[G.R. No. 81958. June 30, 1988.] PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS, INC., petitioner, vs. FRANKLIN M.

DRILON as Secretary of Labor and Employment, and TOMAS D. ACHACOSO, as Administrator of the Philippine Overseas Employment Administration, respondents. DOCTRINE: The concept of police power is well-established in this jurisdiction. It has been defined as the "state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare." As defined, it consists of (1) an imposition of restraint upon liberty or property, (2) in order to foster the common good. It is not capable of an exact definition but has been, purposely, veiled in general terms to underscore its all-comprehensive embrace. It is well-settled that "EQUALITY BEFORE THE LAW" under the Constitution does not import a perfect identity of rights among all men and women. It admits of classifications, provided that (1) such classifications rest on substantial distinctions; (2) they are germane to the purposes of the law; (3) they are not confined to existing conditions; and (4) they apply equally to all members of the same class. FACTS: SARMIENTO, J: Philippine Association of Service Exporters, Inc. (PASEI) is engaged in the recruitment of Filipino workers for overseas placement, which challenges the Constitutional validity of Department Order No. 1, Series of 1988, of DOLE: "GUIDELINES GOVERNING THE TEMPORARY SUSPENSION OF DEPLOYMENT OF FILIPINO DOMESTIC AND HOUSEHOLD WORKERS," in this petition for certiorari and prohibition. The measure is assailed for "discrimination against males or females;" that it "does not apply to all Filipino workers but only to domestic helpers and females with similar skills;" and that it is violative of the right to travel. It is held likewise to be an invalid exercise of the lawmaking power, police power being legislative, and not executive, in character. In its supplement to the petition, PASEI invokes Section 3, of Article XIII, of the Constitution, providing for worker participation "in policy and decision-making processes affecting their rights and benefits as may be provided by law." It is contended, that the questioned order was passed in the absence of prior consultations and violation of the Charter's non-impairment clause. The Solicitor General invokes the police power of the Philippine State. It is admitted that Department Order No. 1 is in the nature of a police power measure. ISSUE: Is DO no.1 valid under the Constitution? HELD: "The police power of the State . . . is a power coextensive with self-protection, and it is not inaptly termed the 'law of overwhelming necessity.' It may be said to be that inherent and plenary power in the State which enables it to

prohibit all things hurtful to the comfort, safety, and welfare of society." It constitutes an implied limitation on the Bill of Rights. According to Fernando, it is "rooted in the conception that men in organizing the state and imposing upon its government limitations to safeguard constitutional rights did not intend thereby to enable an individual citizen or a group of citizens to obstruct unreasonably the enactment of such salutary measures calculated to ensure communal peace, safety, good order, and welfare." Significantly, the Bill of Rights itself does not purport to be an absolute guaranty of individual rights and liberties "Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's will." It is subject to the far more overriding demands and requirements of the greater number. Notwithstanding its extensive sweep, police power is not without its own limitations. For all its awesome consequences, it may not be exercised arbitrarily or unreasonably. Otherwise, and in that event, it defeats the purpose for which it is exercised, that is, to advance the public good. Thus, when the power is used to further private interests at the expense of the citizenry, there is a clear misuse of the power. In the light of the foregoing, THE PETITION MUST BE DISMISSED. As a general rule, official acts enjoy a presumed validity. In the absence of clear and convincing evidence to the contrary, the presumption logically stands. The PETITIONER HAS SHOWN NO SATISFACTORY REASON WHY THE CONTESTED MEASURE SHOULD BE NULLIFIED. There is no question that Department Order No. 1 applies only to "female contract workers," but it does not thereby make an undue discrimination between the sexes. The Court is satisfied that the classification made the preference for female workers rests on substantial distinctions. JUDICIAL NOTICE: the Court is well aware of the unhappy plight that has befallen our female labor force abroad, especially domestic servants, amid exploitative working conditions marked by, in not a few cases, physical and personal abuse. The sordid tales of maltreatment suffered by migrant Filipina workers, even rape and various forms of torture, confirmed by testimonies of returning workers, are compelling motives for urgent Government action. As precisely the caretaker of Constitutional rights, the Court is called upon to protect victims of exploitation. In fulfilling that duty, the Court sustains the Government's efforts. The same, however, cannot be said of our male workers. In the first place, there is no evidence that, except perhaps for isolated instances, our men abroad have been afflicted with an identical predicament. The petitioner has proffered no argument that the Government should act similarly with respect to male workers. Executive determinations are generally final on the Court. Under a republican regime, it is the executive branch that

