Statutes Granting Privileges

Boardwalk Business Venture v. Villareal (G.R. No. 181182, April 10, 2013)

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 181182

April 10, 2013

BOARDWALK BUSINESS VENTURES, INC., Petitioner,

vs.
ELVIRA A. VILLAREAL (deceased) substituted by Reynaldo P. Villareal, Jr.-spouse, Shekinah Marie
Villareal-Azugue-daughter, Reynaldo A. Villareal ill-son, Shahani A. Villareal-daughter, and Billy Ray
A. Villareal-son, Respondents.
DECISION
DEL CASTILLO, J.:
"The right to appeal is neither a natural right nor is it a component of due process. It is a mere statutory
privilege, and may be exercised only in the manner and in accordance with the provisions of law." 1
This Petition for Review on Certiorari2 seeks a review of the Court of Appeals' (CA) April 25, 2007
Resolution3in CA-G.R. SP No. UDK 5711 which dismissed outright petitioner's Petition. Also assailed is the
December 21, 2007 Resolution4 which denied the Motion for Reconsideration.
Factual Antecedents
Petitioner Boardwalk Business Ventures, Inc. (Boardwalk) is a duly organized and existing domestic
corporation engaged in the selling of ready-to- wear (RTW) merchandise. Respondent Elvira A. Villareal
(Villareal), on the other hand, is one of Boardwalks distributors of RTW merchandise.
On October 20, 2005, Boardwalk filed an Amended Complaint 5 for replevin against Villareal covering a
1995 Toyota Tamaraw FX, for the latters alleged failure to pay a car loan obtained from the former. The
case, docketed as Civil Case No. 160116, was filed with the Metropolitan Trial Court (MeTC) of Manila and
was assigned to Branch 27 thereof.
Ruling of the Metropolitan Trial Court
On May 30, 2005, the MeTC rendered its Decision 6 favoring Boardwalk, as follows:
WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiff and against the
defendant adjudging that the former has the right to the possession of the subject motor vehicle and for the
latter to pay the costs of the suit.
SO ORDERED.7
Villareal moved for reconsideration,8 but failed.9

Ruling of the Regional Trial Court (RTC)

She thus appealed10 to the Manila RTC, which court11 issued a Decision12 reversing the MeTC Decision,
thus:
WHEREFORE, the appeal is granted. The assailed judgment of the lower court is reversed and set aside.
Defendant Villareal has the right of possession to and the value of subject vehicle described in the
complaint. Hence, plaintiff is directed to deliver the subject vehicle to defendant or its value in case
delivery cannot be made. The complaint and counterclaim are both dismissed.
SO ORDERED.13
Boardwalk filed a Motion for Reconsideration, 14 but the same was denied by the RTC in a December 14,
2006 Order,15 which Boardwalk received on January 19, 2007. 16 On February 5, 2007,17 Boardwalk through
counsel filed with the Manila RTC a Motion for Extension of Time to File Petition for Review,18 praying that
it be granted 30 days, or until March 7, 2007, to file its Petition for Review. It paid the docket and other
legal fees therefor at the Office of the Clerk of Court of the Manila RTC.19 On even date, Boardwalk also
filed a Notice of Appeal20 with the RTC which the said court denied for being a wrong mode of appeal. 21
On March 7, 2007, Boardwalk filed through mail22 its Petition for Review23 with the CA.

1wphi1

Ruling of the Court of Appeals

On April 25, 2007, the CA issued the first assailed Resolution, the dispositive portion of which reads as
follows:
ACCORDINGLY, the Petition for Review is hereby DISMISSED OUTRIGHT.
SO ORDERED.24
In dismissing the Petition for Review, the CA held that Boardwalk erred in filing its Motion for Extension
and paying the docket fees therefor with the RTC. It should have done so with the CA as required by
Section 125 of Rule 42 of the Rules of Court. It held that as a result of Boardwalks erroneous filing and
payment of docket fees, it was as if no Motion for Extension was filed, and the subsequent March 7, 2007
filing of its Petition with the appellate court was thus late and beyond the reglementary 15-day period
provided for under Rule 42.
The CA added that Boardwalks prayer for a 30-day extension in its Motion for Extension was irregular,
because the maximum period that may be granted is only 15 days pursuant to Section 1 of Rule 42. A
further extension of 15 days should only be granted for the most compelling reason which is not obtaining
in the present case. Moreover, it held that Boardwalks Petition for Review failed to include a board
resolution or secretarys certificate showing that its claimed representative, Ma. Victoria M. Lo (Lo), was
authorized to sign the Petition or represent Boardwalk in the proceedings, which thus rendered defective
the Verification and Certification against forum-shopping. Finally, the CA faulted Boardwalk for its failure to
attach to its Petition copies of the Complaint, Answer, position papers, memoranda and other relevant
pleadings, as required in Sections 2 and 326 of Rule 42, thus meriting the outright dismissal of its Petition
for Review.
Boardwalk filed a Motion for Reconsideration 27 and Supplemental Motion for Reconsideration, 28 invoking a
liberal construction of the Rules in its favor. It further informed the CA that it had paid the docket fees with
the CA Cashier, and submitted the required secretarys certificate and additional pleadings in support of its
Petition.

In the second assailed December 21, 2007 Resolution subsequently issued, the CA denied the Motion for
Reconsideration and its supplement. It held that despite curative action, the fact remains that Boardwalks
Petition was filed beyond the reglementary 15-day period. Even if technicality were to be set aside and
Boardwalk were to be allowed an extension of 15 days from the filing of the Motion for Extension on
February 5, 2007, or until February 20, 2007, within which to file its Petition, its actual filing on March 7,
2007 would still be tardy.
Issues
Boardwalk thus filed the instant Petition, raising the following issues for resolution:
PETITIONER IS INVOKING THE LIBERAL CONSTRUCTION OF THE RULES TO EFFECT
SUBSTANTIAL JUSTICE IN ACCORDANCE WITH RULE 1, SECTION 6 OF THE 1997 RULES OF CIVIL
PROCEDURE.
SPECIFICALLY, THE ASSAILED RESOLUTIONS X X X ORDERING THE OUTRIGHT DISMISSAL OF
THE PETITION FOR REVIEW X X X DUE TO PROCEDURAL LAPSES, IN TOTAL DISREGARD OF THE
SUBSTANTIAL ISSUES CLEARLY RAISED THEREAT, ARE CONTRARY TO EXISTING RULES, LAW,
JURISPRUDENCE AND THE PRINCIPLE OF EQUITY AND SUBSTANTIAL JUSTICE. 29
Petitioner's Arguments
In its Petition and Reply,30 Boardwalk invokes the principle that litigations should be decided on the merits
and not on technicalities; that litigants should be afforded the amplest opportunity for the proper and just
disposition of their causes, free from the constraints of technicalities. It claims that it should not be faulted
for the error committed by its counsels clerk in wrongly filing the Motion for Extension and paying the
docket fees with the RTC Clerk of Court. It prays that the Court review the merits of its case.
As for the defective Verification and Certification of non-forum shopping, Boardwalk contends that these
are formal, not jurisdictional, requisites which could as well be treated with leniency. Its subsequent
submission of the proper secretarys certificate should thus have cured the defect. It adds that the same
treatment should be accorded its subsequent payment of the docket fees with the CA Cashier and
submission of the required annexes and pleadings in support of its Petition. It prays the Court to consider
these as substantial compliance with the Rules.
Respondents Arguments
In her Comment,31 respondent simply echoes the CA ruling. She insists that Boardwalks reasons for
erroneously filing the Motion for Extension and paying the docket fees in the RTC are flimsy and should
not be considered.
Respondent adds that Boardwalks Petition raised factual issues relative to the merits of the case, which
may not be the subject of review at this stage.
Our Ruling
The Court denies the Petition.
Petitioners case is not unique, and there is no compelling reason to accord it the privilege it now seeks.
"The right to appeal is neither a natural right nor is it a component of due process. It is a mere statutory
privilege, and may be exercised only in the manner and in accordance with the provisions of law." 32 This
being so,

x x x an appealing party must strictly comply with the requisites laid down in the Rules of Court. Deviations
from the Rules cannot be tolerated. The rationale for this strict attitude is not difficult to appreciate as the
Rules are designed to facilitate the orderly disposition of appealed cases. In an age where courts are
bedeviled by clogged dockets, the Rules need to be followed by appellants with greater fidelity. Their
observance cannot be left to the whims and caprices of appellants. x x x33
In this case, petitioner must comply with the following requirements laid down in Rule 42 of the Rules of
Court:
Section 1. How appeal taken; time for filing.
A party desiring to appeal from a decision of the Regional Trial Court rendered in the exercise of its
appellate jurisdiction may file a verified petition for review with the Court of Appeals, paying at the same
time to the clerk of said court the corresponding docket and other lawful fees, x x x. The petition shall be
filed and served within fifteen (15) days from notice of the decision sought to be reviewed or of the denial
of petitioners motion for new trial or reconsideration x x x. Upon proper motion x x x, the Court of Appeals
may grant an additional period of fifteen (15) days only within which to file the petition for review. No further
extension shall be granted except for the most compelling reason and in no case to exceed fifteen (15)
days.
Sec. 2. Form and contents.
The petition shall be x x x accompanied by x x x copies x x x of the pleadings and other material portions
of the record as would support the allegations of the petition.
The petitioner shall also submit together with the petition a certification under oath that he has not
theretofore commenced any other action involving the same issues in the Supreme Court, the Court of
Appeals or different divisions thereof, or any other tribunal or agency; if there is such other action or
proceeding, he must state the status of the same; and if he should thereafter learn that a similar action or
proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or different
divisions thereof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid courts
and other tribunal or agency thereof within five (5) days therefrom.
In addition, the Rules also require that the Petition must be verified or accompanied by an affidavit by
which the affiant attests under oath that he "has read the pleading and that the allegations therein are true
and correct of his personal knowledge or based on authentic records." 34
And finally, Section 3 of Rule 42 provides that non-compliance "with any of the foregoing requirements
regarding the payment of the docket and other lawful fees, x x x and the contents of and the documents
which should accompany the petition shall be sufficient ground for the dismissal thereof."
Records show that petitioner failed to comply with the foregoing rules.
The Petition must be accompanied by a Verification and Certification against forum shopping. Copies of
the relevant pleadings and other material portions of the record must likewise be attached to the Petition.
The Rules require that the Petition must be accompanied by a Verification and Certification against forum
shopping. If the petitioner is a juridical entity, as in this case, it must be shown that the person signing in
behalf of the corporation is duly authorized to represent said corporation. In this case, no special power of
attorney or board resolution was attached to the Petition showing that Lo was authorized to sign the
Petition or represent Boardwalk in the proceedings. In addition, petitioner failed to attach to the Petition
copies of the relevant pleadings and other material portions of the record.

Petitioner tried to cure these lapses by subsequently submitting a board resolution showing Los authority
to sign and act on behalf of Boardwalk, as well as copies of the relevant pleadings. Now, it prays that the
Court consider these as substantial compliance with the Rules.
Concededly, this Court in several cases exercised leniency and relaxed the Rules. However, in this case,
petitioner committed multiple violations of the Rules which should sufficiently militate against its plea for
leniency. As will be shown below, petitioner failed to perfect its appeal by not filing the Petition within the
reglementary period and paying the docket and other lawful fees before the proper court. These
requirements are mandatory and jurisdictional.
Petitioner erroneously paid the docket fees and other lawful fees with the RTC.
Section 1, Rule 42 of the Rules of Court specifically states that payment of the docket fees and other
lawful fees should be made to the clerk of the CA. A plain reading of the Rules leaves no room for
interpretation; it is categorical and explicit. It was thus grave error on the part of the petitioner to have
misinterpreted the same and consequently mistakenly remitted its payment to the RTC clerk. Petitioners
subsequent payment to the clerk of the CA of the docket fees and other lawful fees did not cure the defect.
The payment to the CA was late; it was done long after the reglementary period to file an appeal had
lapsed. It must be stressed that the payment of the docket fees and other lawful fees must be done within
15 days from receipt of notice of decision sought to be reviewed or denial of the motion for
reconsideration. In this case, petitioner remitted the payment to the CA clerk long after the lapse of the
reglementary period.
The CA may grant an extension of 15 days only. The grant of another 15-days extension, or a total of 30days extension is allowed only for the most compelling reason.
Petitioner sought an extension of 30 days within which to file its Petition for Review with the CA. This is not
allowed. Section 1 of Rule 42 allows an extension of only 15 days. "No further extension shall be granted
except for the most compelling reason x x x."35 Petitioner never cited any compelling reason.
Thus, even on the assumption that the CA granted Boardwalk a 15-day reprieve from February 3, 2007, or
the expiration of its original reglementary period, 36 it still failed to file its Petition for Review on or before the
February 19, 200737 due date. Records show that the Petition was actually filed only on March 7, 2007, or
way beyond the allowable February 19, 2007 deadline. The appellate court thus correctly ruled that this
may not simply be brushed aside.
Petitioners appeal is not deemed perfected.
More significantly, Section 8 of Rule 42 provides that the appeal is deemed perfected as to the petitioner
"upon the timely filing of a petition for review and the payment of the corresponding docket and other
lawful fees." Undisputably, petitioners appeal was not perfected because of its failure to timely file the
Petition and to pay the docket and other lawful fees before the proper court which is the CA. Consequently,
the CA properly dismissed outright the Petition because it never acquired jurisdiction over the same. As a
result, the RTCs Decision had long become final and executory.
To stress, the right to appeal is statutory and one who seeks to avail of it must comply with the statute or
rules. The requirements for perfecting an appeal within the reglementary period specified in the law must
be strictly followed as they are considered indispensable interdictions against needless delays. Moreover,
the perfection of an appeal in the manner and within the period set by law is not only mandatory but
jurisdictional as well, hence failure to perfect the same renders the judgment final and executory. And, just
as a losing party has the privilege to file an appeal within the prescribed period, so also does the prevailing
party have the correlative right to enjoy the finality of a decision in his favor.

True it is that in a number of instances, the Court has relaxed the governing periods of appeal in order to
serve substantial justice. But this we have done only in exceptional cases. Sadly, the instant case is
definitely not one of them.38
At this point, it must be emphasized that since petitioners right of appeal is a mere statutory privilege, it
was bound to a strict observance of the periods of appeal, which requirements are not merely mandatory,
but jurisdictional.
Nor may the negligence of Boardwalks former counsel be invoked to excuse it from the adverse effects of
the appellate courts pronouncement. His negligence or mistake proceeded from carelessness and
ignorance of the basic rules of procedure. This does not constitute excusable negligence that would
extricate and excuse Boardwalk from compliance with the Rules.
Boardwalk's request for the Court to review its case on the merits should be denied as well. The import of
the Court's foregoing pronouncements necessarily renders the R TC judgment final and unassailable; it
became final and executory after the period to appeal expired without Boardwalk perfecting an appeal. As
such, the Court may no longer review it.
In light of the above conclusions, the Court finds no need to further discuss the other issues raised by the
parties.
WHEREFORE, the Petition is DENIED. The Court of Appeals' April 25, 2007 and December 21, 2007
Resolutions in CA-G.R. SP No. UDK 5711 are hereby AFFIRMED.
SO ORDERED.
MARIANO C. DEL CASTILLO<br />Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
Chairperson
ARTURO D. BRION
Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice
AT T E S TAT I O N
I attest that the conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court's Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson
C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify
that the conclusions in the above Decision had been reached in consultation before the case was assigned
to the writer of the opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice

Footnotes
1

Fenequito v. Vergara, Jr., G.R. No. 172829, July 18,2012,677 SCRA 113, 117.

Rollo, pp. 41-83.

CA rollo, pp. 75-78; penned by Associate Justice Edgardo F. Sundiam and concurred in by
Associate Justices Portia Alio-Hormachuelos and Monina Arevalo-Zenarosa.
3

Id. at 138-141.

Records, pp. 2-5.

Id. at 343-347; penned by Judge Joel A. Lucasan.

Id. at 347.

Id. at 348.

See Order dated September 9, 2005, id. at 374-376.

10

Id. at 381.

11

Branch 18 thereof.

12

Id. at 392-410; penned by Judge Myra V. Garcia-Fernandez.

13

Id. at 410.

14

Id. at 412-430.

15

Id. at 447-448.

16

Id. at 451.

17

Id.

18

Id. at 451-456.

19

Id. at 461-462.

20

Id. at 457-460.

21

See Order dated February 15, 2007, id. at 463.

22

See CA rollo, p. 75.

23

Id. at 2-23.

24

Id. at 77-78. Emphases in the original.

25

Section 1. How appeal taken; time for filing.

A party desiring to appeal from a decision of the Regional Trial Court rendered in the
exercise of its appellate jurisdiction may file a verified petition for review with the Court of
Appeals, paying at the same time to the clerk of said court the corresponding docket and
other lawful fees, depositing the amount of P500.00 for costs, and furnishing the Regional
Trial Court and the adverse party with a copy of the petition. The petition shall be filed and
served within fifteen (15) days from notice of the decision sought to be reviewed or of the
denial of petitioners motion for new trial or reconsideration filed in due time after judgment.
Upon proper motion and the payment of the full amount of the docket and other lawful fees
and the deposit for costs before the expiration of the reglementary period, the Court of
Appeals may grant an additional period of fifteen (15) days only within which to file the
petition for review. No further extension shall be granted except for the most compelling
reason and in no case to exceed fifteen (15) days.

26

Sec. 2. Form and contents.

The petition shall be filed in seven (7) legible copies, with the original copy intended for the
court being indicated as such by the petitioner, and shall (a) state the full names of the
parties to the case, without impleading the lower courts or judges thereof either as
petitioners or respondents; (b) indicate the specific material dates showing that it was filed
on time; (c) set forth concisely a statement of the matters involved, the issues raised, the
specification of errors of fact or law, or both, allegedly committed by the Regional Trial
Court, and the reasons or arguments relied upon for the allowance of the appeal; (d) be
accompanied by clearly legible duplicate originals or true copies of the judgments or final
orders of both lower courts, certified correct by the clerk of court of the Regional Trial
Court, the requisite number of plain copies thereof and of the pleadings and other material
portions of the record as would support the allegations of the petition.
The petitioner shall also submit together with the petition a certification under oath that he
has not theretofore commenced any other action involving the same issues in the Supreme
Court, the Court of Appeals or different divisions thereof, or any other tribunal or agency; if
there is such other action or proceeding, he must state the status of the same; and if he
should thereafter learn that a similar action or proceeding has been filed or is pending
before the Supreme Court, the Court of Appeals, or different divisions thereof, or any other
tribunal or agency, he undertakes to promptly inform the aforesaid courts and other tribunal
or agency thereof within five (5) days therefrom.
Sec. 3. Effect of failure to comply with requirements.
The failure of the petitioner to comply with any of the foregoing requirements regarding the
payment of the docket and other lawful fees, the deposit for costs, proof of service of the
petition, and the contents of and the documents which should accompany the petition shall
be sufficient ground for the dismissal thereof.

27

CA rollo, pp. 79-92.

28

Id. at 93-96.

29

Rollo, p. 54.

30

Id. at 189-197.

31

Id. at 181-186.

32

Fenequito v. Vergara, Jr., supra note 1.

33

Id.

34

See RULES OF COURT, Rule 7, Section 4.

35

RULES OF COURT, Rule 42, Section 1.

The CA erroneously reckoned the additional 15-day period from the date of filing of the Motion
for Extension. It should be reckoned from the date of expiration of the original reglementary period.
36

37

February 18, 2007 is a Sunday.

38

Apex Mining Co., Inc. v. Commissioner of Internal Revenue, 510 Phil. 268, 275 (2005).

Statutes Granting Privileges

People of the Philippines v. Jalosjos (G.R. No. 132875-76, February 3, 2000)
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 132875-76

February 3, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROMEO G. JALOSJOS, accused-appellant.
RESOLUTION
YNARES-SANTIAGO, J.:
The accused-appellant, Romeo F. Jaloslos is a full-pledged member of Congress who is now confined at
the national penitentiary while his conviction for statutory rape on two counts and acts of lasciviousness on
six counts1 is pending appeal. The accused-appellant filed this motion asking that he be allowed to fully
discharge the duties of a Congressman, including attendance at legislative sessions and committee
meetings despite his having been convicted in the first instance of a non-bailable offense.
The issue raised is one of the first impression.
Does membership in Congress exempt an accused from statutes and rules which apply to validly
incarcerated persons in general? In answering the query, we are called upon to balance relevant and
conflicting factors in the judicial interpretation of legislative privilege in the context of penal law.

The accused-appellant's "Motion To Be Allowed To Discharge Mandate As Member of House of

Representatives" was filed on the grounds that
1. Accused-appellant's reelection being an expression of popular will cannot be rendered inutile by
any ruling, giving priority to any right or interest not even the police power of the State.
2. To deprive the electorate of their elected representative amounts to taxation without
representation.
3. To bar accused-appellant from performing his duties amounts to his suspension/removal and
mocks the renewed mandates entrusted to him by the people.
4. The electorate of the First District of Zamboanga del Norte wants their voice to be heard.
5. A precedent-setting U.S. ruling allowed a detained lawmaker to attend sessions of the U.S.
Congress.
6. The House treats accused-appellant as a bona fide member thereof and urges a co-equal
branch of government to respect its mandate.
7. The concept of temporary detention does not necessarily curtail the duty of accused-appellant to
discharge his mandate.
8. Accused-appellant has always complied with the conditions/restrictions when allowed to leave
jail.
The primary argument of the movant is the "mandate of sovereign will." He states that the sovereign
electorate of the First District of Zamboanga del Norte chose him as their representative in Congress.
Having been re-elected by his constituents, he has the duty to perform the functions of a Congressman.
He calls this a covenant with his constituents made possible by the intervention of the State. He adds that
it cannot be defeated by insuperable procedural restraints arising from pending criminal cases.
True, election is the expression of the sovereign power of the people. In the exercise of suffrage, a free
people expects to achieve the continuity of government and the perpetuation of its benefits. However,
inspite of its importance, the privileges and rights arising from having been elected may be enlarged or
restricted by law. Our first task is to ascertain the applicable law.
We start with the incontestable proposition that all top officials of Government-executive, legislative, and
judicial are subject to the majesty of law. There is an unfortunate misimpression in the public mind that
election or appointment to high government office, by itself, frees the official from the common restraints of
general law. Privilege has to be granted by law, not inferred from the duties of a position. In fact, the higher
the rank, the greater is the requirement of obedience rather than exemption.
The immunity from arrest or detention of Senators and members of the House of Representatives, the
latter customarily addressed as Congressmen, arises from a provision of the Constitution. The history of
the provision shows that privilege has always been granted in a restrictive sense. The provision granting
an exemption as a special privilege cannot be extended beyond the ordinary meaning of its terms. It may
not be extended by intendment, implication or equitable considerations.
The 1935 Constitution provided in its Article VI on the Legislative Department.
Sec 15. The Senators and Members of the House of Representatives shall in all cases except
treason, felony, and breach of the peace be privileged from arrest during their attendance at the
sessions of Congress, and in going to and returning from the same, . . .

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

A person charged with crime is taken into custody for purposes of the administration of justice. As stated
in United States v. Gustilo,3 it is the injury to the public which State action in criminal law seeks to redress.
It is not the injury to the complainant. After conviction in the Regional Trial Court, the accused may be
denied bail and thus subjected to incarceration if there is risk of his absconding. 4
The accused-appellant states that the plea of the electorate which voted him into office cannot be
supplanted by unfounded fears that he might escape eventual punishment if permitted to perform
congressional duties outside his regular place of confinement.
It will be recalled that when a warrant for accused-appellant's arrest was issued, he fled and evaded
capture despite a call from his colleagues in the House of Representatives for him to attend the sessions
and to surrender voluntarily to the authorities. Ironically, it is now the same body whose call he initially
spurned which accused-appellant is invoking to justify his present motion. This can not be countenanced
because, to reiterate, aside from its being contrary to well-defined Constitutional restrains, it would be a
mockery of the aims of the State's penal system.
Accused-appellant argues that on several occasions the Regional Trial Court of Makati granted several
motions to temporarily leave his cell at the Makati City Jail, for official or medical reasons, to wit:
a) to attend hearings of the House Committee on Ethics held at the Batasan Complex, Quezon
City, on the issue of whether to expel/suspend him from the House of Representatives;
b) to undergo dental examination and treatment at the clinic of his dentist in Makati City;
c) to undergo a thorough medical check-up at the Makati Medical Center, Makati City;
d) to register as a voter at his hometown in Dapitan City. In this case, accused-appellant
commuted by chartered plane and private vehicle.
He also calls attention to various instances, after his transfer at the New Bilibid Prison in Muntinlupa City,
when he was likewise allowed/permitted to leave the prison premises, to wit.
a) to join "living-out" prisoners on "work-volunteer program" for the purpose of 1) establishing a
mahogany seedling bank and 2) planting mahogany trees, at the NBP reservation. For this
purpose, he was assigned one guard and allowed to use his own vehicle and driver in going to and
from the project area and his place of confinement.
b) to continue with his dental treatment at the clinic of his dentist in Makati City.
c) to be confined at the Makati Medical Center in Makati City for his heart condition.
There is no showing that the above privileges are peculiar to him or to a member of Congress. Emergency
or compelling temporary leaves from imprisonment are allowed to all prisoners, at the discretion of the
authorities or upon court orders.
What the accused-appellant seeks is not of an emergency nature. Allowing accused-appellant to attend
congressional sessions and committee meeting for five (5) days or more in a week will virtually make him
free man with all the privilege appurtenant to his position. Such an aberrant situation not only elevates
accused-appellant's status to that of a special class, it also would be a mockery of the purposes of the
correction system. Of particular relevance in this regard are the following observations of the Court
in Martinez v. Morfe:5
The above conclusion reached by this Court is bolstered and fortified by policy considerations.
There is, to be sure, a full recognition of the necessity to have members of Congress, and likewise

delegates to the Constitutional Convention, entitled to the utmost freedom to enable them to
discharge their vital responsibilities, bowing to no other force except the dictates of their
conscience of their conscience. Necessarily the utmost latitude in free speech should be accorded
them. When it comes to freedom from arrest, however, it would amount to the creation of a
privileged class, without justification in reason, if notwithstanding their liability for a criminal
offense, they would be considered immune during their attendance in Congress and in going to
and returning from the same. There is likely to be no dissent from the proposition that a legislator
or a delegate can perform his functions efficiently and well, without the need for any transgression
of the criminal law. Should such an unfortunate event come to pass, he is to be treated like any
other citizen considering that there is a strong public interest in seeing to it that crime should not go
unpunished. To the fear that may be expressed that the prosecuting arm of the government might
unjustly go after legislators belonging to the minority, it suffices to answer that precisely all the
safeguards thrown around an accused by the Constitution, solicitous of the rights of an individual,
would constitute an obstacle to such an attempt at abuse of power. The presumption of course is
that the judiciary would remain independent. It is trite to say that in each and every manifestation of
judicial endeavor, such a virtue is of the essence.
The accused-appellant avers that his constituents in the First District of Zamboanga del Norte want their
voices to be heard and that since he is treated as bona fide member of the House of Representatives, the
latter urges a co-equal branch of government to respect his mandate. He also claims that the concept of
temporary detention does not necessarily curtail his duty to discharge his mandate and that he has always
complied with the conditions/restrictions when he is allowed to leave jail.
We remain unpersuaded.

