmonized System Heading H.S.
2106.90 10 at 1% import duty rate.
This time, however, the BOC examiners contested the tariff classification of Marinas
Import Entry No. C-33771-03 under Tariff Heading H.S. 2106.90 10. The BOC
examiners recommended to the Collector of Customs, acting as Chairman of the
Valuation and Classification Review Committee (VCRC) of the BOC, to reclassify
Marinas importation as Tariff Heading H.S. 2106.90 50 (covering composite
concentrates for simple dilution with water to make beverages) with a corresponding
7% import duty rate.
The withheld importation being necessary to its business operations, Marina requested
the District Collector of the BOC to release Import Entry No. C-33771-03 under its
Tentative Release System.[7] Marina undertook to pay the reclassified rate of duty should
it be finally determined that such reclassification was correct. The District Collector
granted the request.
On April 15, 2003, the VCRC directed Marina to appear in a deliberation on May 15,
2003 and to explain why its shipment under Import Entry No. C-33771-03 should not
be classified under Tariff Heading H.S. 2106.90 50 with import duty rate of 7%.[8]
On May 15, 2003, Marina, through its Product Manager Rowena T. Solidum and
Customs Broker Juvenal A. Llaneza, attended the VCRC deliberation and submitted its
explanation,[9] dated May 13, 2003, along with samples of the importation under Import
Entry No. C-33771-03.
On May 21, 2003, another importation of Marina arrived at the MICP
designated as Import Entry No. C-67560-03. It consisted of another 1 x 20 container
STC with a total of 80 drums: (a) 55 drums of 225 kilograms of Sunquick Orange
Concentrate; (b) 1 drum of 225 kilograms of Sunquick Tropical Fruit Concentrate; (c)
17 drums of 225 kilograms of Sunquick Lemon Concentrate; (d) 3 drums of 225
kilograms of Sunquick Ice Lemon Concentrate; and (e) 4 drums of 225 kilograms
Sunquick Peach Orange Concentrate. The said importation was accompanied by the
following documents: (a) Bill of Lading No. KKLUCPH060291 dated April 17,
2003;[10] and (b) CO-RO Foods A/S Denmark Invoice No. 1619746 dated April 15,
2003.[11]
Again, the BOC examiners disputed the tariff classification of Import Entry No. C-
67560-03 and recommended to the VCRC that the importation be classified at Tariff
Heading H.S. 2106.90 50 with the corresponding 7% duty rate.
In order for Import Entry No. C-67560-03 to be released, Marina once again signed an
undertaking under the Tentative Release System.[12]
In a letter dated July 7, 2003, the VCRC scheduled another deliberation
requiring Marina to explain why Import Entry No. C-67560-03 should not be classified
under Tariff Heading H.S. 2106.90 50 at the import duty rate of 7%.[13]
On July 17, 2003, Marina again attended the VCRC deliberation and submitted its
explanation[14] dated July 17, 2003 together with samples in support of its claim that the
imported goods under Import Entry No. C-67560-03 should not be reclassified under
Tariff Heading H.S. 2106.90 50.
Thereafter, the classification cases for Import Entry No. C-33771-03 and Import Entry
No. C-67560-03 were consolidated.
On September 11, 2003, as reflected in its 1st Indorsement, the VCRC
reclassified Import Entry No. C-33771-03 and Import Entry No. C-67560-03 under
Tariff Heading H.S. 2106.90 50 at 7% import duty rate.[15]
On October 7, 2003, Marina appealed before the Commissioner challenging
VCRCs reclassification.[16]
In its 1st Indorsement of November 13, 2003,[17] the VCRC modified its earlier
ruling and classified Marinas Import Entry No. C-33771-03 and Import Entry No. C-
67560-03 under Tariff Heading H.S. 2009 19 00 at 7% duty rate, H.S. 2009.80 00 at 7%
duty rate and H.S. 2009.90 00 at 10% duty rate.
Apparently not in conformity, Marina interposed a petition for review before
the CTA on February 3, 2004, which was docketed as CTA Case No. 6859.
On October 31, 2007, the CTA Second Division ruled in favor of Marina[18] holding
that its classification under Tariff Heading H.S. 2106.90 10 was the most appropriate
and descriptive of the disputed importations.[19] It opined that Marinas importations
were raw materials used for the manufacture of its Sunquick products, not ready-to-
drink juice concentrates as argued by the Commissioner.[20] Thus, the decretal portion of
the CTA - Second Division reads:
WHEREFORE, finding merit in petitioners Petition for Review, the
same is hereby GRANTED. Accordingly, the Resolution/Decision
dated November 13, 2003 of the Valuation and Classification Review
Committee of the Bureau of Customs is hereby SET ASIDE and
petitioners importation covered by Import Entry Nos. C-33771-03
and C-67560-03 are reclassified under Tariff Harmonized System
Heading H.S. 2106.90 10 with an import duty rate of 1%.
SO ORDERED.
The Commissioner disagreed and elevated the case to the CTA-En Banc via a petition
for review.[21]
In its Resolution of April 11, 2008, the CTA En Banc dismissed the
petition. The pertinent portions of the decision including the fallo read:
A careful scrutiny of the record of this case showed that
petitioner failed to file before the Second Division the required
Motion for Reconsideration before elevating his case to the CTA En
Banc.
Section 1, Rule 8 of the Revised Rules of the Court of Tax
Appeals provided for the following rule, to wit:
RULE 8
PROCEDURE IN CIVIL CASES
SECTION 1. Review of Cases in the Court
en banc.- In cases falling under the exclusive
appellate jurisdiction of the Court en banc, the
petition for review of a decision or resolution of
the Court in Division must be preceded by the
filing of a timely motion for reconsideration or
new trial with the Division.
In statutory construction, the use of the word must
indicates that the requirement is mandatory. Furthermore, the word
must connote an imperative act or operates to simply impose a duty
which may be enforced. It is true the word must is sometimes
construed as may permissive but this is only when the context
requires it. Where the context plainly shows the provision to be
mandatory, the word must is a command and cannot be construed as
permissive, but must be given the signification which it imparts.
It is worthy to note that the Supreme Court ruled that a
Motion for Reconsideration is mandatory as a precondition to the
filing of a Petition for Review under Rule 43 of the Rules of Court.
WHEREFORE, applying by analogy the above ruling of the
Supreme Court and taking into consideration the mandatory
provision provided by Section 1 of Rule 8 of the Revised Rules of the
Court of Tax Appeals and considering further that petitioner did not
file a Motion for Reconsideration with the Second Division before
elevating the case to the Court En Banc, which eventually deprived
the Second Division of an opportunity to amend, modify, reverse or
correct its mistake or error, if there be, petitioners Petition for
Review is hereby DISMISSED.
SO ORDERED.[22]
The Commissioner sought reconsideration of the disputed decision, but the CTA En
Banc issued a denial in its July 14, 2008 Resolution.[23]
Hence, this petition.
In his Memorandum,[24] the Commissioner submits the following issues for resolution:
 At any rate, even if the Court accords liberality, the position of the
A. Commissioner has no merit. After examining the records of the case, the Court is of the
view that the import duty rate of 1%, as determined by the CTA Second Division, is
WHETHER THE DISMISSAL BY THE COURT OF TAX correct.
APPEALS EN BANC OF PETITIONERS PETITION
BASED ON MERE TECHNICALITY WILL RESULT IN The table shows the different classification of Tariff import duties relevant to
INJUSTICE AND UNFAIRNESS TO PETITIONER. the case at bar:
TARIFF IMPORT COVERAGE
B. HEADING DUTY RATE
H.S. 2106.90 10 1% Covers flavouring materials, nes., of kind used
WHETHER THE CHALLENGED DECISION OF THE in food and drink industries; other food
COURT OF TAX APPEALS SECOND DIVISION preparations to be used as raw material in
HOLDING THAT RESPONDENTS IMPORTATION ARE preparing composite concentrates for making
COVERED BY IMPORT ENTRY NOS. C-33771-03 AND C- beverages
67560-03 ARE CLASSIFIED UNDER TARIFF H.S. 2106.90 50 7% Covers composite concentrate for simple
HARMONIZED SYSTEM HEADING H.S. 2106.90 10 WITH dilution with water to make beverages
AN IMPORT DUTY RATE OF ONE PERCENT (1%) IS H.S. 2009. 19 00 7% Covers orange juice, not frozen
NOT CORRECT.[25] H.S. 2009.80 00 7% Covers juice of any other single fruit or
vegetable
The Commissioner argues that the dismissal of his petition before the CTA-
H.S. 2009.90 00 10% Covers mixtures of juices
En Banc is inconsistent with the principle of the liberal application of the rules of
procedure.[26] He points out that due to the dismissal of the petition, the government
would only be collecting 1% import duty rate from Marina instead of 7%.[27] This, if The Commissioner insists that Marinas two importations should be classified
sanctioned, would result in grave injustice and unfairness to the government. [28] under Tariff Heading H.S. 2106.90 50 with an import duty rate of 7% because the
concentrates are ready for consumption by mere dilution with water.
The Commissioner also contends that the testimony of Marinas expert
witness, Aurora Kimura, pertaining to Sunquick Lemon compound shows that it could The Court is not persuaded.
be classified as heavy syrup[29] falling under the category of H.S. 2190.90 50 with a 7%
import duty rate.[30] As extensively discussed by the CTA Second Division, to fit into the category listed
under the Tariff Harmonized System Headings calling for a higher import duty rate of 7%, the
The Court finds no merit in the petition. imported articles must not lose its original character. In this case, however, the laboratory
analysis of Marinas samples yielded a different result.[35] The report supported Marinas
On the procedure, the Court agrees with the CTA En Banc that the position that the subject importations are not yet ready for human
Commissioner failed to comply with the mandatory provisions of Rule 8, Section 1 of consumption. Moreover, Marinas plant manager, Rebecca Maronilla, testified that the
the Revised Rules of the Court of Tax Appeals[31] requiring that the petition for review juice compounds could not be taken in their raw form because they are highly
of a decision or resolution of the Court in Division must be preceded by the filing of concentrated and must be mixed with other additives before they could be marketed as
a timely motion for reconsideration or new trial with the Division. The word "must" Sunquick juice products. If taken in their unprocessed form, the concentrates without
clearly indicates the mandatory -- not merely directory -- nature of a requirement.[32] the mixed additives would produce a sour taste.[36] In other words, the concentrates, to
be consumable, must have to lose their original character. To quote the CTA Second
The rules are clear. Before the CTA En Banc could take cognizance of the Division:
petition for review concerning a case falling under its exclusive appellate jurisdiction, the Verily, to fall under the assailed Tariff Harmonized System
litigant must sufficiently show that it sought prior reconsideration or moved for a new Headings, petitioners (herein respondent) articles of importation, as
trial with the concerned CTA division. Procedural rules are not to be trifled with or be fruit juices/mixtures, should not have lost its original character, in
excused simply because their non-compliance may have resulted in prejudicing a partys spite of the addition of certain standardizing
substantive rights.[33] Rules are meant to be followed. They may be relaxed only for very agents/constituents. Contrary thereto, We find the subject
exigent and persuasive reasons to relieve a litigant of an injustice not commensurate to importations categorized as non-alcoholic composite concentrates to
his careless non-observance of the prescribed rules.[34] have apparently lost their original character due to the addition of
ingredients in such quantity that the concentrated fruit juice mixture
only comprises a small percentage of the entire compound.
This was clearly explained by the VCRC in its subsequent
Resolution/Decision (1st Indorsement) issued on February 17, 2005 pertaining
to subsequent similar importations of petitioner, effectively correcting its findings in
the assailed Resolution/Decision dated November 13, 2003 concerning the same
party-importer, issues and articles of importation,[37] to wit:
SUB-GROUP OBSERVATIONS/FINDINGS:
The classification issue was divided into two regimes. The
era under the old Harmonized Commodity Description
and Coding System, while the other is the latest revised
edition, the Asean Harmonized Tariff Nomenclature.
The previous committee resolution was promulgated
technically not on the merit of the case but failure on the
part of the importer to submit their position
paper/arguments within the prescriptive period given by
the committee.
Importer submitted samples of subject shipment for
laboratory analysis to Philippine Customs laboratory to
validate the veracity of product information given by the
supplier and to determine the correct tariff classification.
Xxx xxx xxx
Based on the report of the Laboratory Analysis,
compound is made up to water 57.9%, Invert Sugar
34.34%, Citric Acid 2.94%, Vitamin C (Ascorbic Acid)
105 mg.
Since the item is compound which is composed of water,
sugar, concentrated juice, flavourings, citric acid, stabilizer,
preservatives, vitamins C and colouring to produce
beverage ready to drink. Consequently the
concentrated citrus juice has lost its original
character due to the fact that it comprises only 12% of
the total compound.[38]
Items (fruit juices) classifiable under HS 2009 are fruit
juices generally obtained by pressing fresh, healthy and
ripe fruit. Per item 4 of the Explanatory Notes to the
Harmonized Commodity Description and Coding System
apparently subject article has lost its original character as
concentrated fruit juice drink to the compounding
ingredients which reduces the fruit juices to 12% of the
total compound.
In view of the foregoing subject article is classifiable
under Tariff Heading H.S. 2106.90 10 at 1% for entries
filed under the old regime. For those filed under the new
regime tariff heading AHTN 2106.90 51 at 1% where the
item are specifically provided.
RESOLUTION: To apply sub-group recommendation
which is to adopt H.S. 2106.90 10 at 1% for entries filed
under the old regime and for those filed under the
new regime, AHTN 2106.90 51 at 1% where the item
are specifically provided.[39]
To manufacture is to make or fabricate raw materials by hand, art or
machinery, and work into forms convenient for use.[40] Stated differently, it is to
transform by any process into another form suitable for its intended use. Marina, as the
manufacturing arm of CO-RO Food A/S of Denmark, transforms said juice
compounds, being raw materials, into a substance suitable for human
consumption. This is evident from the Commissioners Report[41] of Executive Clerk of
Court II, CTA, Jesus P. Inocando, Jr., who conducted an ocular inspection of Marinas
manufacturing plant in Taguig City. Pertinent excerpts of the Commissioners Report are
herein reproduced:
On our ocular inspection of the manufacturing plant of
petitioner, Ms. Solidum and Mr. Domingo showed us the sample of
the imported compounds (raw materials), showed to us the step by
step manufacturing process of petitioner and even showed us the
bottling and packaging of the finished product.
Per observation of the undersigned, the imported
compounds (raw materials) are very sticky, the plant is clean and that
the personnel of petitioner in the plant strictly following the
manufacturing process as presented in Annex A and Annex B of this
report.
Upon questioning by the counsel for respondent, Mr.
Domingo said that while the imported compounds (raw materials)
can be mixed with water and may be drinkable, he is not sure if the
same is suitable for human consumption. None of us dared to taste
the sample of imported compounds (raw materials) diluted in
water. The imported compounds (raw materials) mixed with water
produces bubbles on top of the mixture, not like the one that has
gone through the manufacturing process. Counsel for respondent
 requested for the marking of Label of Sunquick Lemon (840 ml.),
[Annex C], as Exhibit 1 for the respondent.[42]

Contrary to the Commissioners assertions, empirical evidence shows that the

subject importations would have to undergo a laborious method, as shown by its
manufacturing flowchart[43] and manufacturing process,[44] to achieve their marketable
juice consistency. Accordingly, the 1% tariff import duty rate under Tariff Heading H.S.
2106.90 10 was correctly applied to the subject importations.

In any case, the VCRC in its 1st Indorsement[45] of February 17, 2005 (a
subsequent proceeding involving the same type of importation) rectified the disputed
tariff reclassification rate. Thus, in Marinas succeeding importations, the VCRC already
adopted the 1% import duty rate as paid by Marina in the past.