enforces policy. But what should be noted is the fact that in spite of such a fiction of finality, the Court is on its own persuaded that prevailing conditions indeed call for a deployment ban. There is likewise no doubt that such a classification is germane to the purpose behind the measure. Unquestionably, it is the avowed objective of Department Order No. 1 to "enhance the protection for Filipino female overseas workers." This Court has no quarrel that in the midst of the terrible mistreatment Filipina workers have suffered abroad, a ban on deployment will be for their own good and welfare. The Order does not narrowly apply to existing conditions. Rather, it is intended to apply indefinitely so long as those conditions exist. This is clear from the Order itself (" Pending review of the administrative and legal measures, in the Philippines and in the host countries . . ." ), meaning to say that should the authorities arrive at a means impressed with a greater degree of permanency, the ban shall be lifted. As a stop-gap measure, it is possessed of a necessary malleability, depending on the circumstances of each case. RE RIGHT TO TRAVEL: The consequence of the deployment ban has on the right to travel does not impair the right. The right to travel is subject, among other things, to the requirements of "public safety," "as may be provided by law." Department Order No. 1 is a valid implementation of the Labor Code particularly its basic policy to "afford protection to labor," pursuant to the DOLEs rule-making authority vested in it by the Labor Code. The petitioner assumes that it is unreasonable simply because of its impact on the right to travel, but as we have stated, the right itself is not absolute. The disputed Order is a valid qualification thereto. RE EXERCISE OF LEGISLATIVE POWER: It is true that police power is the domain of the legislature, but it does not mean that such an authority may not be lawfully delegated. As we have mentioned, the Labor Code itself vests the Department of Labor and Employment with rule-making powers in the enforcement whereof. The petitioners's reliance on the Constitutional guaranty of worker participation "in policy and decision-making processes affecting their rights and benefits." is not well-taken. The right granted by this provision, again, must submit to the demands and necessities of the State's power of regulation. "Protection to labor" does not signify the promotion of employment alone. What concerns the Constitution more paramountly is that such an employment be above all, decent, just, and humane. It is bad enough that the country has to send its sons and daughters to strange lands because it cannot satisfy their employment needs at home. Under these circumstances, the Government is duty-bound to insure that our toiling expatriates have adequate protection, personally and economically, while away from home. In this case, the Government has evidence, an evidence the petitioner cannot seriously dispute, of the lack or inadequacy of such protection, and as part of its duty, it has precisely ordered an indefinite ban on deployment.