1wphi1.nt

No less than accused-appellant himself admits that like any other member of the House of
Representatives "[h]e is provided with a congressional office situated at Room N-214, North Wing Building,
House of Representatives Complex, Batasan Hills, Quezon City, manned by a full complement of staff paid
for by Congress. Through [an] inter-department coordination, he is also provided with an office at the
Administration Building, New Bilibid Prison, Muntinlupa City, where he attends to his constituents."
Accused-appellant further admits that while under detention, he has filed several bills and resolutions. It
also appears that he has been receiving his salaries and other monetary benefits. Succinctly stated,
accused-appellant has been discharging his mandate as a member of the House of Representative
consistent with the restraints upon one who is presently under detention. Being a detainee, accusedappellant should not even have been allowed by the prison authorities at the National Penitentiary to
perform these acts.
When the voters of his district elected the accused-appellant to Congress, they did so with full awareness
of the limitations on his freedom of action. They did so with the knowledge that he could achieve only such
legislative results which he could accomplish within the confines of prison. To give a more drastic
illustration, if voters elect a person with full knowledge that he suffering from a terminal illness, they do so
knowing that at any time, he may no longer serve his full term in office.
In the ultimate analysis, the issue before us boils down to a question of constitutional equal protection.
The Constitution guarantees: ". . . nor shall any person be denied the equal protection of laws." 6 This
simply means that all persons similarly situated shall be treated alike both in rights enjoyed and
responsibilities imposed.7 The organs of government may not show any undue favoritism or hostility to any
person. Neither partiality not prejudice shall be displayed.
Does being an elective official result in a substantial distinction that allows different treatment? Is being a
Congressman a substantial differentiation which removes the accused-appellant as a prisoner from the
same class as all persons validly confined under law?

The performance of legitimate and even essential duties by public officers has never been an excuse to
free a person validly in prison. The duties imposed by the "mandate of the people" are multifarious. The
accused-appellant asserts that the duty to legislative ranks highest in the hierarchy of government. The
accused-appellant is only one of 250 members of the House of Representatives, not to mention the 24
members of the Senate, charged with the duties of legislation. Congress continues to function well in the
physical absence of one or a few of its members. Depending on the exigency of Government that has to
be addressed, the President or the Supreme Court can also be deemed the highest for that particular duty.
The importance of a function depends on the need to its exercise. The duty of a mother to nurse her infant
is most compelling under the law of nature. A doctor with unique skills has the duty to save the lives of
those with a particular affliction. An elective governor has to serve provincial constituents. A police officer
must maintain peace and order. Never has the call of a particular duty lifted a prisoner into a different
classification from those others who are validly restrained by law.
A strict scrutiny of classifications is essential lest wittingly or otherwise, insidious discriminations are made
in favor of or against groups or types of individuals. 8
The Court cannot validate badges of inequality. The necessities imposed by public welfare may justify
exercise of government authority to regulate even if thereby certain groups may plausibly assert that their
interests are disregarded.9
We, therefore, find that election to the position of Congressman is not a reasonable classification in
criminal law enforcement. The functions and duties of the office are not substantial distinctions which lift
him from the class of prisoners interrupted in their freedom and restricted in liberty of movement. Lawful
arrest and confinement are germane to the purposes of the law and apply to all those belonging to the
same class.10
Imprisonment is the restraint of a man's personal liberty; coercion exercised upon a person to prevent the
free exercise of his power of
locomotion.11
More explicitly, "imprisonment" in its general sense, is the restraint of one's liberty. As a punishment, it is
restraint by judgment of a court or lawful tribunal, and is personal to the accused. 12 The term refers to the
restraint on the personal liberty of another; any prevention of his movements from place to place, or of his
free action according to his own pleasure and will. 13 Imprisonment is the detention of another against his
will depriving him of his power of locomotion 14 and it "[is] something more than mere loss of freedom. It
includes the notion of restraint within limits defined by wall or any exterior barrier." 15
It can be seen from the foregoing that incarceration, by its nature, changes an individual's status in
society.16Prison officials have the difficult and often thankless job of preserving the security in a potentially
explosive setting, as well as of attempting to provide rehabilitation that prepares inmates for re-entry into
the social mainstream. Necessarily, both these demands require the curtailment and elimination of certain
rights.17
Premises considered, we are constrained to rule against the accused-appellant's claim that re-election to
public office gives priority to any other right or interest, including the police power of the State.
WHEREFORE, the instant motion is hereby DENIED.
SO ORDERED.
Kapunan, Panganiban, Quisumbing, Purisima, Pardo Buena and De Leon, Jr., JJ., concur.
Davide, Jr., C.J., and also in separate opinion of Justice Reyes.
Bellosillo, J., I concur in the main and separate opinion.
Melo, J., I join the majority as well as the separate opinion.
Puno, J., I concur with the main and separate opinion.

Vitug, J., I concur in both the ponencia and the separate opinion.
Mendoza, J., I concur in this as well as in the separate opinion of Justice Gonzaga-Reyes.
Gonzaga-Reyes, J., See separate concurring opinion.

Separate Opinions
GONZAGA-REYES, J., concurring opinion;
For resolution in this case is a motion filed by accused-appellant Romeo G. Jalosjos, who has been
convicted by the trial court of two counts of statutory rape and six counts of acts of lasciviousness, which
judgment is currently pending appeal before this Court. As a member of the House of Representatives,
accused-appellant claims that his constituents are deprived of representation by reason of his
incarceration pending appeal of the judgment of conviction and that he should therefore be allowed to
discharge his legislative functions, including attendance of legislative sessions and committee meetings.
I concur in the ponencia of my colleague Madame Justice Consuelo Ynares-Santiago in holding that
accused-appellant's motion is bereft of any legal merit.
The Bill of Rights provides
All persons, except those charged with offenses punishable by reclusion perpetua when evidence
of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on
recognizance as may be provided by law. The right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is suspended. Excessive bail shall not be
required.1 (emphasis supplied)
This constitutional provision denying the right to bail for offenses punishable by reclusion perpetua when
the evidence of guilt is strong is reiterated in Rule 114 of the Rules of Criminal Procedure, viz
Sec. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not
bailable. No person charged with a capital offense, or an offense punishable by reclusion
perpetua or life imprisonment, when evidence of guilt is strong, shall be admitted to bail regardless
of the stage of the criminal prosecution.
The trial court found accused-appellant guilty of the crime of statutory rape, which is punishable
by reclusion perpetua. In People v. Divina2 we held that the trial court's judgment of conviction imports that
the evidence of guilt of the crime charged is strong. Unquestionably, the continued incarceration of
accused-appellant is a valid and constitutionally mandated curtailment of his rights to provisional liberty
pending appeal of his conviction.
Neither may the constitutional provision granting immunity from arrest to legislators provide legal
justification for accused-appellant's motion. The Constitution states that
A Senator of Member of the House of Representatives shall, in all offenses punishable by not more
than six years imprisonment, be privileged from arrest while the Congress is in session. No
Member shall be questioned nor be held liable in any other place for any speech or debate in the
Congress or in any committee thereof.3
I agree with the ponencia that to allow accused-appellant to attend legislative sessions would constitute an
unjustified broadening of the privilege from the arrest bestowed by the Constitution upon members of

Congress. Neither the legislative history of this provision nor the general principles of official immunity
support an expanded interpretation of such privilege.
Unlike the present Constitution, the 1935 Constitution 4 limited the privilege from arrests to "all cases except
treason, felony, and breach of the peace." This provision was taken from the Philippine Autonomy Act of
1916, which was in turn based upon the American Constitution. In accordance with American precedents,
the word "treason, felony and breach of the peace" have been construed to include all indictable
offenses.5 Thus, under the 1935 Constitution the freedom from arrest only encompassed civil arrest.
Under the 19736 and the 1987 Constitution, the privilege was broadened to include arrests for crimes
punishable by imprisonment of six years or less. Despite the expansion of the privilege, the rationale for
granting members of Congress immunity from arrest remained the same to ensure that they are not
prevented from performing their legislative duties.7 In fact, the 1986 Constitutional Commission rejected
the proposal of one of its members to expand the scope of the parliamentary immunity to include searches
because, unlike arrest, it was not demonstrated that the conduct of searches would prevent members of
Congress from discharging their legislative functions. 8
It is a well-established principle that official immunity is a necessary adjunct to the vigorous and effective
performance of official functions. Members of Congress in particular, who are called upon to exercise their
discretion and judgment in enacting laws responsive to the needs of the people, would certainly be
impeded in the exercise of their legislative functions if every dissatisfied person could compel them to
vindicate the wisdom of their enactments in an action for damages or question their official acts before the
courts.9
It was never the intention of the framers of the 1973 and 1987 Constitutions to shield a member of
Congress from the consequences of his wrongdoing. Thus, despite the widening of its scope to include
criminal offenses, the privilege from arrest is still circumscribed by the nature or the gravity of the offenses
of which the accused is charged. Hence, the commission of serious crimes, i.e., crimes punishable by
afflictive penalties or with capital punishment, does not fall within the scope of the constitutional privilege. A
member of Congress could only invoke the immunity from arrest for relatively minor offenses, punishable
at most by correctional penalties. As enunciated in Martinez v. Morfe,10 "when it comes to freedom from
arrest, it would amount to the creation of a privileged class, without justification in reason, if
notwithstanding their liability for a criminal offense, they would be considered immune during their
attendance in Congress and in going to and returning from the same"
The accused-appellant, having been convicted of statutory rape which is punishable by reclusion perpetua,
an afflictive penalty, is obviously not entitled to the privilege of parliamentary immunity and, proceeding
from the above stated rationale for legislative immunity, a liberal construction of the constitutional privilege
is not in order.
It should also be mentioned that, under the factual circumstances of this case, the applicability of this
privilege from arrest to accused-appellant is already moot and academic. The constitutional provision
contemplates that stage of the criminal process at which personal jurisdiction is sought to be acquired over
the accused by means of his arrest. Accused-appellant is no longer at the point of merely being arrested.
As a matter of fact, he has already been arrested, tried and convicted by the trial court.
Accused-appellant's contention that his re-election constitutes a renewal of his mandate and that such an
expression of the popular will should not be rendered inutile by even the police power of the State is
hollow. InAguinaldo v. Comelec,11 Aguinaldo v. Santos12 and in Salalima v. Guingona13 we laid down the
doctrine that a public official cannot be removed for administrative misconduct committed during a prior
term, since his re-election to office operates as a condonation of the officer's previous misconduct to the
extent of cutting off the right to remove therefor. This doctrine of forgiveness or condonation cannot apply
to criminal acts which the re-elected official may have committed during his previous term. 14 The
administrative liability of a public officer is separate and distinct from his penal liability.
1wphi1.nt

Penal laws are obligatory upon all who live or sojourn in Philippine territory. Since the Constitution itself
provides for the immunities from the general application of our criminal laws which a Senator or Member of
the House of Representatives may enjoy, it follows that any expansion of such immunities must similarly
be based upon an express constitutional grant.
I vote to deny the motion.

Footnotes
1

RTC Decision, pp. 54-55.

212 SCRA 768, at 773 [1992].

19 Phil, 208, 212.

Cubillo v. City Warden, 97 SCRA 771 [1980].

44 SCRA 37 [1972].

Art. III, Sec. 1.

Ichong v. Hernandez, 101 Phil. 1155.

Skinuer v. Oklahoma, 315 US 535.

See Fernando, Constitution of the Philippines, 2nd Edition, p. 548.

See Felwa v. Salas, 18 SCRA 606 [1966]; Ichong v. Hernandez, 101 Phil. 1155: Dumlao v.
Commission on Elections, 95 SCRA 392 [1980]; Ceniza v. Commission on Elections, 96 SCRA 763
(1980); People v. Cayat, 68 Phil. 12.
10

11

Black's Law Dictionary, Special Deluxe 5th Ed., p. 681.

20 Words And Phrases, Permanent Ed., p. 466, citing US v. Safeway Stores [Tex.] C.C.C.A. Kan.
140F 2d 834, 839 and US v. Mitchell, 163 F. 1014, 1016 at p. 470.
12

13

Ibid, p. 470, citing Pine v. Okzewski, 170 A. 825, 827, 112 N.J.L. 429.

14

Id., p. 472, citing US v. Benner, 24 Fed. Gas. 1084, 1087.

15

Id., citing Bird v. Jones, 4 N.Y. Leg. Obs. 158, 159.

Sheldon, Krantz, 1088 Supplement. The Law of Correction and Prisoners' Rights, 3rd Ed., p.
121.
16

17

Ibid.

GONZAGA-REYES, J., concurring opinion;

1

1987 Constitution, Art. III, sec. 13.

221 SCRA 209 (1993).

Art. VI, sec. 11.

Art. VI, sec. 15. The Senators and Members of the House of Representatives shall in all cases
except treasons, felony, and breach of the peace, be privileged from the arrest during their
attendance at the sessions of the Congress, and in going to and returning from the same; and for
any speech and debate therein, they shall not be questioned in any other place.
4

Martinez v. Morfe, 44 SCRA 22 (1972), citing Williamson v. United States, 207 U.S. 425.

Art. VIII, sec. 9. A member of the Batasang Pambansa shall, in all offenses punishable by not
more than six years imprisonment, be privilege from arrest during his attendance at its sessions,
and in going to and returning from the same; but the Batasang Pambansa shall surrender the
member involved to the custody of the law within twenty-four hours after its adjournment for a
recess or for its next session, otherwise such privilege shall cease upon its failure to do so. A
member shall not be questioned nor held liable in any other place for any speech or debate in the
Batasan or in any committee thereof.
6

1987 Constitution, II RECORD 90.

Ibid., 178-185.

Mechem, F.R., A Treatise on the Law of Public Offices and Officers (1890), 431.

10

Supra.

11

Res., G.R. Nos. 105128-30, May 14, 1992.

12

212 SCRA 768 (1992).

13

257 SCRA 55 (1996).

14

Salalima v. Guingona, id.

Legislative Grants to LGUs

Republic of the Philippines v. Provincial Governor (G.R. No. L-28055, October 30, 1967)
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-28055

October 30, 1967

REPUBLIC OF THE PHILIPPINES, petitioner,

vs.
PROVINCIAL GOVERNOR DELFIN MONTANO, ET AL., respondents.

Office of the Solicitor General for petitioner.

Sarmiento and Remulla for respondents.
CASTRO, J.:
The parties are agreed that the Cavite Department of Public Safety possesses the nature, attributes,
powers and functions of a police force. The issue here is whether a provincial government has the power,
by necessary implication from certain express powers granted to it, to create a provincial police force, the
parties admitting that there is no express or explicit statutory grant of power. Neither the need for such a
body nor the wisdom of its creation is in question. The issue is simply one of implied power.
In 1964 the provincial board of Cavite passed Resolution 27 creating a Department of Safety "to be
manned by trained technicians and investigators who shall be agents of a person in authority (the
Provincial Governor)" and authorizing the appropriation of funds for its operation. The resolution did not
define the powers and functions of the department. This was done by means of an administrative order of
the respondent Governor which is hereunder quoted in full:
PROVINCIAL ADMINISTRATIVE ORDER 65-1
DEFINING THE GENERAL PURPOSES, POWERS AND FUNCTIONS OF THE CAVITE
DEPARTMENT OF PUBLIC SAFETY
To insure the effective implementation of the Provincial Board Resolution No. 27, series of 1964,
creating the Cavite Department of Public Safety as the main law-enforcement arm of the province,
this Administrative Order is hereby promulgated.
Sec. 1. The Agency. The agency shall be officially known as the CAVITE DEPARTMENT OF
PUBLIC SAFETY (CDPS) or, in Pilipino, KAGAWARAN NG KALIGTASAN BAYAN; and its
members, who are agents of the Provincial Governor to be known as Public Safety Officers.
Sec. 2. General Purposes and Functions. To better insure the safety of residents of Cavite and
the well-being of both public and private interests therein, the Cavite Department of Public Safety
is established with the following purposes and functions:
a. Technical Assistance to Local Police Units. The CDPS shall make readily available to the
different local police forces technical assistance availing of modern and scientific methods
of crime detection.
b. Elevation of Standard of Police Performance. It shall aspire to elevate the standard of
police performance, not only by the quality of the services it would render, but also by
assisting in the implementation of a police training program for local police forces.
c. Focus on Crimes against Persons and Property. In order to make the operation of the
Agency more effective, considering that the main problem in the maintenance of peace and
order involves the security of persons and property, its law-enforcement activities shall
more or less be confined to the investigation and assistance in the prosecution of crimes
against persons and property and violation of traffic laws.
d. Central Record System. The CDPS shall establish and maintain a central provincial
record of personal and criminal identification and court and police documents. It shall also
make available to municipalities that have enacted ordinances; requiring the fingerprinting
and/or photographing of all able bodied citizens the personnel, materials and equipment
needed for said purpose.

e. Civil Defense. The CDPS shall also constitute the main civil defense arm in the province,
responsible to the Governor, and shall undertake such measures as it would be required in
emergencies in coordination with the National Civil Defense Administration.
f. Loose Firearms. The CDPS shall also give emphasis on the detection and collection of
loose firearm and the collection and control of "misused" weapons, the root causes of most
piece and order problems.
g. Fire protection. The CDPS shall be responsible for the coordinated utilization and
maintenance of all firefighting equipment within this jurisdiction.
h. Search and Rescue. In times of disaster and distress the CDPS shall conduct search
and rescue operations.
i. Civic Action Projects. The Public Safety Officers, whenever circumstances would allow,
shall also undertake such civic action projects as the Provincial Governor may assign.
j. Public Safety and Preventive Measures. The CDPS shall also undertake from time to
time other public safety measured assigned to it by the Provincial Governor, including
accident prevention, elimination of fire and traffic hazards, mob control, and the
enforcement of safety measures requirements in resorts, recreation areas and other public
places.
Sec. 3. Organizational Setup, Central Office and Sector Stations. The organizational setup of the
CDPS shall be made in a manner that would make its services readily available and accessible to
the local police forces and residents of the provinces.
It shall maintain its central office in Trece Martires City and establish at least three (3) sector
station in strategically located places in the province.
Sec. 4. Scope of Activities and Relations with Other Law-Enforcement Agencies. The CDPS has
been created, not for the purpose of usurping the functions of local law-enforcement agencies, but
to assist and to make available to city and municipal police units its facilities and the benefit of the
intensive training of its members of police science and if possible to "contaminate" other peace
officers with their technical know-how.
The CDPS shall also establish liaison with the NBI and the PC in order to achieve their common
goal of combating crime effectively.
Public Safety Officers may only involve themselves in a case already being handled by other police
agencies (a) upon request of the mayor or chief of police concerned; (b) when the culprit flees
outside the boundary of the municipality where the crime was committed; or (c) upon direction of
the Provincial Governor.
Done in the City of Trece Martires, this 1st day of March, in the year of our Lord, Nineteen hundred
and sixty-five.
The organizational structure of the department was not outlined or delineated, obviously because this was
already done in the budget of the province for 1963-1964.
Thereafter the respondent Governor appointed the other respondents as public safety officers, making
them his special agents.

On September 20, 1967 the Solicitor General, in behalf of the Government, filed a petition for quo
warranto, assailing the legality of the Department of Public Safety on the ground that the province of
Cavite has no authority to create public officers with police functions. It is alleged that despite the demand
of the President of the Philippines the respondent Governor and the members of the provincial board of
Cavite have refused to dissolve and disband the public safety department, and that the exercise of police
functions by the agency "affects the lives and liberties" of the people.
On September 25, 1967 this Court issued a temporary restraining order enjoining the respondent
Governor from carrying out the disputed resolution and the rest of the respondents from discharging the
functions of public safety officers.
In their answer, the respondents maintain that the power of the province to create agency is necessary
implied from section 3 of the Local Autonomy Act of 1959 1 especially the portion thereof which provides
that "Provincial Boards of the respective provinces shall have authority (a) To appropriate money for
purposes not specified by law, having in view the general welfare of the province and the inhabitants." In
support of the existence of such implied power, they invoke section 12 of the same Act which reads as
follows:
Rules for the interpretation of the local Autonomy Act.
1. Implied power of a province, a city or municipality shall be liberally construed in its favor. Any fair
and reasonable doubt as to the existence of the power should be interpreted in favor of the local
government and it shall be presumed to exist.
2. The general welfare clause shall be liberally interpreted in case of doubt so as to give more
power to local governments in promoting the economic condition, social welfare and material
progress of the people in the community.
They further contend that the power to create the police agency is recognized in the following provisions of
the Police Act of 1966:2
Sec. 9. General Qualifications for Appointment. No person shall be appointed to a local police
agency unless he possesses the following qualifications:
xxx

xxx

xxx

(4) For appointment in the municipalities he must have at least completed high school, and
for provincesand cities at least completed two years college;
xxx

xxx

xxx

(8) He must be at least five feet, five inches in height in the case of provinces and chartered cities
and five feet four inches in the case of municipalities; and
xxx

xxx

xxx

Persons who at the time of the approval of this Act have rendered at least five years of satisfactory
service in provincial, city or municipal police agency although they have not qualified in an
appropriate civil service examination are considered as civil service eligibles for the purpose of this
Act.
The power of provincial governments to appropriate money for the welfare of their inhabitants is not at all
of recent vintage. As early as 1906, this was granted to provincial boards by Act 1548 3 which amended
section 13 of the Organic Act of the Provinces 4 by providing that the provincial boards of provinces shall

have the power "(nn) . . . To appropriate moneys from [their] funds, except those the use of which is
otherwise specifically fixed by law, for other purposes having in view the general welfare of the province
and its inhabitants." Similarly, the Administrative Code of 1916, reenacting with modification this provision
of the Organic Act of the Provinces, provided that "Upon approval of the Department Head of the particular
resolution by which such action shall be taken, the provincial boards of the respective provinces shall have
authority: a) To appropriate money for purposes not specified by law, having in view the general welfare of
the province and its inhabitants. . . ."5 This provision was in turn reenacted in section 2106(a) of the
Revised Administrative Code.6 In truth, section 3(a) of the Local Autonomy Act is nothing but a copy of
section 2106(a) of the Revised Administrative Code, with the only difference that prior approval of the
Department Head has been dispensed with, in line with the legislative policy of granting greater autonomy
to local governments. In a sense, the elimination of the requisite approval is a return to the original
provision of the old Organic Act of the Provinces.7 It is in this sense that section 3 of the Local Autonomy
Act is entitled "Additional powers of provincial boards . . .," and rightly so, for it removed the fetters that
once bound local governments to the national government.
Not once, since 1906, has the power to create public offices been asserted. But this power is now urged
as a necessary corollary of the power to appropriate, this because section 12(1) (2) of the Local Autonomy
Act commands that the implied powers of municipal corporations shall be liberally construed and that all
doubts as to the existence of the power must be resolved in their favor.
We cannot accept this view.
The case of Fred v. Mayor and Council of Borough of Old Tappan8 indicates the proper construction that
should be placed on a provision like section 12(1) (2). There a similar provision of the New Jersey
Constitution of 1947 was invoked to justify the validity of a municipal ordinance regulating the removal of
soil. The Constitutional provision states:
The provisions of this Constitution and of any law concerning municipal corporations formed for
local government, or concerning counties, shall be liberally construed in their favor. The powers of
counties and such municipal corporations shall include not only those granted in express terms but
also those of necessary or fair implication, or incident to the powers expressly conferred, or
essential thereto, and not inconsistent with or prohibited by this Constitution or by-law.
It was argued that this clause of the Constitution, which had no counterpart in its predecessor constitution,
introduced a new concept of home rule, being in effect a direct grant of the police power to all
municipalities. This contention was rejected (although the ordinance was upheld on other grounds), the
Supreme Court of New Jersey stating:
We find no merit in this contention of the defendant. The quoted provision of the Constitution on its
face does not purport to be a grant of general police powers to all municipalities, its plain language
is not susceptible of being so construed the proceedings of the Constitutional Convention referred
to do not indicate that it was so intended, and during the five years since its adoption our courts
have never so interpreted it. On the contrary, it is well settled in this State that a municipality has
only those powers granted to it by statute, albeit by virtue of the constitutional provision here under
discussion those powers are to be liberally construed in favor of the municipality and express
grants of power are deemed to include "those of necessary or fair implication, or incident to the
powers expressly conferred, or essential thereto." . . .9
It bears strong emphasis to state here that provincial governments, like other municipal corporations, are
governments of enumerated powers. 10 The assumption, although historically inaccurate, 11 is that municipal
corporations are mere creatures of the state with no inherent powers of their own. 12This same assumption
underlies the grant of autonomy to local governments, 13 for implicit in the grant is precisely the recognition
that they exercise only delegated powers which should be enlarged and, in case of "fair and reasonable
doubt," should be resolved in their favor.

Section 12(1) (2) of the Local Autonomy Act, which is reproduced in section 23 of the Decentralization Act
of 1967, did not alter the basic nature of municipal governments as governments of limited power. What it
changed was the prevailing rule at the time of its enactment that the grant of powers to municipal
corporations must be strictly construed against them. 14 As a rule of interpretation it does not purport to
supply power where none exists, not even by necessary implication.
Here the power to create a provincial police force appears to be denied to provincial governments. 15 Thus,
whereas Section 2105(c) of the Revised Administrative Code gives them the power to appropriate money
"for the organization, equipment and maintenance of a police force in any municipality or municipal district
of the province where local funds are insufficient to bear such expenses," nothing is said of their power to
provide for the organization of their own police. Again, while cities 16 and municipalities17 are authorized to
provide uniforms for their police forces no such authority is conferred on provinces. This power given to
cities and municipalities is in addition to their power "to appropriate money for purposes not specified by
law, having in view the general welfare of the city and its inhabitants," 18 undoubtedly because the former
cannot be fairly embraced in the latter. Section 2081 cannot be invoked because that provision authorizes
the appointment of subordinate employees in existing offices, not he creation of the offices themselves.
Indeed, municipal offices can be created only by legislative authority. This creative act must be either
immediate or delegated.19 In the Philippines, national and local police bodies are directly created by
statute. Thus the Philippine Constabulary was constituted as a national police force by virtue of a
statute.20 So is the organization of police forces in cities and municipalities specifically provided for by an
Act of Congress.21 Even the formation ofposses comitatus in towns to assist the police in the apprehension
of criminals is a matter of express statutory enactment. 22 Thus there is a national police force and there are
city and municipal police forces, but the remarkable thing is that there is no provision for provincial police
forces.
This lack of statutory basis for the creation of provincial police forces stands in sharp contrast to the
proliferation of statutory materials on municipal and city police forces. Not that peace and order are less a
responsibility of the provinces. The reason is simply that the Governors are already clothed with ample
powers and resources. They can temporarily transfer policemen from one municipality to another when
public interest so requires.23 They can call on the Philippine Constabulary or even on the Armed Forces of
the Philippines to quell any "disorder, riot, lawless violence or rebelious or petitions conspiracy or to
apprehend violators of law."24
It seems quite clear indeed that the legislature intended to reserve for itself the field of legislation on this
matter and thereby exclude from it like actions by local governments. Precedents in support of this view
are not wanting. In Fluker v. City of Union Point25 it was held that where the charter authorizes the
appointment of a marshal and, in case of "special emergencies," of a special police, the city could not
create an office of a night watchman with powers to arrest persons violating the laws and ordinances. Not
even the plea that the office was necessary for the preservation of peace and order justified the creation of
the office. Similarly, in Stout v. Stinnett26 it was held that a statute creating the office of "the Chief of the
Police" did not authorize a city to appoint a day chief of police and a night chief of police and that an
ordinance so providing was invalid.
The power of provinces to create provincial police forces cannot be inferred. Neither can the existence of
such bodies be implied from the fact that in prescribing the qualifications of members of local police
agencies, section 9 of the Police Act of 1966 mentions "provincial police agencies" and the like. The
reference to such bodies is a misnomer as is evident from the following discussion 27 on the bill which
became the Police Act:
MR. PEREZ (L.). This bill carries phrases like "police agencies of a province or chartered city or
municipality." Under the present set-up, what would you consider as constituting the police
agencies of a province?