WHEREFORE, the petition is DENIED.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. 179431-32 June 22, 2010
LUIS K. LOKIN, JR., as the second nominee of CITIZENS BATTLE
AGAINST CORRUPTION (CIBAC),Petitioner,
vs.
COMMISSION ON ELECTIONS and the HOUSE OF
REPRESENTATIVES, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 180443
LUIS K. LOKIN, JR., Petitioner,
vs.
COMMISSION ON ELECTIONS (COMELEC), EMMANUEL JOEL J.
VILLANUEVA, CINCHONA C. GONZALES and ARMI JANE R.
BORJE, Respondents.
DECISION
BERSAMIN, J.:
The principal question posed in these consolidated special civil actions for certiorari and
mandamus is whether the Commission on Elections (COMELEC) can issue
implementing rules and regulations (IRRs) that provide a ground for the substitution of
a party-list nominee not written in Republic Act (R.A.) No. 7941,1 otherwise known as
the Party-List System Act, the law that the COMELEC thereby implements.
Common Antecedents
The Citizens Battle Against Corruption (CIBAC) was one of the organized groups duly
registered under the party-list system of representation that manifested their intent to
participate in the May 14, 2007 synchronized national and local elections. Together with
its manifestation of intent to participate,2 CIBAC, through its president, Emmanuel Joel
J. Villanueva, submitted a list of five nominees from which its representatives would be
chosen should CIBAC obtain the required number of qualifying votes. The nominees,
in the order that their names appeared in the certificate of nomination dated March 29,
2007,3 were: (1) Emmanuel Joel J. Villanueva; (2) herein petitioner Luis K. Lokin, Jr.; (3)
Cinchona C. Cruz-Gonzales; (4) Sherwin Tugna; and (5) Emil L. Galang. The nominees
certificates of acceptance were attached to the certificate of nomination filed by CIBAC.
The list of nominees was later published in two newspapers of general circulation, The
Philippine Star News4 (sic) and The Philippine Daily Inquirer.5
Prior to the elections, however, CIBAC, still through Villanueva, filed a certificate of
nomination, substitution and amendment of the list of nominees dated May 7,
2007,6 whereby it withdrew the nominations of Lokin, Tugna and Galang and
substituted Armi Jane R. Borje as one of the nominees. The amended list of nominees
of CIBAC thus included: (1) Villanueva, (2) Cruz-Gonzales, and (3) Borje.
Following the close of the polls, or on June 20, 2007, Villanueva sent a letter to
COMELEC Chairperson Benjamin Abalos,7 transmitting therewith the signed petitions
of more than 81% of the CIBAC members, in order to confirm the withdrawal of the
nomination of Lokin, Tugna and Galang and the substitution of Borje. In their
petitions, the members of CIBAC averred that Lokin and Tugna were not among the
nominees presented and proclaimed by CIBAC in its proclamation rally held in May
2007; and that Galang had signified his desire to focus on his family life.
On June 26, 2007, CIBAC, supposedly through its counsel, filed with the
COMELEC en banc sitting as the National Board of Canvassers a motion seeking the
proclamation of Lokin as its second nominee.8 The right of CIBAC to a second seat as
well as the right of Lokin to be thus proclaimed were purportedly based on Party-List
Canvass Report No. 26, which showed CIBAC to have garnered a grand total of
744,674 votes. Using all relevant formulas, the motion asserted that CIBAC was clearly
entitled to a second seat and Lokin to a proclamation.
The motion was opposed by Villanueva and Cruz-Gonzales.
Notwithstanding Villanuevas filing of the certificate of nomination, substitution and
amendment of the list of nominees and the petitions of more than 81% of CIBAC
members, the COMELEC failed to act on the matter, prompting Villanueva to file a
petition to confirm the certificate of nomination, substitution and amendment of the list
of nominees of CIBAC on June 28, 2007.9
On July 6, 2007, the COMELEC issued Resolution No. 8219,10 whereby it resolved to
set the matter pertaining to the validity of the withdrawal of the nominations of Lokin,
Tugna and Galang and the substitution of Borje for proper disposition and hearing. The
case was docketed as E.M. No. 07-054.
In the meantime, the COMELEC en banc, sitting as the National Board of Canvassers,
issued National Board of Canvassers (NBC) Resolution No. 07-60 dated July 9,
200711 to partially proclaim the following parties, organizations and coalitions
participating under the Party-List System as having won in the May 14, 2007 elections,
namely: Buhay Hayaan Yumabong, Bayan Muna, CIBAC, Gabriela Women's Party,
Association of Philippine Electric Cooperatives, Advocacy for Teacher Empowerment
Through Action, Cooperation and Harmony Towards Educational Reforms, Inc.,
Akbayan! Citizen's Action Party, Alagad, Luzon Farmers Party, Cooperative-Natco
Network Party, Anak Pawis, Alliance of Rural Concerns and Abono; and to defer the
proclamation of the nominees of the parties, organizations and coalitions with pending
disputes until final resolution of their respective cases.
The COMELEC en banc issued another resolution, NBC Resolution No. 07-72 dated
July 18, 2007,12 proclaiming Buhay Hayaan Yumabong as entitled to 2 additional seats
and Bayan Muna, CIBAC, Gabriela Women's Party, and Association of Philippine
Electric Cooperatives to an additional seat each; and holding in abeyance the
proclamation of the nominees of said parties, organizations and coalitions with pending
disputes until the final resolution of their respective cases.
With the formal declaration that CIBAC was entitled to an additional seat, Ricardo de
los Santos, purportedly as secretary general of CIBAC, informed Roberto P. Nazareno,
Secretary General of the House of Representatives, of the promulgation of NBC
Resolution No. 07-72 and requested that Lokin be formally sworn in by Speaker Jose de
Venecia, Jr. to enable him to assume office. Nazareno replied, however, that the request
of Delos Santos could not be granted because COMELEC Law Director Alioden D.
Dalaig had notified him of the pendency of E.M. 07-054.
On September 14, 2007, the COMELEC en banc resolved E.M. No. 07-05413 thuswise:
WHEREFORE, considering the above discussion, the Commission hereby approves
the withdrawal of the nomination of Atty. Luis K. Lokin, Sherwin N. Tugna and Emil
Galang as second, third and fourth nominees respectively and the substitution thereby
with Atty. Cinchona C. Cruz-Gonzales as second nominee and Atty. Armi Jane R. Borje
as third nominee for the party list CIBAC. The new order of CIBAC's nominees
therefore shall be:
1. Emmanuel Joel J. Villanueva
2. Cinchona C. Cruz-Gonzales
without any written Board approval, was accomplished with the Boards acquiescence or
at least understanding; and that the intent of the party should be given paramount
consideration in the selection of the nominees.
As a result, the COMELEC en banc proclaimed Cruz-Gonzales as the official second
nominee of CIBAC.14 Cruz-Gonzales took her oath of office
as a Party-List Representative of CIBAC on September 17, 2007.15
Precs of the Consolidated Cases
In G.R. No. 179431 and G.R. No. 179432, Lokin seeks through mandamus to compel
respondent COMELEC to proclaim him as the official second nominee of CIBAC.
In G.R. No. 180443, Lokin assails Section 13 of Resolution No. 7804 promulgated on
January 12, 2007;16 and the resolution dated September 14, 2007 issued in E.M. No. 07-
054 (approving CIBACs withdrawal of the nominations of Lokin, Tugna and Galang as
CIBACs second, third and fourth nominees, respectively, and the substitution by Cruz-
Gonzales and Borje in their stead, based on the right of CIBAC to change its nominees
under Section 13 of Resolution No. 7804).17 He alleges that Section 13 of Resolution
No. 7804 expanded Section 8 of R.A. No. 7941.18 the law that the COMELEC seeks to
thereby implement.
In its comment, the COMELEC asserts that a petition for certiorari is an inappropriate
recourse in law due to the proclamation of Cruz-Gonzales as Representative and her
assumption of that office; that Lokins proper recourse was an electoral protest filed in
the House of Representatives Electoral Tribunal (HRET); and that, therefore, the Court
has no jurisdiction over the matter being raised by Lokin.
For its part, CIBAC posits that Lokin is guilty of forum shopping for filing a petition
for mandamus and a petition for certiorari, considering that both petitions ultimately
seek to have him proclaimed as the second nominee of CIBAC.

3. Armi Jane R. Borje Issues

SO ORDERED. The issues are the following:

The COMELEC en banc explained that the actions of Villanueva in his capacity as the (a) Whether or not the Court has jurisdiction over the controversy;
president of CIBAC were presumed to be within the scope of his authority as such; that
the president was charged by Section 1 of Article IV of the CIBAC By-Laws to oversee
(b) Whether or not Lokin is guilty of forum shopping;
and direct the corporate activities, which included the act of submitting the party's
manifestation of intent to participate in the May 14, 2007 elections as well as its
certificate of nominees; that from all indications, Villanueva as the president of CIBAC (c) Whether or not Section 13 of Resolution No. 7804 is unconstitutional and
had always been provided the leeway to act as the party's representative and that his violates the Party-List System Act; and
actions had always been considered as valid; that the act of withdrawal, although done
 (d) Whether or not the COMELEC committed grave abuse of discretion
amounting to lack or excess of jurisdiction in approving the withdrawal of the
nominees of CIBAC and allowing the amendment of the list of nominees of
CIBAC without any basis in fact or law and after the close of the polls, and in
ruling on matters that were intra-corporate in nature.
Ruling
The petitions are granted.
A
The Court has jurisdiction over the case
The COMELEC posits that once the proclamation of the winning party-list
organization has been done and its nominee has assumed office, any question relating to
the election, returns and qualifications of the candidates to the House of
Representatives falls under the jurisdiction of the HRET pursuant to Section 17, Article
VI of the 1987 Constitution. Thus, Lokin should raise the question he poses herein
either in an election protest or in a special civil action for quo warranto in the HRET, not
in a special civil action for certiorari in this Court.
We do not agree.
An election protest proposes to oust the winning candidate from office. It is strictly a
contest between the defeated and the winning candidates, based on the grounds of
electoral frauds and irregularities, to determine who between them has actually obtained
the majority of the legal votes cast and is entitled to hold the office. It can only be filed
by a candidate who has duly filed a certificate of candidacy and has been voted for in
the preceding elections.
A special civil action for quo warranto refers to questions of disloyalty to the State, or of
ineligibility of the winning candidate. The objective of the action is to unseat the
ineligible person from the office, but not to install the petitioner in his place. Any voter
may initiate the action, which is, strictly speaking, not a contest where the parties strive
for supremacy because the petitioner will not be seated even if the respondent may be
unseated.
The controversy involving Lokin is neither an election protest nor an action for quo
warranto, for it concerns a very peculiar situation in which Lokin is seeking to be seated
as the second nominee of CIBAC. Although an election protest may properly be
available to one party-list organization seeking to unseat another party-list organization
to determine which between the defeated and the winning party-list organizations
actually obtained the majority of the legal votes, Lokins case is not one in which a
nominee of a particular party-list organization thereby wants to unseat another nominee
of the same party-list organization. Neither does an action for quo warranto lie,
considering that the case does not involve the ineligibility and disloyalty of Cruz-
Gonzales to the Republic of the Philippines, or some other cause of disqualification for
her.
Lokin has correctly brought this special civil action for certiorari against the
COMELEC to seek the review of the September 14, 2007 resolution of the COMELEC
in accordance with Section 7 of Article IX-A of the 1987 Constitution, notwithstanding
the oath and assumption of office by Cruz-Gonzales. The constitutional mandate is
now implemented by Rule 64 of the 1997 Rules of Civil Procedure, which provides for
the review of the judgments, final orders or resolutions of the COMELEC and the
Commission on Audit. As Rule 64 states, the mode of review is by a petition for
certiorari in accordance with Rule 65 to be filed in the Supreme Court within a limited
period of 30 days. Undoubtedly, the Court has original and exclusive jurisdiction over
Lokins petitions for certiorari and for mandamus against the COMELEC.
B
Petitioner is not guilty of forum shopping
Forum shopping consists of the filing of multiple suits involving the same parties for
the same cause of action, either simultaneously or successively, for the purpose of
obtaining a favorable judgment. Thus, forum shopping may arise: (a) whenever as a
result of an adverse decision in one forum, a party seeks a favorable decision (other than
by appeal or certiorari) in another; or (b) if, after having filed a petition in the Supreme
Court, a party files another petition in the Court of Appeals, because he thereby
deliberately splits appeals "in the hope that even as one case in which a particular
remedy is sought is dismissed, another case (offering a similar remedy) would still be
open"; or (c) where a party attempts to obtain a writ of preliminary injunction from a
court after failing to obtain the writ from another court.19
What is truly important to consider in determining whether forum shopping exists or
not is the vexation caused to the courts and the litigants by a party who accesses
different courts and administrative agencies to rule on the same or related causes or to
grant the same or substantially the same reliefs, in the process creating the possibility of
conflicting decisions being rendered by the different fora upon the same issue. 20
The filing of identical petitions in different courts is prohibited, because such act
constitutes forum shopping, a malpractice that is proscribed and condemned as trifling
with the courts and as abusing their processes. Forum shopping is an improper conduct
that degrades the administration of justice.21
Nonetheless, the mere filing of several cases based on the same incident does not
necessarily constitute forum shopping. The test is whether the several actions filed
involve the same transactions and the same essential facts and circumstances. 22 The
actions must also raise identical causes of action, subject matter, and issues.23Elsewise
stated, forum shopping exists where the elements of litis pendentia are present, or where a
final judgment in one case will amount to res judicata in the other.24
Lokin has filed the petition for mandamus to compel the COMELEC to proclaim him
as the second nominee of CIBAC upon the issuance of NBC Resolution No. 07-72
(announcing CIBACs entitlement to an additional seat in the House of
Representatives), and to strike down the provision in NBC Resolution No. 07-60 and
NBC Resolution No. 07-72 holding in abeyance "all proclamation of the nominees of
concerned parties, organizations and coalitions with pending disputes shall likewise be
held in abeyance until final resolution of their respective cases." He has insisted that the
COMELEC had the ministerial duty to proclaim him due to his being CIBACs second
nominee; and that the COMELEC had no authority to exercise discretion and to
suspend or defer the proclamation of winning party-list organizations with pending
disputes.
On the other hand, Lokin has resorted to the petition for certiorari to assail the
September 14, 2007 resolution of the COMELEC (approving the withdrawal of the
nomination of Lokin, Tugna and Galang and the substitution by Cruz-Gonzales as the
second nominee and Borje as the third nominee); and to challenge the validity of
Section 13 of Resolution No. 7804, the COMELECs basis for allowing CIBACs
withdrawal of Lokins nomination.
Applying the test for forum shopping, the consecutive filing of the action for certiorari
and the action for mandamus did not violate the rule against forum shopping even if the
actions involved the same parties, because they were based on different causes of action
and the reliefs they sought were different.
C The COMELEC is constitutionally mandated to enforce and administer all laws and
Invalidity of Section 13 of Resolution No. 7804
The legislative power of the Government is vested exclusively in the Legislature in
accordance with the doctrine of separation of powers. As a general rule, the Legislature
cannot surrender or abdicate its legislative power, for doing so will be unconstitutional.
Although the power to make laws cannot be delegated by the Legislature to any other
authority, a power that is not legislative in character may be delegated. 25
Under certain circumstances, the Legislature can delegate to executive officers and
administrative boards the authority to adopt and promulgate IRRs. To render such
delegation lawful, the Legislature must declare the policy of the law and fix the legal
principles that are to control in given cases. The Legislature should set a definite or
primary standard to guide those empowered to execute the law. For as long as the
policy is laid down and a proper standard is established by statute, there can be no
unconstitutional delegation of legislative power when the Legislature leaves to selected
instrumentalities the duty of making subordinate rules within the prescribed limits,
although there is conferred upon the executive officer or administrative board a large
measure of discretion. There is a distinction between the delegation of power to make a
law and the conferment of an authority or a discretion to be exercised under and in
pursuance of the law, for the power to make laws necessarily involves a discretion as to
what it shall be.26
The authority to make IRRs in order to carry out an express legislative purpose, or to
effect the operation and enforcement of a law is not a power exclusively legislative in
character, but is rather administrative in nature. The rules and regulations adopted and
promulgated must not, however, subvert or be contrary to existing statutes. The
function of promulgating IRRs may be legitimately exercised only for the purpose of
carrying out the provisions of a law. The power of administrative agencies is confined to
implementing the law or putting it into effect. Corollary to this is that administrative
regulation cannot extend the law and amend a legislative enactment. It is axiomatic that
the clear letter of the law is controlling and cannot be amended by a mere administrative
rule issued for its implementation. Indeed, administrative or executive acts shall be valid
only when they are not contrary to the laws or the Constitution.27
To be valid, therefore, the administrative IRRs must comply with the following
requisites to be valid:28
1. Its promulgation must be authorized by the Legislature;
2. It must be within the scope of the authority given by the Legislature;
3. It must be promulgated in accordance with the prescribed procedure; and
4. It must be reasonable.
regulations relative to the conduct of an election, a plebiscite, an initiative, a
referendum, and a recall.29 In addition to the powers and functions conferred upon it by
the Constitution, the COMELEC is also charged to promulgate IRRs implementing the
provisions of the Omnibus Election Code or other laws that the COMELEC enforces
and administers.30
The COMELEC issued Resolution No. 7804 pursuant to its powers under the
Constitution, Batas Pambansa Blg. 881, and the Party-List System Act.31 Hence, the
COMELEC met the first requisite.
The COMELEC also met the third requisite. There is no question that Resolution No.
7804 underwent the procedural necessities of publication and dissemination in
accordance with the procedure prescribed in the resolution itself.
Whether Section 13 of Resolution No. 7804 was valid or not is thus to be tested on the
basis of whether the second and fourth requisites were met. It is in this respect that the
challenge of Lokin against Section 13 succeeds.
As earlier said, the delegated authority must be properly exercised. This simply means
that the resulting IRRs must not be ultra vires as to be issued beyond the limits of the
authority conferred. It is basic that an administrative agency cannot amend an act of
Congress,32 for administrative IRRs are solely intended to carry out, not to supplant or
to modify, the law. The administrative agency issuing the IRRs may not enlarge, alter, or
restrict the provisions of the law it administers and enforces, and cannot engraft
additional non-contradictory requirements not contemplated by the Legislature.33
Section 8 of R.A. No. 7941 reads:
Section 8. Nomination of Party-List Representatives.-Each registered party, organization or
coalition shall submit to the COMELEC not later that forty-five (45) days before the
election a list of names, not less than five (5), from which party-list representatives shall
be chosen in case it obtains the required number of votes.
A person may be nominated in one (1) list only. Only persons who have given their
consent in writing may be named in the list. The list shall not include any candidate of
any elective office or a person who has lost his bid for an elective office in the
immediately preceding election. No change of names or alteration of the order of
nominees shall be allowed after the same shall have been submitted to the COMELEC
except in cases where the nominee dies, or withdraws in writing his nomination,
becomes incapacitated in which case the name of the substitute nominee shall be placed
last in the list. Incumbent sectoral representatives in the House of Representatives who
are nominated in the party-list system shall not be considered resigned.
The provision is daylight clear. The Legislature thereby deprived the party-list
organization of the right to change its nominees or to alter the order of nominees once
the list is submitted to the COMELEC, except when: (a) the nominee dies; (b) the
nominee withdraws in writing his nomination; or (c) the nominee becomes
incapacitated. The provision must be read literally because its language is plain and free
from ambiguity, and expresses a single, definite, and sensible meaning. Such meaning is
conclusively presumed to be the meaning that the Legislature has intended to convey.
Even where the courts should be convinced that the Legislature really intended some
other meaning, and even where the literal interpretation should defeat the very purposes
of the enactment, the explicit declaration of the Legislature is still the law, from which
the courts must not depart.34When the law speaks in clear and categorical language,
there is no reason for interpretation or construction, but only for
application.35 Accordingly, an administrative agency tasked to implement a statute may
not construe it by expanding its meaning where its provisions are clear and
unambiguous.36
The legislative intent to deprive the party-list organization of the right to change the
nominees or to alter the order of the nominees was also expressed during the
deliberations of the Congress, viz:
MR. LAGMAN: And again on Section 5, on the nomination of party list
representatives, I do not see any provision here which prohibits or for that matter
allows the nominating party to change the nominees or to alter the order of
prioritization of names of nominees. Is the implication correct that at any time after
submission the names could still be changed or the listing altered?
MR. ABUEG: Mr. Speaker, that is a good issue brought out by the distinguished
Gentleman from Albay and perhaps a perfecting amendment may be introduced
therein. The sponsoring committee will gladly consider the same.
MR. LAGMAN: In other words, what I would like to see is that after the list is
submitted to the COMELEC officially, no more changes should be made in the names
or in the order of listing.
MR. ABUEG: Mr. Speaker, there may be a situation wherein the name of a particular
nominee has been submitted to the Commission on Elections but before election day
the nominee changed his political party affiliation. The nominee is therefore no longer
qualified to be included in the party list and the political party has a perfect right to
change the name of that nominee who changed his political party affiliation.
MR. LAGMAN: Yes of course. In that particular case, the change can be effected but
will be the exception rather than the rule. Another exception most probably is the
nominee dies, then there has to be a change but any change for that matter should
always be at the last part of the list so that the prioritization made by the party will not
be adversely affected.37
The usage of "No" in Section 8 "No change of names or alteration of the order of
nominees shall be allowed after the same shall have been submitted to the COMELEC
except in cases where the nominee dies, or withdraws in writing his nomination, or
becomes incapacitated, in which case the name of the substitute nominee shall be
placed last in the list" renders Section 8 a negative law, and is indicative of the
legislative intent to make the statute mandatory. Prohibitive or negative words can
rarely, if ever, be directory, for there is but one way to obey the command "thou shall
not," and that is to completely refrain from doing the forbidden act,38 subject to certain
exceptions stated in the law itself, like in this case.