RE NON-IMPAIRMENT CLAUSE: it must yield to the loftier purposes targetted by the Government. Freedom of contract and enterprise, like all other freedoms, is not free from restrictions, more so in this jurisdiction, where laissez faire has never been fully accepted as a controlling economic way of life. WHEREFORE, the petition is DISMISSED. [G.R. No. 10255. August 6, 1915.] THE UNITED STATES, plaintiff-appellant, vs. SILVESTRE POMPEYA, defendant-appellee. DOCTRINE: POLICE POWERS IN GENERAL. The police power of the state has been variously defined. It has been defined as the power of the government, inherent in every sovereign, and cannot be limited; the power vested in the legislature to make such laws as they shall judge to be for the good of the state and its subjects; the power to govern men and things, extending to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the state; the authority to establish such rules and regulations for the conduct of all persons as may be conducive to the public interest. The police power of the state may be said to embrace the whole system of internal regulations by which the state seeks, not only to preserve public order and to prevent offenses against the state, but also to establish, for the intercourse of citizen with citizen, those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights, and to ensure to each the uninterrupted enjoyment of his own, so far as is reasonably consistent with a like enjoyment of the rights of others. FACTS: JOHNSON, J: June 1, 1914, the acting prosecuting attorney of Iloilo presented the following complaint in the CFI. "The undersigned fiscal charges Silvestre Pompeya with violation of the municipal ordinance of Iloilo, on the subject of patrol duty, Executive Order No. 1, series of 1914 fail to render service on patrol duty; an act performed in violation of the law. Upon said complaint the defendant was duly arraigned. Upon arraignment he presented the following demurrer: "The defendant, through his undersigned attorneys, demurs to the complaint filed in this case on the ground that the acts charged therein do not constitute a crime." In support of said demurrer, the defendant presented the following argument: "The municipal ordinance alleged to be violated is unconstitutional because it is repugnant to the Organic Act of the Philippines, which guarantees the liberty of the citizens." Upon the issues thus presented, the Honorable J. S. Powell, judge, on the 22d day of August, 1914, after hearing the arguments of the respective parties, sustained said demurrer and ordered the dismissal of said complaint and the

cancellation of the bond theretofore given, with costs de officio. From the order sustaining the demurrer of the lower court, the prosecuting attorney appealed to this court. It appears from the demurrer that the defendant claims that the facts stated in the complaint are not sufficient to constitute a cause of action. In his argument in support of said demurrer it appears that the real basis of said demurrer was the fact that the ordinance upon which said complaint was based was unconstitutional, for the reason that it was contrary to the provisions of the Philippine Bill which guarantees liberty to the citizens of the Philippine Islands. In this court the only question argued by the Attorney-General is whether or not the ordinance upon which said complaint was based (paragraph "m" of section 40 of the Municipal Code) which was adopted in accordance with the provisions of Act No. 1309 is constitutional. Section 40 of Act No. 82 (the Municipal Code) relates to the power of municipal councils. Act No. 1309 amends said section (section 40, paragraph "m") which reads as follows: "(m) With the approval of the provincial governor, when a province or municipality is infested with ladrones or outlaws (the municipal council is empowered): "1. To authorize the municipal president to require ablebodied male residents of the municipality, between the ages of eighteen and fifty years, to assist, for a period not exceeding five days in any one month, in apprehending ladrones, robbers, and other lawbreakers and suspicious characters, and to act as patrols for the protection of the municipality, not exceeding one day in each week. The failure, refusal, or neglect of any such able-bodied man to render promptly the service thus required shall be punishable by a fine not exceeding one hundred pesos or by imprisonment for not more than three months, or by both such fine and imprisonment, in the discretion of the court: Provided, That nothing herein contained shall authorize the municipal president to require such service of officers or men of the Army or Navy of the United States, civil employees of the United States Government, officers or employees of the Insular Government, or the officers or servants of companies or individuals engaged in the business of common carriers on sea or land, or priests, ministers of the gospel, physicians, practicantes, druggists or practicantes de farmacia actually engaged in business, or lawyers when actually engaged in court proceedings." Said Act No. 1309 contains some other provisions which are not important in the consideration of the present case. The question which we have to consider is whether or not the facts stated in the complaint are sufficient to show (a) a cause of action under the said law; and (b) whether or not said law is in violation of the provisions of the Philippine Bill in depriving citizens of their rights therein guaranteed. We deem it advisable to consider the second question first. It becomes important to ascertain the real purpose of said Act (No. 1309) in order to know whether it covers a subject upon