MR. AMANTE. That is a misnomer here. The original bill includes the organization of the provincial
guards; hence it is suggested here that they be included in this bill. Even at the conference called
by the President in connection with the peace and order condition, he suggested that the provincial
guards be included under the supervision of the Commission.
MR. PEREZ (L.). I support such proposal. This bill should state the number of provincial guards
which each province, in accordance with its class, can employ; and also provide additional powers,
because today such provincial guards only keep the security of the provincial jail.
MR. AMANTE. They guard prisoners.
MR. PEREZ (L.). Will these guards enjoy the police powers of other police agencies contemplated
under this bill?
MR. AMANTE. No, they are only guards. However, their qualifications and their discipline shall be
governed by this bill. In connection with the inclusion of provincial guards in the proposed
measure, the Committee will welcome amendments.
MR. PEREZ (L.). I will propose some amendments to that effect.
MR. AMANTE. Thank you.
In fact, the term is used in other legislation before the enactment of the Police Act of 1966 and it has
always been understood to refer to provincial guards assigned to provincial jails. It is used in
Commonwealth Act 343 which constituted the Philippine Constabulary as a national police force 28 and
returned to the control of the Governors the "provincial . . . police bodies or provincial guards"29 who earlier,
had been organized into a State Police, along with the police forces of the cities and
municipalities.30 President Quezon's Executive Order 15331 as well as Executive Order 175,32 issued to
implement Commonwealth Act 343, likewise spoke of "local police bodies in each province" and "provincial
police service" but that the term meant no more than provincial guards is evident from the text thereof.
Like the power to appropriate money for the general welfare, the reference in statutes to provincial police
agencies is nothing new.
Apart from this, since a municipal office can be created only by legislative authority exercised either
directly or through a grant of the power to municipal corporation, the existence of such an office as a fact
cannot be inferred. This is the thrust of the rulings in City of Metropolis v. Industrial Commission33 and
in Murphy v. Industrial Commission.34 In the first case, the Cities and Villages Act provided that offices must
be created by ordinance. It was argued that certain provisions of the Municipal Code of the City of
Metropolis prescribed the powers and duties of policemen and hence that the office of night policeman
"necessarily exists in that city." In disposing of this contention, the Illinois Supreme Court held that "neither
provision of that character nor an appropriation of public money to pay the salary or compensation of a
person acting as a policeman can operate, standing alone, to create the particular office."
In the second case, an ordinance, enacted under the same Cities and Villages Act, provided that "The
mayor shall, with the advice and consent of the city council, appoint for the term of one year, and until their
respective successors in office are appointed and qualified, additional police officers in such number as
said mayor and city council may deem expedient, to assist the chief of police in his official duty." In denying
that an office was thereby created, the same court said: "That section does not purport to create the office
of policeman or assistant chief of police. The provision that the mayor shall appoint additional police officer
cannot be construed as an ordinance to create the office of policeman."
Upon all the foregoing, it follows ineluctably that the creation of the Cavite Department of Public Safety is
an unlawful exercise of power, and is without basis in law.

ACCORDINGLY, Resolution 27, dated January 27, 1964, of the Provincial Board of Cavite and
Administrative Order 65-1 of the respondent-Governor dated March 1, 1965 are declared void, the Cavite
Department of Public Safety is ordered dissolved, and the respondent public safety officers are ousted
from their positions. No pronouncement as to costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Angeles and
Fernando, JJ.,concur.

Removal of Officers
Lacson v. Roque (G.R. No. L-6225, January 10, 1953)
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-6225

January 10, 1953

ARSENIO H. LACSON, petitioner,

vs.
MARIANO ROQUE, as Acting Executive Secretary, BARTOLOME GATMAITAN, as Vice-Mayor of
Manila and DIONISIO OJEDA, as Acting Chief of Police of Manila, respondents.
Arsenio H. Lacson, Jose P. Laurel, Ramon Diokno and Jose W. Diokno for petitioner.
City Fiscal Eugenio Angeles for respondents Bartolome Gatmaitan and Dionisio Ojeda.
Office of the Solicitor General Juan R. Liwag and Solicitor Felix V. Makasiar for respondents.
Jesus G. Barrera and Enrique M. Fernando as amici curiae.
TUASON, J.:
The petitioner, Arsenio H. Lacson, Mayor of the City of Manila, has been suspended from the office by the
President and has brought this original action for prohibition contesting the legality of the suspension.
Mariano Roque, Acting Executive Secretary, and Dionisio Ojeda, Chief of Police of Manila, who are said to
have threatened to carry out the President's order, and Bartolome Gatmaitan, the Vice-Mayor who is
performing the duties of mayor, are made defendants.
The salient facts alleged in the application, not denied by the respondents, are as follows:
On October 20, 1952, following the acquittal of Celestino C. Juan, Deputy Chief of Police, in a criminal
prosecution for malversation of public property instituted at the instance of Mayor Lacson, the petitioner
made a radio broadcast in which he criticized the court's decision stating, it is alleged: "I have nothing but
contempt for certain courts of justice. . . . I tell you one thing (answering an interrogator), if I have the
power to fire Judge Montesa (the trial judge) I will fire him for being incompetent, for being an arrogant . . .
an ignoramus."
Thereafter, Judge Montesa, at a public meeting of the Judges of the Courts of First Instance of Manila
submitted to the consideration of his colleagues the question of whether Mayor Lacson's remarks were
contempt of court. A committee of judges, which was appointed to study the question, reported that it was
not free to state whether contempt proceedings if instituted would prosper. The Committee believed that
Judge Montesa was the one most competent to decide upon the action that should be taken.

In the meanwhile, On October 23, Judge Montesa wrote the Secretary of Justice requesting that a special
prosecutor be designated to handle the case for criminal libel which he intended to file against the mayor.
He gave as reasons for his request that "whatever blunders the mayor had committed, the same was due
to an advice given him by his legal adviser, the city fiscal, "and that it would be "difficult to expect that he
would be willing to move against him or act in a manner that would put him in a bad light with the mayor."
On October 24, in Special Administrative Order No. 235, marked RUSH, the Secretary of Justice
designated Solicitor Martiniano P. Vivo of the Solicitor's Office "to assist the City Fiscal of Manila in the
investigation of the complaint of Judge Agustin P. Montesa against Mayor Arsenio H. Lacson, to file
whatever criminal action the evidence may warrant and to prosecute the same in court."
On the following day, Judge Montesa filed his projected complaint for "libel and contempt" with the City
Fiscal which was numbered 27909. This complaint in the ordinary routine of distribution of cases in the
City Fiscal's Office should have corresponded to Assistant Fiscal Jose B. Jimenez. Consequently upon
Solicitor Vivo's designation, City Fiscal Angeles designated Assistant Fiscals Jimenez and also
Hermogenes Concepcion, Jr. to represent him and to collaborate with the Solicitor from the Bureau of
Justice.
Solicitor Vivo conducted a preliminary investigation in the office of the Solicitor General without the
presence of either of the Assistant Fiscals assigned to this case, and sent out subpoenas in his name and
upon his signature. And having completed the preliminary examination, on October 30 he docketed in the
Court of First Instance a complaint for libel against Mayor Lacson, signed and sworn to by Judge Montesa
as complainant. At the foot of the complaint both Assistant Fiscal Hermogenes Concepcion, Jr. and
Solicitor Vivo certified that "we have conducted the preliminary investigation in this case in accordance
with law" although Fiscal Concepcion had taken no part in the proceedings.
On October 31, the day following the filing of the above complaint, the President wrote the Mayor a letter
of the following tenor:
In view of the pendency before the Court of First Instance of Manila of criminal case No. 20707
against you, for libel, and pursuant to the present policy of the administration, requiring the
suspension of any local elective official which is being charged before the courts with any offense
involving moral turpitude, you are hereby suspended from office effective upon receipt hereof, your
suspension to continue until the final disposition of the said criminal case.
And notified of the suspension, Vice-Mayor Bartolome Gatmaitan entered upon the duties of the office in
place of the suspended city executive.
Allegations have been made vigorously attacking the form and legality of Solicitor Vivo's designation and
of the procedure pursued in the conduct of the preliminary investigation. The objections are at best
inconclusive of the fundamental issues and will be brushed aside in this decision. It will be assumed for the
purpose of our decisions that the assailed designation and investigation were regular and legal, and we
will proceed at once to the consideration of the validity of the disputed suspension.
By section 9 of the Revised Charter of the City of Manila (Republic Act No. 409), "the Mayor shall hold
office for four years unless sooner removed." But the Chartter does not contain any provision for this
officer's removal or suspension. This silence is in striking contrast to the explicitness with which Republic
Act No. 409 stipulates for the removal and suspension of board members and other city officials. Section
14 specifies the causes for which members of the Municipal Board may be suspended and removed, to
wit: the same causes for removal of provincial elective officers, and section 22 expressly authorizes the
removal for cause of appointive city officials and employees by the President or the Mayor
depending on who made the appointments.

Nevertheless, the rights, duties and privileges of municipal officers do not have to be embodied in the
charter, but may be regulated by provisions of general application specially if these are incorporated in the
same code of which the city organic law forms a part.
Such is the case here. If the Manila City Charter itself is silent regarding the suspension or removal of the
mayor, section 64 (b) of the Revised Administrative Code does confer upon the President the power to
remove any person from any position of trust or authority under the Government of the Philippines for
disloyalty to the Republic of the Philippines. There is no denying that the position of mayor is under the
Government of the Philippines and one trust and authority, and comes within the purview of the provision
before cited.
The intent of the phrase "unless sooner removed" in section 9 of the Manila Charter has been a topic of
much speculation and debate in the course of the oral argument and in the briefs. This phrase is not
uncommon in statutes relating to public offices, and has received construction from the courts. It has been
declared that "Power in the appointing authority to remove a public officer may be implied where to
statutory specification of the term of office are added the words 'unless sooner removed.'" (43 Am. Jur.,
30.)
It is obvious from the plain language of this statement that the respondents can hardly derive comfort from
the phrase in question as repository of a hidden or veiled authority of the President. Implying power of the
appointing agency to remove, the natural inference is that the words have exclusive application to cases
affecting appointive officers; so that, where the officers involved are elective, like that of mayor of the City
of Manila, they have no other meaning than that the officer is not immune to removal, and the whole
clauses is to be interpreted to read, "The mayor shall hold his position for the prescribed term unless
sooner ousted as provided by other laws," or something to the effect. The Congress is presumed to have
been aware of section 64 (b) of the Revised Administrative Code and to have in mind this section and
other removal statutes that may be enacted in the future, in employing the phrase "unless sooner
removed." Another conclusion, we are impelled to say, is that under existing legislation, the Manila City
Mayor is removable only for disloyalty to the Republic. For, as will be shown, the express mention of one
cause or several causes for removal or suspension excludes other causes.
Four justices who join in this decision do not share the view that the only ground which the Mayor may be
expelled is disloyalty. The Chief Justice, Mr. Justice Padilla and Mr. Justice Jugo, three of the Justices
referred to, reason that, as the office of provincial executive is at least as important as the office of mayor
of the city of Manila, the latter officer, by analogy, ought to be amenable to removal and suspension for the
same causes as provincial executives, who, under section 2078 of the Revised Administrative Code, may
be discharged for dishonesty, oppression, or misconduct in office, besides disloyalty. Even so, these
members of the Court opine that the alleged offense for which Mayor Lacson has been suspended is not
one of the grounds just enumerated, and are in complete agreement with others of the majority that the
suspension is unwarranted and illegal. Mr. Justice Pablo also believes that the suspension was illegal but
wants to have it understood that he bases his concurrence mainly on the strength of the ruling in the case
of Cornejo vs. Naval (54 Phil., 809), of which will speak more later.
The contention that the President has inherent power to remove or suspend municipal officers is without
doubt not well taken. Removal and suspension of Public officers are always controlled by the particular law
applicable and its proper construction subject to constitutional limitations. (2 McQuillen's Municipal
Corporations [Revised], section 574.) So it has been declared that the governor of a state, (who is the
state what the President is to the Republic of the Philippines), can only remove where the power is
expressly given or arises by necessary implication under the Constitution or statutes. (43 Am. Jur., 34.)
There is neither statutory nor constitutional provision granting the President sweeping authority to remove
municipal officials. By Article VII, Section 10, paragraph (1) of the Constitution the President "shall . . .
exercise general supervision over all local governments," but supervision does not contemplate control.
(People vs.Brophy, 120 P., 2nd., 946; Cal. App., 2nd., 15.) Far from implying control or power to remove,
the President's supervisory authority over municipal affairs disqualified by the proviso " as may be
provided by law," a clear indication of constitutional intention that the provision was not to be self-executing

but requires legislative implementation. And the limitation does not stop here. It is significant to note that
section 64 (b) of the Revised Administrative Code in conferring on the Chief Executive power to remove
specifically enjoins that the said power should be exercised conformably to law, which we assume to mean
that removals must be accomplished only for any of the causes and in the fashion prescribed by law and
the procedure.
Then again, strict construction of law relating to suspension and removal, is the universal rule. The rule is
expressed in different forms which convey the same idea: Removal is to be confined within the limits
prescribed for it; The causes, manner and conditions fixed must be pursued with strictness; Where the
cause for removal is specified, the specification amounts to a prohibition to remove for a different cause;
etc., etc. (Mechem on the Law of Offices and Officers, p 286; 2 McQuillen's Municipal Corporations
[Revised], section 575; 43 Am. Jur., 39.) The last statement is a paraphrase of the well known
maxim Expressio unius est exclusio alterius.
The reason for the stringent rule is said to be that the remedy by removal is a drastic one (43 Am. Jur., 39)
and, according to some courts, including ours (Cornejo vs. Naval, supra), penal in nature. When dealing
with elective posts, the necessity for restricted construction is greater. Manifesting jealous regard for the
integrity of positions filled by popular election, some courts have refused to bring officers holding elective
offices within constitutional provision which gives the state governor power to remove at pleasure. Not
even in the face of such provision, it has been emphasized, may elective officers be dismissed except for
cause. (62 C.J.S., 947.)
It may be true, as suggested, that the public interest and the proper administration of official functions
would be best served by an enlargement of the causes for removal of the mayor, and vice versa. The
answer to this observation is that the shortcoming is for the legislative branch alone to correct by
appropriate enactment. It is trite to say that we are not to pass upon the folly or wisdom of the law. As has
been said in Cornejo vs. Naval,supra, anent identical criticisms, "if the law is too narrow in scope, it is for
the Legislature rather than the courts to expand it." It is only when all other means of determining the
legislative intention fail that a court may look into the effect of the law; otherwise the interpretation
becomes judicial legislation . (Kansas ex rel. Little Atty., Gen. vs. Mitchell, 70 L.R.A., 306;
Dudly vs. Reynolds, 1 Kan., 285.)
Yet, the abridgment of the power to remove or suspend an elective mayor is not without it own justification,
and was, we think, deliberately intended by the lawmakers. The evils resulting from a restricted authority to
suspend or remove must have been weighed against the injustices and harms to the Republic interest
which would be likely to emerge from an unrestrained discretionary power to suspend and remove.
In consonance with the principles before stated, we are constrained to conclude that the power of the
President to remove or suspend the Mayor of the City of Manila is confined to disloyalty to the Republic or,
at the most, following the opinion of three of the subscribing Justices, for the other causes stipulated in
section 2078 of the Revised Administrative Code, and that the suspension of the petitioner for libel is
outside the bounds of express or unwritten law. It needs no argument to show that the offense of libel or
oral defamation for which Mayor Lacson is being prosecuted is not disloyalty, dishonesty, or oppression
within the legal or popular meaning of these words. Misconduct in office is the nearest approach to the
offense of libel, and misconduct Mayor Lacson's offense is, in the opinion of counsel and of some
members of the court. Admitting, as we understand the respondents' position, that the petitioner was not
guilty of disloyalty, dishonesty or oppression, yet counsel do contend that the petitioner's "outburst" against
Judge Montesa constituted misconduct in office.
Misconduct in office has a definite and well-understood legal meaning. By uniform legal definition, it is a
misconduct such as affects his performance of his duties as an officer and not such only as affects his
character as a private individual. In such cases, it has been said all times, it is necessary to separate the
character of the man from the character of the officer. (Mechem, supra, section 457.) "It is settled that
misconduct, misfeasance, or malfeasance warranting removal from office of an officer, must have direct
relation to and be connected with the performance of official duties amounting either to maladministration

or willful, intentional neglect and failure to discharge the duties of the office . . . " (43, Am. Jur., 39, 40.) To
this effect is the principle laid down in Cornejo vs.Naval, supra.
In that case, Cornejo, Municipal President of Pasay, Rizal, had been found guilty of the crime of
falsification of a private document and sentenced therefore to one year, eight months, and twenty-one
days' imprisonment, etc. On the basis of his conviction, the Municipal President had been suspended and
administrative charges preferred against him with the Provincial Board, by the Governor.
The suspended officer assailed the legality of the suspension before this court, and this court in a
unanimous decision ruled that the suspension was illegal and without effect. The court prefaced its opinion
with the statement that the charge against the municipal officer to be valid cause for suspension or
removal "must be one affecting the official integrity of the officer in question." Making this premise the
basis of its investigation, the court concluded that the crime of falsification of a private document is not
misconduct in office, pointing out that this crime "does not imply that one takes advantage of his official
position, inasmuch as corruption signifies in office, and inasmuch of the charge must be one affecting the
official integrity of the officer in question."
Judged by the foregoing standard definition of misconduct in office, the alleged libel imputed to the
suspended mayor was not such misconduct even if the term "misconduct in office" be taken in its broadest
sense. The radio broadcast in which the objectionable utterances were made had nothing or very little to
do with petitioner's official functions and duties as mayor. It is was not done by virtue or under color of
authority. It was not any wrongful official act, or omission to perform a duty of public concern, tacitly or
expressly annexed to his position Neither can it be said that Mayor Lacson committed an abuse or took
advantage of his office. One does not have to be a mayor to make those remarks or to talk on the radio.
The use of the radio is a privilege open to anyone who would pay for the time consumed, or whom the
owner would allow for reasons of his own. The mere circumstance that the broadcast was transmitted from
the City Hall instead of the radio station did not alter the situation. It is the character of the remarks and
their immediate relation to the office that are of paramount consideration. It is our considered opinion that
the petitioner acted as a private individual and should be made to answer in his private capacity if he
committed any breach of propriety or law.
The most liberal view that can be taken of the power of the President to remove the Mayor of the City of
Manila is that it must be for cause. Even those who would uphold the legality of the Mayor's suspension do
not go so far as to claim power in the Chief Executive to remove or suspend the Mayor at pleasure.
Untramelled discretionary power to remove does not apply to appointed officers whose term of office is
definite, much less elective officers. has been pointedly stated, "Fixity of tenure destroys the power of
removal at pleasure otherwise incident to the appointing power . . . The reason of this rule is the evident
repugnance between the fixed term and the power of arbitrary removal . . ."
"An inferential authority to remove at pleasure can not be deduced, since the existence of a defined
term, ipso facto, negatives such an inference, and implies a contrary presumption, i.e., that the incumbent
shall hold office to the end of his term subject to removal for cause." (State ex rel. Gallaghar vs. Brown, 57
Mo Ap., 203, expressly adopted by the Supreme Court in State ex rel. vs. Maroney, 191, Mo., 548; 90
S.W., 141; State vs. Crandell, 269 Mo., 44; 190 S.W., 889; State vs. Salval, 450, 2d, 995; 62 C.J.S., 947.)
Granting now, for the sake of argument, that the President may remove the Mayor for cause, was the
Mayor's alleged crime sufficient legal justification for his suspension?
In a limited sense the words "for cause" and "misconduct in office" are synonymous. "For cause," like
"misconduct in office." has been universally accepted to mean for reasons which the law and sound public
policy recognize as sufficient ground for removal, that is, legal cuase, and not merely cause which the
appointing power in the exercise of discretion may deem sufficient. It is implied that officers may not be
removed at the mere will of those vested with the power of removal, or without any cause. Moreover, the
cause must relate to and effect the administration of the office and must be restricted to something to a
substantial nature directly affecting the rights and interest of the public. (43 Am. Jur., 48.) One court went

to the extent of saying that "The eccentric manner of an officer, his having exaggerated notion of his own
importance, indulgence in coarse language, or talking loudly on the streets, however offensive, would not
warrant any interference with his incumbency. Rudeness of an officer not amounting to illegality of conduct
or oppression is not such misconduct as will give cause for removing him from office."
Much discussion, which we consider of title or no importance, has been devoted to the question of whether
the power to remove carries with it the power to suspend. The two powers, as has been indicated, are
identical and governed by the same principles in their important aspects that have any bearing on the case
at bar. Whether decreed as a punishment in itself, or as auxiliary in the proceedings for removal so as to
tie the defendant's hand pending his investigation, suspension ought to be based on the same ground
upon which removal may be effected or is sought. (43 Am. Jur., 65.) When exercised as a mere incident to
the power to remove, the power to suspend cannot be broader than the power to which it is anciliary. A
stream cannot rise higher than its source, as the saying goes.
In their effects, the difference between the power to remove and the power to suspend is only one of
degree. Suspension is a qualified expulsion, and whether termed suspension or expulsion, it constitutes
either temporary or permanent disfranchisement. It is an ad interim stoppage or arrest of an official power
and pay. (2 McQuillen's Municipal Corporations [Revised], section 585). In fact, when the "suspension is to
continue until the final disposition" of a criminal prosecution, like the petitioner's suspension, it might
become a virtual removal, considering that in the event of conviction by the trial court the case might drag
as long as the remainder of the suspended officer's term of office, or longer.
We believe also that in the field of procedure no less than in that of substantive law the suspension under
review is fatally defective. No administrative charges have been preferred against the petitioner and none
seem to be contemplated. The sole grounds for the suspension, as recited in the President's order, are
"the pendency of criminal case No. 20707 for libel," and "the present policy of the administration, requiring
the suspension of any elective official who is being charged before the courts of any offense involving
moral turpitude."
It seems self-evident that if, as must be conceded, temporary suspension is allowed merely so as to
prevent the accused from hampering the normal course of the investigation with his influence and authority
over possible witnesses, the rule presupposes the existence of administrative charges and investigation
being conducted or to be conducted. We are certain that no authority or good reason can be found in
support of a proposition that the Chief Executive can suspend an officer facing criminal charges for the
sole purpose of aiding the court in the administration of justice. Independent of the other branches of the
Government, the courts can well take care of their own administration of the law.
An administrative policy or practice not predicated on constitutional or statutory authority can have no
binding force and effect in matters not purely political or governmental. Where individual rights, honor and
reputation are in jeopardy, it is only law or the Constitution which can give legality to executive actions. It
has been shown that nothing in the Constitution, law or decision warrants the petitioner's suspension.
If policy is to be a guiding factor, and we think if should be, such policy must emanate from the legislative
branch, which, under our form of government, is the legitimate policy-making department. The legislative
policy, as such policy may be gathered from section 2188 of the Revised Administrative Code, frowns upon
prolonged or indefinite suspension of local elective officials. By this section "the provincial governor shall
receive and investigate complaints against municipal officers for neglect of duty, oppression, corruption or
other form of maladministration of office.' It provides that in case suspension has been effected, the
hearing shall occur as soon as practicable, in no case later than ten days from the date the accused is
furnished a copy of the charges, unless the suspended official on sufficient grounds asks for an extension
of time to prepare his defense. The section further warns that "the preventive suspension shall not be for
more than thirty days," and ordains that at the end of that period the officer should be reinstated in office
without prejudice to the continuation of the proceedings against him until their completion, unless the delay
in the decision of the case is due to the defendant's fault, neglect or request, and unless in case of
conviction the Secretary of the Interior shall otherwise direct.

Section 2188 is of relatively recent vintage, and is designed to protect elective municipal officials against
abuses of the power of suspension, abuses of which past experience and observation had presented
abundant examples. The point we wish to drive home is that, evincing grave concerns for ordinary
municipal officials including municipal councilors, as a matter of public policy, it is unreasonable to
suppose that the Legislature intended to withhold the same safeguards from the post of mayor of the
metropolis and seat of the National Government. On the contrary, in converting the office from appointive
to elective, one of the legislative purposes, we venture to say, was to afford the position greater stability as
well as to clothe it with greater dignity and prestige. What could be the practical use of having the people
choose the city executive to manage the city's affairs if by the simple expedient of a criminal accusation he
could be laid off for the long duration of a criminal prosecution, prosecution which, at long last might, as is
not infrequently the case, turn out to be false, malicious, unsubstantial, or founded on a mistaken notion of
law or evidence? Let it not be overlooked that criminal accusations are easy to make and take months or
years to try and finally decide, and that the filing of such accusations and the time within which they are to
be finished are matters over which the accused has no effective control. It is not difficult to see that the
tenure of office and the incumbent's rights could easily be overthrown and defeated if power rested in any
authority to suspend the officer on the mere filing or pendency of a criminal accusation, the suspension to
continue until the final termination of the trial. The idea seems repugnant to the principles of due process,
speedy trial, and simple justice "principles that are fundamental and eternal."
It will also be noted from section 2188 that it does not only limit the period of preventive suspension, but
requires the filing of charges and prompt investigation. Without such express provision, however, it is
established by the great weight of authority that the power of removal or suspension for cause can not,
except by clear statutory authority, be exercised without notice and hearing. Mere silence of the statute
with respect to notice and hearing will not justify the removal of such an officer without knowledge of the
charges and an opportunity to be heard. (Mechem, p. 287; 43 Am. Jur., 50-52; 93 C.J., 65; 62 C.J.S., 924;
43 C.J., 666, footnote 83 [e] and cases cited.) It is only in those cases in which the office is held at the
pleasure of the appointing power, and where the power of removal is exercisable at its mere discretion,
that the officer may be removed without such notice or hearing. (Id.) Not even final conviction of a crime
involving moral turpitude, as distinguished from conviction pending appeal, dispenses with the requisites
notice and hearing. Final conviction is mentioned in section 2188 of the Revised Administrative Code as
ground for proceeding administratively against the convicted officer but does not operate as automatic
removal doing away with the formalities of an administrative hearing.
The policy manifested by section 2188 of the Revised Administrative Code, which is a consecrated policy
in other jurisdictions whose republican institutions this country has copied, requires speedy termination of
a case in which suspension of the accused has been decreed, not only in the interest of the immediate
party but of the public in general. The electorate is vitality interested, and the public good demands, that
the man it has elevated to office be, within the shortest time possible, separated from the service if proven
unfit and unfaithful to its trust, and restored if found innocent. Special proceedings alone, unicumbered by
nice technicalities of pleading, practice and procedure, and the right of appeal, are best calculated to
guarantee quick result.
The petition must be, and the same is granted, without costs.
Feria, Pablo, and Jugo, JJ., concur.