Section 8 does not unduly deprive the party-list organization of its right to choose its
nominees, but merely divests it of the right to change its nominees or to alter the order
in the list of its nominees names after submission of the list to the COMELEC.
The prohibition is not arbitrary or capricious; neither is it without reason on the part of
lawmakers. The COMELEC can rightly presume from the submission of the list that
the list reflects the true will of the party-list organization. The COMELEC will not
concern itself with whether or not the list contains the real intended nominees of the
party-list organization, but will only determine whether the nominees pass all the
requirements prescribed by the law and whether or not the nominees possess all the
qualifications and none of the disqualifications. Thereafter, the names of the nominees
will be published in newspapers of general circulation. Although the people vote for the
party-list organization itself in a party-list system of election, not for the individual
nominees, they still have the right to know who the nominees of any particular party-list Section 13. Substitution of nominees. A party-list nominee may be substituted
organization are. The publication of the list of the party-list nominees in newspapers of only when he dies, or his nomination is withdrawn by the party, or he becomes
general circulation serves that right of the people, enabling the voters to make intelligent incapacitated to continue as such, or he withdraws his acceptance to a
and informed choices. In contrast, allowing the party-list organization to change its nomination. In any of these cases, the name of the substitute nominee shall be placed
nominees through withdrawal of their nominations, or to alter the order of the last in the list of nominees.
nominations after the submission of the list of nominees circumvents the voters
demand for transparency. The lawmakers exclusion of such arbitrary withdrawal has No substitution shall be allowed by reason of withdrawal after the polls.
eliminated the possibility of such circumvention.
Unlike Section 8 of R.A. No. 7941, the foregoing regulation provides four instances, the
D fourth being when the "nomination is withdrawn by the party."
Exceptions in Section 8 of R.A. 7941 are exclusive
Lokin insists that the COMELEC gravely abused its discretion in expanding to four the
Section 8 of R.A. No. 7941 enumerates only three instances in which the party-list three statutory grounds for substituting a nominee.
organization can substitute another person in place of the nominee whose name has
been submitted to the COMELEC, namely: (a) when the nominee dies; (b) when the
We agree with Lokin.
nominee withdraws in writing his nomination; and (c) when the nominee becomes
incapacitated.
The COMELEC, despite its role as the implementing arm of the Government in the
enforcement and administration of all laws and regulations relative to the conduct of an
The enumeration is exclusive, for, necessarily, the general rule applies to all cases not
election,40 has neither the authority nor the license to expand, extend, or add anything to
falling under any of the three exceptions.
the law it seeks to implement thereby. The IRRs the COMELEC issues for that purpose
should always accord with the law to be implemented, and should not override,
When the statute itself enumerates the exceptions to the application of the general rule, supplant, or modify the law. It is basic that the IRRs should remain consistent with the
the exceptions are strictly but reasonably construed. The exceptions extend only as far law they intend to carry out.41
as their language fairly warrants, and all doubts should be resolved in favor of the
general provision rather than the exceptions. Where the general rule is established by a
Indeed, administrative IRRs adopted by a particular department of the Government
statute with exceptions, none but the enacting authority can curtail the former. Not
under legislative authority must be in harmony with the provisions of the law, and
even the courts may add to the latter by implication, and it is a rule that an express
should be for the sole purpose of carrying the laws general provisions into effect. The
exception excludes all others, although it is always proper in determining the
law itself cannot be expanded by such IRRs, because an administrative agency cannot
applicability of the rule to inquire whether, in a particular case, it accords with reason
amend an act of Congress.42
and justice.391avvphi1
The COMELEC explains that Section 13 of Resolution No. 7804 has added nothing to
The appropriate and natural office of the exception is to exempt something from the
Section 8 of R.A. No. 7941,43 because it has merely reworded and rephrased the
scope of the general words of a statute, which is otherwise within the scope and
statutory provisions phraseology.
meaning of such general words. Consequently, the existence of an exception in a statute
clarifies the intent that the statute shall apply to all cases not excepted. Exceptions are
subject to the rule of strict construction; hence, any doubt will be resolved in favor of The explanation does not persuade.
the general provision and against the exception. Indeed, the liberal construction of a
statute will seem to require in many circumstances that the exception, by which the To reword means to alter the wording of or to restate in other words; to rephrase is to
operation of the statute is limited or abridged, should receive a restricted construction. phrase anew or in a new form.44 Both terms signify that the meaning of the original
word or phrase is not altered.
E
Section 13 of Resolution No. 7804 expanded However, the COMELEC did not merely reword or rephrase the text of Section 8 of
the exceptions under Section 8 of R.A. No. 7941 R.A. No. 7941, because it established an entirely new ground not found in the text of
the provision. The new ground granted to the party-list organization the unilateral right
Section 13 of Resolution No. 7804 states: to withdraw its nomination already submitted to the COMELEC, which Section 8 of
R.A. No. 7941 did not allow to be done. Neither was the grant of the unilateral right
contemplated by the drafters of the law, who precisely denied the right to withdraw the We declare Section 13 of Resolution No. 7804 invalid and of no effect to the extent that
nomination (as the quoted record of the deliberations of the House of Representatives it authorizes a party-list organization to withdraw its nomination of a nominee once it
has indicated). The grant thus conflicted with the statutory intent to save the nominee has submitted the nomination to the Commission on Elections.
from falling under the whim of the party-list organization once his name has been
submitted to the COMELEC, and to spare the electorate from the capriciousness of the Accordingly, we annul and set aside:
party-list organizations.
(a) The resolution dated September 14, 2007 issued in E. M. No. 07-054
We further note that the new ground would not secure the object of R.A. No. 7941 of approving Citizens Battle Against Corruptions withdrawal of the nominations
developing and guaranteeing a full, free and open party-list electoral system. The success of Luis K. Lokin, Jr., Sherwin N. Tugna, and Emil Galang as its second, third,
of the system could only be ensured by avoiding any arbitrariness on the part of the and fourth nominees, respectively, and ordering their substitution by Cinchona
party-list organizations, by seeing to the transparency of the system, and by guaranteeing C. Cruz-Gonzales as second nominee and Armi Jane R. Borje as third
that the electorate would be afforded the chance of making intelligent and informed nominee; and
choices of their party-list representatives.
(b) The proclamation by the Commission on Elections of Cinchona C. Cruz-
The insertion of the new ground was invalid. An axiom in administrative law postulates Gonzales as a Party-List Representative representing Citizens Battle Against
that administrative authorities should not act arbitrarily and capriciously in the issuance Corruption in the House of Representatives.
of their IRRs, but must ensure that their IRRs are reasonable and fairly adapted to
secure the end in view. If the IRRs are shown to bear no reasonable relation to the
We order the Commission on Elections to forthwith proclaim petitioner Luis K. Lokin,
purposes for which they were authorized to be issued, they must be held to be invalid
Jr. as a Party-List Representative representing Citizens Battle Against Corruption in the
and should be struck down.45
House of Representatives.
F
We make no pronouncements on costs of suit.
Effect of partial nullity of Section 13 of Resolution No. 7804
SO ORDERED.
An IRR adopted pursuant to the law is itself law. 46 In case of conflict between the law
and the IRR, the law prevails. There can be no question that an IRR or any of its parts
not adopted pursuant to the law is no law at all and has neither the force nor the effect
of law.47 The invalid rule, regulation, or part thereof cannot be a valid source of any
right, obligation, or power.

Considering that Section 13 of Resolution No. 7804 to the extent that it allows the
party-list organization to withdraw its nomination already submitted to the COMELEC
was invalid, CIBACs withdrawal of its nomination of Lokin and the others and its
substitution of them with new nominees were also invalid and ineffectual. It is clear
enough that any substitution of Lokin and the others could only be for any of the
grounds expressly stated in Section 8 of R.A. No. 7941. Resultantly, the COMELECs
approval of CIBACs petition of withdrawal of the nominations and its recognition of
CIBACs substitution, both through its assailed September 14, 2007 resolution, should
be struck down for lack of legal basis. Thereby, the COMELEC acted without
jurisdiction, having relied on the invalidly issued Section 13 of Resolution No. 7804 to
support its action.

WHEREFORE, we grant the petitions for certiorari and mandamus.

 FIRST DIVISION
[G.R. No. 134855. July 2, 2002]
CHIEF SUPT. ROMEO M. ACOP and SR. SUPT. FRANCISCO G. ZUBIA,
JR., petitioners-appellants, vs. HON. TEOFISTO T. GUINGONA, JR.,
in his capacity as Secretary of the Department of Justice, and SENIOR
STATE PROSECUTOR JUDE ROMANO, in his capacity as the
Director of the Government's Witness Protection Program; SPO2
EDUARDO DELOS REYES and SPO2 CORAZON DELA
CRUZ, respondents-appellees.
RESOLUTION
AUSTRIA-MARTINEZ, J.:
Before us is a petition for review on certiorari under Rule 45 of the Rules of Court
filed by Chief Supt. Romeo M. Acop and Sr. Supt. Francisco G. Zubia seeking to
reverse and set aside the Decision dated July 30, 1998 of the Regional Trial Court of
Quezon City (Branch 89) which dismissed this petition for injunction.
The factual antecedents leading to the present petition are as follows:
On May 18, 1995, eleven (11) suspected members of the criminal group known as
the Kuratong Baleleng gang were killed along Commonwealth Avenue in Quezon City
in an alleged shootout with the Anti-Bank Robbery Intelligence Task Group of the
Philippine National Police (PNP).
SPO2 Eduardo delos Reyes, a member of the Criminal Investigation Command
(CIC) of the PNP and who was one of the officers assigned to conduct an investigation
of the May 18, 1995 incident, made a public disclosure of his findings that there was no
shootout and the eleven suspected members of the Kuratong Baleleng gang were
instead summarily executed. SPO2 Corazon dela Cruz, also a member of the CIC, made
the same statement corroborating the claim of SPO2 delos Reyes.
The Senate conducted hearings to determine the circumstances surrounding the
subject incident. SPO2 delos Reyes and SPO2 dela Cruz testified before the Senate
hearings. On June 2, 1995, former Senator Raul Roco, who was then the Chairman of
the Senate Committee on Justice and Human Rights, recommended that SPO2 delos
Reyes and SPO2 dela Cruz be admitted to the government's Witness Protection,
Security and Benefit Program. Accordingly, SPO2 delos Reyes and SPO2 dela Cruz
were admitted into the said Program.
On March 12, 1996, herein petitioners, in their capacity as taxpayers, but who are
among the PNP officers implicated in the alleged rubout, filed before the court a quo a
petition for injunction with prayer for temporary restraining order questioning the
legality of the admission of SPO2 delos Reyes and SPO2 dela Cruz into the Program.
Petitioners contend that under Section 3(d) of R.A. No. 6981, law enforcement officers,
like SPO2 delos Reyes and SPO2 dela Cruz, are disqualified from being admitted into
the witness protection program even though they may be testifying against other law
enforcement officers.
On July 30, 1998, the trial court rendered the herein assailed decision.
Hence, the petition anchored on a sole assignment of error, to wit:
"THE COURT A QUO ERRED IN RULING THAT RESPONDENTS SPO2
EDUARDO DELOS REYES AND SPO2 CORAZON DELA CRUZ ARE
QUALIFIED TO BE ADMITTED INTO THE WITNESS PROTECTION
PROGRAM DESPITE THEIR CLEAR DISQUALIFICATION FROM THE
PROGRAM UNDER SECTION 3(D) OF REPUBLIC ACT NO. 6981,
OTHERWISE KNOWN AS THE 'WITNESS PROTECTION, SECURITY AND
BENEFIT ACT'."
Petitioners pray that the decision of the RTC be reversed and set aside and instead
-
"a) An Injunction be issued enjoining the Department of Justice from continuing to
provide the benefits accruing under the Witness Protection Program to respondents
SPO2 delos Reyes and SPO2 dela Cruz;
"b) Order the immediate discharge of respondents SPO2 delos Reyes and SPO2 dela
Cruz from WPP and for the latter to be ordered to cease and desist from accepting the
benefits of the WPP; and
"c) Order respondents SPO2 delos Reyes and SPO2 dela Cruz to return whatever
monetary benefits they have received from the government as a consequence of their
wrongful and illegal admission into the WPP."[1]
In its Comment, the Office of the Solicitor General (OSG) claims that the petition
lacks merit and that the same has been rendered moot and academic because the
coverage of SPO2 delos Reyes and SPO2 dela Cruz under the Program was already
terminated on December 3, 1997 and August 23, 1998, respectively, as evidenced by the
letter of the Director of the Program addressed to the OSG, dated February 10,
1999.[2] In their comment, private respondents SPO2 delos Reyes and SPO2 dela Cruz
agree with the OSG.
Indeed, prayers a) and b) above had been rendered moot and academic by reason
of the release of SPO2 delos Reyes and SPO2 dela Cruz from the coverage of the
Program.However, we find it necessary to resolve the merits of the principal issue raised
for a proper disposition of prayer c) and for future guidance of both bench and bar as
to the application of Sections 3(d) and 4 of R.A. No. 6981. As we have ruled in Alunan
III vs. Mirasol,[3] and Viola vs. Alunan III,[4] "courts will decide a question otherwise moot
and academic if it is 'capable of repetition, yet evading review.'"
Petitioners' main contention is that Section 3 of R.A. No. 6981 lays down the
basic qualifications a person must possess in order to be admitted into the Program and
that Section 4 of the same statute is not an exception to Section 3 but, it simply adds
requirements for witnesses before they may become eligible for admission into the
Program in case of legislative investigations.
We do not agree.
Section 3(d) provides:
Sec. 3. Admission into the Program. - Any person who has witnessed or has
knowledge or information on the commission of a crime and has testified or is testifying
or about to testify before any judicial or quasi-judicial body, or before any investigating
authority, may be admitted into the Program: Provided, That:
xxx
(d) he is not a law enforcement officer, even if he would be testifying
against the other law enforcement officers. In such a case, only the
immediate members of his family may avail themselves of the
protection provided for under this Act.
Section 4 provides:
It is basic under the law on statutory construction that where the law does not
distinguish, courts should not distinguish.[5] The operation of a proviso is usually and
properly confined to the clause or distinct portion of the enactment which immediately
precedes it or to which it pertains, and does not extend to or qualify other sections or
portions of the statute, unless the legislative intent that it shall so operate is clearly
disclosed.[6]
In the present case, it is clear that the legislative intent that the proviso under
Section 3(d) of R.A. No. 6981 does not apply to Section 4. The trial court did not err in
concluding that if the framers of the law intended otherwise, they could have easily
placed the same proviso of Section 3(d) or referred to it under Section 4. Hence, in the
absence of a clear proviso or reference to Section 3(d), a witness in a legislative
investigation whether or not he is a law enforcement officer, may be admitted into the
Program subject only to the requirements provided for under Section 4. It is not
disputed that the Senate Committee on Justice and Human Rights, chaired by then
Senator Raul Roco, had recommended the admission of SPO2 delos Reyes and dela
Cruz into the Program and was duly indorsed by then Senate President Edgardo J.
Angara.
WHEREFORE, we DENY DUE COURSE to the petition and AFFIRM the
assailed decision.
SO ORDERED.