which the United States Philippine Commission could legislate. A reading of said Act discloses (1) that it is an amendment of the general law (Act No. 82) for the organization of municipal government; (2) that it is an amendment of section 40 of said Act No. 82, by adding thereto paragraph "m;" (3) that said section 40 enumerates some of the powers conferred upon the municipal council; (4) that said amendment confers upon the council additional powers. The amendment empowers the municipal council, by ordinance, to authorize the president: (a) To require able-bodied male residents of the municipality, between the ages of 18 and 55 [50], to assist, for a period not exceeding five days in any one month, in apprehending ladrones, robbers, and other lawbreakers and suspicious characters, and to act as patrols for the protection of the municipality, not exceeding one day each week; (b) To require each householder to report certain facts, enumerated in said amendment. The specific purpose of said amendment is to require each able-bodied male resident of the municipality, between the ages of 18 and 55 [50], as well as each householder, when so required by the president, to assist in the maintenance of peace and good order in the community, by apprehending ladrones, etc., as well as by giving information of the existence of such persons in the locality. The amendment contains a punishment for those who may be called upon for such service, and who refuse to render the same. Is there anything in the law, organic or otherwise, in force in the Philippine Islands, which prohibits the central Government, or any governmental entity connected therewith, from adopting or enacting rules and regulations for the maintenance of peace and good government? May not the people be called upon, when necessary, to assist, in any reasonable way, to rid the state and each community thereof, of disturbing elements? Do not individuals whose rights are protected by the Government, owe some duty to such, in protecting' it against lawbreakers, and the disturbers of the quiet and peace? Are the sacred rights of the individual violated when he is called upon to render assistance for the protection of his protector, the Government, whether it be the local or general Government? Does the protection of the individual, the home, and the family, in civilized communities, under established government, depend solely and alone upon the individual? Does not the individual owe something to his neighbor, in return for the protection which the law affords him against encroachment upon his rights, by those who might be inclined so to do? To answer these questions in the negative would, we believe, admit that the individual, in organized governments, in civilized society, where men are governed by law, does not enjoy the protection afforded to the individual by men in their most primitive relations. If tradition may be relied upon, the primitive man, living in his tribal relations before the days of constitutions and states, enjoyed the security and assurance of assistance from his fellows when his quiet and peace were violated by malhechores. Even under the feudal system, a system of land holdings by the Teutonic nations of Europe in the eleventh, twelfth, and thirteenth centuries, the feudal lord exercised the right to call upon all his vassals of a certain age to assist in the protection of their individual and collective rights. (Book 2, Cooley's Blackstone's Commentaries, 44; 3 Kent's

Commentaries, 487; Hall, Middle Ages; Maine, Ancient Law; Guizot, History of Civilization; Stubbs' Constitutional History of England; Chisholm vs. Georgia, 2 Dall. (U. S.), 419; DePeyster vs. Michael, 6 N. Y., 467.) Each vassal was obliged to render individual assistance in return for the protection afforded by all. The feudal system was carried into Britain by William the Conqueror in the year 1085 with all of its ancient customs and usages. We find in the days of the "hundreds," which meant a division of the state occupied by one hundred free men, the individual was liable to render service for the protection of all. (Book 3, Cooley's :Blackstone's Commentaries, 160, 245, 293, 411.) In these "hundreds" the individual "hundred or," in case of the commission of a crime within the county or by one of the "hundredors," as against another "hundred," was obliged to join the "hue and cry" (hutesium et clamor) in the pursuit of the felon. This purely customary ancient obligation was later made obligatory by statute. (Book 4, Cooley's Blackstone's Commentaries, 294; 3 Edward I., Chapter 9; 4 Edward I., Chapter 2; 13 Edward I., Chapters 1 and 4.) Later the statute provided and directed: "That from thenceforth every county shall be so well kept, that, immediately upon robberies and felonies committed, fresh suit shall be made from town (pueblo) to town, and from county to county; and that "hue and cry" shall be raised upon the felons, and they that keep the town (pueblo) shall follow with "hue and cry," with all the town (pueblo), and the towns (pueblos) near, and so "hue and cry" shall be made from town (pueblo) to town, until they be taken and delivered to the sheriff." Said statute further provided that in case the "hundred" failed to join the "hue and cry" that it should be liable for the damages done by the malhechores. Later, by statute (27th Elizabeth, chapter 13) it was provided that no "hue and cry" would be sufficient unless it was made with both horsemen and footmen. The "hue and cry" might be raised by a justice of the peace, or by any peace officer, or by any private person who knew of the commission of the crime. This ancient obligation of the individual to assist in the protection of the peace and good order of his community is still recognized in all well-organized governments in the "posse comitatus" (power of the county, poder del condado). (Book 1 Cooley's Blackstone's Commentaries, 343; Book 4, 122.) Under this power, those persons in the state, county, or town who were charged with the maintenance of peace and good order were bound, ex officio, to pursue and to take all persons who had violated the law. For that purpose they might command all the male inhabitants of a certain age to assist them. This power is called "posse comitatus" (power of the county). This was a right well recognized at common law. Act No. 1309 is a statutory recognition of such common-law right. Said Act attempts simply to designate the cases and the method when and by which the people of the town (pueblo) may be called upon to render assistance for the protection of the public and the preservation of peace and good order. It is an exercise of the police power of the state. Is there anything in the organic or statutory law prohibiting the United States