Separate Opinions
PARAS, C.J., concurring:
The Executive power is vested in the President. (Section 1, Article VIII, Constitution.) The President
exercises general supervision over all local governments as may be provided by law. (Section 10, [1],

Article VII, Constitution.) Among the particular power of the President is the power "to remove all officials
from office conformably to law." (Section 64(b), Revised Administrative Code.) Upon the other hand, the
Revised Charter of the City of Manila, Republic Act No. 409, section 9, provides that the city mayor "shall
hold office for four years, unless sooner removed."
Counsel for the petitioner admits that the weight of authority in the United States is to the effect that the
power to remove includes the power to suspend. We are of the opinion that the President has the power to
remove and consequently to suspend the petitioner conformably to law. It is noteworthy that the power of
removal conferred on the President by section 64(b) of the Revised Administrative Code refers to "all
officials"; and there being no statutory distinction, the term, "officials" should include both appointive and
elective officials.
It is hard and illogical to believe that, while there are express legal provisions for the suspension and
removal of provincial governors and municipal mayors, it could have been intended that the mayor of
Manila should enjoy an over all immunity or sacrosanct position, considering that a provincial governor or
municipal mayor may fairly be considered in parity with the city mayor insofar as they are all executive
heads of political subdivisions. Counsel for petitioner calls attention to the fact that the peculiarly elevated
standard of the City of Manila and its populace might have prompted the lawmakers to exempt the city
mayor from removal or suspension. Much can be said about the desirability of making the executive head
of Manila as strong and independent as possible, but there should not be any doubt that awareness of the
existence of some sort of disciplinary measures has a neutralizing and deterring influence against any
tendency towards official's misfeasance, excesses or omission.
It is contended for the petitioner that the terms "unless sooner removed" in section 9 of Republic Act No.
409 is merely a part of the provision fixing the tenure of office, and refers to such removal as may arise
from causes enumerated in section 29 of the Revised Election Code, Articles 13 to 32 of the Revised
Penal Code, and Article VI, section 10, paragraph (3), and Article IX of the Constitution. This contention is
untenable, because under petitioner's theory the clause "unless sooner removed" would be superfluous.
It is also argued for the petitioner that under the constitution, Article VII, section 10, paragraph (1), the
President is granted the power to exercise only generally supervision over local governments, in contrast
to the power granted to him to have control over the executive departments, bureaus or offices, thereby
intimating that the words "general supervision" were so intended as to deprive the President of any
authority over local governments, including that of removal. This contention is likewise without merit, since
the consitutional provision confers such general supervision as may be provided by law, so that said
supervision will include any power vested in the President by law. As Already stated, 64(b) of the Revised
Administrative Code has conferred on the President the special power to remove all officials conformably
to law. Moreover, the removal of provincial officers is expressly provided for in section 2078 of the Revised
Administrative Code, and it is not pretended that said provision is inconsistent with the power of general
supervision conferred on the President by section 10, Article VII, paragraph (1) of the Constitution.
The question that arises calls for the specification of the causes or grounds warranting the suspension or
removal of the city mayor by the President. As already seen, section 64(b) of the Revised Administrative
Code provides that the President may remove all officials conformably to law. While there are statutory
causes regarding a provincial officer (Section 2078, Revised Administrative Code) or municipal officer
(section 2188, id.), there is no legal provision enumerating the causes for the removal or suspension of the
city mayor. In such case, removal conformably to law, as provided for in section 64(b) of the Revised
Administrative Code, necessarily means removal for cause. This follows from the constitutional provision
that no officer or employee in the civil service shall be removed or suspended except for cause as
provided for by law, and from the circumstance (Admitted by counsel for petitioner) that the mayor of
Manila, as an elective official is included in the unclassified civil service (section 671, paragraph [c],
Revised Administrative Code.) The phrase "for cause" means, "for reasons which the law and sound public
policy recognized as sufficient warrant for removal, that is legal cause, and not merely causes which the
appointing power in the exercise of discretion may deem sufficient. It is implied that officers may not be
removed at the mere will of those vested with the power of removal, or without any cause. Moreover, the
cause must relate to and affect the administration of office, and must be restricted to something of a

substantial nature directly affecting the rights and interests of the public." (43 Am. Jur., 47, 48.) (See also
De los Santos vs. Mallare,* 48 Off. Ga., 1787.)
We believe that the grounds for the suspension and removal of a provincial governor, namely, disloyalty,
dishonesty, oppression, or misconduct in office, may by analogy be applied to the city mayor. But even
extending the similarity further, and applying the grounds as to a municipal mayor, namely, neglect of duty,
oppression, corruption, or other from of maladministration of office, and conviction by final judgment of any
crime involving moral turpitude, certainly the city mayor is entitled to at least the same, if not more,
protection enjoyed by a municipal officer, the question is whether the petitioner's suspension may be
based on the mere filing against him of a complaint for libel. The offense of libel is clearly not disloyalty,
dishonesty, oppression, misconduct in office, neglect of duty, oppression, corruption or other form of
maladministration of office. Indeed, petitioner's suspension is not premised on any of these grounds. The
petitioner has neither been convicted by final judgment of the offense of libel, so that even assuming that
said offense involves moral turpitude, his suspension was not yet in order.
Upon the other hand, the offense of libel cannot be loosely considered as a misconduct in office, because
the misconduct in office "which shall warrant a removal of the officer must be such as affects his
performance of his duties as an officer and not such only as affects his character as a private individual. In
such cases it is necessary `to separate the character of the man from the character of the officer'."
(Mechem, Officers, p. 290, see alsoCornejo vs. Naval, 54 Phil., 809.) In this connection, the rule of strict
construction should be observed. (Cornejo vs. Naval, 54 Phil., 809.)
The law, in requiring final conviction, undoubtedly is intended to forestall any fabricated criminal
prosecution as a political maneuver or revenge, not to mention the constitutional presumption of
innocence. It cannot be argued that, if final conviction is always necessary, the power to suspend is
rendered nugatory. In the first place, suspension lies on other grounds. In the second place, even with
respect to a criminal conviction, administrative investigation has to be conducted with a view to
determining whether the crime involves moral turpitude, and of course during the period of said
investigation the officer concerned may be suspended. At any rate, if the power to suspend or removed
has to be stretched, it is for the lawmakers to make the necessary statutory changes.
The libel which the petitioner is prosecuted cannot in turn be said as having been committed in connection
with or during the performance by the petitioner of his official duties and functions as mayor of Manila. He
participated in the radio broadcast which gave rise to the allegedly libelous imputations, not in the exercise
of his office as city mayor but as any other private citizen, since there is no law imposing upon the
petitioner the duty of speaking before the radio on the occasion in question.
Wherefore, I vote to grant the petition.

PADILLA, J., concurring:

The office of mayor of the City of Manila therefore appointive was made elective by the new charter of the
City, Republic Act No. 409. Under the charter the choice of the person to hold the office of mayor in the
City of Manila devolves exclusively upon the qualified electors of the City. The tenure of office is for a fixed
term of four years "unless sooner removed" (section 9). This provision of the charter contemplates the
possibility of removal. As a rule the power to remove encompasses the power to suspend. There is no
doubt in my mind that the city mayor may be removed and, therefore, suspended. But such removal an
suspension must be for cause. In the case of the members of the municipal board the charter provides that
"they may be suspended or removed from office under the same circumstances, in the same manner, and
with the same effect, as elective provincial officers" (section 14). In the case of the mayor there is no such
provision except the bare feasibility of his removal. That power to remove must, of course, be lodged
somewhere in the framework of the Government. It could be in a competent court if the mayor should be

found guilty of a crime or misdemeanor for which the penalty provided and imposed upon him be
temporary or perpetual disqualification or suspension from holding public office. If he should be found to
have committed malfeasance or irregularities in the exercise of his powers and performance of his duties
as such mayor not amounting to a crime or misdeameanor, the President could remove him. Pursuant to
section 64(b) of the Revised Administrative Code the President is empowered "to remove officials from
office conformably to law and to declare vacant the offices held by such removed officials." And "For
disloyalty, . . . the President of the Philippines may at any time remove a person from any position of trust
or authority under the Government of the Philippines." Does that provision specifying disloyalty as the
cause for removal and, therefore, suspension exclude other causes which would render the City Mayor
unfit and unworthy to act as such? I believe that the mention of disloyalty as a cause for removal from
office was not intended by Congress as a limitation, for the clause where disloyalty is mentioned as a
cause for removals from office is preceded by another granting to the President the power "to remove
officials from office conformably to law," and because if construed as a limitation, it would defeat its very
aim and purpose an honest government dedicated to the promotion of the general well-being of all the
inhabitants of the city. Section 2078 of the Revised Administrative Code provides that provincial officers
may be suspended and removed not only for disloyalty but also for dishonesty, oppression or misconduct
in office. I do not believe the City Mayor of Manila should be placed over and above the elective provincial
governors in rank and importance; and for the that reason the causes for removal of elective provincial
governors may as well be applied to the City Mayor of Manila. I am, therefore, of the opinion that the City
Mayor of Manila, if found guilty after investigation or trial, could be removed and also suspended pending
an administrative or judicial investigation of charges preferred against him involving disloyalty, dishonesty,
oppression or misconduct in office.
This brings me to the consideration of whether the information for libel filed against the petitioner in the
Court of First Instance of Manila warrants his suspension from office by the President of the Philippines.
When an information is filed in the city courts charging a person with the commission of a crime, it is done
only after an investigation has been made by the prosecuting officer who finds sufficient or prima
facie evidence of his guilt. To find out whether he should suspend and then after an investigation remove
an officer charged with irregularities or malfeasance in office, the President in the exercise of his
supervisory power could either order such administrative investigation to be conducted or rely upon the
investigation made by a prosecuting officer, and if he believes that the facts found by the prosecuting
officer warrant suspension the President, undoubtedly, could suspend him and thereafter if the officer
charged with a crime should be found by a competent court guilty thereof, he could remove him form
office. The President may choose between instituting an administrative inquiry or rely upon the trial and
judgment made by a competent court of justice. Nevertheless, conviction of a crime by a competent court
does not necessarily grant the President under his authority of supervision the power to remove unless for
cause provided by law, to wit: disloyalty, dishonesty, oppression or misconduct in office. Disloyalty may be
committed independently of the exercise of the powers and performance of the duties by the City Mayor.
Once that is proved the President may and must remove him. Dishonesty may be committed not only in
connection with the exercise of the powers and performance of the functions and duties by the mayor but
also independently of the exercise of such powers and performance of such duties. For instance,
independently of the exercise of his powers and the performance of his duties as mayor of the City of
Manila he may be charged with and found guilty of smuggling contraband goods into a province or other
city outside his city's jurisdictional limits or he may be charged with and found guilty of robbery, burglary,
forgery or seduction unconnected with the exercise of his powers and the performance of his duties. Such
conviction involves dishonesty and certainly the mayor cannot continue in office but must be removed. A
man of such a character should not be allowed to continue in office. He should forthwith be removed. Acts
of oppression must be committed in connection with the exercise of the powers and the performance of the
duties as mayor, unless they involve dishonesty. Not all acts of oppression involve dishonesty. They vary in
degree and some may seem oppressive but do not involve dishonesty. For that reason in order that the
mayor may be removed from office, if found guilty of oppression, it must be in connection with the exercise
of his powers and performance of his duties as such mayor. It is clear that misconduct in office must be
committed in connection with the exercise of his powers and performance of his duties as such mayor.
Again this brings me to another point. Whether an information for libel which is neither disloyalty, disloyalty,
dishonesty, or oppression may be considered as misconducting office. It should be borne in mind that the

filing of the information for libel against the petitioner is the offshoot or aftermath of the steps taken by him
to purge the Manila Police Department. As a result of such steps he filed a complaint against the Deputy
Chief of Police, Lt. Colonel Celestino C. Juan. All the steps taken by him, such as investigating the police
officers involved in the irregularities committed in the Manila Police Department, filing the complaint in the
city fiscal's office and presenting or submitting evidence against the deputy chief of police, were all in
connection with the performance of his duties as mayor. So that if for such acts he could be held liable in
an administrative investigation they would fall under misconduct in office provided for by law. But there is
no question that such steps cannot be deemed to constitute misconduct in office. On the contrary, they are
praiseworthy acts. However, the performance of his duties in connection with the prosecution and eventual
they are praise worthy acts. However, the performance of his duties in connection with the prosecution and
eventual removal of the deputy chief of police of Manila stopped or ceased to be a function of his office
after the presentation of the complaint and of the complaint and of the evidence in support thereof to the
city fiscal's office. Thereafter, anything done by him, anything uttered by him, anything uttered by him, if it
should constitute a crime would not be in connection with the performance of the duties of his office and,
therefore, it would not constitute a misconduct in office. If it is a crime, his is the responsibility and he must
be made to answer for it before a court a competent jurisdiction.
Much as it is wished and desired to see and have a mayor as becoming an officer of such high rank
possessed of composure in his behavior, prudence in his acts and self-restraint in his utterances, yet I
cannot bring myself to believe that a libel allegedly committed by him which is unrelated to the
performance of the duties of his office would warrant his suspension from office. It is unnecessary to pass
judgment on whether he may be removed after conviction. His utterances may be biting, cutting, sharp,
caustic and sarcastic; and, granting for the sake argument, that the utterance upon which the information
for libel is grounded to contemptuous a point I do not pass upon pending determination and judgement
on the merits of the case for libel file against the petitioner in the Court of First Instance of Manila still I
do not believe that the alleged libelous utterance which gave rise to the filing of the information, unrelated
to the performance of his duties as mayor, would be sufficient cause for his suspension from office. The
offended party must resort to court for redress of his grievance and to have it right the wrong. And if it be
contemptuous the court against which it was committed has ample power to make him answer for his
misdeed.
The foregoing reasons lead me to hold the opinion and conclude that the suspension of the petitioner is
illegal, invalid and of no legal effect. The petition for a writ of quo warranto should be granted, as the
respondent acting mayor is unlawfully holding an office from which the petitioner who is entitled thereto is
excluded.

BAUTISTA ANGELO, J., dissenting:

The power of the President to remove the officials in the government service may be found in section 64(b)
of the Revised Administrative Code. This section provides , among others, that the President can "remove
officials from office conformably to law." In addition, he may also remove for disloyalty any person from any
position of trust or authority under the government.
The term "officials" includes all officials of the government, whether elective of appointive, because when
the law does not distinguish there is no justification to make any distinction. Ubi Lex Non Distinguit, Nec
Nos Distinguere Debemus. Said term, therefore, includes the Mayor of the City of Manila.
But is there any law which expressly authorizes the President to remove the Mayor of the City of Manila?
The answer to this question would bring us to a scrutiny of the Charter of the City of Manila (Republic Act
No. 409). A careful perusal of this charter would disclose no express provision concerning the removal of
the Mayor other than the following phrase; "He shall hold office for four years, unless sooner removed",
unlike the members of the Municipal Board wherein it is clearly postulated that they can be removed in the

same manner and on the same grounds as any provincial official. And because of this scanty provision,
counsel for petitioner now contends that there is a void in the law which can only be remedied by
legislation. The phrase unless sooner removed, counsel claims, does not necessarily allude to the
President as the removing power, but rather it is expressive of acts which may render the Mayor
disqualified to continue in office as found at random in different penal provisions of the land. But an insight
into the origin and historical background of the phrase under consideration would at once reveal that such
a claim has no merit.
Note that the phrase unless sooner removed is an old provision contained in the Revised Administrative
Code (section 2434) and which was merely transplanted to the Charter of the City of Manila (Republic Act
No. 409, section 9). Said phrase was at the same time taken from statutes of American origin. This phrase
has a well-defined meaning in American statutes. In the case of State ex rel. Nagle vs. Sullivan, (99 A.L.R.,
321, 329), the phrase was defined as implying "power in the appointing authority to remove," which ruling
found support in two other cases. (Townsend vs. Kurtz, 83 Md., 350; 34 A., 1123, 1126; State ex rel. vs.
Mitchell, 50 Kan., 295; 33 P., 104, 105; 20 L. R. a., 306.) Or, as quoted in the majority opinion, "Power in
the appointing authority to remove a public officer may be implied where to statutory specification of the
term of office are added the words "unless sooner removed." (43 Am. Jur., 30.) These authorities suffice to
dispel any doubt that when said phrase was carried into the charter of the City of Manila it was so carried
with the implication that the President would continue wielding his power of removal as heretofore followed
under the old set-up. The is nothing in said Charter that would indicate any intention to the contrary. To
hold otherwise would be to devoid the word removed of its substance and meaning. This word
presupposes the existence of power somewhere, and this power can only be the Chief Executive. This is
essentially an executive function. He cannot be deprived of this power unless the law lodges it elsewhere.
This case presents the questions whether under the Constitution the President has the exclusive
power of removing executive officers of the United States whom he has appointed by and with
advice and consent of the Senate . . . .
It is very clear from this history that the exact question which the House voted upon was whether it
should recognize and declare the power of the President under the Constitution to remove the
Secretary of foreign Affairs without the advice and consent of the Senate. That was what the vote
was taken for. Some effort has been made to question whether the decision carries the result
claimed for it, but there is not the slightest doubt, after an examination of the record, that the vote
was, and was intended to be, a legislative declaration that the power to remove officers oppointed
by the President and the Senate vested in the President alone, and until the Johnson
impeachment trial in 1868, its meaning was not doubted even by those who questioned its
soundness. . . .
After the bill as amended has passed the House, it was sent to the Senate, where it was discussed
in secret session, without report. The critical vote there was upon the striking out of the clause
recognizing and affirming the unrestricted power of the President to remove. The Senate divided
by ten to ten, requiring the deciding vote of the Vice-President, John Adams, who voted against
striking out, and in favor of the passage of the bill as it had left the House. Ten of the Senators had
been in the Constitutional convention, and of them six voted that the power of removal was in the
President alone. The bill having passed as it came from the House was signed by President
Washington and became a law. Ac of July 27, 1789, 1 Stat. at L. 28, Chap. 4. . . .
Assuming then the power of Congress to regulate removals as incidental to the exercise of its
constitutional power to vest appointments of inferior officers in the heads of departments, certainly
as long as Congress does not exercise that power, the power of removal must remain where the
Constitution place it, with the President, as part of the executive power, in accordance with the
legislative decision of 1789 which we have been considering. (Myers vs. United States, 71 law. ed.
pp. 160, 162, 165, 184.) (Emphasis supplied.)
Now, the law says that the Mayor shall hold office for four years unless sooner removed. It does not say
that he shall hold office at the pleasure of the President unlike similar provisions appearing in other city

charters. The idea is to give the Mayor a definite tenure of office not dependent upon the pleasure of the
President. If this were the case he could be separated from the service regardless of the cause or motive.
But when he was given a definite tenure the implication is that he can only be removed for "cause".
An inferential authority to remove at pleasure can not be deduced, since the existence of a defined
term,ipso facto, negatives such an inference, and implies a contrary presumption, i.e., that the
incumbent shall hold office to the end of his term subject to removal for cause." (State ex rel.
Gallaghar vs. Brown, 57 Mo. Ap., 203 expressly adopted by the Supreme Court in States ex rel. vs.
Maroney, 191 Mo., 548; 90 s.w., 141; State vs. Crandell, 269 Mo., 44; 190 S.W., 889; State vs.
Salval, 450, 2d, 995; 62 C.J. S., 947.)
There is a divergence of opinion among the members of the court as to the cause that may serve as basis
for the removal of the Mayor of the City of Manila in view of the silence of the law. Some are of the opinion
that the cause must be one which specifically relates to, and affects the administration of, the office of the
official to be removed. And in that the advocacy they are guided by the ruling laid down in the case of
Cornejo vs. Naval, (54 Phil., 809). But I am of the opinion that cause should not be given a restrictive
meaning in dealing with the office of the Mayor of the City of Manila considering its importance and stature.
The City of Manila is a class by itself. It is the show window of the Orient so to speak. Peoples of different
nationalities and from all walks of life have their abode in that city and because of their peculiar situation
are entitled to be accorded such treatment, courtesy and consideration which are not expected in other
cities. In dealing with these different groups of people the Mayor is confronted not only with domestic
problems but international as well. His approach to these problems but international as well. His approach
to these problems should be characterized with utmost tact, ability and circumspection. His office is on a
par with other high officials of our national government and at times he is called upon to meet issues and
situations just as important and far-reaching as those confronted by the President himself. Such a situation
could not have passed unnoticed to Congress when it deemed it wise to place within the sound discretion
of the President his continuance in office. And so it is my considered opinion that when the Chapter of the
City of Manila has impliedly provided that the Mayor can only be removed for cause it must have meant
one which the law an bound public policy recognize as sufficient warrant for removal regardless of whether
it relates to his office or otherwise. There are many authorities which follow this line of reasoning.
Discharge of a civil service employee for "good of the service" or "for cause" implied some
personal misconduct, or fact, rendering incumbent's further tenure harmful to the public interest
(State ex rel. Eckles vs. Kansas City, Mo., 257 s.W., 197, 200).
The phrase "for cause" when used in reference to removal of officers means not the arbitrary will of
the appointing power, but some cause affecting or concerning the ability of fitness of the officer to
perform his duties. (Farish vs. Young, 158 P., 845, 847, 18 Ariz., 298)
"Cause" as effect removal of a public employee means some substantial shortcoming which
renders continuance in his office or employment in some way detrimental to the discipline and
efficiency of the service and something which the law and sound public opinion recognize as a
good cause for his no longer occupying the place" (Murphy vs. Houston, 259 Ill., pp. 385)
"Cause" for removal of officer stated in resolution of address if Legislature must be legal and relate
to maters of substantial nature directly affecting public interest, and the qualifications of officer or
performance of this duties, showing he is not fit person to hold office (Moulton vs. Scully, 89 A.,
944, 947, 111 me. 428.
A "cause" within statute providing that no person in the classified civil service can be removed
except for the cause on written charges means some substantial shortcoming which renders
continuance in his office or employment in some way detrimental to the discipline and efficiency of
the service and something which the law and a a sound public opinion will recognize as a good
cause for his no longer occupying the place (City of Chicago vs. Gillen, 124 Ill. app., 210)

Rejecting our theory that the phrase "shall hold office for four years unless sooner removed" comprises the
Mayor of the City of Manila even if he is an elective official, the majority opinion holds the view that as the
law now stands the Mayor is removable only for disloyalty to the Republic. The opinion also expresses the
view the "strict construction of law relating to suspension and removal is the universal rule... Removal it to
be confined with the limits prescribed for it; the causes, manner and conditions fixed must be pursued with
strictness; where the cause for removal is specified, the specification amounts to a prohibition to remove
for a different cause." But in the same breath the opinion acquiesces in the view of three members of the
court to the effect that "as the office of provincial executive is at least as important as the office of the
Mayor of the City of Manila, the latter officer, by analogy, ought to be amenable to removal and suspension
for the same causes as provincial executives, who, under section 2078 of the Revised Administrative
Code, may be discharged from office for dishonesty, oppression or misconduct in office, besides
disloyalty." I cannot see how the above expressed views can be reconciled. If the law, as contended, only
provides for the removal of the Mayor of the City of Manila on the ground of disloyalty, and this provision
should be construed strictissimi juris, simple logic dictates that he is not amenable to other causes of
removal. This line of reasoning can only give rise to the implication that the Mayor of the City of Manila can
be removed not only for disloyalty but also for other causes which the Revised Administrative Code
specifically provides for provincial and municipal officers if the Chief Executive in his sound discretion
believes them to be sufficient (Section 2078, 2188). All of these grounds fit in to the realm of wide
discretion that is conferred by law upon the Chief Executive under his power to remove for "casue".
But I will follow the line of reasoning and the majority in its discussion of the causes of removal by the
Chief Executive of the City Mayor of Manila, and I will admit that one of them is misconduct in office. At this
juncture, I wish to ask; cannot the behavior observed by petitioner in disparaging against a Judge of First
Instance, a high and respectable official in our Government set-up, in a radio broadcast held exclusively
for the expression of his views as Mayor of the City of Manila be considered misconduct in office? The
majority opinion holds that such a behavior should be characterized as one entirely divorced from the
official position of petitioner and should be appreciated merely in the light of a personal actuation which
has no bearing on his office. I cannot subscribe to this view. The Circumstances under which the petitioner
made the utterances imputed to him as libelous point to a different conclusion. It should be borne in mind
that those utterances were made on the occasion of a radio broadcast exclusively held to give petitioner
an opportunity to express his view on public questions in his capacity as Mayor of the City of Manila. It was
a broadcast given by him not as Lacson, the individual, but as Lacson the Mayor. The public listened to
him not because he was Arsenio Lacson but because he was the Mayor of the City. Such is the general
impression when the broad case was made, and that is the reason why the broadcast was made right in
the City Hall in order to give to the whole show a color of official authority. And in that broadcast he made
the following utterances: "I have nothing but contempt for certain courts of justice. . . . I tell you one thing
(answering an interrogator), if I have the power to fire Judge Montesa (the trial judge) I will fire him for
being incompetent, for being an ignorant . . . an ingnoramus". The majority believes that such as behavior
does not constitute a misconduct in office, but the Chief Executive holds a different opinion. On maters
which involve differences of opinion between this court and the Chief Executive, a becoming regard for a
co-equal power demands that the opinion of the latter should be respected in the absence of abuse of
discretion.
Much stress is laid by the majority opinion on the ratio decidendi in the case of Cornejo vs. Naval, 54 Phil.,
809, in its effort to show that the cause of removal must have direct relation to, and be connected, with the
performance of official duties of petitioner. But this case cannot be invoked as a precedent here because it
involves the interpretation of a law which governs the removal of municipal officials (section 2188, Rev.
Adm. code). In that case, the phrase "other form of malaadministration in office" was interpreted in
connection with the word "currpution". On one hand, the petitioner contended that phrase only limits the
disciplinary action to misconduct relating to the office and doe not extend to personal misbehavior. The
respondents, on the other hand, claimed that the word corruption should be interpreted independently of
the office of petitioner. It was then that the court made the following pronouncement: "It is a well
recognized rule of statutory construction and of the law of public officers that a statute prescribing the
grounds for which an officer may be suspended is penal in nature, and should be strictly construed.
Making this principle the basis of our investigation, it is not possible to reach any other conclusion than that
the prepositional phrase 'in office' qualifies the various grounds for legal suspension. The law says 'or

other form maladministration in office'. By the maxim Ejusdem generis, the scope of the word `other' is
limited to that which is of the same kind as its antecedent. Corruption, therefore, refers to corruption in
office." The citation, therefore, of the Naval case as a precedent in the present case has no legal basis.
Having established that the President has the power to remove the Mayor of the City of Manila under the
Charter provided that sufficient legal cause exists for doing so, the next inquiry is, can he also suspend
him? The answer is in the affirmative under the well-known rule that the power to remove embraces the
authority to suspend. One authority says, "the suspension of an officer pending his trial for misconduct, so
as to tie his hands for the time being, seems to be universally accepted as fair and often necessary. The
power of suspend is generally considered as included in the power of removal for cause, since a
suspension is merely a less severe disciplinary measure" (43 Am. Jur., 65, section 242). It has also been
held that "where the power of removal is limited to cause, the power to suspend, made use of as a
disciplinary power pending charges, has been regarded as included within the power of removal, and it
has been announced that the power to suspend is an incident to the power to remove for cause, and
according to some authorities, the power to remove necessarily includes the minor power to suspend" (67
C.J. S. 233-234). A similar ruling was laid down in this jurisdiction in a case involving a municipal official.
Said this Court:
. . . Indeed, if the President could, in the manner prescribed by law, remove a municipal official, it
would be a legal incongruity if he were to be devoid for the lesser power of suspension. And the
incongruity would be more potent if, possessed the power both to suspend and to remove a
provincial official (sec. 2078, Administrative Code), the President were to be without the power to
suspend a municipal official. Here is, parenthetically, an instance where, as counsel for petitioner
admitted, the power to suspend a municipal official is not exclusive. Upon the other hand, it may be
argued with some degree of plausibility that, if the Secretary of the interior is, as we have
hereinabove concluded, empowered to investigate the charges against the petitioner and to
appoint a special investigator for that purpose, preventive suspension may be a means by which to
carry into effect a fair and impartial investigation. (Villena vs. Secretary of the Interior, 67 Phil., 451,
460-461.) (Emphasis supplied.)
It is true that the suspension of petitioner by the Chief Executive has been predicated merely upon the
pendency of a criminial case No. 20707 for libel and not as a result of an administrative charges preferred
against him in connection with the performance of his official duties. And because the suspension has
been brought about without any previous administrative charge, the majority opinion opines that such
suspension is unwarranted, as it finds no support in law of jurisprudence. I again disagree with this
opinion. As well stated by the majority, "temporary suspension is allowed merely so as to prevent the
accused from hampering the normal course of the investigation with his influence and authority of possible
witnesses". To this I agree. This is the philosophy of a temporary suspension. But where we disagree is in
its application, for I entertain the view that it also applies to a case where the officer is indicted in court for
a criminal charge. I believe that the same evil or danger exists when an officer is charged administratively,
as well as when he is indicated in court. Unless removed from power and authority he is apt to make use
of his influence to his advantages by suppressing or tampering with the witnesses. And he is apt to d to
this with more reason when he is indicted in court for then not only his position is at stake but his liberty as
well.
. . . No right to suspend is given in express terms. If such power exists, it must be implied; . . . This
court in the Peterson case quoted therefrom with respect language of such importance to the
question here involved that we take the liberty of reproducing it on account of its practical
suggestive force on this inquiry. Promising that in the Missouri case the right to suspend the official
depended upon a power conferred solely by a statute, that court said: "The suspension of an
officer, pending his trial, for misconduct, so as to tie his hands for the time being, seems to be
universally accepted as a fair, salutary, and often necessary incident of the situation. His retention,
at such time of all the advantage and opportunities afforded by official position may enable and
encourage him not only to persist in the rebellious practice complained of, but also to seriously
embarrass his triers in their approaches to the ends of justice. In the absence of any express
limitation to the contrary, and none has been shown,we are of the opinion that in cases where