Sec. 4. Witness in Legislative Investigations. - In case of legislative investigations in

aid of legislation, a witness, with his express consent, may be admitted into the Program
upon the recommendation of the legislative committee where his testimony is needed
when in its judgment there is pressing necessity therefor: Provided, That such
recommendation is approved by the President of the Senate or the Speaker of the
House of Representatives, as the case may be.

A careful reading of Sections 3 and 4 readily shows that these are distinct and
independent provisions. It is true that the proviso in Section 3(d) disqualifies law
enforcement officers from being admitted into the Program when they "testify before
any judicial or quasi-judicial body, or before any investigating authority." This is the
general rule. However, Section 4 provides for a specific and separate situation where a
witness testifies before a legislative investigation. An investigation by a legislative
committee does not fall under the category of "any investigating authority" referred to
in Section 3. Section 4 contains only a proviso that the witness' admission to the
Program must be recommended by the legislative committee when in its judgment there
is a pressing necessity therefor and said recommendation is approved by the President
of the Senate or the Speaker of the House of Representatives, as the case may be.
Section 4 does not contain any proviso similar to Sec. 3(d) as quoted above, nor does
Section 4 refer to the application of the proviso under Section 3. In other words,
Section 4 did not make any qualification or distinction.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-16808 January 3, 1921
ANDRES BORROMEO, plaintiff,
vs.
FERMIN MARIANO, defendant.
Fisher and DeWitt for plaintiff.
Attorney-General Feria for defendant.
MALCOLM, J.:
Quo warranto proceedings have been instituted in this court to determine the right of the
plaintiff and of the defendant to the office of Judge of the Court of First Instance of the
Twenty-fourth Judicial District.
The only facts, and these are undisputed ones, which need be noticed, are the following:
Andres Borromeo was appointed and commissioned as Judge of the Twenty-fourth
Judicial District, effective July 1, 1914. He duly qualified and took possession of the
office on that date. On February, 25, 1920, he was appointed Judge of the Twenty-first
Judicial District, and Fermin Mariano was appointed Judge of the Twenty-fourth
Judicial District. Judge Borromeo has since the latter date consistently refused to accept
appointment to the Twenty-first Judicial District.
Judges of First Instance are appointed by the Governor-General with the consent of the
Philippine Senate to serve until they reach the age of 65 years. (Adm. Code, secs. 65, 66,
148.) One Judge of First Instance is commissioned for each judicial district, except the
night. (Sec. 154.) The oath of office of the judge is "filed with the clerk of the court to
which the affiant pertains and shall be entered upon its records." (Sec. 128.) Judges of
First Instance may only be detailed by the Secretary of Justice to temporary duty in a
district other than their own for the purpose of trying land registration cases and for
vacation duty. (Sec. 155.) The concluding portion of section 155 of the Administrative
Code, to which particular attention is addressed by the Attorney-General, is, "but
nothing herein shall be construed to prevent a judge of first instance of one district
from being appointed to be judge of another district." A Judge of First Instance can be
removed from office by the Governor-General only if in the judgment of the Supreme
Court sufficient cause shall exist involving serious misconduct or inefficiency in office.
(Sec. 173.)
The cardinal rule of statutory construction requires the court to give effect to the
general legislative intent if that can be discovered within the four corners of the Act.
When the object intended to be accomplished by the statute is once clearly ascertained,
general words may be restrained to it and those of narrower import may be expanded to
embrace it, to effectuate the intent. Along with this fundamental principle is another,
equally well-established, that such a construction is, if possible, to be adopted, as will
give effect to all provision of the statute. (2 Lewis' Sutherland, Statutory Construction,
pp. 662, et seq.; In re Allen [1903], 2 Phil., 630; Code of Civil Procedure, sec. 287.)
Leaving out of consideration for the moment the last part of section 155 of the
Administrative Code, the provisions of the Judiciary Law are plain and unambiguous.
Judges of First Instance are appointed judges of the courts of first instance of the
respective judicial districts of the Philippines Islands. They are not appointed judges of
first instance of the Philippine Islands. They hold these positions of judges of first
instance of definite districts until they resign, retire, or are removed through
impeachment proceedings. The intention of the law is to recognize separate and distinct
judicial offices.
The concluding portion of section 155 of the Administrative Code, although not
beginning with the usual introductory word, "provided," is nevertheless, in the nature of
a proviso, and should be construed as such. The office of a proviso is to limit the
application of the law. It is contrary to the nature of a proviso to enlarge the operation
of the law. It should not be construed so as to repeal or destroy the main provisions of
the statute. A proviso which is directly repugnant to the purview or body of an Act is
inoperative and void. (See generally, 25 R. C. L., pp. 984, et seq.; and specifically, the
leading cases of McKnight vs. Hodge [1909], 55 Wash., 289, 104 Pac., 504, 40 L. R. A.
[N.S.], 1207; McCormick vs. West Duluth [1891], 47 Minn., 272, 50 N.W., 128; Idaho
Power & Light Co. vs. Blomquist [1916], 26 Idaho, 222; 141 Pac., 1083, Ann. Cas. [1916
E], p. 282, where these principles concerning provisos are applied.)
To arrive at a correct decision with reference to the proviso before us, let it first be
recalled that the law is emphatic in its specification that, save when judges of first
instance are detailed to try land registration cases or when assigned to vacation duty, "no
judge of first instance shall be required to do duty in any other district than that for
which he is commissioned." The keyword to the proviso which follows is "appointed."
This word should here be given its usual signification. Many of the decisions follow the
definition of "appoint" found in the Century Dictionary and Encyclopedia. "Appoint" is
there defined as "to allot, set apart, or designate; nominate or authoritatively assign, as
far a use, or to a position or office." All the authorities united in saying that the term
"appoint" is well-known in law and whether regarded in its legal or in its ordinary
acceptation, is applied to the nomination or designation of an individual. Appointment
signifies no more than selection for public office. (4 C. J., 1402, 1404, citing numerous
decisions.)
The effect to be given to the word "appoint" is corroborated by the principles of the
law of public officers. Appointment and qualification to office are separate and distinct
things. Appointment is the sole act of those vested with the power to make it.
Acceptance is the sole act of the appointee. Persons may be chosen for office at
pleasure; there is no power in these Islands which can compel a man to accept the
office. (22 R. C. L. 423.) If, therefore, anyone could refuse appointment as a judge of
first instance to a particular district, when once appointment to this district is accepted,
he has exactly the same right to refuse an appointment to another district. No other
person could be placed in the position of this Judge of First Instance since another rule
of public officers is, that an appointment may not be made to an office which is not
vacant. (29 Cyc., 1373.) In our judgment, the language of the proviso to section 155 of
the Administrative Code, interpreted with reference to the law of public officers, does
not empower the Governor-General to force upon the judge of one district an
appointment to another district against his will, thereby removing him from his district.
Returning again to the principle of statutory construction that a proviso should not be
given a meaning which would tend to render abortive the main portions of the law, it
should further be recalled that judges of first instance are removable only through a
fixed procedure. Moreover, impeachment proceedings, as conducted by the Supreme
Court, may be in the nature of jurisdiction, conferred upon the Supreme Court by
ratification of the Congress of the United States, which, it has uniformly been held,
cannot be diminished. (We make no ruling on this point because unnecessary for the
resolution of the case.) But, certainly, if a judge could be transferred from one district of
the Philippine Islands to another, without his consent, it would require no great amount
of imagination to conceive how this power could be used to discipline the judge or as an
indirect means of removal. A judge who had, by a decision, incurred the ill-will of an
attorney or official, could, by the insistence of the disgruntled party, be removed from
one district, demoted, and transferred to another district, at possibly a loss of salary, all
without the consent of the judicial officer. The only recourse of the judicial officer who
should desire to maintain his self-respect, would be to vacate the office and leave the
service. Unless we wish to nullify the impeachment section of the Administrative Code,
and thus possibly to encroach upon the jurisdiction conferred upon the Supreme Court
by the Organic Law, section 155 must be interpreted so as to make it consistent
therewith.
What we have said is reinforced by the authorities most directly in point. In the early
decision of Marbury vs.Madison ([1803], 1 Cranch, 137), the Supreme Court of the
United States, in unmistakable terms, explained the powers of the Judiciary in enforcing
the Constitution as the Supreme Law of the Land and held that the President of the
United States had no power to remove a justice of the peace of the District of Columbia
from office. Mr. Chief Justice Marshall said that "When the officer is not removable at
the will of the executive, the appointment is not revocable, and cannot be annulled: it
has conferred legal rights which cannot be resumed. The discretion of the executive is
to be exercised, until the appointment has been made. But having once made the
appointment, his power over the office is terminated, in all cases where, by law, the
officer is not removable by him. The right to the office is then in the person appointed,
and he has the absolute unconditional power of accepting or rejecting it." The great
jurist further or observed that "It is, emphatically, the province and duty of the judicial
department, to say what the law is"
In State of Louisiana vs. Downes ([1869], 21 La. Ann., 490), the Supreme Court of
Louisiana said that a judge of a court could, under the Constitution of that State, only
be removed from office by impeachment, by address of the Legislature, or by
proceeding under the intrusion act. It was held that the appointment and
commissioning by the Governor of the State of a party to an office which has legally
been filled, without the vacancy being first declared according to law, was an absolute
nullity.
The Attorney-General brings to our notice an obsolete law which had escaped us, and
which, if any lingering doubts exist, would serve to remove that. This law is Act No.
396, enacted by the Philippine Commission in 1902. Section 4 thereof, separate and
distinct from the other provisions of the Act, and not tacked on as a proviso, provided
that "any judge of a Court of First Instance . . . may be transferred from one judicial
district to another by order of the Civil Governor, with the advice and consent of the
Commission. Any judge so transferred shall, upon such transfer, cease the performance
of judicial duties in the district to which he was originally appointed, and shall be the
regular judge thereafter in the judicial district to which he as been so assigned." But Act
No. 396 was thrice repealed by the Philippine Legislature; the first time, impliedly by the
enactment of Act No. 2347, the Judiciary Reorganization Act, and subsequently,
expressly by the Administrative Code of 1916 and the Administrative Code of 1917.
Instead, also, of continuing the phraseology of section 4 of Act No. 396, the Legislature
merely included the proviso to which we have alluded. It cannot, therefore, admit of
doubt that the members of the Philippine Legislature had before them the Act of the
Philippine Commission and preferred, not to perpetuate the old law, but to insert
language of their own. The purpose of the Philippine Legislature was clearly to
safeguard the interests of the judiciary, and this laudable purpose, it is for us now to
effectuate.
Far more convincing than precedent or argument are great and basic principles long
inherent in popular government intended to create an independent judiciary. A history
of the struggle for a fearless and an incorruptible judiciary prepared to follow the law
and to administer it regardless of consequences, can be perused with ever-recurring
benefit. Since the early days of the Republic, the judicial system in the United States,
with certain exceptions which only served to demonstrate more fully the excellence of
the whole, has been viewed with pride, and confidently relied upon for justice by the
American people. The American people considered it necessary "that there should be a
judiciary endowed with substantial and independent powers and secure against all
corrupting or perverting influences; secure, also, against the arbitrary authority of the
administrative heads of the government." (Woodrow Wilson, Constitutional
Government in the United States, pp. 17, 142.) It was such a conception of an
independent judiciary which was instituted in the Philippines by the American
administration and which has since served as one of the chief glories of the government
and one of the most priceless heritages of the Filipino people.
The Attorney-General in the argument in support of his motion for reconsideration,
quotes the last preceding sentence and says that he dissents therefrom. The number of
authoritative replies to the proposition advanced by the law officer of the government
relative to the intention to establish an independent judiciary in these Islands, is limited
only by space in which to quote them. Possibly we can do no better than to make our
own the language of Mr. Justice Trent, speaking for a unanimous court, in
Severino vs. Governor-General and Provincial Board of Occidental Negro ([1910], 16
Phil., 366, 384), when he said: "This governments in the United States, now possesses a
complete governmental organization, with executive legislative, and judicial
departments, which are exercising functions as independent of each other as the Federal
or State governments." (For the legislative version of the same idea, see Administrative
Code, sec. 17.)
On occasion, the Supreme Court of the Philippine Islands has applied the accepted
theory of the division of powers, termed by the United States Supreme Court as "one of
the chief merits of the American system of written constitutional law"
(Kilbourn vs. Thompson [1881], 13 Otto, 168), and has unhesitatingly refused to
interfere with the official acts of the Governor-General or to intrude on the rights and
privileges of the Philippine Legislature (In the Patterson [1902], 1 Phil., 93;
Severino vs. Governor-General and Provincial Board of Occidental Negros,supra; In re
McCulloch Dick [1918], 38 Phil., 41; U.S. vs. Bull [1910], 15 Phil., 7; U.S. vs. Ten Yu
[1912], 24 Phil., 1; Veloso vs. Boards of Canvassers of Leyte and Samar [1919], 39 Phil.,
886.) As an instance of this class of decisions, in Veloso vs. Boards of Canvassers of Leyte and
Samar, supra, this court, in considering the right of the Philippine Senate to be the judge
of the elections, returns, and qualifications of its elective members, said:
The grant of power to the Philippine Senate and the Philippine House of
Representatives, respectively is full, clear, and complete. . . . The judiciary, with
its traditional and careful regard for the balance of powers, must permit this
exclusive privilege of the legislature to remain where the sovereign authority
has placed it. Since, therefore, the Philippine Senate is made the sole judge of
the elections, returns, and qualifications of its elective members, this tribunal
neither can, nor ought, to take jurisdiction of the case.
Although much more reluctantly, and also much more infrequently we are happy to
add, the court has had to defend the judiciary against legislative and executive
encroachment. (Ocampo vs. Cabagis [1910], 15 Phil., 626;In re Guaria [1914], 24 Phil.,
37; Barrameda vs. Moir [1913], 25 Phil., 44; and Province of Tarlac vs. Gale [1913], 26
Phil., 338.) As an instance of the latter class of decisions, in Province of
Tarlac vs. Gale, supra, Mr. Justice Moreland, speaking for the court, said:
The judiciary is one of the coordinate branches of the Government.
(Forbes vs. Chuoco Tiaco, 16 Phil., 534; United States vs. Bull, 15 Phil., 7.) Its
preservation in its integrity and effectiveness is necessary to the present form
of Government. . . . It is
clear . . . that each department is bound to preserve its own existence if it live
up to the duty imposed upon it as one of the coordinate branches of the
government. Whatever a person or entity ought to do or must do in law, it has
the power to do. This being true, the judiciary has the power to maintain its
existence; and whatever is reasonably necessary to that end, courts may do or
order done. But the right to live, if that is all there is of it, is a very small
matter. The mere right to breathe does not satisfy ambition or produce results.
Therefore, courts have not only the power to maintain their life, but they have
also the power to make that existence effective for the purpose for which the
judiciary was created. They can, by appropriate means, do all things necessary
to preserve and maintain every quality needful to make the judiciary an
effective institution of Government. Courts have, therefore, inherent power to
preserve their integrity, maintain their dignity and to insure effectiveness in the
administration of justice. This is clear; for, if the judiciary may be deprived of
any one of its essential attributes, or if any one of them may be seriously
weakened by the act of any person or official, then independence disappears
and subordination begins. The power to interfere is the power to control, and the power
to control is the power to abrogate. The sovereign power has given life to the judiciary and
nothing less than the sovereign power can take it away or render it useless. The power to
withhold from the courts anything really essential for the administration of
justice is the power to control and ultimately to destroy the efficiency of the
judiciary. Courts cannot, under their duty to their creator, the sovereign power, permit
themselves to be subordinated to any person or official to which their creator did not itself
subordinate them.
A stirring plea has been made by the learned representative of the Government for a
decision which will work for the public welfare. We agree that, under the peculiar
conditions existing in the Philippines, it is sometimes well for a judge not to remain
indefinitely in a particular district. But it is a far cry from this premise to the use of a
method not sanctioned by existing law and savoring of military discipline. Our
conception of good judges has been, and is, of men who have a mastery of the
principles of law, who discharge their duties in accordance with law, who are permitted
to perform the duties of the office undeterred by outside influence, and who are
independent and self-respecting human units in a judicial system equal and coordinate
to the other two departments of government. We are pleased to think of judges as of
the type of the erudite Coke who, three centuries ago, was removed from office because
when asked "if in the future he would delay a case at the King's order," replied: "I will
do what becomes me as a judge."
For the reasons given, we are of opinion that the reasonable force of the language used
in the proviso to section 155 of the Administrative Code taken in connection with the
whole of the Judiciary Law, and the accepted canons of interpretation, and the
principles of the law of public officers, leave from for no other construction than that a
Judge of First Instance may be made a judge of another district only with his consent.
It is our holding that the plaintiff Andres Borromeo is lawfully entitled to the
possession of the office of Judge of the Court of First Instance of the Twenty-Fourth
Judicial District. It is our judgment that the defendant Fermin Mariano shall be ousted
from the office of Judge of the Twenty-fourth Judicial District, and the plaintiff placed
in possession of the same. The motion for reconsideration filed by the Attorney-
General is denied. No costs shall be allowed. Let this be entered as the order of the
court. So ordered.
Araullo, Street and Avancea, JJ., concur.
Johnson, J., signed the original decision, but was not present when the motion for reconsideration was
filed and when this decisions was promulgated.
Separate Opinions
VILLAMOR, J., dissenting:
I dissent. The interpretation, which the majority give to the last clause of section 155 of
the Administrative Code, in the sense that it requires the consent of a judge of the
Court of First Instance in order that he may be transferred from one judicial district to
another, is an amendment of the law, an act which should be done only by the
legislative branch of the government. I am not unaware of the possibility that the power
of the Governor-General to effect such transfers of Judges of First Instance with the
consent of the Senate may produce as a result the resignation of the judge thus
transferred if he does not accept the transfer. However, this fact should be referred to
the legislature in order that it may amend the law if it sees fit to do so. The provisions of
the law being clear, the court should apply it in the manner and form in which it has
been passed by the legislature, without attempting to attach thereto a condition, as that
of the consent of the judge transferred, which the legislature did not see fit to require.
It is presented that the appointment to a specific position in the Government requires,
among other elements, the acceptance thereof, without which it would not produce any
effect. However, with reference to the transfer of judges a new appointment is made
only to distinguish a permanent transfer from a temporary assignment to sit in another
district, which is forbidden by law, except for the purposes of land registration cases;
and a new oath is taken only to attest the fact that the transfer has been effected and
that the transferred judge has taken possession of the office in the new district for the
purposes of jurisdiction. But, in reality, in this case there is no new employee, there is
not a different office. The transferred judge continues being a judge as much as before
his transfer, holds the same office with all the attributes and powers thereto annexed,
and enjoys the same privileges, with the sole difference as to the place in which
jurisdiction is exercised. In this case, according to the law, the prior consent of the judge
is not necessary in order that he may be transferred to another district, for the good of
the public service, which is the basis of the power to make such transfers, is over and
above the personal interests of every citizen.
It is also contended that the last clause of section 155 is a danger to the independence
of the judiciary. But if this legal provision is considered in relation to section 5 of the
Administrative Code, which presumes that administrative discretion is exercised for the
good of the service and the benefit of the public; and if it is furthermore considered that
the executive power to effect transfers of judges is subject to the approval of a
restraining body, that is, the Senate, it seems, in my opinion, that this legal provision is a
prudent measure tending to protect the interest of good public service.
According to law, the Governor-General has the discretion to make transfers of judges
from one district to another, with the consent of the Senate. Therefore, to the
Governor-General and to the Senate, and not to the judges, is the power granted to
determine how such discretion should be exercised. In the case at bar there is not even a
single allegation that such discretion has been abused in disregard of the law, and
therefore, there is no way by which this court may disapprove the transfer of the
petitioner deiced to be effected by the Governor-General in the exercise of the
discretionary powers conferred upon him by law.
If the consent of a judge is an essential requisite to his transfer to another district, it
must also be an essential requisite to his assignment to sit in another district to try land
registration cases or as vacation judge, for in both cases, the same reason exists, that is,
the danger to the independence of the judiciary, which is the foundation of the majority
opinion. The result would be the complete repeal of section 155 of the Administrative
Code through the interpretation given by this court. And an interpretation leading to
such result should be discarded for it is contrary to the doctrines of statutory
construction cited in the majority opinion, to wit: that the court should give effect to the
general intention of the legislator, if it may be gathered from all the viewpoints from
which the law is examined; and that, if possible, that construction should be adopted
which gives effect to all the provisions of the law (2 Lewis' Sutherland, Statutory
Construction, page 662 et seq.; In re Allen [1903], 2 Phil., 630; sec. 207 of the
Administrative Code).
But what is the intention of the legislator in the legal provision now under
consideration? The provisions of the law are clear and it is not necessary either to
stretch the imagination or resort to other jurisdictions, to discover the intention of the
legislator. Section 155 of the Administrative Code provides:
For the purpose of trying land registration cases only, a judge of first instance
may, if the public interests so require, be detailed by the Department Head to
temporary duty in a district other than his own. Save when so detailed or when
assigned to vacation duty, no judge of first instance shall be required to do
duty in any other district than that for which he is commissioned; but nothing
herein shall be construed to prevent a judge of first instance of one district
from being appointed to be judge of another district.
It is admitted by the authorities on the subject that the object of a saving clause of
proviso is (1) to except something from the legal provision in question, or (2) to restrict
the provisions thereof, or (3) to exclude all possible reason for erroneously construing
such provision so as to make it applicable to cases which the legislature did not intend
to include therein.
In whatever sense the proviso in question is interpreted, there is no reason for requiring
the consent of the judge for a temporary or permanent transfer to another district. The
intention of the legislature, as gathered from the provisions of the law, is that no judge
shall be required to render services in another district, except to try land registration
cases or to act as vacation judge, but without prejudice to his being appointed by the
Governor-General as judge of another district.
That discharge is a different thing from transfer is a self-evident proposition requiring
no proof. That a judge appointed to another district may refuse to accept his transfer is
not disputed by anyone. But if he leaves the office by abandonment or resignation, such
result is not a necessary effect of the transfer but of his free will.
The majority decision tries to solve the proposition that if the remedy prayed for is not
granted judges would lose their judicial independence. But we should remember, in this
connection what Judge Cooley, one of the most eminent American jurists, in resolving
the proposition that if it should be held that the Governor cannot be compelled to
fulfill purely ministerial duties, those in possession of legal rights would, in many cases,
be without remedy, said in the case of Sutherland vs. Governor (29 Mich., 329), to wit:
Practically, there are a great many such cases, but theoretically, there are none
at all. All wrongs, certainly, are not redressed by the judicial department. A
party may be deprived of a right by a wrong verdict, or an erroneous ruling of
a judge, and though the error may be manifest to all others than those who are
to decide upon his rights, he will be without redress. A person lawfully chosen
to the Legislature may have his seat given by the house to another, and be thus
wronged without remedy. A just claim against the State may be rejected by the
board of auditors, and neither the governor nor the courts can give relief. A
convicted person may conclusively demonstrate his innocence to the governor,
and still be denied a pardon. In which one of these cases could the denial of
redress by the proper tribunal constitute any ground for interference by any
other authority? The law must leave the final decision upon every claim and
every controversy somewhere, and when that decision has been made, it must
be accepted as correct. The presumption is just as conclusive in favor of
executive action as in favor of judicial.
A case in which the court discussed the proposition that there can be no wrong
whatever without any remedy is that of People vs. Bissell (19 Ill., 229). In that case the
court said:
It is urged upon us, that in a government of laws there must be an adequate
remedy for every wrong, and that where a clear right exists, there must be
some mode of enforcing that right. While human society is governed by so
imperfect a being as man, this can be true only in theory. If we are to compel
the Governor or the legislature to right every wrong which may arise from
their omissions of duty, then surely they must, in order to make this Utopian
system perfect, have the power to compel us to do right in every case. May it
not be as well supposed that we will act perversely, and refuse to perform a
duty imposed upon us, to the injury of the citizen, as that the Governor will do
so? In the formation of the government, equal confidence was rightfully
reposed in each department, to which appropriate and independent duties
were assigned.
The proceeding instituted in this case is entitled Quo Warranto, a proceeding for
determining the right of a Judge of First Instance to sit in a determined judicial district.
But there can be no doubt that in this question is involved the power of the Governor-
General to appoint Judges of First Instance. While the petition in this case does not
include the Governor-General as party respondent, nevertheless, the judgment of this
court must in the same manner necessarily affect him who authorized the appointment
now in dispute and the appointee, now respondent Judge Fermin Mariano. This
conclusion is inevitable for the case deals with the appointment of a judge made by the
Governor-General in the exercise of his discretional powers. Indeed this court cannot
decide this case by granting the prayer of the petitioner without disapproving the
manner in which this power of the Governor-General has been exercised. Has the court
jurisdiction to do this?
Section 26 of the Jones Act provides, among other things:
The Judges of the Courts of First Instance shall be appointed by the
Governor-General, by and with the advice and consent of the Philippine
Senate.
In view of this legal provision and of section 155 of the Administrative Code, to
maintain that a Judge of First Instance may not be transferred to another district
without his consent amounts to judicially determining that the Governor-General
cannot exercise the power conferred upon him by law to transfer a judge from one
district to another without the consent of the judge concerned.
The question whether courts possess or do not possess jurisdiction to control the
official acts of the Governor has been raised before many courts of the United States.
And this Supreme Court, in the case of Severino vs. Governor-General and Provincial Board of
Occidental Negros (16 Phil., 366, 387, 400, 402), after examining the various cases in which
this question was raised in the United States, said:
We think that the weight of authority, based upon legal principles and sound
reasoning, supports the proposition that in the United States the supreme
courts of the States do not have jurisdiction to control the official acts of the
governor. For better reasons we conclude that this court has no jurisdiction,
either by mandamus or injunction, to control the official acts of the Governor-
General, inasmuch as we have seen that his duties, powers, and responsibilities
are more comprehensive than those conferred upon any State Governor.
When the Philippine legislative body confers upon the Governor-General
powers and duties, it does so for the reason that he is in a better position to
 know the needs of the country than any other member of the executive And in the dispositive part of the decision the court among other things said: "That we
department, and with the full confidence that he will perform such duties, can not and should not entertain a complaint which seeks to control or interfere with the official duties of
under his official oath, as his best judgment dictates. If this had not been the the Governor-General."
intention of the legislature, they could have placed the duty upon some other
official of the executive department. It no doubt is sometimes very necessary In the case of Forbes vs. Chuoco Tiaco and Crossfield (16 Phil., 534), this court, adhering to
for the Governor-General to perform certain important executive duties the same principle announced in the case of Severino vs. Governor-General and Provincial
without delay, and should this court attempt to distinguish between purely Board of Occidental Negros, supra, established the following doctrine:
ministerial and discretionary duties, conferred upon him by law, and attempt to
determine in each case which are purely ministerial, which are political, or
In a government of separate and independent departments, executive,
which are discretionary, the Governor-General, to that extent would become
legislative, and judicial, with separate and distinct functions, one department
subservient to the judiciary. To avoid this is why the three great coordinate
will not attempt to interfere with the performance of the exclusive duties of
departments of the Government were created and made independent of each
another. To permit such an interference would destroy the independence of
other. President McKinley in creating civil government in this country took
the separate departments and would make one subject to the control of the
into consideration these fundamental principles of separate and independent
others. For the judiciary to interfere, for the purpose of questioning the
departments, which have been demonstrated to be essential to a republican
manner of exercising the legal and political duties of the chief executive head
form of government, and conferred upon the Governor-General, as the
of the Government or to control the action of the legislative department,
Executive of the Philippine Islands, the power to execute the laws according to
would, in effect, destroy the independence of the departments of the
his best judgment, holding him responsible to the President of the United
Government and would make all departments subject to the ultimate control
States, without interference on the part of the judiciary. In so doing he reposed
of the judicial. Such a conclusion or condition was never contemplated by the
in the Executive of this country great confidence, realizing that he, the
organizers of the Government.
Executive, acting independently of the judiciary, would be in a better position
to carry out the great underlying principles of American institutions for the
peace and happiness of the inhabitants of this country. The President realized In deciding the present petition, ordering that the respondent judge Fermin Mariano
that the final decision of every question in controversy must be left should be ousted from the office of Judge of the Twenty-fourth District and that
somewhere, and when such decision has been made it must be accepted as possession thereof should be surrendered to the petitioner Andres Borromeo, has not
correct. The presumption is just as conclusive in favor of executive action, as this court judicially determined that the appointment of the former to said district and
to its correctness and justness, as it is in favor of judicial action. that of the latter to the twenty-first, both made by the Governor-General, with the
advice and consent of the Philippine Senate, are not well made and are contrary to the
immovability of judges and should therefore be annulled by this court? What does the
In another part of this decision this court added:
decision of the majority mean but that it is a real intrusion in the exercise of the powers
conferred upon the executive and legislative departments of the Government? And is
Inasmuch as the three coordinated departments of the Government, the this not openly contrary to the doctrines established in the decisions cited of this
executive, legislative, and judicial, have been established and are operating, as Supreme Court itself, where the much-vaunted independence of the executive,
we have said, as independently of each other as the same three coordinated legislative, and judicial departments is proclaimed?
branches created under the constitution of the Federal and State governments
are operating in the American Union, and in view of the fact that there have
The petition is denied.
been conferred upon the Chief Executive of these Islands more extensive
powers, duties, and responsibilities than have been conferred upon the
governors of the various States of the Union, we think the reason for the The motion for reconsideration should be granted.
holdings of the courts of the United States, which have passed upon this
question are worthy of consideration. We might here add that we have no
doubt that the present incumbent of the office of Governor-General, a man
who is ready and willing at all times to render obedience to the law, would
follow the mandate of this court, but such willingness to be governed by the
order of this court would not of itself give us jurisdiction. Nor should he
manifest (which he has not done) his intention to not obey the mandate of this
court, this would not be sufficient reason for us to asbtain from requiring him
to comply with such mandate in case we have jurisdiction.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-2873 February 28, 1950
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
EUGENIO GARCIA Y MADRIGAL, defendant-appellant.
Dominador A. Alafriz for appellant.
First Assistant Solicitor General Roberto A. Gianzon and Solicitor Rafael P. Caiza for appellee.
TUASON, J.:
The sole question presented on this appeal is whether the appellant, being 17 years of
age at the time of at the time of the commission of the crime, was entitled to the
privileged mitigating circumstance of article 68, paragraph 2, of the Revised Penal Code.
The lower court, ignoring defendant's minority, sentenced him to an indeterminate
penalty of from 4 years, 2 months and 1 day of prision correccional to 8 years of prision
mayor for the crime of robbery of which he was found guilty. He was also sentenced to
pay the offended party, jointly and severally with the other accused, the sum of P85 as
indemnity.
Republic Act No. 47, which amended article 80 of the Revised Penal Code by reducing
from 18 to 16 the age below which accused have to "be committed to the custody or
care of a public or private, benevolent or charitable institution," instead of being
convicted and sentenced to prison, has given rise to the controversy. The Solicitor
General believes that the amendment by implication has also amended paragraph 2 of
article 68 of the Revised Pena Code, which provides that when the offender is over
fifteen and under eighteen years age, "The penalty next lower than that prescribed by
law shall be imposed, but always in the proper period."
There are well recognized rules of statutory construction which are against the
Government's contention.
One of these rules is that all parts of a statute are to be harmonized and reconciled so
that effect may be given to each and every part thereof, and that conflicting intention in
the same statute are never to be supposed or so regarded, unless forced upon the court
by an unambiguous language. (59 C. J., 999.)
This rule applies in the construction of a statute and its amendment, both being read
together as whole. "An amended act is ordinarily to be construed as if the original
statute has been repealed, and a new and independent act in the amended form had
been adopted in its stead; or, as frequently stated by the courts, so far as regards any
action after the adoption of the amendment, as if the statute had been originally enacted
in its amended form the amendment becomes a part of the original statute as if it had
always been contained therein, unless such amendment involves the abrogation of
contractual relations between the state and others. Where an amendment leaves certain
portions of the original act unchanged, such portions are continued in force, with the
same meaning and effect they had before the amendment. So where an amendatory act
provides that an existing statute shall be amended to read as recited in the amendatory
act, such portions of the existing law as are retained, either literally or substantially, are
regarded as a continuation of the existing law, and not as a new enactment." (59 C. J.,
1096, 1097.)
We find no irreconcilable conflict between article 68, paragraph 2, as it nowstands and
article 80 as amended. There is no incompatibility between granting accused of the ages
of 15 to 18 a privileged mitigating circumstance and fixing at 16 the maximum age of
persons who are to be placed in a reformatory institution. In other words, there is no
inconsistency between sending defendants of certain ages to prison and giving them a
penalty lower than the imposable one on adults under the same or similar
circumstances. Let it be remember that the privilege of article 68, supra, is not by its
nature inherent in age but purely statutory and conventional, and that this privilege is
granted adult offenders under given conditions.
At least there is no clear intention on the part of the Congress to amend article 68.
Indeed the rational presumption is that if there had been such an intention the
lawmakers should have said so expressly, instead of leaving the change to inference.
One other rule of interpretation that quarrels with the theory of implied repeal or
amendment is that penal law is to be construed, in case of doubt, strictly against the
state. "Criminal and penal statutes must be strictly construed, that is, they cannot be
enlarged or extended by intendment, implication, or by any equitable considerations. In
other words, the language cannot be enlarged beyond the ordinary meaning of its terms
in order to carry into effect the general purpose for which the statute was enacted. Only
those persons, offenses, and penalties, clearly included, beyond any reasonable doubt,
will be considered within the statute's operation. They must come clearly within both
the spirit and the letter of the statute, and where there is any reasonable doubt, it must
be resolved in favor of the person accused of violating the statute; that is, all questions
in doubt will be resolved in favor of those from whom the penalty is sought." (Statutory
Construction, Crawford, pp. 460-462.)
The offense charged in the information of which the appellant was found guilty is
punishable under article 294, case No. 5, of the Revised Penal Code, as amended by
section 6 of Republic Act No. 18, with prision correccional in its maximum period to
prision mayor in its medium period. The penalty one degree lower than this is arresto
mayor in its maximum period to prision correccional in its medium period. There being
no modifying circumstance, the appropriate penalty in the present case is from 6
months and 1 day of arresto mayor to 2 years and 4 months of prision correccional. Being
entitled to an indeterminate penalty as provided in section 1 of Act No. L-4103 as
amended, the accused should be, and he is hereby sentenced to imprisonment of not
less than 4 months ofarresto mayor and not more than 2 years and 4 months of prision
correccional. In all other respect the appealed judgment is affirmed. The appellant will
pay the costs of this appeal.
Moran, C.J., Ozaeta, Pablo, Bengzon, Padilla, Montemayor, Reyes and Torres, JJ., concur.
RESOLUTION ON MOTION FOR RECONSIDERATION
April 12, 1950
TUASON, J.:
This is a motion for reconsideration of our decision.
The main theme of the Solicitor General's argument is that articles 13 (2) and 68 (2) of
the Revised Penal code "complement each other;" that "the application of article 68
takes place only when the court has to render judgment and impose a penalty upon a
minor who has been proceeded against in accordance with article 80 and who had
misbehaved or is found incorrigible," and that "article 80 must be applied first before
article 68 can come into operation, and the court can not apply the latter article in total
disregard of the former." In short, as we infer from this line of reasoning, what article
80 does not touch, article 68 can not touch.
We do not think the premise and conclusion of the motion are correct. There seems to
be a confusion of ideas.
It may do us well to make brief review of the legislation, past and present, relative to
juvenile offenders and dissect and analyze its various provisions and the differences
between them and the role assigned to each. .
Article 68 of the Revised Penal code provides:.
Penalty to be imposed upon a person under eighteen years of age. When the offender
is a minor under eighteen years and his case is one coming under the
provisions of the paragraph next to the last of article 80 of this Code, the
following rules shall be observed:
1. Upon a person under fifteen but over nine years of age, who is not
exempted from liability by reason of the court having declared that he acted
with discernment, a discretionary penalty shall be imposed, but always lower
by two degrees at least than that prescribed by law for the crime which he
committed.
2. Upon a person over fifteen and under eighteen years of the penalty next
lower than that prescribed by law shall be imposed but always in the proper
period.
Sub-paragraph 1 and 2 of the foregoing article are a reproduction of article 85 of the
Spanish Penal Code.
Into the Revised Penal Code, the Juvenile Delinquency Act was incorporated. It has
become in the new code article 80, the first paragraph of which provides that "whenever
a minor under 18 years of age, of either sex, be accused of a crime, the court . . . shall
commit such minor to the custody or care of a public or private, benevolent or
charitable, institution, etc." And in the paragraph immediately preceding the last, it is
further provided that "In case the minor fails to behave properly or to comply with the
regulation of the institution to which he has been committed, or with the conditions
imposed upon him when he was committed to the care of a responsible person, or in
case he should be found incorrigible or his continued stay in such institution should be
inadvisable, he shall be returned to the court in order that the same may render the
judgment corresponding to the crime committed by him."
The latest legislation on the subject was Republic Act No. 47, which amended article 80
of the Revised Penal Code so as to reduce to below 16 the age of minors coming within
its purview.
A close examination of articles 68 and 80 will disclose that article 68, according to its
main paragraph, is to lay off and watch while the minor is in the hands of a charitable
institution or person mentioned in article 80 trying to reform him or her. This has to be
so because article 68 is a rule for the application of penalties, and there is no penalty
when there is no judgment when the delinquent is in Welfareville or other place of
similar character or entrusted to the care of a private person. However, if and when the
minor turns out to be hopeless or incorrigible, he is returned to the proper court and
the court passes sentence on him or her. In other words, article 80 withdraws, as it were,
and sub-paragraph 1 and 2, as the case maybe, of article 68 takes control.
From this it will be seen that article 68 is not dependent on article 80, nor do these
articles complement each other if by complement is meant that they are two mutually
completing parts so that article 68 could not stand without article 80. It is more
appropriate to say that article 68 merely adjusts itself to article 80 but is, in all other
respects, self-sufficient and independent of the latter. Parts of one system of penology
and working in coordination with each other, they pursue different ends. It is to be
noticed that article 68 falls under section 2 of Chapter IV entitled "Application of
Penalties," while article 80 comes under section 1 of Chapter V entitled "Execution and
Service of Penalties." Two different subjects, these.
It will also be seen that article 68, sub-paragraphs 1 and 2, and article 80 of the Revised
Penal Code do not function at the same time and are designed for different purposes.
Each has its assigned, separate sphere of action without in any way intermingling with
the other. When article 80 operates, article 68 keeps out of the way; article 68 steps in
when article 80 steps out.
While a minor is in the process of being reformed he is, in a manner of speaking, in an
intermediate or indeterminate state, neither in prison nor free. Through repentance and
by observing good conduct, he is rewarded with freedom, released upon reaching the
age of majority or before, but if he shows no promise of turning a new leaf, Bilibid
claims him.
It is the minors so situated; it is selection of two should be committed to are formatory
school or to the custody of a private person with which article 80 has to do, and no
more. Article 80 does not concern itself with what should be done with minors when
they are consigned to jail because of misbehavior; much less is it concerned over minors
who, after the passage of Republic Act No. 47, are condemned to prison without having
been under the custody of a benevolent institution or private person like youths
between 16 and 18. On the other hand, article 68 is intended for minors who are sent to
jail, a matter foreign to the province of article 80.
To press the argument further, article 85 of the original Penal Code conferred upon
minors under 18 the right to a penalty. Then came the Juvenile Delinquency Act giving
additional concession to juvenile delinquents. When, later, Republic Act No. 47
amended article 80 so as to eliminate from its beneficent provisions minor of the age of
16 or over and under 18, the logical effect of the amendment can no other than to
correspondingly reduce the age of minors regarding whom the suspensory inhibition on
article 68 is to be confined. Only to the extent and within the limits that article 80
applies is article 68 bound to defer to that article. Where article 80 does not apply article
68 is supreme. When article 80 says that it will deal only with minors below 16, it
relinquishes authority over minors above that age in favor of article 68. When and if
article 80 should by amendment further reduce the age to 15, to that extent the
operation of article 68 will be correspondingly enlarged.
In fact, if Republic Act No. 47, instead of limiting the operation of article 80 to minors
under 16, had totally abolished the scheme of juvenile reformation, sub-paragraphs 1
and 2 of article 68 of the Revised Penal Code would, in our opinion, remain intact, with
the only difference that, as before, they would have full sway, unhampered by any
consideration of suspended judgment. The predecessor of article 68 was in the original
Penal Code since that code was put in force in Spain in 1870 and in the Philippines in
1884, long before the idea embodied in article 80 was conceived. Before the Revised
Penal Code went into effect, article 85 of the old Penal Code and the Juvenile
Delinquency Act worked in the manner herein set forth although there was not any
express provision coordinating their operation. It can safely be said that the main
paragraph of article 68 was inserted merely to explain in clear and express terms when it
should stand aloof and when it should play its role. The Revised Penal Code merely
states the obvious as befits a scientific system of law.
In conclusion, when Republic Act No. 47 amended article 80 of the Revised Penal Code
by reducing the age of persons who may be placed on probation under that article, the
amendment did not change in any form or manner the degree of punishment that
should be meted out to those who are to be committed to jail or how they are to
treated. After the minor is turned over to the court for sentence, article 80 ceases to
have any interest in him or her. In saying that the 16-and 18-year old should no longer
be given a trial or placed on probation in a reformatory institution but should go
straight to prison upon conviction, Republic Act No. 47 does not, by implication or
otherwise, connote that such minors should also be deprived of a reduced penalty. In
no standard of statutory construction is there support for the proposition that the
mitigating circumstance which minors between 16 and 18 enjoyed before Republic Act
No. 47 came into being, notwithstanding the fact that they had shown evidence of incorrigibility,
should be denied them now for no other reason than that the right to be committed to
a reformatory school has been taken away from them; now that they are confined in jail
without having committed any fault other than the crime for which they were
prosecuted in the first instance.
Let it be remembered that by virtue of the amendment minors between 16 and 18 do
not now come under the provisions of the paragraph next to the last of article 80.
Of course, the effect of a law amendment would different if the amendatory law had
absorbed the law which it had amended. In that case, the original law become part and
parcel of the new law, with the result that if the amendatory law be later repealed, both
that law and the law which it had superseded or amended would be considered
abrogated. There was no law of its own force could survive. But, as we have indicated,
article 68 as well as its predecessor is an independent provision and has not been
merged with article 80 or any other article of the Revised Penal code. It is an
independent provision inoperative only during the suspension of the sentence but
possessing all the vigor which article 85 of Spanish Code had, when the minors are
sentenced to jail.
In the decision sought to be reconsidered, we emphasize the rule of statutory
construction to the effect that all parts of a statute are to be harmonized and reconciled
so that effect may be given to each and every part thereof, and that conflicting
intentions in the same statute are never to be supposed or so regarded, unless forced
upon the court by an unambiguous language. (59 C. J., 999.) The motion for
reconsideration has not pointed to any conflict, and we can not find any, between the
retention of the privileged or special mitigating circumstance in favor of minors below
18 and over 16 and the fact that such minors are not entitled to the benefits of article 80
under any circumstances. The motion for reconsideration is conspicuous for its silence
on any incongruity or absurdity that might result from our ruling on the scope and
extent of Republic Act No. 47.
The sole consideration that might commend itself in favor of the Government's
position is the general welfare. For the good of society it may have been better if
Republic Act No. 47 had amended articles 13 and 68 also by correspondingly reducing
the age of accused minors entitled to a mitigating circumstance by reason of age. But it
is write to say that we are not authorized to insert into a law what we think should be in
it or to supply what we think the legislature would have supplied if its attention had
been called to the omission. This is specially true in penal legislation which, as we have
repeatedly stressed in our decision, has to be construed strictly. But there is not even
room for construction in this case. The preamble or explanatory note to Republic Act
No. 47 can not be used as basis for giving it an meaning not apparent on its face. A
preamble or explanatory not is resorted to only for clarification in cases of doubt. There
is no ambiguity in Republic Act No. 47.