Philippine Commission from contained in said Act No. 1309?

adopting

the

provisions

While the statement has its exceptions, we believe, generally speaking, that the United States Commission, and now the Philippine Legislature, may legislate and adopt laws upon all subjects not expressly prohibited by the Organic Law (Act of Congress of July 1, 1902) or expressly reserved to Congress. Congress did not attempt to say to the Philippine Legislature what laws it might adopt. Congress contented itself by expressly indicating what laws the Legislature should not adopt, with the requirement that all laws adopted should be reported to it, and with the implied reservation of the right to nullify such laws as might not meet with its approval. Considering the Organic Act (Act of Congress of July 1, 1902) as the real constitution of the United States Government in the Philippine Islands, and its inhibitions upon the power of the Legislature, we believe an analogy may be drawn relating to the difference between the Constitution of the United States and the constitution of the different States, with reference to what laws may be adopted by the different States. While the statement needs much explanation, the general rule is that Congress has authority to legislate only upon the questions expressly stated in the Constitution of the United States, while the state legislature may legislate upon all questions, not expressly conferred upon Congress, nor prohibited in its constitution. In other words, an examination of the Constitution of the United States discloses the subject matter upon which Congress may legislate, while an examination of the constitutions of the different States must be made for the purpose of ascertaining upon what subjects the state legislature can not legislate. Stating the rule in another way the Constitution of the United States permits Congress to legislate upon the following subjects; the constitutions of the States prohibit the state legislature from legislating upon the following subjects. Generally, then, the legislature of a State may adopt laws upon any question not expressly delegated to Congress by the Constitution of the United States or prohibited by the constitution of the particular State. We think that is the rule which should be applied to the Philippine Legislature. The Philippine Legislature has power to legislate upon all subjects affecting the people of the Philippine Islands, which has not been delegated to Congress or expressly prohibited by said Organic Act. (Gaspar vs. Molina, 5 Phil. Rep., 197; U. S. vs. Bull, 15 Phil. Rep., 7.) The right or power conferred upon the municipalities by Act No. 1309 falls within the police power of the state. (U. S. vs. Ling Su Fan, 10 Phil. Rep., 104.) Police power of the state has been variously defined. It has been defined as the power of government, inherent in every sovereign, and cannot be limited; (License Cases, 5 How. (U. S.), 483). The power vested in the legislature to make such laws as they shall judge to be for the good of the state and its subjects. (Commonwealth vs. Alger, 7 Cush. (Mass.), 53, 85). The power to govern men and things, extending to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the state. (Thorpe vs. Rutland, etc., Co., 27 Vt:, 140, 149.) The authority to establish such rules and regulations for the conduct of all persons as may be conducive to the public interest. (People vs. Budd, 117