guiltiness of the offenses charged will involve a dismissal form office there is, on general
principles, no arbitrary or improper exercise of a supervisory authority in a suspension of the
accused pending his trial in due and proper form.' The reasons stated in the above quotation for
holding that the right of suspension during proceedings for removal seems to be essential to a
complete and thorough investigation of an official charged with misconduct as to furnish an
unanswerable argument to the claim of respondent that the minor right to suspend is not included
in the major authority to remove. A better illustration of the necessity of holding that such incidental
right exists cannot be made than in the case of an investigated sheriff, who as executive officer of
the country enjoys great influence, which might extend to the control of papers absolutely
necessary to determine the matters under investigation. He might, if so disposed, prevent the use
of evidence necessary to a full and fair hearing of the charges against him. If the alleged acts of
misconduct against such sheriff were, as they might supposedly be, made the grounds of inquest
by the grand jury upon which further proceedings might depend, it is each to see how he would
have a deep interest in withholding use of means that would result in prosecution; and, it he might
hold the office until removed by the governor, a trial of an indictment against him might be made
ineffectual in various ways by the exercise of his power and influence in the court, as well as in the
investigation by the commissioners. It may be said that it is a great hardship to an accused official
to be deprived of his fees and emouments before actual removal; but the answer to this suggestion
is that he takes the office and retains it cum onere, and must accept its burden with its benefits. It
ought not, therefore, to be held that the unquestionable power to remove should be so
handicapped by an interpretation of the statute as to defeat the very object is seeks to attain.
Presumably, the chief executive of the state will act upon an exalted sense of justice and high
consideration of duty, and only in cases where strong reasons exist for exercising the power of
suspension will impose unnecessary burdnes upon the accused official after a sufficient review of
the reasons upon which that power is to be exercised. (State vs. Megaarden, 88 N.W., pp. 414415.) (Emphasis supplied.)
The remaining question to be determined is whether the President is justified in suspending petitioner from
office. The record shows that petitioner has been suspended from office as a result of the charge for libel
field against him by Judge Agustin P. Montesa. The Libelous statements imputed to petitioner are not only
contrary to justice, honesty or good morals or in derogation of the elementary duty of respect and
consideration he owes to a judge and to his judiciary in general but call for the application of a penalty
which involves suspension from public office (Article 355, in connection with article 43, Revised Penal
code). considering the nature of the charges as reflected in the information, and without in any way
disputing or giving any opinion on the merits of the case, they at once give the impression that they are of
a serious nature which involve moral turpitude. This is the only consideration which guided the President to
suspend him following the policy he has consistently pursued in dealing with public officers, whether
appointive or elective, who are charged in court or otherwise with an offense which involves moral
turpitude (Exhibit A-1). The soundness and validity of this policy cannot be seriously disputed. The
authority of the President to enunciate and adopt such a policy flows necessarily from his constitutional
power of supervision over local governments and his equally consitutional duty to faithfully execute the
laws (sec. 10, par. 1, Article VII, constitution), and this policy should apply with greater force to the City
Mayor who is the right arm of the President in the execution and enforecement of the law n the city.
The action of the President in suspending petitioner because of the charges preferred against him by
Judge MOntesa cannot be branded as unwarranted or arbitrary. It is to be presumed that, before taking
such action, he has carefully weighed the nature and seriousness of the charges not only as affecting the
offended party but the judiciary as well. It should be noted that petitioner, in his radio broadcast, and as
quoted in the information, made disparaging remarks not only against the judge but against some courts of
justice. These remarks, affecting as they do the judiciary, must have impressed the president as tending to
undermine the faith and confidence of the people in the administration of justice. While there are
authorities who favor criticism of court decisions after they have become final, which Judges should not
begrudge, the criticisms should be made in the proper spirit and must be kept within proper bounds. It
should not be contemptuous nor cast unsavory reflection against the judge. Undoubtedly, the remarks of
petitioner, considering the circumstances under which they were made, were considered by the President

not only derogatory to the judiciary but one which involves moral turpitude, and this opinion must be
respected unless the courts opine otherwise. Jurisprudence sustains this action of the President.
This is a proceeding to disbar an attorney, instituted by the state upon the relation of the members
of the grievance committee of the Oregon State Bar Association. The fact are that O.P. Mason, a
licensed attorney, was indicted, tried, and convicted of the crime of libel, upon proof of the
publication of defamatory matter in a newspaper published at Portland, Or., known as the Sunday
Mercury, while he was its editor. Whereupon the relators filed an information against him in this
court, alleging such conviction, and that the offense of which he was so convicted is a
`misdemeanor involving moral turpitude,' and prayed a judgment of removal against the accused.
The defendant, upon being cited to appear, filed his answer to the information, in which he denies
that the misdemeanor of which he was convicted involved moral turpitude, and alleges that he was
found guilty thereof by construction of law only, which renders the manager, editor, or owner of a
newspaper criminally liable for the publication of a libel, whether he wrote the article or not, or had
any knowledge of its publication; that he did not write the alleged libelous article, nor see it or know
of its publication until after the newspapers was in circulation . . .
. . . But inability to properly define the term, however, does not preclude us from saying that it is,
and of necessity must be, involved in the willful publication of a libel. The case of Andres vs.
Koppenheafer, supra, was an action for slander, founded upon the following language: `What is a
woman that makes a libel? She is a dirty creature, and that is you. You have made a libel, and I will
prove it with my whole estate.' It was held that the crime of libel, imputed to the plaintiff, involved
moral turpitude; Tilghaman, CJ., saying : "The man who wantonly, maliciously, and falsely traduces
the character of his neighbor is no better than a felon. He endeavors to rob him of that, in
comparison with which, gold and diamonds are but dress." We think there can be no doubt that the
willful publication of a malicious libel by the manager of a newspaper, when made either to vent his
spleen upon the object of his wrath, or to cater to the perverted taste of a small portion of the
public, clearly involves moral turpitude, and manifests, on the part of the libeler, a depraved
disposition and a malignant purpose." (State ex rel., Mays et al., vs. Mason, 29 Or., 18; Feb. 3,
1896; 43 PAC., 651, 652.) (Emphasis supplied.)
There may be differences of opinion with regard to the determination of the nature or seriousness of the
offense charged or the question whether such charged warrants disciplinary action, but there are
authorities which hold that the officer invested with the power of removal is the sole judge of the existence
of the sufficiency of the cause (17 R.C.L., section 233; Attorney General vs. Doherty, 13 Am. Rep., 132),
and unless a flagrant abuse of the exercise of that power is shown, public policy and a becoming regard
for the principle of separation of powers demand that his action should be left undisturbed. Here there is
no such showing nor the slightest intimation that power has been abused. And so it is my opinion that this
court should do well in leaving the matter to the sole responsibility of the President until the criminal case
which is now pending in the courts has been finally terminated.
For these reasons, I dissent from the opinion of the majority.
Bengzon, Montemayor and Labrador, JJ., concur.

Naturalization Laws
Co v. Civil Register (G.R. No. 138496, February 23, 2004)
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 138496

February 23, 2004

HUBERT TAN CO and ARLENE TAN CO, petitioners,

vs.
THE CIVIL REGISTER OF MANILA and any person having or claiming an interest under the entry
whose cancellation or correction is sought, respondent.
DECISION
CALLEJO, SR., J.:
Before the Court is the petition for review on certiorari filed by Hubert Tan Co and Arlene Tan Co seeking to
reverse and set aside the Order1 dated September 23, 1998 of the Regional Trial Court of Manila, Branch
26, dismissing their petition for correction of entries in the Civil Register. Likewise sought to be reversed
and set aside is the Order dated April 27, 1999 of the court a quo denying the petitioners motion for
reconsideration of the said order.
The factual antecedents are as follows:
Hubert Tan Co was born on March 23, 1974. His sister, Arlene Tan Co, was born on May 19, 1975. In their
respective certificates of birth, it is stated that their parents Co Boon Peng and Lourdes Vihong K. Tan are
Chinese citizens.
Thereafter, Co Boon Peng filed an application for his naturalization as a citizen of the Philippines with the
Special Committee on Naturalization under Letter of Instruction (LOI) No. 270. His application was granted
and he was conferred Philippine citizenship under Presidential Decree (P.D.) No. 1055. The Chairman of
the Committee issued on February 15, 1977 Certificate of Naturalization No. 020778 in his favor. Thus, on
February 15, 1977, Co Boon Peng took his oath as a Philippine citizen. In the meantime, Hubert and
Arlene Co finished college and earned their respective degrees in architecture and accountancy in
Philippine schools.
On August 27, 1998, they filed with the Regional Trial Court of Manila a petition under Rule 108 of the
Rules of Court for correction of entries in their certificates of birth. The case was docketed as Sp. Proc.
Case No. 98-90470. They alleged, inter alia, in their petition that:
(3) They were born in the Philippines and the legitimate children of CO BOON PENG;
(4) Co Boon Peng, who is formerly a citizen of China, was conferred Philippine citizenship by
naturalization under Presidential Decree No. 1055 and had taken his oath of allegiance to the
Republic of the Philippines on 15th February, 1977 in the City of Manila;
(5) At the time of birth of [the] petitioners, their father CO BOON PENG was still a Chinese citizen
that is why entry in their respective birth certificates as to their fathers citizenship was Chinese;
(6) Upon granting of Philippine citizenship by naturalization to Co Boon Peng in 1977, [the]
petitioners who were born in the Philippines and still minors at that time became Filipino citizens
through the derivative mode of naturalization. Our Naturalization Law, specifically Section 15 of
Commonwealth Act No. 473, as amended by Commonwealth Act No. 535 which provides:
"Minor children of persons naturalized under this law who have been born in the Philippines shall
be considered citizens thereof;"

(7) The naturalization of petitioners father in 1977 was an act or event affecting and concerning
their civil status that must be recorded in the Civil Register, Article 407 of the New Civil Code of the
Philippines which provides:
"Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the Civil
Register."2
The petitioners prayed that, after due proceedings, the trial court render judgment correcting and changing
the entries in their respective birth certificates as to the citizenship of their father Co Boon Peng, from
"Chinese" to "Filipino."3
On September 23, 1998, the court a quo issued an order dismissing the petition outright on the ground that
the petition was insufficient, solely because the petitioners father Co Boon Peng applied for naturalization
under LOI No. 270 and was conferred Philippine citizenship by naturalization under PD No. 1055 and not
under Commonwealth Act (CA) No. 473. 4
The petitioners sought the reconsideration of the assailed order arguing that LOI No. 270 and CA No. 473
were designed to grant citizenship to deserving aliens; hence, should be construed together. They averred
that the benefit of Section 15 of CA No. 473 should also be granted to the petitioners whose father was
granted naturalization under LOI No. 270. However, the RTC issued an Order on April 27, 1999, denying
their motion for reconsideration for the following reasons: (a) although Commonwealth Act No. 473 and
Letter of Instructions No. 270 are statutes relating to the same subject matter, they do not provide the
same beneficial effects with respect to the minor children of the applicant. Section 15 of CA No. 473
expressly provides for the effect of the naturalization on the wife and children of the applicant while LOI
No. 270 does not have any proviso to that effect; (b) LOI No. 270 clearly refers to qualified individuals only.
The rules and regulations promulgated by the Committee established pursuant to LOI No. 270 and the
amendments issued by then President Ferdinand E. Marcos (LOI Nos. 292 and 491) clearly speak of
qualified individuals only; no proviso therein referred to its effect on the wife and children of the individual;
(c) Section 15 of CA No. 473 should not be deemed and incorporated in and applied to LOI No. 270; and,
(d) the application of the so-called "pari materia" rule of construction made by the petitioners is misplaced,
as what should be applied in the instant case is the rule on strict construction of legislative grants or
franchise. The court a quo stressed that legislative grants, whether they be of property, rights or privileges,
whether granted to corporations or individuals, must be strictly construed against the grantee and in favor
of the grantor.
Aggrieved, the petitioners now come to this Court assailing the court a quos Order dismissing their petition
outright and its Order denying their motion for the reconsideration of the same.
The petitioners contend that the trial court erred in holding that their petition was insufficient. They assert
that contrary to the ruling of the trial court, they are qualified to claim the benefit of Section 15 of CA No.
473, which provides that minor children of persons naturalized thereunder who were born in the
Philippines shall likewise be considered citizens thereof. They contend that although LOI No. 270, under
which the petitioners father was naturalized does not contain a provision similar to Section 15 of CA No.
473, the latter provision should be deemed incorporated therein. They point out that both laws have the
same purpose and objective, i.e., to grant Philippine citizenship to qualified aliens permanently residing in
the Philippines. The petitioners invoke the rule that statutes in pari materia are to be read together.5 They
posit that CA No. 473 and LOI No. 270 should be harmonized and reconciled since "all statutes relating to
the same subject, or having the same general purpose, should be read in connection with it, and should be
construed together as they constitute one law." 6
The petitioners maintain that the letter and spirit of LOI No. 270 was to grant the privilege of Philippine
citizenship not only to qualified aliens but also to their minor children who were born in the country. They
assert that this is apparent from paragraph 4-A thereof, which extends the option to adopt Filipino names
not only to qualified applicants for naturalization but also to their wives and minor children. They submit
that when then President Ferdinand E. Marcos enacted LOI No. 270, he must be presumed to have been

acquainted with the provisions of CA No. 473 and did not intend to abrogate and discontinue the beneficial
effects of Section 15 thereof; otherwise, Pres. Marcos would have expressly repealed Section 15 of CA
No. 473 in relation to LOI No. 270. Thus, according to the petitioners, the naturalization of their father
during their minority is an act or event affecting their civil status that must be recorded in the Civil Register
pursuant to Article 407 of the Civil Code.
In his Comment, the Solicitor General contends that the court a quo did not err in issuing the assailed
orders. Contrary to the petitioners theory, LOI No. 270 and CA No. 473 are separate and distinct laws;
therefore, are not in pari materia. He points out that although LOI No. 270 and CA No. 473 both govern the
naturalization of aliens, CA No. 473 deals with the requirements and procedure for naturalization by judicial
decree; LOI No. 270, on the other hand, deals with the requirements and procedure for naturalization by
presidential decree.
The Solicitor General further asserts that the petitioners contention that the naturalization of their father is
an event affecting and concerning their civil status envisaged in Article 407 of the Civil Code has no legal
basis. The correction sought and allowed under Rule 108 of the Rules of Court must be one that reflects a
fact existing before or at the time of birth. In the petitioners case, the naturalization of their father in 1977
took place long after they were born. Moreover, according to the Solicitor General, under LOI No. 270 and
its amendatory laws, the naturalization of a father did not ipso facto render his children also naturalized.
The petitioners thus cannot invoke Article 407 of the Civil Code and Rule 108 of the Rules of Court to
avoid strict compliance with the naturalization laws.
The petition is meritorious.
The rule on statutory construction provides that:
Statutes in pari materia should be read and construed together because enactments of the same
legislature on the same subject are supposed to form part of one uniform system; later statutes are
supplementary or complimentary (sic) to the earlier enactments and in the passage of its acts the
legislature is supposed to have in mind the existing legislations on the subject and to have enacted its new
act with reference thereto.7
Statutes in pari materia should be construed together to attain the purpose of an expressed national policy,
thus:
On the presumption that whenever the legislature enacts a provision it has in mind the previous statutes
relating to the same subject matter, it is held that in the absence of any express repeal or amendment
therein, the new provision was enacted in accord with the legislative policy embodied in those prior
statutes, and they all should be construed together. Provisions in an act which are omitted in another act
relating to the same subject matter will be applied in a proceeding under the other act, when not
inconsistent with its purpose. Prior statutes relating to the same subject matter are to be compared with
the new provisions; and if possible by reasonable construction, both are to be construed that effect is given
to every provision of each. Statutes in pari materia, although in apparent conflict, are so far as reasonably
possible construed to be in harmony with each other.8
LOI No. 270 and CA No. 473 are laws governing the naturalization of qualified aliens residing in the
Philippines. While they provide for different procedures, CA No. 473 governs naturalization by judicial
decree while LOI No. 270 governs naturalization by presidential decree; both statutes have the same
purpose and objective: to enable aliens permanently residing in the Philippines, who, having demonstrated
and developed love for and loyalty to the Philippines, as well as affinity to the culture, tradition and ideals
of the Filipino people, and contributed to the economic, social and cultural development of our country, to
be integrated into the national fabric by being granted Filipino citizenship. Under the LOI, the procedure for
the acquisition of citizenship by naturalization is more expeditious, less cumbersome and less expensive.
The sooner qualified aliens are naturalized, the faster they are able to integrate themselves into the

national fabric, and are thus able to contribute to the cultural, social and political well- being of the country
and its people.
Clearly, LOI No. 270 and CA No. 473 are, as the petitioners correctly posit, statutes in pari materia. Absent
any express repeal of Section 15 of CA No. 473 in LOI No. 270, the said provision should be read into the
latter law as an integral part thereof, not being inconsistent with its purpose. Thus, Section 15 of CA No.
473,9 which extends the grant of Philippine citizenship to the minor children of those naturalized
thereunder, should be similarly applied to the minor children of those naturalized under LOI No. 270, like
the petitioners in this case.
It is not enough that the petitioners adduce in evidence the certificate of naturalization of their father, Co
Boon Peng, and of his oath of allegiance to the Republic of the Philippines, to entitle them to Philippine
citizenship. They are likewise mandated to prove the following material allegations in their petition: (a) that
they are the legitimate children of Co Boon Peng; (b) that they were born in the Philippines; and, (c) that
they were still minors when Co Boon Peng was naturalized as a Filipino citizen;
The petitioners recourse to Rule 108 of the Rules of Court, as amended, is appropriate. Under Article 412
of the New Civil Code, no entry in a civil register shall be changed or corrected without a judicial order. The
law does not provide for a specific procedure of law to be followed. But the Court approved Rule 108 of the
Rules of Court to provide for a procedure to implement the law.10 The entries envisaged in Article 412 of
the New Civil Code are those provided in Articles 407 and 408 of the New Civil Code which reads:
Art. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the
civil register.
Art. 408. The following shall be entered in the civil register:
(1) Births; (2) Marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments
declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of
natural children; (10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14)
judicial determination of filiation; (15) voluntary emancipation of a minor; and (16) changes of name.
Specific matters covered by the said provision include not only status but also nationality.11 The acts,
events or factual errors envisaged in Article 407 of the New Civil Code include even those that occur after
the birth of the petitioner. However, in such cases, the entries in the certificates of birth will not be
corrected or changed. The decision of the court granting the petition shall be annotated in the certificates
of birth and shall form part of the civil register in the Office of the Local Civil Registrar.12
To correct simply means "to make or set aright; to remove the faults or error from." To change means "to
replace something with something else of the same kind or with something that serves as a substitute.
Article 412 of the New Civil Code does not qualify as to the kind of entry to be changed or corrected or
distinguished on the basis of the effect that the correction or change may be. 13 Such entries include not
only those clerical in nature but also substantial errors. After all, the role of the Court under Rule 108 of the
Rules of Court is to ascertain the truths about the facts recorded therein. 14
The proceedings in Rule 108 of the Rules of Court are summary if the entries in the civil register sought to
be corrected are clerical or innocuous in nature. However, where such entries sought to be corrected or
changed are substantial: i.e., the status and nationality of the petitioners or the citizenship of their
parents,15 the proceedings are adversarial in nature as defined by this Court in Republic v. Valencia, thus:
One having opposing parties; contested, as distinguished from an ex parte application, one of which the
party seeking relief has given legal warning to the other party, and afforded the latter an opportunity to
contest it. Excludes an adoption proceeding. 16

In such a proceeding, the parties to be impleaded as respective defendants are (a) the local civil registrar;
and, (b) all persons who have claims any interest which would be affected thereby.17
In this case, the petitioners alleged in their petition that they are the legitimate children of Co Boon Peng,
who was naturalized as a Filipino citizen, but that their certificates of birth still indicate that he is a Chinese
national. In view of their fathers naturalization, they pray that the entries in their certificates of birth relating
to the citizenship of their father be changed from "Chinese" to "Filipino."
The petitioners recourse to the procedure in Rule 108 of the Rules of Court, as amended, being
appropriate, it behooved the trial court to do its duty under Section 4, Rule 108 of the Rules of Court,
namely:
Sec. 4. Notice and Publication. Upon the filing of the petition, the court shall, by an order, fix the time and
place for the hearing of the same, and cause reasonable notice thereof to be given to the person named in
the petition. The court shall also cause the order to be published once a week for three (3) consecutive
weeks in a newspaper of general circulation in the province.
After hearing, the court shall issue an order either dismissing the petition or issue an order granting the
same. In either case, a certified copy of the judgment shall be served upon the civil registrar concerned
who shall annotate the same in the certificates of birth of the petitioners. The judgment of the court shall
form part of the records of the local civil register.18
In this case, the trial court dismissed the petition outright in violation of Rule 108 of the Rules of Court.
Patently, then, the trial court erred in so doing.
IN THE LIGHT OF THE FOREGOING, the petition is GRANTED. The assailed Orders of the Regional
Trial Court of Manila, Branch 26, are SET ASIDE and REVERSED. The trial court is DIRECTED to
reinstate the petition in Special Proceedings NO. 98-90470 in the court docket, and ORDERED to continue
with the proceedings in the said case under Rule 108 of the Rules of Court, as amended.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Corona, Carpio- Morales, Azcuna, and Tinga, JJ., concur.

Footnotes
1

Penned by Judge Guillermo L. Loja, Sr.

Records, pp. 2-3.

Rollo, p. 5.

Id. at 46-47.

Pasno v. Ravina, 54 Phil. 378 (1930).

Rollo, p. 10.

Agpalo, R., Statutory Construction, p. 212 (1995).

C & C Commercial Corporation v. National Waterworks and Sewerage Authority, 21 SCRA 984
(1967).
8

The provision reads in full:

Sec. 15. Effect of the naturalization on wife and children. Any woman who is now or may
hereafter be married to a citizen of the Philippines, and who might herself be lawfully
naturalized shall be deemed a citizen of the Philippines.
Minor children of persons naturalized under this law shall be considered citizens thereof.
A foreign-born minor child, if dwelling in the Philippines at the time of the naturalization of
the parent, shall automatically become a Philippine citizen, and a foreign-born minor child,
who is not in the Philippines at the time the parent is naturalized, shall be deemed a
Philippine citizen only during his minority, unless he begins to reside in the Philippines
when still minor, in which case, he will continue to be a Philippine citizen even after
becoming of age.
A child born outside the Philippines after naturalization of his parent, shall be considered a
Philippine citizen, unless one year after reaching the age of majority, he fails to register
himself as a Philippine citizen at the Philippine Consulate of the country where he resides,
and to take the necessary oath of allegiance.

Tax Laws
Rule and Exceptions
Commissioner of Internal Revenue v. Fortune Tobacco Corp. (G.R. Nos. 167274-75, July
21, 2008)

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. Nos. 167274-75

July 21, 2008

COMMISSIONER OF INTERNAL REVENUE, Petitioner,

vs.
FORTUNE TOBACCO CORPORATION, Respondent.
DECISION
TINGA, J.:
Simple and uncomplicated is the central issue involved, yet whopping is the amount at stake in this case.
After much wrangling in the Court of Tax Appeals (CTA) and the Court of Appeals, Fortune Tobacco
Corporation (Fortune Tobacco) was granted a tax refund or tax credit representing specific taxes
erroneously collected from its tobacco products. The tax refund is being re-claimed by the Commissioner
of Internal Revenue (Commissioner) in this petition.

The following undisputed facts, summarized by the Court of Appeals, are quoted in the assailed
Decision1 dated 28 September 2004:
CAG.R. SP No. 80675
xxxx
Petitioner2 is a domestic corporation duly organized and existing under and by virtue of the laws of the
Republic of the Philippines, with principal address at Fortune Avenue, Parang, Marikina City.
Petitioner is the manufacturer/producer of, among others, the following cigarette brands, with tax rate
classification based on net retail price prescribed by Annex "D" to R.A. No. 4280, to wit:
Brand

Tax Rate

Champion M 100

P1.00

Salem M 100

P1.00

Salem M King

P1.00

Camel F King

P1.00

Camel Lights Box 20s

P1.00

Camel Filters Box 20s

P1.00

Winston F Kings

P5.00

Winston Lights

P5.00

Immediately prior to January 1, 1997, the above-mentioned cigarette brands were subject to ad valorem
tax pursuant to then Section 142 of the Tax Code of 1977, as amended. However, on January 1, 1997,
R.A. No. 8240 took effect whereby a shift from the ad valorem tax (AVT) system to the specific tax system
was made and subjecting the aforesaid cigarette brands to specific tax under [S]ection 142 thereof, now
renumbered as Sec. 145 of the Tax Code of 1997, pertinent provisions of which are quoted thus:
Section 145. Cigars and Cigarettes(A) Cigars. There shall be levied, assessed and collected on cigars a tax of One peso (P1.00)
per cigar.
"(B) Cigarettes packed by hand. There shall be levied, assessesed and collected on cigarettes
packed by hand a tax of Forty centavos (P0.40) per pack.
(C) Cigarettes packed by machine. There shall be levied, assessed and collected on cigarettes
packed by machine a tax at the rates prescribed below:
(1) If the net retail price (excluding the excise tax and the value-added tax) is above Ten
pesos (P10.00) per pack, the tax shall be Twelve (P12.00) per pack;
(2) If the net retail price (excluding the excise tax and the value added tax) exceeds Six
pesos and Fifty centavos (P6.50) but does not exceed Ten pesos (P10.00) per pack, the
tax shall be Eight Pesos (P8.00) per pack.