The motion and the request to set it for oral argument are denied.

Moran, C.J., Ozaeta, Pablo, Bengzon, Montemayor, Reyes and Torres, JJ., concur.

TUASON, J.:

I certify that Mr. Justice Padilla took part in the deliberation of this motion and voted to
deny the same.
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-36049 May 31, 1976
CITY OF NAGA, VICENTE P. SIBULO, as Mayor, and JOAQUIN C.
CLEOPE, as Treasurer of the City of Naga, petitioners,
vs.
CATALINO AGNA, FELIPE AGNA and SALUD VELASCO, respondents.
Ernesto A. Miguel for petitioners.
Bonot, Cledera & Associates for respondents.
MARTIN, J.:
Petition for review on certiorari, which We treat as special civil action, of the decision of
the Court of First Instance of Camarines Sur in Civil Case No. 7084, entitled Agna, et
al. versus City of Naga, et al., declaring Ordinance No. 360 of the City of Naga
enforceable in 1971 the year following its approval and requiring petitioners to pay to
private respondents the amounts sought for in their complaint plus attorney's fees and
costs. Included in the present controversy as proper parties are Vicente P. Sibulo and
Joaquin C. Cleope, the City Mayor and City Treasurer of the City of Naga, respectively.
On June 15, 1970, the City of Naga enacted Ordinance No. 360 changing and amending
the graduated tax on quarterly gross sales of merchants prescribed in Section 3 of
Ordinance No. 4 of the City of Naga to percentage tax on gross sales provided for in
Section 2 thereof. Pursuant to said ordinance, private respondents paid to the City of
Naga the following taxes on their gross sales for the quarter from July 1, 1970 to
September 30, 1970, as follows:
Catalino Agna paid P1,805.17 as per Official Receipt No. 1826591;
Felipe Agna paid P625.00 as per Official Receipt No. 1826594; and
Salud Velasco paid P129.81 as per Official Receipt No. 1820339.
On February 13, 1971, private respondents filed with the City Treasurer of the City of
Naga a claim for refund of the following amounts, together with interests thereon from
the date of payments: To Catalino Agna, P1,555.17; to Felipe Agna, P560.00; and to
Salud Velasco, P127.81, representing the difference between the amounts they paid
under Section 3, Ordinance No. 4 of the City of Naga, i.e., P250.00; P65.00 and P12.00
respectively. They alleged that under existing law, Ordinance No. 360, which amended
Section 3, Ordinance No. 4 of the City of Naga, did not take effect in 1970, the year it
was approved but in the next succeeding year after the year of its approval, or in 1971,
and that therefore, the taxes they paid in 1970 on their gross sales for the quarter from
July 1, 1970 to September 30, 1970 were illegal and should be refunded to them by the
petitioners.
The City Treasurer denied the claim for refund of the amounts in question. So private
respondents filed a complaint with the Court of First Instance of Naga (Civil Case No.
7084), seeking to have Ordinance No. 360 declared effective only in the year following
the year of its approval, that is, in 1971; to have Sections 4, 6 and 8 of Ordinance No.
360 declared unjust, oppressive and arbitrary, and therefore, null and void; and to
require petitioners to refund the sums being claimed with interests thereon from the
date the taxes complained of were paid and to pay all legal costs and attorney's fees in
the sum of P1,000.00. Private respondents further prayed that the petitioners be
enjoined from enforcing Ordinance No. 360.
In their answer, the petitioners among other things, claimed that private respondents
were not "compelled" but voluntarily made the payments of their taxes under
Ordinance No. 360; that the said ordinance was published in accordance with law; that
in accordance with Republic Act No. 305 (Charter of the City of Naga) an ordinance
takes effect after the tenth day following its passage unless otherwise stated in said
ordinance; that under existing law the City of Naga is authorized to impose certain
conditions to secure and accomplish the collection of sales taxes in the most effective
manner. As special and affirmative defenses, the petitioners allege that the private
respondents have no cause of action against them; that granting that the collection of
taxes can be enjoined. the complaint does not allege facts sufficient to justify the
issuance of a writ of preliminary injunction; that the refund prayed for by the private
respondents is untenable; that petitioners Vicente P. Sibulo and Joaquin C. Cleope, the
City Mayor and Treasurer of the City of Naga, respectively are not proper parties in
interest; that the private respondents are estopped from questioning the validity and/or
constitutionality of the provisions of Ordinance No. 360. Petitioners counterclaimed for
P20,000.00 as exemplary damages, for the alleged unlawful and malicious filing of the
claim against them, in such amount as the court may determine.
During the hearing of the petition for the issuance of a writ of preliminary injunction
and at the pre-trial conference as well as at the trial on the merits of the case, the parties
agreed on the following stipulation of facts: That on June 15, 1970, the City Board of
the City of Naga enacted Ordinance No. 360 entitled "An ordinance repealing
Ordinance No. 4, as amended, imposing a sales tax on the quarterly sales or receipts on
all businesses in the City of Naga," which ordinance was transmitted to the City Mayor
for approval or veto on June 25, 1970; that the ordinance was duly posted in the
designated places by the Secretary of the Municipal Board; that private respondents
voluntarily paid the gross sales tax, pursuant to Ordinance No. 360, but that on
February 15, 1971, they filed a claim for refund with the City Treasurer who denied the
same.
On October 9, 1971, the respondent Judge rendered judgment holding that Ordinance
No. 360, series of 1970 of the City of Naga was enforceable in the year following the
date of its approval, that is, in 1971 and required the petitioners to reimburse the
following sums, from the date they paid their taxes to the City of Naga: to Catalino
Agna, the sum of P1,555.17; to Felipe Agna, P560.00; and to Salud Velasco, P127.81
and the corresponding interests from the filing of the complaint up to the
reimbursement of the amounts plus the sum of P500.00 as attorney's fees and the costs
of the proceedings.
Petitioners' submit that Ordinance No. 360, series of 1970 of the City of Naga, took
effect in the quarter of the year of its approval, that is in July 1970, invoking Section 14
of Republic Act No. 305, 1 as amended, otherwise known as the Charter of the City of
Naga, which, among others, provides that "Each approved ordinance ... shall take effect
and be enforced on and after the 10th day following its passage unless otherwise stated
in said ordinance ... ". They contend that Ordinance No. 360 was enacted by the
Municipal Board of the City of Naga on June 15, 1970 2 and was transmitted to the City
Mayor for his approval or veto on June 25, 1970 3 but it was not acted upon by the City
Mayor until August 4, 1970. Ordinarily, pursuant to Section 14 of Republic Act No.
305, said ordinance should have taken effect after the 10th day following its passage on
June 15, 1970, or on June 25, 1970. But because the ordinance itself provides that it
shall take effect upon its approval, it becomes necessary to determine when Ordinance
No. 360 was deemed approved. According to the same Section 14 of Republic Act No.
305, "if within 10 days after receipt of the ordinance the Mayor does not return it with
his veto or approval 4 the ordinance is deemed approved." Since the ordinance in
question was not returned by the City Mayor with his veto or approval within 10 days
after he received it on June 25, 1970, the same was deemed approved after the lapse of
ten (10) days from June 25, 1970 or on July 6, 1970. On this date, the petitioners claim
that Ordinance No. 360 became effective. They further contend that even under Section
2, of Republic Act No. 2264 (Local Autonomy Acts) 5 which expressly provides: "A tax
ordinance shall go into effect on the fifteenth day after its passage unless the ordinance
shall provide otherwise', Ordinance No. 360 could have taken effect on June 30, 1970,
which is the fifteenth day after its passage by the Municipal Board of the City of Naga
on June 15, 1970, or as earlier explained, it could have taken effect on July 6, 1970, the
date the ordinance was deemed approved because the ordinance itself provides that it
shall take effect upon its approval. Of the two provisions invoked by petitioners to
support their stand that the ordinance in question took effect in the year of its approval,
it is Section 2 of Republic Act No. 2264 (Local Autonomy Act) that is more relevant
because it is the provision that specifically refers to effectivity of a tax ordinance and
being a provision of much later law it is deemed to have superseded Section 14 of
Republic Act No. 305 (Charter of the City of Naga) in so far as effectivity of a tax
ordinance is concerned.
On the other hand, private respondents contend that Ordinance No. 360 became
effective and enforceable in 1971, the year following the year of its approval, invoking
Section 2309 of the Revised Administrative Code which provides:
Section 2309. Imposition of tax and duration of license.A municipal
license tax already in existence shall be subject to change only by
ordinance enacted prior to the 15th day of December of any year
after the next succeeding year, but an entirely new tax may be created
by any ordinance enacted during the quarter year effective at the
beginning of any subsequent quarter.
They submit that since Ordinance No. 360, series of 1970 of the City of Naga, is one
which changes the existing graduated sales tax on gross sales or receipts of dealers of
merchandise and sari-sari merchants provided for in Ordinance No. 4 of the City of
Naga to a percentage tax on their gross sales prescribed in the questioned ordinance, the
same should take effect in the next succeeding year after the year of its approval or in
1971.
Evidently, the divergence of opinion as to when Ordinance No. 360 took effect and
became enforceable is mainly due to the seemingly apparent conflict between Section
2309 of the Revised Administrative Code and Section 2 of Republic Act No. 2264
(Local Autonomy Act). Is there really such a conflict in the above-mentioned
provisions? It will be easily noted that Section 2309 of the Revised Administrative Code
contemplates of two types of municipal ordinances, namely: (1) a municipal ordinance
which changes a municipal license tax already in existence and (2) an ordinance which
creates an entirely new tax. Under the first type, a municipal license tax already in
existence shall be subject to change only by an ordinance enacted prior to the 15th day
of December of any year after the next succeeding year. This means that the ordinance
enacted prior to the 15th day of December changing or repealing a municipal license tax
already in existence will have to take effect in next succeeding year. The evident purpose
of the provision is to enable the taxpayers to adjust themselves to the new charge or
burden brought about by the new ordinance. This is different from the second type of a
municipal ordinance where an entirely new tax may be created by any ordinance enacted
during the quarter year to be effective at the beginning of any subsequent quarter. We
do not find any such distinction between an ordinance which changes a municipal
license tax already in existence and an ordinance creating an entirely new tax in Section
2 of Republic Act No. 2264 (Local Autonomy Act) which merely refers to a "tax
ordinance" without any qualification whatsoever.
Now to the meat of the problem in this petition. Is not Section 2309 of the Revised
Administrative Code deemed repealed or abrogated by Section 2 of Republic Act No.
2264 (Local Autonomy Act) in so far as effectivity of a tax ordinance is concerned? An
examination of Republic Act No. 2264 (Local Autonomy Act) fails to show any
provision expressly repealing Section 2309 of the Revised Administrative Code. All that
is mentioned therein is Section 9 which reads:
Section 9 All acts, executive orders, administrative orders,
proclamations or parts thereof, inconsistent with any of the
provisions of this Act are hereby repealed and modified accordingly.
The foregoing provision does not amount to an express repeal of Section 2309 of the corresponding interests from the filing of the complaint until reimbursement of the
Revised Administrative Code. It is a well established principle in statutory construction amount.
that a statute will not be construed as repealing prior acts on the same subject in the
absence of words to that effect unless there is an irreconcilable repugnancy between IN VIEW OF THE FOREGOING, the instant petition is hereby dismissed.
them, or unless the new law is evidently intended to supersede all prior acts on the
matter in hand and to comprise itself the sole and complete system of legislation on that
SO ORDERED.
subject. Every new statute should be construed in connection with those already
existing in relation to the same subject matter and all should be made to harmonize and
stand together, if they can be done by any fair and reasonable interpretation ... . 6 It will Teehankee (Chairman), Makasiar, Esguerra and Muoz Palma, JJ., concur.
also be noted that Section 2309 of the Revised Administrative Code and Section 2 of
Republic Act No. 2264 (Local Autonomy Act) refer to the same subject matter-
enactment and effectivity of a tax ordinance. In this respect they can be considered
in pari materia. Statutes are said to be in pari materia when they relate to the same person
or thing, or to the same class of persons or things, or have the same purpose or
object. 7 When statutes are in pari materia, the rule of statutory construction dictates that
they should be construed together. This is because enactments of the same legislature
on the same subject matter are supposed to form part of one uniform system; that later
statutes are supplementary or complimentary to the earlier enactments and in the
passage of its acts the legislature is supposed to have in mind the existing legislation on
the same subject and to have enacted its new act with reference thereto. 8 Having thus
in mind the previous statutes relating to the same subject matter, whenever the
legislature enacts a new law, it is deemed to have enacted the new provision in
accordance with the legislative policy embodied in those prior statutes unless there is an
express repeal of the old and they all should be construed together. 9 In construing them
the old statutes relating to the same subject matter should be compared with the new
provisions and if possible by reasonable construction, both should be so construed that
effect may be given to every provision of each. However, when the new provision and
the old relating to the same subject cannot be reconciled the former shall prevail as it is
the latter expression of the legislative will. 10 Actually we do not see any conflict
between Section 2309 of the Revised Administrative Code and Section 2 of the
Republic Act No. 2264 (Local Autonomy Act). The conflict, if any, is more apparent
than real. It is one that is not incapable of reconciliation. And the two provisions can be
reconciled by applying the first clause of Section 2309 of the Revised Administrative
Code when the problem refers to the effectivity of an ordinance changing or repealing a
municipal license tax already in existence. But where the problem refers to effectivity of
an ordinance creating an entirely new tax, let Section 2 of Republic Act No. 2264 (Local
Autonomy Act) govern.