N. Y., 1, 14; U. S. vs. Ling Su Fan, supra.) Blackstone, in his valuable commentaries on the common law, defines police power as "the defenses, regulations, and domestic order of the country, whereby the inhabitants of a state, like members of a well-governed family, are bound to conform their general behaviour to the rules of propriety, good neighborhood, and good manners, and to be decent, industrious, and inoffensive in their respective stations." (4 Blackstone's Com., 162.) The police power of the state may be said to embrace the whole system of internal regulation, by which the state seeks not only to preserve public order and to prevent offenses against the state, but also to establish, for the intercourse of citizen with citizen, those rules of good manners and good neighborhood, which are calculated to prevent a conflict of rights, and to insure to each the uninterrupted enjoyment of his own, so far as is reasonably consistent, with a like enjoyment of the rights of others. The police power of the state includes not only the public health and safety, but also the public welfare, protection against impositions, and generally the public's best interest. It is so extensive and all pervading, that the courts refuse to lay down a general rule defining it, but decide each specific case on its own merits. (Harding vs. People, 32 L. R. A., 445.) The police power of the state has been exercised in controlling and regulating private business, even to the extent of the destruction of the property of private persons, when the use of such property became a nuisance to the public health and convenience. (Slaughter House Cases, 16 Wal. (U. S.), 36; Minnesota vs. Barber, 136 U. S., 313; Powell vs. Pennsylvania, 127 U. S., 678; Walling vs. People, 116 U. S., 446; U. S. vs. Ling Su Fan, 10 Phil. Rep., 104.) We are of the opinion, and so hold, that the power exercised under the provisions of Act No. 1309 falls within the police power of the state and that the state was fully authorized and justified in conferring the same upon the municipalities of the Philippine Islands, and that, therefore, the provisions of said Act are constitutional and not in violation nor in derogation of the rights of the persons affected thereby. With reference to the first question presented by the appeal, relating to the sufficiency of the complaint, it will be noted that Act No. 1309 authorized the municipal governments to establish ordinances requiring (a) all able-bodied male residents, between the ages of 18 and 55 [50], and (b) all householders, under certain conditions, to do certain things. It will also be noted that the law authorizing the president of the municipality to call upon persons, imposes certain conditions as prerequisites: (1) The person called upon to render such services must be an able-bodied male resident of the municipality; (2) he must be between the ages of 18 and 55 [50], and (3) certain conditions must exist requiring the services of such persons. It will not be contended that a nonresident of the municipality would be liable for his refusal to obey the call of the president; neither can it be logically contended that one under the age of 18 or over the age of 55 [50] would incur the penalty of the law by his refusal to obey the command of the president. Moreover, the persons liable for the service mentioned in the