(3) If the net retail price (excluding the excise tax and the value-added tax) is Five pesos
(P5.00) but does not exceed Six Pesos and fifty centavos (P6.50) per pack, the tax shall
be Five pesos (P5.00) per pack;
(4) If the net retail price (excluding the excise tax and the value-added tax) is below Five
pesos (P5.00) per pack, the tax shall be One peso (P1.00) per pack;
"Variants of existing brands of cigarettes which are introduced in the domestic market after the effectivity of
R.A. No. 8240 shall be taxed under the highest classification of any variant of that brand.
The excise tax from any brand of cigarettes within the next three (3) years from the effectivity of R.A. No.
8240 shall not be lower than the tax, which is due from each brand on October 1, 1996. Provided,
however, that in cases were (sic) the excise tax rate imposed in paragraphs (1), (2), (3) and (4)
hereinabove will result in an increase in excise tax of more than seventy percent (70%), for a brand of
cigarette, the increase shall take effect in two tranches: fifty percent (50%) of the increase shall be
effective in 1997 and one hundred percent (100%) of the increase shall be effective in 1998.
Duly registered or existing brands of cigarettes or new brands thereof packed by machine shall only be
packed in twenties.
The rates of excise tax on cigars and cigarettes under paragraphs (1), (2) (3) and (4) hereof, shall
be increased by twelve percent (12%) on January 1, 2000. (Emphasis supplied)
New brands shall be classified according to their current net retail price.
For the above purpose, net retail price shall mean the price at which the cigarette is sold on retail in
twenty (20) major supermarkets in Metro Manila (for brands of cigarettes marketed nationally), excluding
the amount intended to cover the applicable excise tax and value-added tax. For brands which are
marketed only outside Metro [M]anila, the net retail price shall mean the price at which the cigarette is
sold in five (5) major supermarkets in the region excluding the amount intended to cover the applicable
excise tax and the value-added tax.
The classification of each brand of cigarettes based on its average retail price as of October 1, 1996, as
set forth in Annex "D," shall remain in force until revised by Congress.
Variant of a brand shall refer to a brand on which a modifier is prefixed and/or suffixed to the root name of
the brand and/or a different brand which carries the same logo or design of the existing brand.
To implement the provisions for a twelve percent (12%) increase of excise tax on, among others, cigars
and cigarettes packed by machines by January 1, 2000, the Secretary of Finance, upon recommendation
of the respondent Commissioner of Internal Revenue, issued Revenue Regulations No. 17-99, dated
December 16, 1999, which provides the increase on the applicable tax rates on cigar and cigarettes as
follows:

SECTION

ARTICLES

PRESENT SPECIFIC
TAX RATE PRIOR TO
JAN. 1, 2000

NEW SPECIFIC TAX

RATE EFFECTIVE JAN.
1, 2000

145

(A)

P1.00/cigar

P1.12/cigar

P12.00/pack

P13.44/ pack

(B)Cigarettes packed by
machine
(1) Net retail price (excluding
VAT and excise) exceeds P10.00

per pack
(2) Exceeds P10.00 per pack

P8.00/pack

P8.96/pack

(3) Net retail price (excluding

VAT and excise) is P5.00
to P6.50 per pack

P5.00/pack

P5.60/pack

(4) Net Retail Price (excluding

VAT and excise) is below P5.00
per pack

P1.00/pack

P1.12/pack

Revenue Regulations No. 17-99 likewise provides in the last paragraph of Section 1 thereof, "(t)hat the
new specific tax rate for any existing brand of cigars, cigarettes packed by machine, distilled
spirits, wines and fermented liquor shall not be lower than the excise tax that is actually being paid
prior to January 1, 2000."
For the period covering January 1-31, 2000, petitioner allegedly paid specific taxes on all brands
manufactured and removed in the total amounts of P585,705,250.00.
On February 7, 2000, petitioner filed with respondents Appellate Division a claim for refund or tax credit of
its purportedly overpaid excise tax for the month of January 2000 in the amount of P35,651,410.00
On June 21, 2001, petitioner filed with respondents Legal Service a letter dated June 20, 2001 reiterating
all the claims for refund/tax credit of its overpaid excise taxes filed on various dates, including the present
claim for the month of January 2000 in the amount of P35,651,410.00.
As there was no action on the part of the respondent, petitioner filed the instant petition for review with this
Court on December 11, 2001, in order to comply with the two-year period for filing a claim for refund.
In his answer filed on January 16, 2002, respondent raised the following Special and Affirmative Defenses;
4. Petitioners alleged claim for refund is subject to administrative routinary
investigation/examination by the Bureau;
5. The amount of P35,651,410 being claimed by petitioner as alleged overpaid excise tax for the
month of January 2000 was not properly documented.
6. In an action for tax refund, the burden of proof is on the taxpayer to establish its right to refund,
and failure to sustain the burden is fatal to its claim for refund/credit.
7. Petitioner must show that it has complied with the provisions of Section 204(C) in relation [to]
Section 229 of the Tax Code on the prescriptive period for claiming tax refund/credit;
8. Claims for refund are construed strictly against the claimant for the same partake of tax
exemption from taxation; and
9. The last paragraph of Section 1 of Revenue Regulation[s] [No.]17-99 is a valid implementing
regulation which has the force and effect of law."
CA G.R. SP No. 83165
The petition contains essentially similar facts, except that the said case questions the CTAs December 4,
2003 decision in CTA Case No. 6612 granting respondents3 claim for refund of the amount
of P355,385,920.00 representing erroneously or illegally collected specific taxes covering the period

January 1, 2002 to December 31, 2002, as well as its March 17, 2004 Resolution denying a
reconsideration thereof.
xxxx
In both CTA Case Nos. 6365 & 6383 and CTA No. 6612, the Court of Tax Appeals reduced the issues to be
resolved into two as stipulated by the parties, to wit: (1) Whether or not the last paragraph of Section 1 of
Revenue Regulation[s] [No.] 17-99 is in accordance with the pertinent provisions of Republic Act [No.]
8240, now incorporated in Section 145 of the Tax Code of 1997; and (2) Whether or not petitioner is
entitled to a refund ofP35,651,410.00 as alleged overpaid excise tax for the month of January 2000.
xxxx
Hence, the respondent CTA in its assailed October 21, 2002 [twin] Decisions[s] disposed in CTA Case
Nos. 6365 & 6383:
WHEREFORE, in view of the foregoing, the court finds the instant petition meritorious and in accordance
with law. Accordingly, respondent is hereby ORDERED to REFUND to petitioner the amount
of P35,651.410.00 representing erroneously paid excise taxes for the period January 1 to January 31,
2000.
SO ORDERED.
Herein petitioner sought reconsideration of the above-quoted decision. In [twin] resolution[s] [both] dated
July 15, 2003, the Tax Court, in an apparent change of heart, granted the petitioners consolidated motions
for reconsideration, thereby denying the respondents claim for refund.
However, on consolidated motions for reconsideration filed by the respondent in CTA Case Nos. 6363 and
6383, the July 15, 2002 resolution was set aside, and the Tax Court ruled, this time with a semblance of
finality, that the respondent is entitled to the refund claimed. Hence, in a resolution dated November 4,
2003, the tax court reinstated its December 21, 2002 Decision and disposed as follows:
WHEREFORE, our Decisions in CTA Case Nos. 6365 and 6383 are hereby REINSTATED. Accordingly,
respondent is hereby ORDERED to REFUND petitioner the total amount of P680,387,025.00 representing
erroneously paid excise taxes for the period January 1, 2000 to January 31, 2000 and February 1, 2000 to
December 31, 2001.
SO ORDERED.
Meanwhile, on December 4, 2003, the Court of Tax Appeals rendered decision in CTA Case No. 6612
granting the prayer for the refund of the amount of P355,385,920.00 representing overpaid excise tax for
the period covering January 1, 2002 to December 31, 2002. The tax court disposed of the case as follows:
IN VIEW OF THE FOREGOING, the Petition for Review is GRANTED. Accordingly, respondent is hereby
ORDERED to REFUND to petitioner the amount of P355,385,920.00 representing overpaid excise tax for
the period covering January 1, 2002 to December 31, 2002.
SO ORDERED.
Petitioner sought reconsideration of the decision, but the same was denied in a Resolution dated March
17, 2004.4 (Emphasis supplied) (Citations omitted)
The Commissioner appealed the aforesaid decisions of the CTA. The petition questioning the grant of
refund in the amount of P680,387,025.00 was docketed as CA-G.R. SP No. 80675, whereas that assailing

the grant of refund in the amount of P355,385,920.00 was docketed as CA-G.R. SP No. 83165. The
petitions were consolidated and eventually denied by the Court of Appeals. The appellate court also
denied reconsideration in its Resolution5 dated 1 March 2005.
In its Memorandum6 22 dated November 2006, filed on behalf of the Commissioner, the Office of the
Solicitor General (OSG) seeks to convince the Court that the literal interpretation given by the CTA and the
Court of Appeals of Section 145 of the Tax Code of 1997 (Tax Code) would lead to a lower tax imposable
on 1 January 2000 than that imposable during the transition period. Instead of an increase of 12% in the
tax rate effective on 1 January 2000 as allegedly mandated by the Tax Code, the appellate courts ruling
would result in a significant decrease in the tax rate by as much as 66%.
The OSG argues that Section 145 of the Tax Code admits of several interpretations, such as:
1. That by January 1, 2000, the excise tax on cigarettes should be the higher tax imposed under
the specific tax system and the tax imposed under the ad valorem tax system plus the 12%
increase imposed by par. 5, Sec. 145 of the Tax Code;
2. The increase of 12% starting on January 1, 2000 does not apply to the brands of cigarettes
listed under Annex "D" referred to in par. 8, Sec. 145 of the Tax Code;
3. The 12% increment shall be computed based on the net retail price as indicated in par. C, subpar. (1)-(4), Sec. 145 of the Tax Code even if the resulting figure will be lower than the amount
already being paid at the end of the transition period. This is the interpretation followed by both the
CTA and the Court of Appeals.7
This being so, the interpretation which will give life to the legislative intent to raise revenue should govern,
the OSG stresses.
Finally, the OSG asserts that a tax refund is in the nature of a tax exemption and must, therefore, be
construed strictly against the taxpayer, such as Fortune Tobacco.
In its Memorandum8 dated 10 November 2006, Fortune Tobacco argues that the CTA and the Court of
Appeals merely followed the letter of the law when they ruled that the basis for the 12% increase in the tax
rate should be the net retail price of the cigarettes in the market as outlined in paragraph C, sub
paragraphs (1)-(4), Section 145 of the Tax Code. The Commissioner allegedly has gone beyond his
delegated rule-making power when he promulgated, enforced and implemented Revenue Regulation No.
17-99, which effectively created a separate classification for cigarettes based on the excise tax "actually
being paid prior to January 1, 2000." 9
It should be mentioned at the outset that there is no dispute between the fact of payment of the taxes
sought to be refunded and the receipt thereof by the Bureau of Internal Revenue (BIR). There is also no
question about the mathematical accuracy of Fortune Tobaccos claim since the documentary evidence in
support of the refund has not been controverted by the revenue agency. Likewise, the claims have been
made and the actions have been filed within the two (2)-year prescriptive period provided under Section
229 of the Tax Code.
The power to tax is inherent in the State, such power being inherently legislative, based on the principle
that taxes are a grant of the people who are taxed, and the grant must be made by the immediate
representatives of the people; and where the people have laid the power, there it must remain and be
exercised.10
This entire controversy revolves around the interplay between Section 145 of the Tax Code and Revenue
Regulation 17-99. The main issue is an inquiry into whether the revenue regulation has exceeded the
allowable limits of legislative delegation.

For ease of reference, Section 145 of the Tax Code is again reproduced in full as follows:
Section 145. Cigars and Cigarettes(A) Cigars.There shall be levied, assessed and collected on cigars a tax of One peso (P1.00)
per cigar.
(B). Cigarettes packed by hand.There shall be levied, assessed and collected on cigarettes
packed by hand a tax of Forty centavos (P0.40) per pack.
(C) Cigarettes packed by machine.There shall be levied, assessed and collected on cigarettes
packed by machine a tax at the rates prescribed below:
(1) If the net retail price (excluding the excise tax and the value-added tax) is above Ten
pesos (P10.00) per pack, the tax shall be Twelve pesos (P12.00) per pack;
(2) If the net retail price (excluding the excise tax and the value added tax) exceeds Six
pesos and Fifty centavos (P6.50) but does not exceed Ten pesos (P10.00) per pack, the
tax shall be Eight Pesos (P8.00) per pack.
(3) If the net retail price (excluding the excise tax and the value-added tax) is Five pesos
(P5.00) but does not exceed Six Pesos and fifty centavos (P6.50) per pack, the tax shall be
Five pesos (P5.00) per pack;
(4) If the net retail price (excluding the excise tax and the value-added tax) is below Five
pesos (P5.00) per pack, the tax shall be One peso (P1.00) per pack;
Variants of existing brands of cigarettes which are introduced in the domestic market after the effectivity of
R.A. No. 8240 shall be taxed under the highest classification of any variant of that brand.
The excise tax from any brand of cigarettes within the next three (3) years from the effectivity of R.A. No.
8240 shall not be lower than the tax, which is due from each brand on October 1, 1996. Provided,
however, That in cases where the excise tax rates imposed in paragraphs (1), (2), (3) and (4) hereinabove
will result in an increase in excise tax of more than seventy percent (70%), for a brand of cigarette, the
increase shall take effect in two tranches: fifty percent (50%) of the increase shall be effective in 1997 and
one hundred percent (100%) of the increase shall be effective in 1998.
Duly registered or existing brands of cigarettes or new brands thereof packed by machine shall only be
packed in twenties.
The rates of excise tax on cigars and cigarettes under paragraphs (1), (2) (3) and (4) hereof, shall
be increased by twelve percent (12%) on January 1, 2000.
New brands shall be classified according to their current net retail price.
For the above purpose, net retail price shall mean the price at which the cigarette is sold on retail in
twenty (20) major supermarkets in Metro Manila (for brands of cigarettes marketed nationally), excluding
the amount intended to cover the applicable excise tax and value-added tax. For brands which are
marketed only outside Metro Manila, the net retail price shall mean the price at which the cigarette is
sold in five (5) major intended to cover the applicable excise tax and the value-added tax.
The classification of each brand of cigarettes based on its average retail price as of October 1, 1996, as
set forth in Annex "D," shall remain in force until revised by Congress.

Variant of a brand shall refer to a brand on which a modifier is prefixed and/or suffixed to the root name
of the brand and/or a different brand which carries the same logo or design of the existing
brand.11 (Emphasis supplied)
Revenue Regulation 17-99, which was issued pursuant to the unquestioned authority of the Secretary of
Finance to promulgate rules and regulations for the effective implementation of the Tax Code, 12 interprets
the above-quoted provision and reflects the 12% increase in excise taxes in the following manner:

SECTION

DESCRIPTION OF ARTICLES

PRESENT SPECIFIC
TAX RATES PRIOR TO
JAN. 1, 2000

NEW SPECIFIC TAX

RATE Effective Jan.. 1,
2000

145

(A)

P1.00/cigar

P1.12/cigar

(1) Net Retail Price (excluding

VAT and Excise) exceeds P10.00
per pack

P12.00/pack

P13.44/pack

(2) Net Retail Price (excluding

VAT and Excise) is P6.51 up
to P10.00 per pack

P8.00/pack

P8.96/pack

(3) Net Retail Price (excluding

VAT and excise) is P5.00 to P6.50
per pack

P5.00/pack

P5.60/pack

(4) Net Retail Price (excluding

VAT and excise) is below P5.00
per pack)

P1.00/pack

P1.12/pack

(B)Cigarettes packed by Machine

This table reflects Section 145 of the Tax Code insofar as it mandates a 12% increase effective on 1
January 2000 based on the taxes indicated under paragraph C, sub-paragraph (1)-(4). However, Revenue
Regulation No. 17-99 went further and added that "[T]he new specific tax rate for any existing brand of
cigars, cigarettes packed by machine, distilled spirits, wines and fermented liquor shall not be lower than
the excise tax that is actually being paid prior to January 1, 2000."13
Parenthetically, Section 145 states that during the transition period, i.e., within the next three (3) years
from the effectivity of the Tax Code, the excise tax from any brand of cigarettes shall not be lower than the
tax due from each brand on 1 October 1996. This qualification, however, is conspicuously absent as
regards the 12% increase which is to be applied on cigars and cigarettes packed by machine, among
others, effective on 1 January 2000. Clearly and unmistakably, Section 145 mandates a new rate of excise
tax for cigarettes packed by machine due to the 12% increase effective on 1 January 2000 without regard
to whether the revenue collection starting from this period may turn out to be lower than that collected prior
to this date.
By adding the qualification that the tax due after the 12% increase becomes effective shall not be lower
than the tax actually paid prior to 1 January 2000, Revenue Regulation No. 17-99 effectively imposes a tax
which is the higher amount between the ad valorem tax being paid at the end of the three (3)-year
transition period and the specific tax under paragraph C, sub-paragraph (1)-(4), as increased by 12%a
situation not supported by the plain wording of Section 145 of the Tax Code.
This is not the first time that national revenue officials had ventured in the area of unauthorized
administrative legislation.

In Commissioner of Internal Revenue v. Reyes,14 respondent was not informed in writing of the law and the
facts on which the assessment of estate taxes was made pursuant to Section 228 of the 1997 Tax Code,
as amended by Republic Act (R.A.) No. 8424. She was merely notified of the findings by the
Commissioner, who had simply relied upon the old provisions of the law and Revenue Regulation No. 1285 which was based on the old provision of the law. The Court held that in case of discrepancy between
the law as amended and the implementing regulation based on the old law, the former necessarily
prevails. The law must still be followed, even though the existing tax regulation at that time provided for a
different procedure.15
In Commissioner of Internal Revenue v. Central Luzon Drug Corporation,16 the tax authorities gave the
term "tax credit" in Sections 2(i) and 4 of Revenue Regulation 2-94 a meaning utterly disparate from what
R.A. No. 7432 provides. Their interpretation muddled up the intent of Congress to grant a mere discount
privilege and not a sales discount. The Court, striking down the revenue regulation, held that an
administrative agency issuing regulations may not enlarge, alter or restrict the provisions of the law it
administers, and it cannot engraft additional requirements not contemplated by the legislature. The Court
emphasized that tax administrators are not allowed to expand or contract the legislative mandate and that
the "plain meaning rule" or verba legis in statutory construction should be applied such that where the
words of a statute are clear, plain and free from ambiguity, it must be given its literal meaning and applied
without attempted interpretation.
As we have previously declared, rule-making power must be confined to details for regulating the mode or
proceedings in order to carry into effect the law as it has been enacted, and it cannot be extended to
amend or expand the statutory requirements or to embrace matters not covered by the statute.
Administrative regulations must always be in harmony with the provisions of the law because any resulting
discrepancy between the two will always be resolved in favor of the basic law.17
In Commissioner of Internal Revenue v. Michel J. Lhuillier Pawnshop, Inc.,18 Commissioner Jose Ong
issued Revenue Memorandum Order (RMO) No. 15-91, as well as the clarificatory Revenue Memorandum
Circular (RMC) 43-91, imposing a 5% lending investors tax under the 1977 Tax Code, as amended by
Executive Order (E.O.) No. 273, on pawnshops. The Commissioner anchored the imposition on the
definition of lending investors provided in the 1977 Tax Code which, according to him, was broad enough
to include pawnshop operators. However, the Court noted that pawnshops and lending investors were
subjected to different tax treatments under the Tax Code prior to its amendment by the executive order;
that Congress never intended to treat pawnshops in the same way as lending investors; and that the
particularly involved section of the Tax Code explicitly subjected lending investors and dealers in securities
only to percentage tax. And so the Court affirmed the invalidity of the challenged circulars, stressing that
"administrative issuances must not override, supplant or modify the law, but must remain consistent with
the law they intend to carry out." 19
In Philippine Bank of Communications v. Commissioner of Internal Revenue, 20 the then acting
Commissioner issued RMC 7-85, changing the prescriptive period of two years to ten years for claims of
excess quarterly income tax payments, thereby creating a clear inconsistency with the provision of Section
230 of the 1977 Tax Code. The Court nullified the circular, ruling that the BIR did not simply interpret the
law; rather it legislated guidelines contrary to the statute passed by Congress. The Court held:
It bears repeating that Revenue memorandum-circulars are considered administrative rulings (in the sense
of more specific and less general interpretations of tax laws) which are issued from time to time by the
Commissioner of Internal Revenue. It is widely accepted that the interpretation placed upon a statute by
the executive officers, whose duty is to enforce it, is entitled to great respect by the courts. Nevertheless,
such interpretation is not conclusive and will be ignored if judicially found to be erroneous. Thus, courts will
not countenance administrative issuances that override, instead of remaining consistent and in harmony
with, the law they seek to apply and implement. 21
In Commissioner of Internal Revenue v. CA, et al.,22 the central issue was the validity of RMO 4-87 which
had construed the amnesty coverage under E.O. No. 41 (1986) to include only assessments issued by the

BIR after the promulgation of the executive order on 22 August 1986 and not assessments made to that
date. Resolving the issue in the negative, the Court held:
x x x all such issuances must not override, but must remain consistent and in harmony with, the law they
seek to apply and implement. Administrative rules and regulations are intended to carry out, neither to
supplant nor to modify, the law.23
xxx
If, as the Commissioner argues, Executive Order No. 41 had not been intended to include 1981-1985 tax
liabilities already assessed (administratively) prior to 22 August 1986, the law could have simply so
provided in its exclusionary clauses. It did not. The conclusion is unavoidable, and it is that the executive
order has been designed to be in the nature of a general grant of tax amnesty subject only to the cases
specifically excepted by it.24
In the case at bar, the OSGs argument that by 1 January 2000, the excise tax on cigarettes should be the
higher tax imposed under the specific tax system and the tax imposed under the ad valorem tax system
plus the 12% increase imposed by paragraph 5, Section 145 of the Tax Code, is an unsuccessful attempt
to justify what is clearly an impermissible incursion into the limits of administrative legislation. Such an
interpretation is not supported by the clear language of the law and is obviously only meant to validate the
OSGs thesis that Section 145 of the Tax Code is ambiguous and admits of several interpretations.
The contention that the increase of 12% starting on 1 January 2000 does not apply to the brands of
cigarettes listed under Annex "D" is likewise unmeritorious, absurd even. Paragraph 8, Section 145 of the
Tax Code simply states that, "[T]he classification of each brand of cigarettes based on its average net retail
price as of October 1, 1996, as set forth in Annex D, shall remain in force until revised by Congress." This
declaration certainly does not lend itself to the interpretation given to it by the OSG. As plainly worded, the
average net retail prices of the listed brands under Annex "D," which classify cigarettes according to their
net retail price into low, medium or high, obviously remain the bases for the application of the increase in
excise tax rates effective on 1 January 2000.
The foregoing leads us to conclude that Revenue Regulation No. 17-99 is indeed indefensibly flawed. The
Commissioner cannot seek refuge in his claim that the purpose behind the passage of the Tax Code is to
generate additional revenues for the government. Revenue generation has undoubtedly been a major
consideration in the passage of the Tax Code. However, as borne by the legislative record, 25 the shift from
the ad valorem system to the specific tax system is likewise meant to promote fair competition among the
players in the industries concerned, to ensure an equitable distribution of the tax burden and to simplify tax
administration by classifying cigarettes, among others, into high, medium and low-priced based on their
net retail price and accordingly graduating tax rates.
At any rate, this advertence to the legislative record is merely gratuitous because, as we have held, the
meaning of the law is clear on its face and free from the ambiguities that the Commissioner imputes. We
simply cannot disregard the letter of the law on the pretext of pursuing its spirit. 26
Finally, the Commissioners contention that a tax refund partakes the nature of a tax exemption does not
apply to the tax refund to which Fortune Tobacco is entitled. There is parity between tax refund and tax
exemption only when the former is based either on a tax exemption statute or a tax refund statute.
Obviously, that is not the situation here. Quite the contrary, Fortune Tobaccos claim for refund is premised
on its erroneous payment of the tax, or better still the governments exaction in the absence of a law.
Tax exemption is a result of legislative grace. And he who claims an exemption from the burden of taxation
must justify his claim by showing that the legislature intended to exempt him by words too plain to be
mistaken.27 The rule is that tax exemptions must be strictly construed such that the exemption will not be
held to be conferred unless the terms under which it is granted clearly and distinctly show that such was
the intention.28

A claim for tax refund may be based on statutes granting tax exemption or tax refund. In such case, the
rule of strict interpretation against the taxpayer is applicable as the claim for refund partakes of the nature
of an exemption, a legislative grace, which cannot be allowed unless granted in the most explicit and
categorical language. The taxpayer must show that the legislature intended to exempt him from the tax by
words too plain to be mistaken. 29
Tax refunds (or tax credits), on the other hand, are not founded principally on legislative grace but on the
legal principle which underlies all quasi-contracts abhorring a persons unjust enrichment at the expense of
another.30The dynamic of erroneous payment of tax fits to a tee the prototypic quasi-contract, solutio
indebiti, which covers not only mistake in fact but also mistake in law.31
The Government is not exempt from the application of solutio indebiti. 32 Indeed, the taxpayer expects fair
dealing from the Government, and the latter has the duty to refund without any unreasonable delay what it
has erroneously collected.33 If the State expects its taxpayers to observe fairness and honesty in paying
their taxes, it must hold itself against the same standard in refunding excess (or erroneous) payments of
such taxes. It should not unjustly enrich itself at the expense of taxpayers. 34 And so, given its essence, a
claim for tax refund necessitates only preponderance of evidence for its approbation like in any other
ordinary civil case.
Under the Tax Code itself, apparently in recognition of the pervasive quasi-contract principle, a claim for
tax refund may be based on the following: (a) erroneously or illegally assessed or collected internal
revenue taxes; (b) penalties imposed without authority; and (c) any sum alleged to have been excessive or
in any manner wrongfully collected.35
What is controlling in this case is the well-settled doctrine of strict interpretation in the imposition of taxes,
not the similar doctrine as applied to tax exemptions. The rule in the interpretation of tax laws is that a
statute will not be construed as imposing a tax unless it does so clearly, expressly, and unambiguously. A
tax cannot be imposed without clear and express words for that purpose. Accordingly, the general rule of
requiring adherence to the letter in construing statutes applies with peculiar strictness to tax laws and the
provisions of a taxing act are not to be extended by implication. In answering the question of who is
subject to tax statutes, it is basic that in case of doubt, such statutes are to be construed most strongly
against the government and in favor of the subjects or citizens because burdens are not to be imposed nor
presumed to be imposed beyond what statutes expressly and clearly import. 36 As burdens, taxes should
not be unduly exacted nor assumed beyond the plain meaning of the tax laws. 37
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA G.R. SP No. 80675,
dated 28 September 2004, and its Resolution, dated 1 March 2005, are AFFIRMED. No pronouncement
as to costs.
SO ORDERED.
DANTE O. TINGA
Associate Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
CONSUELO YNARES-SANTIAGO
Associate Justice

CONCHITA CARPIO MORALES

Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

AT T E S TAT I O N
I attest that the conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Courts Division.
LEONARDO A. QUISUMBING
Associate Justice
Chairperson, Second Division
C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons Attestation, it is
hereby certified that the conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice

Footnotes
Rollo, pp. 59-93; penned by Associate Justice Jose L. Sabio, Jr. and concurred in by Associate
Justices Eubulo G. Verzola and Monina Arevalo-Zenarosa.
1

Herein respondent, Fortune Tobacco Corporation.

Herein respondent, Fortune Tobacco Corporation.

Rollo, pp. 60-73.

Id. at 95-101.

Id. at 456-495.

Rollo,, pp. 484, 486 and 487.

Id. at 407-455.

Id. at 409.

10

1 Cooley Taxation, 3rd Ed., p. 43 cited in Dimaampao, Tax Principle and Remedies, p. 13.

11

Tax Code, Sec. 145.

12

Tax Code, Sec. 244, provides:

Sec. 244. Authority of Secretary of Finance to Promulgate Rules and Regulations.The
Secretary of Finance, upon recommendation of the Commissioner, shall promulgate all
needful rules and regulations for the effective enforcement of the provisions of this Code.