In the case before Us, the ordinance in question is one which changes the graduated
sales tax on gross sales or receipts of dealers of merchandise and sari-sari merchants
prescribed in Section 3 of Ordinance No. 4 of the City of Naga to percentage tax on
their gross sale-an ordinance which definitely falls within the clause of Section 2309 of
the Revised Administrative Code. Accordingly it should be effective and enforceable in
the next succeeding year after the year of its approval or in 1971 and private
respondents should be refunded of the taxes they have paid to the petitioners on their
gross sales for the quarter from July 1, 1970 to September 30, 1970 plus the
 SECOND DIVISION
[G.R. No. 117188. August 7, 1997]
LOYOLA GRAND VILLAS HOMEOWNERS (SOUTH) ASSOCIATION,
INC., petitioner, vs. HON. COURT OF APPEALS,
HOME INSURANCE AND GUARANTY CORPORATION, EMDEN
ENCARNACION and HORATIO AYCARDO, respondents.
DECISION
ROMERO, J.:
May the failure of a corporation to file its by-laws within one month from the date
of its incorporation, as mandated by Section 46 of the Corporation Code, result in its
automatic dissolution?
This is the issue raised in this petition for review on certiorari of the Decision[1] of
the Court of Appeals affirming the decision of the Home Insurance and Guaranty
Corporation (HIGC).This quasi-judicial body recognized Loyola Grand Villas
Homeowners Association (LGVHA) as the sole homeowners association in Loyola
Grand Villas, a duly registered subdivision in Quezon City and Marikina City that was
owned and developed by Solid Homes, Inc. It revoked the certificates of registration
issued to Loyola Grand Villas Homeowners (North) Association Incorporated (the
North Association for brevity) and Loyola Grand Villas Homeowners (South)
Association Incorporated (the South Association).
LGVHAI was organized on February 8, 1983 as the association of homeowners
and residents of the Loyola Grand Villas. It was registered with the Home Financing
Corporation, the predecessor of herein respondent HIGC, as the sole homeowners
organization in the said subdivision under Certificate of Registration No. 04-197. It was
organized by the developer of the subdivision and its first president was Victorio V.
Soliven, himself the owner of the developer. For unknown reasons, however, LGVHAI
did not file its corporate by-laws.
Sometime in 1988, the officers of the LGVHAI tried to register its by-laws. They
failed to do so.[2] To the officers consternation, they discovered that there were two
other organizations within the subdivision the North Association and the South
Association. According to private respondents, a non-resident and Soliven himself,
respectively headed these associations. They also discovered that these associations had
five (5) registered homeowners each who were also the incorporators, directors and
officers thereof. None of the members of the LGVHAI was listed as member of the
North Association while three (3) members of LGVHAI were listed as members of the
South Association.[3] The North Association was registered with the HIGC on February
13, 1989 under Certificate of Registration No. 04-1160 covering Phases West II, East
III, West III and East IV. It submitted its by-laws on December 20, 1988.
In July, 1989, when Soliven inquired about the status of LGVHAI, Atty. Joaquin
A. Bautista, the head of the legal department of the HIGC, informed him that LGVHAI
had been automatically dissolved for two reasons. First, it did not submit its by-laws
within the period required by the Corporation Code and, second, there was non-user of
corporate charter because HIGC had not received any report on the associations
activities. Apparently, this information resulted in the registration of the South
Association with the HIGC on July 27, 1989 covering Phases West I, East I and East
11. It filed its by-laws on July 26, 1989.
These developments prompted the officers of the LGVHAI to lodge a complaint
with the HIGC. They questioned the revocation of LGVHAIs certificate of registration
without due notice and hearing and concomitantly prayed for the cancellation of the
certificates of registration of the North and South Associations by reason of the earlier
issuance of a certificate of registration in favor of LGVHAI.
On January 26, 1993, after due notice and hearing, private respondents obtained a
favorable ruling from HIGC Hearing Officer Danilo C. Javier who disposed of HIGC
Case No. RRM-5-89 as follows:
WHEREFORE, judgment is hereby rendered recognizing the Loyola Grand Villas
Homeowners Association, Inc., under Certificate of Registration No. 04-197 as the duly
registered and existing homeowners association for Loyola Grand Villas homeowners,
and declaring the Certificates of Registration of Loyola Grand Villas Homeowners
(North) Association, Inc. and Loyola Grand Villas Homeowners (South) Association,
Inc. as hereby revoked or cancelled; that the receivership be terminated and the
Receiver is hereby ordered to render an accounting and turn-over to Loyola Grand
Villas Homeowners Association, Inc., all assets and records of the Association now
under his custody and possession.
The South Association appealed to the Appeals Board of the HIGC. In its
Resolution of September 8, 1993, the Board[4] dismissed the appeal for lack of merit.
Rebuffed, the South Association in turn appealed to the Court of Appeals, raising
two issues. First, whether or not LGVHAIs failure to file its by-laws within the period
prescribed by Section 46 of the Corporation Code resulted in the automatic dissolution
of LGVHAI. Second, whether or not two homeowners associations may be authorized
by the HIGC in one sprawling subdivision. However, in the Decision of August 23,
1994 being assailed here, the Court of Appeals affirmed the Resolution of the HIGC
Appeals Board.
In resolving the first issue, the Court of Appeals held that under the Corporation
Code, a private corporation commences to have corporate existence and juridical
personality from the date the Securities and Exchange Commission (SEC) issues a
certificate of incorporation under its official seal. The requirement for the filing of by-
laws under Section 46 of the Corporation Code within one month from official notice
of the issuance of the certificate of incorporation presupposes that it is already
incorporated, although it may file its by-laws with its articles of
incorporation. Elucidating on the effect of a delayed filing of by-laws, the Court of
Appeals said:
We also find nothing in the provisions cited by the petitioner, i.e., Sections 46 and 22,
Corporation Code, or in any other provision of the Code and other laws which provide
or at least imply that failure to file the by-laws results in an automatic dissolution of the
corporation. While Section 46, in prescribing that by-laws must be adopted within the
period prescribed therein, may be interpreted as a mandatory provision, particularly
because of the use of the word must, its meaning cannot be stretched to support the
argument that automatic dissolution results from non-compliance.
We realize that Section 46 or other provisions of the Corporation Code are silent on the
result of the failure to adopt and file the by-laws within the required period. Thus,
Section 46 and other related provisions of the Corporation Code are to be construed
with Section 6 (1) of P.D. 902-A. This section empowers the SEC to suspend or revoke
certificates of registration on the grounds listed therein. Among the grounds stated is
the failure to file by-laws (see also II Campos: The Corporation Code, 1990 ed., pp.
124-125). Such suspension or revocation, the same section provides, should be made
upon proper notice and hearing. Although P.D. 902-A refers to the SEC, the same
principles and procedures apply to the public respondent HIGC as it exercises its power
to revoke or suspend the certificates of registration or homeowners associations.
(Section 2 [a], E.O. 535, series 1979, transferred the powers and authorities of the SEC
over homeowners associations to the HIGC.)
We also do not agree with the petitioners interpretation that Section 46, Corporation
Code prevails over Section 6, P.D. 902-A and that the latter is invalid because it
contravenes the former. There is no basis for such interpretation considering that these
two provisions are not inconsistent with each other. They are, in fact, complementary to
each other so that one cannot be considered as invalidating the other.
The Court of Appeals added that, as there was no showing that the registration of
LGVHAI had been validly revoked, it continued to be the duly registered homeowners
association in the Loyola Grand Villas. More importantly, the South Association did not
dispute the fact that LGVHAI had been organized and that, thereafter, it transacted
business within the period prescribed by law.
On the second issue, the Court of Appeals reiterated its previous ruling [5] that the
HIGC has the authority to order the holding of a referendum to determine which of
two contending associations should represent the entire community, village or
subdivision.
Undaunted, the South Association filed the instant petition for review
on certiorari. It elevates as sole issue for resolution the first issue it had raised before the
Court of Appeals, i.e., whether or not the LGVHAIs failure to file its by-laws within the
period prescribed by Section 46 of the Corporation Code had the effect of automatically
dissolving the said corporation.
Petitioner contends that, since Section 46 uses the word must with respect to the
filing of by-laws, noncompliance therewith would result in self-extinction either due to
non-occurrence of a suspensive condition or the occurrence of a resolutory condition
under the hypothesis that (by) the issuance of the certificate of registration alone the
corporate personality is deemed already formed. It asserts that the Corporation Code
provides for a gradation of violations of requirements. Hence, Section 22 mandates that
the corporation must be formally organized and should commence transactions within
two years from date of incorporation. Otherwise, the corporation would be deemed
dissolved. On the other hand, if the corporation commences operations but becomes
continuously inoperative for five years, then it may be suspended or its corporate
franchise revoked.
Petitioner concedes that Section 46 and the other provisions of the Corporation
Code do not provide for sanctions for non-filing of the by-laws. However, it insists that
no sanction need be provided because the mandatory nature of the provision is so clear
that there can be no doubt about its being an essential attribute of corporate birth. To
petitioner, its submission is buttressed by the facts that the period for compliance is
spelled out distinctly; that the certification of the SEC/HIGC must show that the by-
laws are not inconsistent with the Code, and that a copy of the by-laws has to be
attached to the articles of incorporation. Moreover, no sanction is provided for because
in the first place, no corporate identity has been completed. Petitioner asserts that non-
provision for remedy or sanction is itself the tacit proclamation that non-compliance is
fatal and no corporate existence had yet evolved, and therefore, there was no need to
proclaim its demise.[6] In a bid to convince the Court of its arguments, petitioner
stresses that:
x x x the word MUST is used in Sec. 46 in its universal literal meaning and corollary
human implication its compulsion is integrated in its very essence MUST is always
enforceable by the inevitable consequence that is, OR ELSE. The use of the
word MUST in Sec. 46 is no exception it means file the by-laws within one month after
notice of issuance of certificate of registration OR ELSE. The OR ELSE, though not
specified, is inextricably a part of MUST. Do this or if you do not you are Kaput. The
importance of the by-laws to corporate existence compels such meaning for as decreed
the by-laws is `the government of the corporation. Indeed, how can the corporation do
any lawful act as such without by-laws. Surely, no law is intended to create chaos.[7]
Petitioner asserts that P.D. No. 902-A cannot exceed the scope and power of
the Corporation Code which itself does not provide sanctions for non-filing of by-
laws. For the petitioner, it is not proper to assess the true meaning of Sec. 46 x x x on
an unauthorized provision on such matter contained in the said decree.
In their comment on the petition, private respondents counter that the
requirement of adoption of by-laws is not mandatory. They point to P.D. No. 902-A as
having resolved the issue of whether said requirement is mandatory or merely directory.
Citing Chung Ka Bio v. Intermediate Appellate Court,[8] private respondents contend
that Section 6(I) of that decree provides that non-filing of by-laws is only a ground for
suspension or revocation of the certificate of registration of corporations and, therefore,
it may not result in automatic dissolution of the corporation.Moreover, the adoption
and filing of by-laws is a condition subsequent which does not affect the corporate
personality of a corporation like the LGVHAI. This is so because Section 9 of the
Corporation Code provides that the corporate existence and juridical personality of a
corporation begins from the date the SEC issues a certificate of incorporation under its
official seal. Consequently, even if the by-laws have not yet been filed, a corporation
may be considered a de facto corporation. To emphasize the fact the LGVHAI was
registered as the sole homeowners association in the Loyola Grand Villas, private
respondents point out that membership in the LGVHAI was an unconditional
restriction in the deeds of sale signed by lot buyers.
In its reply to private respondents comment on the petition, petitioner reiterates
its argument that the word must in Section 46 of the Corporation Code is mandatory. It
adds that, before the ruling in Chung Ka Bio v. Intermediate Appellate Court could
be applied to this case, this Court must first resolve the issue of whether or not the
provisions of P.D. No. 902-A prescribing the rules and regulations to implement the
Corporation Code can rise above and change the substantive provisions of the Code.
The pertinent provision of the Corporation Code that is the focal point of
controversy in this case states:
Sec. 46. Adoption of by-laws. Every corporation formed under this Code, must within
one (1) month after receipt of official notice of the issuance of its certificate of
incorporation by the Securities and Exchange Commission, adopt a code of by-laws for
its government not inconsistent with this Code. For the adoption of by-laws by the
corporation, the affirmative vote of the stockholders representing at least a majority of
the outstanding capital stock, or of at least a majority of the members, in the case of
non-stock corporations, shall be necessary. The by-laws shall be signed by the
stockholders or members voting for them and shall be kept in the principal office of the
corporation, subject to the stockholders or members voting for them and shall be kept
in the principal office of the corporation, subject to inspection of the stockholders or
members during office hours; and a copy thereof, shall be filed with the Securities and
Exchange Commission which shall be attached to the original articles of incorporation.
Notwithstanding the provisions of the preceding paragraph, by-laws may be adopted
and filed prior to incorporation; in such case, such by-laws shall be approved and signed
by all the incorporators and submitted to the Securities and Exchange Commission,
together with the articles of incorporation.
In all cases, by-laws shall be effective only upon the issuance by the Securities and
Exchange Commission of a certification that the by-laws are not inconsistent with this
Code.
The Securities and Exchange Commission shall not accept for filing the by-laws or any
amendment thereto of any bank, banking institution, building and loan association, trust
company, insurance company, public utility, educational institution or other special
corporations governed by special laws, unless accompanied by a certificate of the
appropriate government agency to the effect that such by-laws or amendments are in
accordance with law.
As correctly postulated by the petitioner, interpretation of this provision of law
begins with the determination of the meaning and import of the word must in this
section. Ordinarily, the word must connotes an imperative act or operates to impose a
duty which may be enforced.[9] It is synonymous with ought which connotes
compulsion or mandatoriness.[10] However, the word must in a statute, like shall, is not
always imperative. It may be consistent with an exercise of discretion. In this
jurisdiction, the tendency has been to interpret shall as the context or a reasonable
construction of the statute in which it is used demands or requires. [11] This is equally
true as regards the word must. Thus, if the language of a statute considered as a whole
and with due regard to its nature and object reveals that the legislature intended to use
the words shall and must to be directory, they should be given that meaning.[12]
In this respect, the following portions of the deliberations of the Batasang
Pambansa No. 68 are illuminating:
MR. FUENTEBELLA. Thank you, Mr. Speaker.
On page 34, referring to the adoption of by-laws, are we made to
understand here, Mr. Speaker, that by-laws must immediately be filed
within one month after the issuance? In other words, would this be
mandatory or directory in character?
MR. MENDOZA. This is mandatory.
MR. FUENTEBELLA. It being mandatory, Mr. Speaker, what
would be the effect of the failure of the corporation to file these by-
laws within one month?
MR. MENDOZA. There is a provision in the latter part of the
Code which identifies and describes the consequences of violations of
any provision of this Code. One such consequence is the dissolution of
the corporation for its inability, or perhaps, incurring certain penalties.
MR. FUENTEBELLA. But it will not automatically amount to a
dissolution of the corporation by merely failing to file the by-laws
within one month. Supposing the corporation was late, say, five days,
what would be the mandatory penalty?
MR. MENDOZA. I do not think it will necessarily result in the
automatic or ipso facto dissolution of the corporation. Perhaps, as in the
case, as you suggested, in the case of El Hogar Filipino where a quo
warranto action is brought, one takes into account the gravity of the
violation committed. If the by-laws were late the filing of the by-laws
were late by, perhaps, a day or two, I would suppose that might be a
tolerable delay, but if they are delayed over a period of months as is
happening now because of the absence of a clear requirement that by-
 laws must be completed within a specified period of time, the
corporation must suffer certain consequences.[13]
This exchange of views demonstrates clearly that automatic corporate dissolution
for failure to file the by-laws on time was never the intention of the
legislature. Moreover, even without resorting to the records of deliberations of the
Batasang Pambansa, the law itself provides the answer to the issue propounded by
petitioner.
Taken as a whole and under the principle that the best interpreter of a statute is
the statute itself (optima statuli interpretatix est ipsum statutum),[14] Section 46
aforequoted reveals the legislative intent to attach a directory, and not mandatory,
meaning for the word must in the first sentence thereof. Note should be taken of the
second paragraph of the law which allows the filing of the by-laws even prior to
incorporation. This provision in the same section of the Code rules out mandatory
compliance with the requirement of filing the by-laws within one (1) month after receipt
of official notice of the issuance of its certificate of incorporation by the Securities and
Exchange Commission. It necessarily follows that failure to file the by-laws within that
period does not imply the demise of the corporation. By-laws may be necessary for the
government of the corporation but these are subordinate to the articles of incorporation
as well as to the Corporation Code and related statutes. [15] There are in fact cases where
by-laws are unnecessary to corporate existence or to the valid exercise of corporate
powers, thus:
In the absence of charter or statutory provisions to the contrary, by-laws are not
necessary either to the existence of a corporation or to the valid exercise of the powers
conferred upon it, certainly in all cases where the charter sufficiently provides for the
government of the body; and even where the governing statute in express terms confers
upon the corporation the power to adopt by-laws, the failure to exercise the power
will be ascribed to mere nonaction which will not render void any acts of the
corporation which would otherwise be valid.[16] (Italics supplied.)
As Fletcher aptly puts it:
It has been said that the by-laws of a corporation are the rule of its life, and that until
by-laws have been adopted the corporation may not be able to act for the purposes of
its creation, and that the first and most important duty of the members is to adopt
them. This would seem to follow as a matter of principle from the office and functions
of by-laws. Viewed in this light, the adoption of by-laws is a matter of practical, if not
one of legal, necessity. Moreover, the peculiar circumstances attending the formation of
a corporation may impose the obligation to adopt certain by-laws, as in the case of a
close corporation organized for specific purposes. And the statute or general laws from
which the corporation derives its corporate existence may expressly require it to make
and adopt by-laws and specify to some extent what they shall contain and the manner of
their adoption. The mere fact, however, of the existence of power in the
corporation to adopt by-laws does not ordinarily and of necessity make the
exercise of such power essential to its corporate life, or to the validity of any of its
acts.[17]
Although the Corporation Code requires the filing of by-laws, it does not
expressly provide for the consequences of the non-filing of the same within the period
provided for in Section 46. However, such omission has been rectified by Presidential
Decree No. 902-A, the pertinent provisions on the jurisdiction of the SEC of which
state:
SEC. 6. In order to effectively exercise such jurisdiction, the Commission shall possess
the following powers:
xxx xxx xxx xxx
(l) To suspend, or revoke, after proper notice and hearing, the franchise or
certificate of registration of corporations, partnerships or associations, upon any of
the grounds provided by law, including the following:
xxx xxx xxx xxx
5. Failure to file by-laws within the required period;
xxx xxx xxx xxx
In the exercise of the foregoing authority and jurisdiction of the Commissions or by a
Commissioner or by such other bodies, boards, committees and/or any officer as may
be created or designated by the Commission for the purpose. The decision, ruling or
order of any such Commissioner, bodies, boards, committees and/or officer may be
appealed to the Commission sitting en banc within thirty (30) days after receipt by the
appellant of notice of such decision, ruling or order. The Commission shall promulgate
rules of procedures to govern the proceedings, hearings and appeals of cases falling
within its jurisdiction.
The aggrieved party may appeal the order, decision or ruling of the Commission
sitting en banc to the Supreme Court by petition for review in accordance with the
pertinent provisions of the Rules of Court.
Even under the foregoing express grant of power and authority, there can be
no automatic corporate dissolution simply because the incorporators failed to abide by the
required filing of by-laws embodied in Section 46 of the Corporation Code. There is no
outright demise of corporate existence. Proper notice and hearing are cardinal
components of due process in any democratic institution, agency or society. In other
words, the incorporators must be given the chance to explain their neglect or omission
and remedy the same.
 That the failure to file by-laws is not provided for by the Corporation Code but in
another law is of no moment. P.D. No. 902-A, which took effect immediately after its
promulgation on March 11, 1976, is very much apposite to the Code. Accordingly, the
provisions abovequoted supply the law governing the situation in the case at bar,
inasmuch as the Corporation Code and P.D. No. 902-A are statutes in pari
materia. Interpretare et concordare legibus est optimus interpretandi. Every
statute must be so construed and harmonized with other statutes as to form a uniform
system of jurisprudence.[18]
As the rules and regulations or private laws enacted by the corporation to regulate,
govern and control its own actions, affairs and concerns and its stockholders or
members and directors and officers with relation thereto and among themselves in their
relation to it,[19] by-laws are indispensable to corporations in this jurisdiction. These may
not be essential to corporate birth but certainly, these are required by law for an orderly
governance and management of corporations. Nonetheless, failure to file them within
the period required by law by no means tolls the automatic dissolution of a corporation.
In this regard, private respondents are correct in relying on the pronouncements
of this Court in Chung Ka Bio v. Intermediate Appellate Court,[20] as follows:
x x x. Moreover, failure to file the by-laws does not automatically operate to dissolve a
corporation but is now considered only a ground for such dissolution.
It should be stressed in this connection that substantial compliance with conditions
subsequent will suffice to perfect corporate personality. Organization and
commencement of transaction of corporate business are but conditions subsequent and
not prerequisites for acquisition of corporate personality. The adoption and filing of by-
laws is also a condition subsequent. Under Section 19 of the Corporation Code, a
corporation commences its corporate existence and juridical personality and is deemed
incorporated from the date the Securities and Exchange Commission issues certificate
of incorporation under its official seal. This may be done even before the filing of the
by-laws, which under Section 46 of the Corporation Code, must be adopted within one
month after receipt of official notice of the issuance of its certificate of incorporation. [21]
That the corporation involved herein is under the supervision of the HIGC does
not alter the result of this case. The HIGC has taken over the specialized functions of
the former Home Financing Corporation by virtue of Executive Order No. 90 dated
December 17, 1986.[22] With respect to homeowners associations, the HIGC shall
exercise all the powers, authorities and responsibilities that are vested on the Securities
and Exchange Commission x x x, the provision of Act 1459, as amended by P.D. 902-
A, to the contrary notwithstanding.[23]
WHEREFORE, the instant petition for review on certiorari is hereby DENIED
and the questioned Decision of the Court of Appeals AFFIRMED. This Decision is
immediately executory.Costs against petitioner.

Section 19 of the Corporation Law, part of which is now Section 22 of the Corporation SO ORDERED.
Code, provided that the powers of the corporation would cease if it did not formally Regalado, (Chairman), Puno, and Mendoza, JJ., concur.
organize and commence the transaction of its business or the continuation of its works Torres, Jr., J., on leave.
within two years from date of its incorporation. Section 20, which has been reproduced
with some modifications in Section 46 of the Corporation Code, expressly declared that
every corporation formed under this Act, must within one month after the filing of the
articles of incorporation with the Securities and Exchange Commission, adopt a code of
by-laws. Whether this provision should be given mandatory or only directory effect
remained a controversial question until it became academic with the adoption of PD
902-A. Under this decree, it is now clear that the failure to file by-laws within the
required period is only a ground for suspension or revocation of the certificate of
registration of corporations.

Non-filing of the by-laws will not result in automatic dissolution of the corporation.
Under Section 6(I) of PD 902-A, the SEC is empowered to suspend or revoke, after
proper notice and hearing, the franchise or certificate of registration of a corporation on
the ground inter alia of failure to file by-laws within the required period. It is clear from
this provision that there must first of all be a hearing to determine the existence of the
ground, and secondly, assuming such finding, the penalty is not necessarily revocation
but may be only suspension of the charter. In fact, under the rules and regulations of
the SEC, failure to file the by-laws on time may be penalized merely with the imposition
of an administrative fine without affecting the corporate existence of the erring firm.