law cannot be called upon at the mere whim or caprice of the president. The conditions mentioned in the law must exist. There must be some just and reasonable ground, at least sufficient in the mind of a reasonable man, before the president can call upon the persons for the service mentioned in the law. The law does not apply to all persons. The law does not apply to every condition. The law applies to special persons and special conditions. A complaint based upon such a law, in order to be free from objection under a demurrer, must show that the person charged belongs to the class of persons to which the law is applicable. For example, under the Opium Law, certain persons are punishable criminally for having opium in their possession. The law permits certain persons to have opium in their possession. All possessors of opium are not liable under the law. A complaint, therefore, charging a person with the possession of opium, without alleging that he did not belong to the class which are permitted to possess it, would be objectionable under a demurrer, because all persons are not liable. The complaint must show that the one charged with the possession of the opium was not one of the persons who might legally possess opium. Suppose, for another example, that there was a law providing that all persons who performed manual labor on Sunday should be punished, with a provision that if such labor should be performed out of necessity, the person performing it would not be liable. In such a case, in the complaint, in order to show a good cause of action, it would be necessary to allege that the labor was not performed under necessity. In other words, the complaint, in order to be free from objection raised by a demurrer, must show that the person accused of the crime, in the absence of proof, is punishable under the law. One who performed labor under necessity would not be liable. The complaints, in the foregoing examples, in the absence of an allegation which showed that the party accused did not belong to the exempted class, would not be good. In the absence of such negations, the courts would be unable to impose the penalty of the law, because, perchance, the defendant might belong to the exempt class. The complaint, in a criminal case, must state every fact necessary to make out an offense. (U. S. vs. Cook, 17 Wall. (U. S.), 168.) The complaint must show, on its face that, if the facts alleged are true, an offense has been committed. It must state explicitly and directly every fact and circumstance necessary to constitute an offense. If the statute exempts certain persons, or classes of persons, from liability, then the complaint should show that the person charged does not belong to that class. Even admitting all of the facts stated in the complaint in the present case, the court would be unable to impose the punishment provided for by law, because it does not show (a) that the defendant was a male citizen of the municipality; (b) that he was an able-bodied citizen; (c) that he was not under 18 years of age nor over 55 [50]; nor (d) that conditions existed which justified the president of the municipality in calling upon him for the services mentioned in the law. For all of the foregoing reasons, the judgment of the lower court is hereby affirmed, with costs. So ordered. Arellano, C.J., Torres, Carson and Araullo, JJ., concur.

[G.R. No. 14078. March 7, 1919.] RUBI, ET. AL. (manguianes), plaintiffs, vs. PROVINCIAL BOARD OF MINDORO, defendant. D. R. Williams and Filemon Sotto for plaintiff. Solicitor-General Paredes for defendant. SYLLABUS 1. STATUTES; SECTION 2145 OF THE ADMINISTRATIVE CODE OF 1917; VALIDITY; CONSTRUCTION; HISTORY. Section 2145 of the Administrative Code of 1917 reads as follows: "With the prior approval of the Department Head, the provincial governor of any province in which non-Christian inhabitants are found is authorized, when such a course is deemed necessary in the interest of law and order, to direct such inhabitants to take up their habitation on sites on unoccupied public lands to be selected by him and approved by the provincial board." Beginning with Act No. 387, Sections 68-71, having reference to the Province of Nueva Vizcaya, Acts Nos. 411, 422, 445, 500, 547, 548, 549, 550, 579, 753, 855, 1113, 1145, 1268, 1306 were enacted for the province of Abra, Antique, Bataan, Ilocos Norte, Ilocos Sur, Isabela, Lepanto-Bontoc, Mindoro, Misamis, Nueva Vizcaya, Pangasinan, Paragua (Palawan), Tarlac, Tayabas, and Zambales. Act No. 547 referred especially to the Manguianes. All of these special laws with the exception of Act No. 1306 were repealed by Acts Nos. 1396 and 1397. The last named Act incorporated and embodied the provisions in general language. In turn, Act No. 1397 was repealed by the Administrative Code of 1916. The last Administrative Code retains the provision which originated in Act No. 387, enacted in 1202, in Section 2145 herein quoted. 2. ID.; ID.; ID; ID.; GOVERNMENT POLICY. These different laws denote an anxious regard for the welfare of the non-Christian inhabitants of the Philippines and a settled and consistent practice with reference to the method to be followed for their advancement. 3. ID.; ID.; ID.; ID.; ID. Every really new question that comes before the courts is in the last analysis determined by the application of public policy as a ratio decidendi. In balancing conflicting solutions that one is perceived to tip the scales which the court believes will best promote the public welfare in its probable operation as a general rule or principle. 4 ID.; ID.; ID.; "NON-CHRISTIAN;" HISTORY. A skeleton history of the attitude assumed towards the backward inhabitants of the Islands both before and after the acquisition of the Philippines by the United States is set forth in the opinion. The most important of the laws of the Indies having reference to the subject are compiled in Book 6, Title 3. A clear exposition of the purposes of the Spanish government in its efforts to improve the conditions of such inhabitants by concentrating them in "reducciones" is found in the Decree of the Governor-General of the Philippine Islands of January 14, 1881. Ever since the acquisition of the Philippine Islands by THE