Tax Laws
Tax Exemption Laws
Davao Oriental Electric Cooperative v. Province of Davao Oriental (G.R. No. 170901,
January 20, 2009)

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 170901

January 20, 2009

DAVAO ORIENTAL ELECTRIC COOPERATIVE, INC., Petitioner,

vs.
THE PROVINCE OF DAVAO ORIENTAL, Respondent.
DECISION
PUNO, C.J.:
On appeal is the Court of Appeals (CAs) November 15, 2005 Decision 1 in CA-G.R. CV No. 67188 setting
aside the March 15, 2000 Decision2 of the Regional Trial Court (RTC) of Mati, Davao Oriental in Civil Case
No. 1550 that dismissed the complaint for collection of delinquent real property taxes filed by the Province
of Davao Oriental against the Davao Oriental Electric Cooperative, Inc.
The facts are as follows:
Petitioner Davao Oriental Electric Cooperative, Inc. was organized under Presidential Decree (PD) No.
269 which granted a number of tax and duty exemption privileges to electric cooperatives. 3 In 1984, PD
No. 19554 was enacted by then President Ferdinand E. Marcos. It withdrew all exemptions from or any
preferential treatment in the payment of duties, taxes, fees, imposts, and other charges granted to private
business enterprises and/or persons engaged in any economic activity.
Due to the failure of petitioner to declare the value of its properties, the Office of the Provincial Assessor
assessed its properties.5 On October 8, 1985, the Provincial Assessor sent the Notice of Assessment to
petitioner which duly received it.
During the same year of 1985, the Fiscal Incentive Review Board (FIRB) issued FIRB Resolution No. 1385, the Ministry of Finance issued Local Tax Regulation No. 3-85, and the Office of the Local Government
Finance, Region XI, Davao City issued Regional Office Memorandum Circular No. 42-85, all of which
reiterated the withdrawal of tax exemptions previously granted to business entities including electric
cooperatives.
On January 8, 1986, then Pres. Marcos issued PD No. 2008, 6 requiring the Minister of Finance to
immediately restore the tax exemption of all electric cooperatives. However, in December 1986, then Pres.
Corazon C. Aquino issued Executive Order (EO) No. 93 which withdrew all tax and duty exemptions
granted to private entities effective March 10, 1987. But Memorandum Order No. 65, dated January 23,
1987, suspended the implementation of the said EO until June 30, 1987 for cooperatives. Effective July 1,
1987, FIRB No. 24-87 restored the tax and duty exemption privileges of electric cooperatives under PD
No. 269. FIRB Resolution No. 24-87 reads:

BE IT RESOLVED, as it is hereby resolved, That the tax and duty exemption privileges of electric
cooperatives granted under the terms and conditions of Presidential Decree No. 269 (creating the National
Electrification Administration as a corporation, prescribing its powers and activities, appropriating the
necessary funds therefore and declaring a national policy objective for the total electrification of the
Philippines on an area coverage basis; the organization, promotion and development of electric
cooperatives to attain the said objective, prescribing terms and conditions for their operations, the repeal of
Republic Act No. 6038, and for other purposes), as amended, are restored effective July 1, 1987:
Provided, however, That income from their electric service operations and other sources including the
interest income from bank deposits and yield or any other monetary benefit from bank deposits and yield
or any other similar arrangements shall remain taxable: Provided, further, That the electric cooperatives
shall furnish the FIRB on an annual basis or as often as the FIRB may require them to do so, statistical
and financial statements of their operations and other information as may be required, for purposes of
effective and efficient tax and duty exemption availment.
(SGD.) JAIME V. ONGPIN
Secretary of Finance
Chairman, FIRB
In May 1990, respondent filed a complaint for collection of delinquent real property taxes against petitioner
for the years 1984 until 1989, amounting to one million eight hundred twenty-five thousand nine hundred
twenty-eight pesos and twelve centavos (P1,825,928.12).
Petitioner contends that it was exempt from the payment of real estate taxes from 1984 to 1989 because
the restoration of tax exemptions under FIRB Resolution No. 24-87 retroacts to the date of withdrawal of
said exemptions. Further, petitioner questions the classification made by respondent of some of its
properties as real properties when it believes them to be personal properties, hence, not subject to realty
tax.
On March 15, 2000, the RTC rendered its decision in favor of petitioner. It ruled, thus:
Inasmuch as the Fiscal Incentive Review Board (FIRB) Resolution No. 24-87 issued on June 14, 1987,
RESTORED the duty and tax exemptions enjoyed by Electric Cooperatives established pursuant to PD
269 (Sec. 39) which were previously withdrawn, and that the said Resolution No. 24-87 was issued in
compliance with the mandate of Executive Order No. 93 which has been declared as a valid delegation of
legislative power pursuant to the Maceda 7 case, there is no question that the herein defendant as an
electric cooperative established under PD 269 is exempt from the payment of its realty taxes during the
period covered by the herein complaint 1985 to December 31, 1987.
xxx
The dispositive portion of the decision reads as follows:
WHEREFORE, in view of the foregoing, judgment is rendered dismissing the complaint.
Counterclaim is likewise dismissed.
No pronouncement as to costs.
SO ORDERED.8
Respondent appealed to the CA which set aside the ruling of the RTC. It held that:
A cursory reading of the aforecited resolution fails to indicate any semblance of retroactivity of the
restoration of tax exemptions, in contrast to the ruling of the court a quo and to the contention of the

Appellee that such restoration is retroactive from the date of withdrawal of exemption. The FIRB
Resolution No. 24-87 is very specific and clear that the tax and duty exemption privileges of electric
cooperatives are restored effective 1 July 1987. Besides, it is settled that laws have no retroactive effect. It
is settled that a "sound statutory construction is that a statute operates prospectively, unless the legislative
intent to the contrary is made manifest either by the express terms of the statute or by necessary
implication." . . .
The dispositive portion of the decision of the CA reads as follows:
WHEREFORE, premises considered, herein Appeal is GRANTED and the assailed Decision of the court a
quo is hereby SET ASIDE. Plaintiff-Appellee Davao Oriental Electric Cooperative is hereby ordered to PAY
Plaintiff-Appellant Province of Davao Oriental delinquent real property taxes from 1 January 1985 up to 31
December 1989 plus the corresponding penalties and surcharges imposed by law.
SO ORDERED.9
Hence, this appeal.10
Petitioner raises the following issues:
(1) WHETHER OR NOT THE HONORABLE COURT OF APPEALS HAD GRAVELY ERRED IN
RULING THAT THE RESTORATION OF THE TAX EXEMPTION UNDER FIRB RESOLUTION NO.
24-87 WAS NOT RETROACTIVE TO THE DATE OF EFFECTIVITY OF PD 1955.
(2) WHETHER OR NOT THE HONORABLE COURT OF APPEALS WAS CORRECT IN HOLDING
THAT NOTWITHSTANDING THE RESTORATION OF SUCH TAX EXEMPTIONS UNDER FIRB
RESOLUTION NO. 24-87, THE PETITIONER SHOULD STILL BE LIABLE FOR UNPAID TAXES
FOR THE SUPPOSED FAILURE TO SUBMIT TO THE FIRB FINANCIAL STATEMENTS OF ITS
OPERATIONS.
(3) WITHOUT CONCEDING ON THE FOREGOING, WHETHER OR NOT THE PETITIONER
COULD BE MADE TO PAY TAXES BASED ON A WIDE-SWEEPING AND ERRONEOUS
ASSESSMENT OF ITS REAL PROPERTIES.11
First, we resolve the issue of retroactivity of FIRB Resolution No. 24-87. We affirm the ruling of the CA.
Indeed, even a cursory reading of the resolution, quoted above, bares no indicia of retroactivity of its
application. FIRB Resolution No. 24-87 is crystal clear in stating that "the tax and duty exemption
privileges of electric cooperatives granted under the terms and conditions of Presidential Decree No.
269 . . . are restored effective July 1, 1987." There is no other way to construe it. The language of the law
is plain and unambiguous. When the language of the law is clear and unequivocal, the law must be taken
to mean exactly what it says.
Further, because taxes are the lifeblood of the nation, the court has always applied the doctrine of strict
interpretation in construing tax exemptions. A claim for exemption from tax payments must be clearly
shown and be based on language in the law too plain to be mistaken. Elsewise stated, taxation is the rule,
exemption therefrom is the exception. 12
Second, we rule on the issue of assessment of petitioners real properties.
Petitioner contests the assessment by respondent of its properties. It claims that the tax declarations
covering its properties were issued without prior consultation, and without its knowledge and consent. In
addition, it argues that respondent classified its poles, towers and fixtures, overhead conductors and
devices, station equipment, line transformers, etc. as real properties "when by [their] nature, use, purpose,
and destination and by substantive law and jurisprudence, they are personal properties." 13

However, petitioner does not deny having duly received the two Notices of Assessment dated October 8,
1985 on October 10, 1985.14 It also admits that it did not file a protest before the Board of Assessment
Appeals to question the assessment.15 Section 30 of PD No. 464,16 otherwise known as the "The Real
Property Tax Code," provides:
Sec. 30. Local Board of Assessment Appeals. Any owner who is not satisfied with the action of the
provincial or city assessor in the assessment of his property may, within sixty days from the date of receipt
by him of the written notice of assessment as provided in this Code, appeal to the Board of Assessment
Appeals of the province or city, by filing with it a petition under oath using the form prescribed for the
purpose, together with copies of the tax declarations and such affidavit or documents submitted in support
of the appeal.
Having failed to appeal the assessment of its properties to the Board of Assessment Appeals, petitioner
cannot now assail the validity of the tax assessment against it before the courts. Petitioner failed to
exhaust its administrative remedies, and the consequence for such failure is clear the tax assessment,
as computed and issued by the Office of the Provincial Assessor, became final. Petitioner is deemed to
have admitted the correctness of the assessment of its properties. In addition, Section 64 of PD No. 464
requires that the taxpayer must first pay under protest the tax assessed against him before he could seek
recourse from the courts to assail its validity. The said section provides:
SEC. 64. Restriction upon power of court to impeach tax. No court shall entertain any suit assailing the
validity of tax assessed under this Code until the taxpayer shall have paid, under protest, the tax assessed
against himnor shall any court declare any tax invalid by reason of irregularities or informalities in the
proceedings of the officers charged with the assessment or collection of taxes, or of failure to perform their
duties within this time herein specified for their performance unless such irregularities, informalities or
failure shall have impaired the substantial rights of the taxpayer; nor shall any court declare any portion of
the tax assessed under the provisions of Code invalid except upon condition that the taxpayer shall pay
the just amount of the tax, as determined by the court in the pending proceeding. (Emphasis supplied)
IN VIEW WHEREOF, petitioners appeal is DENIED. The November 15, 2005 Decision of the Court of
Appeals in CA-G.R. CV No. 67188 is AFFIRMED. Costs against petitioner.
SO ORDERED.
REYNATO S. PUNO
Chief Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
RENATO C. CORONA
Associate Justice

ADOLFO S. AZCUNA
Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice
C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above decision
had been reached in consultation before the case was assigned to the writer of the opinion of the Courts
Division.

REYNATO S. PUNO
Chief Justice

Footnotes
1

Rollo, pp. 14-27.

CA rollo, pp. 49-64.

PD No. 269. National Electrification Administration Decree (1973).

Sec. 39. Assistance to Cooperatives; Exemption from Taxes, Imposts, Duties, Fees;
Assistance from the National Power Corporation. Pursuant to the national policy declared
in Section 2, the Congress hereby finds and declares that the following assistance to
cooperative is necessary and appropriate:
(a) Provided that it operates in conformity with the purposes and provisions of this Decree,
cooperatives (1) shall be permanently exempt from paying income taxes, and (2) for a
period ending on December 31 of the thirtieth full calendar year after the date of a
cooperatives organization or conversion hereunder, or until it shall become completely free
of indebtedness incurred by borrowing, whichever event first occurs, shall be exempt from
the payment (a) of all National Government, local government and municipal taxes and
fees, including franchise, filing, recordation, license or permit fees or taxes and any fees,
charges, or costs involved in any court or administrative proceeding in which it may be a
party, and (b) of all duties or imposts on foreign goods acquired for its operations, the
period of such exemption for a new cooperative formed by consolidation, as provided for in
Section 29, to begin from as of the date of the beginning of such period for the constituent
consolidating cooperative which was most recently organized or converted under this
Decree: Provided, That the Board of Administrators shall, after consultation with the Bureau
of Internal Revenue, promulgate rules and regulations for the proper implementation of the
tax exemptions provided for in this Decree.
xxx

Withdrawing, Subject to Certain Conditions, the Duty and Tax Privileges Granted to Private
Business Enterprises and/or Persons Engaged in any Economic Activity, and for Other Purposes.
4

WHEREAS, the current economic crisis amounts to a grave emergency which affects the
stability of the nation and requires immediate action;
WHEREAS, the issuance of this decree is an essential and necessary component of the
national economic recovery program formulated to meet and overcome the emergency;
WHEREAS, Section 20 of Batas Pambansa Blg. 391, otherwise known as the Investment
Incentives Policy Act of 1983, authorizes the President to restructure/rationalize all existing
incentive systems/legislations to align them with overall economic development objectives
and make them more responsive and meaningful to changing circumstances;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Republic of the
Philippines, by virtue of the powers vested in me by the Constitution, do hereby order and
decree:

Section 1. The provisions of any special or general law of the contrary

notwithstanding, all exemptions from or any preferential treatment in the payment
of duties, taxes, fees, imposts and other charges heretofore granted to private
business enterprises and/or persons engaged in any economic activity are hereby
withdrawn, except those enjoyed by the following:
(a) Those registered by the Board of Investments under Presidential
Decree No. 1789, as amended by Batas Pambansa Blg. 391, and those
registered by the Export Processing Zone Authority under Presidential
Decree No. 66, as amended by Presidential Decree Nos. 1449, 1776-A and
1786;
(b) The copper mining industry in accordance with the provisions of LOI
1416;
(c) Those covered by international agreements to which the Philippines is a
signatory;
(d) Those covered by the non-impairment clause of the Constitution; and
(e) Those that will be approved by the President of the Philippines upon the
recommendation of the Minister of Finance.
Section 2. The Ministry of Finance shall promulgate the necessary rules and
regulations to effectively implement the provisions of this Decree.
Section 3. All other laws, decrees, executive orders, administrative orders, rules,
regulations or parts thereof which are inconsistent with this Decree are hereby
repealed, amended or modified accordingly.
Section 4. This Decree shall take effect on October 15, 1984.
P.D. No. 464, Sec. 7. Declaration of Real Property by the Assessor. When any person, natural
or juridical, by whom real property is required to be declared under Section six hereof refuses or
fails for any reason to make such declaration within the time prescribed, the provincial or city
assessor shall himself declare the property in the name of the defaulting owner, if known, or
against an unknown owner, as the case may be, and shall assess the property for taxation in
accordance with the provisions of this Code. No oath shall be required of a declaration thus made
by the provincial or city assessor.
5

Further Strengthening the Cooperative Movement by Amending Certain Provisions of Presidential

Decree Numbered One Hundred Seventy-Five, as Amended by Presidential Decree Numbered
Nineteen Hundred and Fifty-Five.
6

Maceda v. Macaraig, G.R. No. 88291, May 31, 1991, 197 SCRA 771.

RTC Records, p. 315.

Rollo, p. 26.

10

Id. at 3-10.

11

Id. at 6.

Paseo Realty & Development Corporation v. Court of Appeals, et al., G.R. No. 119286, October
13, 2004, 440 SCRA 235.
12

13

"Answer with Affirmative Defenses & Counterclaim," RTC Records, p. 12.

14

Exhibits "K," "K-1," "L," and "L-1," Exhibits of the Plaintiff, Civil Case No. 1550.

15

Rollo, p. 9.

16

Took effect on June 1, 1974.

Wills
Interpretation of Wills
Tampoy v. Alberastine (107 SCRA 100)

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-14322

February 25, 1960

In the matter of the TESTATE ESTATE OF PETRONILA TAMPOY, deceased,

vs.
DIOSDADA ALBERASTINE, petitioner-appellant.
Agustin Y. Kintanar for appellant.
BAUTISTA ANGELO, J.:
This concerns the probate of a document which purports to be the last will and testament of one Petronila
Tampoy. After the petition was published in accordance with law and petitioner had presented oral and
documentaryevidence, the trial court denied the petition on the ground that the left hand margin of the first
of the will does not bear the thumbmark of the testatrix. Petitioner appealed from this ruling but the Court
of Appeals certified the case to us because it involves purely a question of law.
The facts of this case as found by the trial court as follows:
De las pruebas resulta que Petronila Tampoy, ya viuda y sin hijos, rogo a Bonigfacio Mioza que la
leyera el testamento Exhibito A y la expicara su contenido en su casa en al calle San Miguel, del
municipio de Argao, provincia de Cebu, en 19 de noviember de 1939, y lasi lo hizo Bonifacio
Mioza en presencia de los tres testigos instrumentales, Rosario K. Chan, Mauricio de la Pea y
Simeon Omboy, y despues de conformarse con el contendido del testamento, ella rogo a Bonifacio
Mioza, que escribiera su nombre al pie del testamento, en la pagina segunda, y asi lo hizo
Bonifacio Mioza, y despues ella estampo su marca digital entra su nombre y apelido en
presencia de todos y cada uno de los tres testigos instrumentales, Rosario K. Chan, Mauricio de la
Pea y Simeon Omboy y de Bonifacio Mioza, y despues, Bonifacio Mioza firmo tambien al pie
del todos y cada uno de lo tres testigos arriba nombrados. La testadora asi como Bonifacio Mioza

parte de la primera pagina del testamento qeu se halla compuesto de dos paginas. Todos y cada
uno de los tres testigos instrumentales, Rosario K. Chan, Mauricio de la Pea y Simeon Omboy,
firmaron al pie de la clausula de atestiguamiento que esta escrita en la pagina segunda del
testamento y en la margen izquierda de la misma pagina 2 y de la pagina primera en presencia de
la testadora, de Bonifacio Mioza, del abogado Kintanar y de todos y cada uno de ellos. El
testamento fue otorgado por la testadora libre y expontaneament, sin haber sido amenazada,
forzada o intimidada, y sin haberse ejercido sobre ella influencia indebida, estando la misma en
pleno uso de sus facultades mentales y disfrutando de buena salud. La testadore fallecio en su
case en Argao en 22 de febrero de 1957 (Vease certificado de defuncion Exhibito B). La heredera
instituida en el testamento, Carmen Alberastine, murio dos semanas despues que la testadora, o
sea en 7 de Marzo de 1957, dejando a su madre, la solicitante Diosdada Alberastine.
The above facts are not controverted, there being no opposition to the probate of the will. However, the
trial court denied the petition on the ground that the first page of the will does not bear the thumbmark of
the testatrix. Petitioner now prays that this ruling be set aside for the reason that, although the first page of
the will does not bear the thumbmark of the testatrix, the same however expresses her true intention to
givethe property to her whose claims remains undisputed. She wishes to emphasize that no one has filed
any to the opposition to the probate of the will and that while the first page does not bear the thumbmark of
the testatrix, the second however bears her thumbmark and both pages were signed by the three
testimonial witnesses. Moreover, despite the fact that the petition for probate is unoppossed, the three
testimonial witnesses testified and manifested to the court that the document expresses the true and
voluntary will of the deceased.
This contention cannot be sustained as it runs counter to the express provision of the law. Thus, Section
618 of Act 190, as amended, requires that the testator sign the will and each and every page thereof in the
presence of the witnesses, and that the latter sign the will and each and every page thereof in the
presence of the testator and of each other, which requirement should be expressed in the attestation
clause. This requirement is mandatory, for failure to comply with it is fatal to the validity of the will
(Rodriguez vs. Alcala, 55 Phil., 150). Thus, it has been held that "Statutes prescribing the formalities to be
observed in the execution of wills are very strictly construed. As stated in 40 Cyc., at page 1097, 'A will
must be executed in accordance with the statutory requirements; otherwise it is entirely void.' All these
requirements stand as of equal importance and must be observed, and courts cannot supply the defective
execution of a will. No power or discretion is vested in them, either to superadd other conditions or
dispence with those enumerated in the statutes" (Uy Coque vs. Navas L. Sioca, 43 Phil., 405, 407; See
also Sao vs. Quintana, 48 Phil., 506; Gumban vs. Gorecho, 50 Phil., 30; Quinto vs. Morata, 54 Phil.,
481).
Since the will in question suffers from the fatal defect that it does not bear the thumbmark of the testatrix
on its first page even if it bears the signature of the three instrumental witnesses, we cannot escape the
conclusion that the same fails to comply with the law and therefore, cannot be admitted to probate.
Wherefore, the order appealed from is affirmed, without pronouncement as to costs.
Paras, C.J., Bengzon, Padilla, Montemayor, Labrador, Concepcion, Reyes, J.B.L., Endencia, Barrera and
Gutierrez, David, JJ., concur.

Liberal Construction
In re Application for Survivorship Benefits of Mrs. Gruba (A.M. No. 14155-Ret.,
November 19, 2013)

Republic of the Philippines

SUPREME COURT
Manila

EN BANC
A.M. No. 14155-Ret.

November 19, 2013

RE: APPLICATION FOR SURVIVORSHIP PENSION BENEFITS UNDER REPUBLIC ACT NO. 9946 OF
MRS. PACITA A. GRUBA, SURVIVING SPOUSE OF THE LATE MANUEL K. GRUBA, FORMER CTA
ASSOCIATE JUDGE.
RESOLUTION
LEONEN, J.:
We stand in awe of death s inevitability and tragic immutability, but we can temper the effects of the law on
those it leaves behind.
This case involves a judge of the Court of Tax Appeals who died while in service. He died at the age of 55
years, two (2) months, and six (6) days. He died prior to the enactment of Republic Act No. 9946, which
substantially amended the benefits provided in Republic Act No. 910.
1

We are asked to decide whether the death gratuity benefits and the survivorship pension benefits under
Republic Act No. 9946 apply to this case.
We rule to grant death gratuity benefits.
Manuel K. Gruba (Judge Gruba) was born on April 19, 1941. He began his government service on
December 3, 1979 as Senior Revenue Executive Assistant I at the Bureau of Internal Revenue. He rose
from the ranks at the Bureau of Internal Revenue until he was appointed as an Associate Judge of the
Court of Tax Appeals on September 17, 1992.
On June 25, 1996, Judge Gruba passed away. The cause of his death was natural and was reported as
brain stem/midbrain stroke, basilar artery thrombosis, embolic event. He was 55 years old when he died.
He was in government service for a total of 16 years, six (6) months, and 21 days. In those years, he
rendered service for three (3) years, nine (9) months, and eight (8) days in the Judiciary.
2

The surviving spouse of Judge Gruba, Mrs. Pacita A. Gruba (Mrs. Gruba), applied for retirement/gratuity
benefits under Republic Act No. 910.
3

In a Resolution dated September 24, 1996, this Court approved the application filed by Mrs. Gruba. Per
certification dated October 25, 2012 by the Court of Tax Appeals Office of Administrative and Finance
Services, the five-year lump sum retirement benefit under Republic Act No. 910 was remitted to the
Government Service Insurance System effective June 26, 1996. A total of P1,486,500.00, representing the
five-year lump sum gratuity due to Judge Gruba, was paid to his heirs.
4

On January 13, 2010, Congress amended Republic Act No. 910 and passed Republic Act No. 9946.
Republic Act No. 9946 provided for more benefits, including survivorship pension benefits, among others.
The law also provides a retroactivity provision which states:
SEC. 3-B. The benefits under this Act shall be granted to all those who have retired prior to the effectivity
of this Act: Provided, That the benefits shall be applicable only to the members of the Judiciary: Provided,
further, That the benefits to be granted shall be prospective.
On January 11, 2012, Mrs. Gruba applied for survivorship pension benefits under Republic Act No.
9946. In a Resolution dated January 17, 2012, this Court approved the application of Mrs. Gruba. She
receivedP1,026,748.00 for survivorship pension benefits from January 1, 2011 to April 2012.
5

In a Resolution dated November 27, 2012, this Court revoked the Resolution dated January 17, 2012 and
directed the Court of Tax Appeals to discontinue the payment of the survivorship pension benefits to Mrs.
Gruba. However, this Court stated that Mrs. Gruba was not required to refund the survivorship pension
benefits received pursuant to the Resolution dated January 17, 2012.
7

This Court required the Office of the Chief Attorney to report on the matter. In a Comment dated May 14,
2013, the Office of the Chief Attorney recommended that the heirs of Judge Gruba be entitled to the 10year lump sum death benefit under Section 2 of Republic Act No. 910, as amended by Republic Act No.
9946.
This Resolution adopts in part the recommendation of the Office of the Chief Attorney.
The issues for our resolution are the following: (1) whether Republic Act No. 9946 applies to Judge Gruba;
(2) whether the heirs of Judge Gruba are entitled to the 10-year lump sum gratuity benefits under Republic
Act No. 9946; and (3) whether Mrs. Gruba is entitled to survivorship pension benefits under the same law.
We decide the first two issues in favor of the heirs of Judge Gruba. However, we deny the application for
survivorship pension benefits of Mrs. Gruba.
The rationale for retirement benefits
Retirement laws are social legislation. In general, retirement laws provide security to the elderly who have
given their prime years in employment whether in the private sector or in government. These laws ensure
the welfare of individuals who are approaching their twilight years and have limited opportunities for
productive employment that give them a steady income stream. In the private sector, retirement packages
are usually crafted as "forced savings" on the part of the employee.
In government, lucrative retirement benefits are used as an incentive mechanism to encourage competent
individuals to have careers in government. This Court often states:
[R]etirement benefits receivable by public employees are valuable parts of the consideration for entrance
into and continuation in public office or employment. They serve a public purpose and a primary objective
in establishing them is to induce competent persons to enter and remain in public employment and render
faithful and efficient service while so employed. (Emphasis supplied)
8

Due to this extraordinary purpose, the Constitution provides guidelines on periodically increasing
retirement benefits. On several occasions, this Court has liberally interpreted retirement laws in keeping
with its purpose. In Government Service Insurance System v. De Leon:
9

10

Retirement laws, in particular, are liberally construed in favor of the retiree because their objective is to
provide for the retirees sustenance and, hopefully, even comfort, when he no longer has the capability to
earn a livelihood. The liberal approach aims to achieve the humanitarian purposes of the law in order that
efficiency, security, and well-being of government employees may be enhanced. Indeed, retirement laws
are liberally construed and administered in favor of the persons intended to be benefited, and all doubts
are resolved in favor of the retiree to achieve their humanitarian purpose.
11

This general principle for retirement benefits applies to members of the Judiciary. However, Congress
made a special law specifically for retiring justices and judges. This law on "retirement pensions of Justices
arise from the package of protections given by the Constitution to guarantee and preserve the
independence of the Judiciary." Aside from guaranteeing judicial independence, a separate retirement law
for justices and judges is designed to attract intelligent members of the Bar to join the Judiciary. It
compensates for the opportunity cost of having profitable private practices.
12

The rationale for death benefits

Aside from considering old age retirement benefits, the law also protects the welfare of the heirs and
surviving spouses of employees who die before or after retirement. "The law extends survivorship benefits
to the surviving and qualified beneficiaries of the deceased member or pensioner to cushion the
beneficiaries against the adverse economic effects resulting from the death of the wage earner or
pensioner."
13

The law usually takes into account the nature of the employment and the vulnerability of the individual to
risks that might lead to an early demise. Therefore, military personnel, by virtue of Republic Acts No. 3056,
5976, and 541, and justices and judges, by virtue of Republic Act No. 910 as amended by Republic Act
No. 9946, are given generous death benefits. The law recognizes the threats these kinds of government
employees face because of their positions. In order to minimize the adverse effects of unexpected deaths
while in service, the law extends benefits to the deceased employees loved ones. It is also the laws way
of sympathizing with the loss of these families. Death benefits remind the heirs that despite their loss, their
departed love one had valuable contributions to society, and the State is grateful for these contributions.
These benefits also provide more incentive for the independence of those who serve in the Judiciary. They
allow peace of mind since members of the Judiciary know that they could provide for their spouse and their
children even beyond their death.
Retirement, disability retirement, and death as modes of terminating employment
Retirement benefits are usually conditioned on compliance with certain requirements. Common
requirements include age and years in service. Upon reaching a certain age and compliance with the
years of service, an employee becomes entitled to benefits by operation of law.
1wphi1

An exception to compliance with age and service requirements is disability retirement. It is still considered
a form of retirement, but the condition for compliance is not usually age or years in service. Disability
retirement is conditioned on the incapacity of the employee to continue his or her employment due to
involuntary causes such as illness or accident. The social justice principle behind retirement benefits also
applies to those who are forced to cease from service due to disabilities beyond their control.
In line with the doctrine of liberal interpretation of retirement laws, this Court has often construed death as
disability retirement. "[T]here is no more permanent or total physical disability than death." The term
"retirement," when used in a strict legal sense, refers to mandatory or optional retirement. However, when
used in a more general sense, "retire" may encompass the concepts of both disability retirement and
death. All of these concepts involve events that happen to an employee beyond his or her control. In case
of mandatory or optional retirement, reaching a certain age due to mere passage of time is beyond the
control of the individual. In the case of disability retirement and death, acquiring an illness or accident is
beyond the control of the individual.
14

In Re: Resolution Granting Automatic Permanent Total Disability Benefits to Heirs of Justices and
Judges, this Court rejected the Department of Budget and Managements insistence that "death while in
actual service" and "retirement due to permanent physical disability" are distinct and separate
circumstances. In this case, the Department of Budget and Management refused to release additional
gratuity benefits to judges on account that they died while in actual service without being able to apply for
permanent physical disability benefits. Since this case occurred prior to the issuance of Republic Act No.
9946, there were gaps in the law. Gratuity payments due to permanent physical disability were twice as
much as gratuity payments caused by death while in active service. This Court, in order to maximize the
benefits given to the heirs, treated death as retirement due to permanent physical disability. Hence, we
stated:
15

In Re: Retirement Benefits of the late City Judge Alejandro Galang, Jr., this Court has had the occasion to
construe Republic Act No. 910, particularly the phrase "permanent physical disability" found in Section 2
thereof. There, this Court considered death "while in actual service" to be encompassed by the phrase
"permanent physical disability." For, as aptly pointed out by then Associate Justice Claudio Teehankee in
his concurring opinion in that case, "there is no more permanent or total physical disability than death."

When the law has gaps which tend to get in the way of achieving its purpose, thus resulting in injustice,
this Court is allowed to fill the open spaces therein.
16

Retiring due to physical disabilities is not far removed from the situation involving death of a judge or
justice. This explains why retirement laws necessarily include death benefits. The gaps in the old law
prompted Congress to improve death benefits given to the heirs of deceased judges and justices.
Republic Act No. 9946 applies retroactively to those who died or were killed while they were in government
service
Republic Act No. 910 was enacted in 1954 to provide for retirement benefits of justices of the Supreme
Court and the Court of Appeals. Through various amendments, the coverage of Republic Act No. 910 now
includes justices of the Sandiganbayan and the Court of Tax Appeals, as well as judges of the Regional
Trial Court, Metropolitan Trial Court, Municipal Trial Court, Municipal Circuit Trial Court, Sharia District
Court, Sharia Circuit Court, and any other court hereafter established.
17

Republic Act No. 910 provides for two basic benefits: retirement and death benefits.
The retirement benefits under Republic Act No. 910 may be availed in two ways. One way is through
compulsory retirement of a judge or justice by attaining the age of 70 years old and complying with the
service requirement of 20 years in the Judiciary or any other government branch. The other way is through
optional retirement of a judge or justice by attaining the age of 57 years old and complying with the service
requirement of 20 years in government, the last 10 of which must be continuously rendered in the
Judiciary.
18

The optional retirement requirements were modified in Republic Act No. 5095. To qualify for optional
retirement under that law, a judge or justice must serve at least 20 years in government, and the last five
(5) years of service must be continuously rendered in the Judiciary.
19

The death benefits under Republic Act No. 910 entitle the heirs of a deceased justice or judge to a fiveyear lump sum of the salary the justice or judge was receiving during the period of death. The five-year
lump sum is conditioned on the compliance with the service requirement of 20 years. Noncompliance with
the service requirement entitles the heirs only to a two-year lump sum.
In 2010, Congress enacted Republic Act No. 9946, otherwise known as An Act Granting Additional
Retirement, Survivorship, and Other Benefits to Members of the Judiciary, Amending for the Purpose
Republic Act No. 910. Republic Act No. 9946 introduced major innovations for retirement of the members
of the Judiciary. The first change made was the inclusion of additional allowances in the computation for
monthly pensions and gratuity payments. Second, the service requirement for compulsory and optional
retirement was modified. Under Republic Act No. 9946, only 15 years in the Judiciary and any other
branch of government are required. For optional retirement, the last three (3) years must be rendered
continuously in the Judiciary. The third major innovation of the law is that non-compliance with the service
requirement will entitle the retiree to a monthly pension pro-rated to the number of years rendered in
government. The fourth major innovation is the benefits given to justices or judges who contracted
permanent disability or partial permanent disability during incumbency.
20

21

22

23

The last two innovations of Republic Act No. 9946 are more relevant to this case at bar. The fifth major
innovation of Republic Act No. 9946 is the expansion of death benefits given to the heirs of a deceased
justice or judge. Finally, the law specifies that pension benefits given under this law will be received by the
surviving spouse of the retired justice or judge upon the justices or judges demise. This last innovation is
the most important and the reason why the law was amended in the first place.
24

25

Republic Act No. 9946 provides for a retroactivity clause in Section 4, adding Section 3-B to Republic Act
No. 910:

SEC. 3-B. The benefits under this Act shall be granted to all those who have retired prior to the effectivity
of this Act: Provided, That the benefits shall be applicable only to the members of the Judiciary: Provided,
further, That the benefits to be granted shall be prospective. (Emphasis supplied)
An initial look at the law might suggest that the retroactivity of Republic Act No. 9946 is limited to those
who retired prior to the effectivity of the law. However, a holistic treatment of the law will show that the set
of amendments provided by Republic Act No. 9946 is not limited to justices or judges who retired after
reaching a certain age and a certain number of years in service. The changes in the law also refer to
justices or judges who "retired" due to permanent disability or partial permanent disability as well as
justices or judges who died while in active service. In light of these innovations provided in the law, the
word "retired" in Section 3-B should be construed to include not only those who already retired under
Republic Act No. 910 but also those who retired due to permanent disability. It also includes judges and
justices who died or were killed while in service.
26

Providing retroactivity to judges and justices who died while in service conforms with the doctrine that
retirement laws should be liberally construed and administered in favor of persons intended to be
benefited. "[T]he liberal approach aims to achieve the humanitarian purposes of the law in order that the
efficiency, security, and well-being of government employees may be enhanced." Ensuring the welfare of
families dependent on government employees is achieved in the changes made in Republic Act No. 9946.
It will be consistent with the humanitarian purposes of the law if the law is made retroactive to benefit the
heirs of judges and justices who passed away prior to the effectivity of Republic Act No. 9946.
27

28

Judge Gruba who passed away prior to the effectivity of Republic Act No. 9946 is still covered by the law
by virtue of Section 3-B. "Retired" here is not construed in the strict dictionary definition but in its more
rational sense of discontinuance of service due to causes beyond ones control. It should include the
cessation of work due to natural causes such as death. Therefore, the death of Judge Gruba produces
effects under Republic Act No. 9946 for his family.
In the past, this Court has liberally granted benefits to surviving heirs of deceased members of the
Judiciary despite incomplete compliance with the requisites of Republic Act No. 910. Since there was a
gap in the law, this Courts Resolution dated September 30, 2003 in Re: Resolution Granting Permanent
Total Disability Benefits to Heirs of Justices and Judges Who Die In Actual Service provided for benefits of
judges and justices who died in actual service but were not able to comply with the age and service
requirements stated in Republic Act No. 910. This Resolution was incorporated in Republic Act No. 9946.
29

30

This Court also applied the survivorship pension benefits to surviving spouses of justices and judges who
died prior to the enactment of Republic Act No. 9946 in 2010. For example, Chief Justice Enrique M.
Fernando passed away in 2004, but his widow, Mrs. Emma Q. Fernando, was given survivorship pension
benefits despite the fact that Chief Justice Fernandos death occurred prior to the enactment of Republic
Act No. 9946.
31

Congress has been liberal in according retirement and death benefits to justices and judges. These
benefits are incentives for talented individuals to join the Judiciary. For current members, these benefits
assure them that the government will continue to ensure their welfare even in their twilight years. These
benefits allow the best and the brightest lawyers to remain in the Judiciary despite its risks because they
know that their familys welfare will be addressed even in their passing.
The first proviso of Section 3-B ("Provided, That the benefits shall be applicable only to the members of the
Judiciary") should be interpreted to mean individuals who were members of the Judiciary immediately prior
to retirement, disability retirement or death. This proviso is meant to exclude individuals who were former
members of the Judiciary but accepted positions in other branches of government. In other words, former
judges or justices who retire from non-judicial positions are excluded. If this proviso is interpreted to
exclude benefits provided by the law to heirs and surviving members, it will be contrary to the purpose of
the law.
32

Representative Fredenil H. Castro, one of the sponsors of House Bill No. 1238, the precursor of Republic
Act No. 9946, "explained that the bill was aimed to assure justices and judges that their surviving spouses
are given adequate and substantial benefits through survivorship pension." In addition, it will also be
contrary to jurisprudence stating "retirement laws should be liberally construed and administered in favor
of the persons intended to be benefited and all doubts as to the intent of the law should be resolved in
favor of the retiree to achieve its humanitarian purposes." Note that this Court referred to "persons
intended to be benefited" and not merely "retirees." There is recognition that the retired or deceased judge
is not the only beneficiary of retirement and death benefit laws but also his or her family.
33

34

The last proviso of Section 3-B ("Provided, further, That the benefits to be granted shall be prospective)
might likewise cause some confusion. To clarify, when the law states "benefits to be granted shall be
prospective," it refers to pensions given to justices or judges or survivorship pension benefits given to the
surviving spouses. It means that those who have been continuously receiving pension benefits before
Republic Act No. 9946 may not demand the differential of the previously paid pension benefits. This
"prospectivity" provision does not apply to lump sum payments or one-time gratuity benefits given by
reasons of death.
The heirs of Judge Gruba are entitled to death gratuity benefits under Republic Act No. 9946, Section 2
Under Republic Act No. 9946, Section 2 provides for death benefits under varying circumstances:
SEC. 2. In case a Justice of the x x x Court of Tax Appeals, x x x dies while in actual service, regardless of
his/her age and length of service as required in Section 1 hereof, his/her heirs shall receive a lump sum of
five (5) years gratuity computed on the basis of the highest monthly salary plus the highest monthly
aggregate of transportation, representation and other allowances such as personal economic relief
allowance (PERA) and additional compensation allowance received by him/her as such Justice or Judge:
Provided, however, That where the deceased Justice or Judge has rendered at least fifteen (15) years
either in the Judiciary or any other branch of Government, or both, his/her heirs shall instead be entitled to
a lump sum of ten (10) years gratuity computed on the same basis as indicated in this provision: Provided,
further, That the lump sum of ten (10) years gratuity shall be received by the heirs of the Justice or the
Judge who was killed because of his/her work as such: Provided, That the Justice or Judge has served in
Government for at least five (5) years regardless of age at the time of death. When a Justice or Judge is
killed intentionally while in service, the presumption is that the death is work-related. (Emphasis supplied)
This provision provides death benefits to justices or judges who died while in service as well as those who
suffered work-related deaths. The presumption is that if a justice or judge was killed intentionally, the death
is considered work-related.
The provision contemplates three scenarios. First, if a justice or judge dies while in service, regardless of
his or her age and length of service, his or her heirs are entitled to a five (5)-year lump sum of gratuity.
Second, if a justice or judge dies of natural causes while in service, regardless of his or her age, but has
rendered at least 15 years in government service, his or her heirs are entitled to a 10-year lump sum of
gratuity. Finally, if a justice or judge is killed intentionally and the death is considered work-related,
regardless of his or her age, but has rendered at least five (5) years in government service, his or her heirs
are entitled to a 10-year lump sum of gratuity.
In all these scenarios, the law dispenses with the requirement of the judges or justices retirement for the
surviving heirs to receive benefits upon the judges or justices demise. This is an improvement from the
benefits given under Republic Act No. 910. The law became more attuned to the reality that death can
occur anytime during the tenure of a judge or justice. It recognized the risks judges and justices face in
dispensing their duties and responsibilities, risks similar to those experienced by members of law
enforcement or the military. The law provides for contingencies for judges and justices who unexpectedly
left their loved ones who depended on them for support and sustenance.

Judge Grubas death follows the second scenario under Section 2 of Republic Act No. 9946. He died due
to natural causes while serving the Judiciary. He rendered 16 years, six (6) months, and 21 days in
government service, thereby complying with the 15-year service requirement under the law. His heirs
became entitled to a lump sum of 10 years gratuity computed on the basis of the highest monthly salary,
plus the highest monthly aggregate of transportation, representation, and other allowances such as
personal economic relief allowance (PERA) and additional compensation allowance.
The fact that the heirs of Judge Gruba received death benefits under Republic Act No. 910 prior to
amendments in Republic Act No. 9946 does not preclude the heirs from receiving the 10-year lump sum in
full. This is the effect of the retroactivity mentioned in Section 3-B of Republic Act No. 9946. This is also in
keeping with a policy declaration under Article XVI, Section 8 of the Constitution stating that "the State
shall, from time to time, review to upgrade the pensions and other benefits due to retirees of both the
government and the private sectors."
However, Mrs. Gruba is not qualified for survivorship pension benefits under Section 3 of Republic Act No.
9946
When Mrs. Gruba applied for benefits under Republic Act No. 9946, she was not claiming additional
gratuity benefits. She was invoking the second paragraph of Section 3 of Republic Act No. 910 as
amended by Republic Act No. 9946, thus:
Upon the death of a Justice or Judge of any court in the Judiciary, if such Justice or Judge has retired, or
was eligible to retire optionally at the time of death, the surviving legitimate spouse shall be entitled to
receive all the retirement benefits that the deceased Justice or Judge would have received had the Justice
or Judge not died. The surviving spouse shall continue to receive such retirement benefits until the
surviving spouses death or remarriage.
According to Section 3 of Republic Act No. 9946, survivorship pension benefits are given to surviving
spouses of retired judges or justices or surviving spouses of judges or justices who are eligible to retire
optionally. This means that for the spouse to qualify for survivorship pension, the deceased judge or justice
must (1) be at least 60 years old, (2) have rendered at least fifteen years in the Judiciary or in any other
branch of government, and in the case of eligibility for optional retirement, (3) have served the last three
years continuously in the Judiciary.
When the judge or justice is neither retired nor eligible to retire, his or her surviving spouse is not entitled
to those benefits. This was the reason behind our Resolution dated November 27, 2012, wherein we
revoked the approval of Mrs. Grubas application for survivorship pension benefits. The Resolution
discontinued the payment of Mrs. Grubas survivorship pension benefits. We no longer required Mrs.
Gruba to reimburse survivorship pension benefits received by virtue of the earlier Resolution dated
January 17, 2012 considering that she received those payments in good faith.
Mrs. Gruba could have been entitled to survivorship pension benefits if her late husband were eligible to
optionally retire at the time of his death. However, we are faced with a situation where the justice complied
only with two of three requirements for optional retirement. He served government for a total of 16 years,
six (6) months, and 21 days. In those years, he rendered service for three (3) years, nine (9) months, and
eight (8) days in the Judiciary. Judge Gruba neither retired compulsorily prior to his death nor was he
eligible for optional retirement at the time of his death. He would have qualified for the government service
requirements. However, his age at the time of his death did not make him qualified for optional retirement.
He was only 55 years old, and the law required the age of 60 for eligibility for optional retirement.
It was unfortunate that Judge Gruba died five years short of the optional retirement age. However,
survivorship benefits are an offshoot of retirement benefits. Administrative Circular 81-2010 qualified that
"the legitimate surviving spouse of a Justice or Judge who (1) has retired or was eligible to retire optionally
at the time of death; and (2) was receiving or would have been entitled to receive a monthly pension" is the
individual qualified to receive survivorship benefits. This suggests that survivorship pension benefits are

extensions of retirement benefits given to judges and justices, and retirement benefits in government
service are governed by law. Noncompliance with the clear text of the law means that the benefit cannot
be granted.
35

We note, however, that if Judge Gruba were eligible to optionally retire under Republic Act No. 9946 at the
time of his death and despite the fact that he passed away prior to the amendatory laws passage, his
widow would have been entitled to the survivorship pension. The law was passed on January 13, 2010,
and any surviving spouse of a judge or justice who died prior to this date but was retired or eligible to retire
optionally should be covered by Republic Act No. 9946 by virtue of its retroactivity clause.
Republic Act No. 9946 has recognized the risks and contingencies of being involved in public service in the
Judiciary. Death gratuity benefits have been improved to take into account the various circumstances that
might surround a judges or justices death. However, the application of the law is not without limits. The
law accommodates the heirs of Judge Gruba by entitling them to receive the improved gratuity benefits
under Republic Act No. 9946, but it is clear that Mrs. Gruba is not entitled to the survivorship pension
benefits.
1wphi1

Despite the fact that Mrs. Gruba is not entitled to receive survivorship pension, she no longer needs to
return the survivorship pension benefits she received from January 2011 to April 2012 amounting
to P1,026,748.00. This Court, in the past, have decided pro hac vice that a surviving spouse who received
survivorship pension benefits in good faith no longer needs to refund such pensions. In Re: Application for
Survivorship Pension Benefits of Hon. Juanito C. Ranjo, Former Deputy Court Administrator (DCA), we
initially resolved to award survivorship pension benefits to DCA Ranjos surviving spouse, Mrs. Ranjo. In a
latter Resolution, we ruled that DCA Ranjo was not entitled to receive benefits under Republic Act No.
9946; hence, it was erroneous to award survivorship pension benefits to his widow. However, this Court
ruled that the application of the resolution revoking survivorship pension benefits "appl[ies] prospectively,
not retroactively and adversely to [Mrs. Ranjo]." This Court found that Mrs. Ranjo accepted this amount in
good faith, and the same could be said about Mrs. Gruba.
36

37

This Court has made similar pronouncements on other benefits erroneously received by government
employees. This Court agreed that employees who have erroneously received rice
allowances, productivity incentive bonuses, representation and transportation allowances
(RATA), anniversary bonuses, year-end bonuses, and cash gifts no longer need to refund the same.
The reasoning was that:
1wphi1

38

40

39

41

42

43

Considering, however, that all the parties here acted in good faith, we cannot countenance the refund of x
x x benefits x x x, which amounts the petitioners have already received. Indeed, no indicia of bad faith can
be detected under the attendant facts and circumstances. The officials and chiefs of offices concerned
disbursed such incentive benefits in the honest belief that the amounts given were due to the recipients
and the latter accepted the same with gratitude, confident that they richly deserve such benefits.
44

Analogously, when Mrs. Gruba received the survivorship pension benefits, she accepted them in good
faith, knowing that this Court positively pronounced that she was entitled to them in the Resolution dated
January 17, 2012. When we revoked this Resolution, such revocation should only apply prospectively in
the interest of equity and fairness.
45

IN VIEW OF THE FOREGOING, WE RESOLVE TO GRANT a lump sum of 10 years gratuity benefits
under Section 2 of Republic Act No. 9946 to the heirs of Judge Gruba, subject to the availability of funds,
and DENY the prayer of Mrs. Gruba to receive survivorship pension benefits.
SO ORDERED.
MARVIC MARIO VICTOR F. LEONEN
Associate Justice

WE CONCUR:
MARIA LOURDES P. A. SERENO
Chief Justice
ANTONIO T. CARPIO
Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

ARTURO D. BRION
Associate Justice

DIOSDADO M. PERALTA
Associate Justice

LUCAS P. BERSAMIN
Associate Justice

MARIANO C. DEL CASTILLO

Associate Justice

ROBERTO A. ABAD
Associate Justice

Associate Justice

Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

JOSE CATRAL MENDOZA

Associate Justice

BIENVENIDO L. REYES
Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

Footnotes
The position title "Associate Judge" has been changed to "Associate Justice" by virtue of Republic
Act No. 9282 (2004).
1

The Report of Death was dated June 27, 1996.

At the time of Mrs. Grubas application, Republic Act No. 910 was amended by Republic Act No.
5095. The case was docketed as A.M. No. 9037-Ret.
3

Comment of the Office of the Chief Attorney dated May 14, 2013, p. 3. This fact was evidenced by
a Remittance Letter from the Court of Tax Appeals to the Government Service Insurance System,
dated July 4, 1997, GSIS Official Receipt No. 00508062 dated July 3, 1997, and receiving
vouchers of the different checks given to the heirs of Judge Gruba.
4

This subsequent application is now the case at bar, docketed as A.M. No. 14155-Ret.

Certification of the Court of Tax Appeals Accounting Chief Judicial Staff Officer Hipolito P.
Alvarado dated June 1, 2012.
6

Resolution dated November 27, 2012.

Profeta v. Drilon,G.R. No. 104139, December 22, 1992, 216 SCRA 777, 782-783 citing Ortiz v.
COMELEC, G.R. No. L-78957, June 28, 1988, 162 SCRA 812, 821. In Ortiz, the word "able" was
used in lieu of "competent."
8

CONSTITUTION, Art. XVI, Sec. 8. The State shall, from time to time, review to increase the
pensions and other benefits due to retirees of both the government and the private sectors.
9

10

G.R. No. 186560, November 17, 2010, 635 SCRA 321.

11

Id. at 330-331. (Citations omitted)

12

Bengzon v. Drilon, G.R. No. 103254, April 15, 1992, 208 SCRA 133, 153.

GSIS, Cebu City Branch v. Montesclaros, 478 Phil. 573, 586 (2004) citing Rule VI, Sec. 1 of the
Implementing Rules and Regulations of Presidential Decree No. 1146.
13

14

Re: Retirement Benefits of the Late City Judge Galang, Jr., 194 Phil. 14, 21 (1981).

15

486 Phil. 148 (2004).

16

Id. at 156.

17

Republic Act No. 9946 (2010), Sec. 1.

18

Republic Act No. 910 (1953), Sec. 1.

Republic Act No. 5095 (1967), Sec. 1. This was the law applied in Mrs. Grubas application for
death benefits in 1996.
19

Under Republic Act No. 910, retirement benefits are computed on the basis of highest salary
received by the justice or judge. Inclusion of allowances in the computation began in the
amendments to Republic Act No. 910 introduced in Presidential Decree No. 1438. Now, it includes
transportation, representation and other allowances, such as personal economic relief allowance
(PERA) and additional compensation allowance. Republic Act No. 9946 (2010), Sec. 1.
20

21

Republic Act No. 9946 (2010), Sec. 1.

22

Id.

23

Republic Act No. 9946 (2010), Sec. 3.

24

Republic Act No. 9946 (2010), Sec. 2.

25

Id.

The requirements for compulsory retirement under this law is for the judge or justice to be 70
years old and must have rendered 20 years of service in the government, with five (5) years spent
in the Judiciary. Republic Act No. 910 (1953), Sec. 1, as amended by Republic Act No. 5095
(1967).
26

See In Re: Amount of the Monthly Pension of Judges and Justices Starting from the Sixth Year of
their Retirement and After the Expiration of the Initial Five-Year Period of Retirement, 268 Phil. 312
(1990).
27

28

Ortiz v. COMELEC, 245 Phil. 780, 789-790 (1988).

Re: Retirement Benefits of the late City Judge Alejandro Galang, Jr., 194 Phil. 14 (1981) citing
Re: Retirement of District Judge Isaac Puno, Jr., A.M. No. 589-Ret., Resolution dated June 28,
1977 (Unreported). With respect to Judge Galang, the main case denied his widows claim for a
10-year gratuity for not having been able to retire by reasons of permanent disability. However, this
Court still gave his heirs a five-year lump sum gratuity despite non-compliance with the length of
service in Government Requirement. Justice Teehankees Concurring Opinion cited Judge Punos
case as the first case wherein this Court disregarded the length of service in Government
Requirement in awarding the five (5)-year lump sum gratuity to heirs of a deceased judge.
29

The Resolution dated September 30, 2003 was the basis of the discussion in a subsequent
Resolution under A.M. No. 02-12-01-SC, 486 Phil. 148 (2004).
30

31

A.M. No. 13940-Ret., Resolution dated May 31, 2011.

See Re: Application for Retirement of Judge Moslemen T. Macarambon under Republic Act No.
910, as amended by Republic Act No. 9946, A.M. No. 14061-Ret., June 19, 2012, 673 SCRA 602.
This case involves a Regional Trial Court judge who served as such for more than 18 years.
Before reaching his optional retirement age, he was appointed by President Gloria MacapagalArroyo as Commissioner of the Commission on Elections. His terminal job was with the National
Transmission Commission. On retirement, he applied under Republic Act No. 910 but was denied
the benefits of the law because he resigned from the Judiciary and retired from a position under
the Executive branch.
32

Comment of the Office of the Chief Attorney, p. 11. The Office of the Chief Attorney cites the
explanatory note attached to the bill found at the Archives and Museum Management Service of
the House of Representatives.
33

In Re: Amount of the Monthly Pension of Judges and Justices Starting from the Sixth Year of their
Retirement and After the Expiration of the Initial Five-Year Period of Retirement, 268 Phil. 312, 317
(1990).
34

35

See Beronilla v. Government Service Insurance System, 146 Phil. 646, 660 (1970).

Re: Application for Survivorship Pension Benefits of Hon. Juanito C. Ranjo, Former Deputy Court
Administrator (DCA), A.M. No. 14082-Ret., Resolution dated October 9, 2012 as cited in the FMBO
Report dated October 25, 2012, pp. 7-8.
36

37

Id.

Agra v. Commission on Audit, G.R. No. 167807, December 6, 2011, 661 SCRA 563; De Jesus v.
Commission on Audit, 451 Phil. 812, 824 (2003).
38

39

De Jesus v. Commission on Audit, supra; Blaquera v. Hon. Alcala, 356 Phil. 678, 765-766 (1998).

40

De Jesus v. Commission on Audit, supra.

41

Id.

42

Id.

43

Id.

44

Blaquera v. Hon. Alcala, supra.

Considerations of equity and fairness were also cited in the ruling in Agra v. Commission on
Audit, supra.
45

Liberal Construction
General Welfare Clause
Ramirez v. Villegas (G.R. No. L-24153, February 14, 1983)

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-24153 February 14, 1983
TOMAS VELASCO, LOURDES RAMIREZ, SY PIN, EDMUNDO UNSON, APOLONIA RAMIREZ and
LOURDES LOMIBAO, as component members of the STA. CRUZ BARBERSHOP ASSOCIATION, in
their own behalf and in representation of the other owners of barbershops in the City of
Manila, petitioners-appellants,
vs.
HON. ANTONIO J. VILLEGAS, City Mayor of Manila, HON. HERMINIO A. ASTORGA, Vice-Mayor and
Presiding Officer of the Municipal Board in relation to Republic Act 4065, THE MUNICIPAL BOARD
OF THE CITY OF MANILA and EDUARDO QUINTOS SR., Chief of Police of the City of
Manila, respondents-appellees.
Leonardo L. Arguelles for respondent-appellant.

FERNANDO, C.J.:
This is an appeal from an order of the lower court dismissing a suit for declaratory relief challenging the
constitutionality based on Ordinance No. 4964 of the City of Manila, the contention being that it amounts to
a deprivation of property of petitioners-appellants of their means of livelihood without due process of law.
The assailed ordinance is worded thus: "It shall be prohibited for any operator of any barber shop to
conduct the business of massaging customers or other persons in any adjacent room or rooms of said
barber shop, or in any room or rooms within the same building where the barber shop is located as long as
the operator of the barber shop and the room where massaging is conducted is the same person." 1 As
noted in the appealed order, petitioners-appellants admitted that criminal cases for the violation of this ordinance
had been previously filed and decided. The lower court, therefore, held that a petition for declaratory relief did
not lie, its availability being dependent on there being as yet no case involving such issue having been filed. 2
Even if such were not the case, the attack against the validity cannot succeed. As pointed out in the brief
of respondents-appellees, it is a police power measure. The objectives behind its enactment are: "(1) To

be able to impose payment of the license fee for engaging in the business of massage clinic under
Ordinance No. 3659 as amended by Ordinance 4767, an entirely different measure than the ordinance
regulating the business of barbershops and, (2) in order to forestall possible immorality which might grow
out of the construction of separate rooms for massage of customers." 3 This Court has been most liberal in
sustaining ordinances based on the general welfare clause. As far back as U.S. v. Salaveria, 4 a 1918 decision,
this Court through Justice Malcolm made clear the significance and scope of such a clause, which "delegates in
statutory form the police power to a municipality. As above stated, this clause has been given wide application
by municipal authorities and has in its relation to the particular circumstances of the case been liberally
construed by the courts. Such, it is well to really is the progressive view of Philippine jurisprudence." 5 As it was
then, so it has continued to be. 6 There is no showing, therefore, of the unconstitutionality of such ordinance.
WHEREFORE, the appealed order of the lower court is affirmed. No costs.
Makasiar, Concepcion, Jr., Guerrero, Abad Santos, De Castro, Melencio- Herrera, Plana, Escolin,
Vasquez, Relova and Gutierrez, Jr., JJ., concur.
Teehankee, J., reserves his vote.
Aquino J., took no part.

Footnotes
1 Ordinance No. 4964, Section 1.
2 Record on Apppeal, 26.
3 Brief for the Respondents-Appellees, 7.
4 39 Phil. 102.
5 Ibid, 109.
6 Cf. Agustin v. Edu, L-49112, February 2, 1979, 88 SCRA 195. The opinion of the law
cited Calalang v. Williams, 70 Phil. 726 (1940); Ermita-Malate Hotel and Motel Operators
Asso. v. City Mayor of Manila, L-24693, July 31, 1967, 20 SCRA 849; Morfe v. Mutuc, L20387, January 31, 1968, 22 SCRA 424; Edu v. Ericta, L-32096, October 24, 1970, 35
SCRA 481