the United States, the question as to the best method for dealing with the primitive inhabitants has been a perplexing one. Organic and statutory law has given the subject consideration. 5. ID.; ID.; ID.; ID.; DEFINED. "Non-Christian" is an awkward and unsatisfactory expression. Legislative, judicial, and executive authority has held that the term "nonChristian" should not be given a literal meaning or a religious signification, but that it was intended to relate to degree of civilization. This has been the uniform construction of executive officials who have been called upon to interpret and enforce the law. The term "non-Christian" refers not to religious belief, but in a way to geographical area, and more directly to natives of the Philippine Islands of a low grade of civilization. 6. ID.; ID.; ID.; ID.; THE "MANGUIANES" The name "Manguian" signifies savage, mountaineer, pagan, negro. The Manguianes are very low in culture. 7. ID.; ID.; ID.; AMERICAN INDIAN POLICY. From the beginning of the United States, and even before, the Indians have been treated as "in a state of pupilage." The recognized relation between the Government of the United States and the Indians may be described as that of guardian and ward. It is for the Congress to determine when and how the guardianship shall be terminated. The Indians are always subject to the plenary authority of the United States. 8. ID.; ID.; ID.; ID. With reference to the laws affecting the Indians, it has been held that it is not within the power of the courts to overrule the judgment of Congress. For very good reason, the subject has always been deemed political in nature, not subject to the jurisdiction of the judicial department of the Government. 9. ID.; ID.; CONSTITUTIONAL LAW; DELEGATION OF LEGISLATIVE POWER. The maxim of constitutional law forbidding the delegation of legislative power should be zealously protected. 10. ID.; ID.; ID.; ID. The true distinction, therefore, is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made. " (Cincinnati, W. & Z. R. Co. vs. Comrs. Clinton County [1852], 1 Ohio St., 88.) 11. ID.; ID.; ID.; ID. The legislature may make decisions of executive departments or subordinate officials thereof, to whom it has committed the execution of certain acts, final on questions of fact. The growing tendency in the decisions is to give prominence to the "necessity," of the case. 12. ID.; ID.; ID.; ID. An exception to the general rule, sanctioned by immemorial practice, permits the central legislative body to delegate legislative powers to local authorities.

13. ID.; ID.; ID.; ID. Section 2145 of the Administrative Code of 1917 is not an unlawful delegation of legislative power by the Philippine Legislature to provincial officials and a department head.] 14. ID.; ID.; ID.; RELIGIOUS DISCRIMINATION. Since the term "non-Christian" is here construed to refer to natives of the Philippine Islands of a low grade of civilization, Section 2145 of the Administrative Code of 1917 does not discriminate between individuals on account of religious differences and is therefore not invalid. 15. ID.; ID.; ID.; CIVIL LIBERTY. Various conceptions of civil liberty are quoted in the opinion. Civil liberty may be said to mean that measure of freedom which may be enjoyed in a civilized community, consistently with the peaceful enjoyment of like freedom in others. Liberty includes the right of the citizen to be free to use his faculties in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any avocation, and for that purpose, to enter into all contracts which may be proper, necessary, and essential to his carrying out these purposes to a successful conclusion. 16. ID.; ID.; ID.; ID. "Liberty" as understood in democracies is not license; it is "liberty regulated by law." "Whenever and wherever the natural rights of citizen would, if exercised without restraint, deprive other citizens of rights which are also and equally natural, such assumed rights must yield to the regulation of law. 17. ID.; ID.; ID.; ID. The authority conferred upon executive officials by Section 2145 of the Administrative Code of 1917 does not unduly interfere with the liberty of the citizen when the degree of civilization of the Manguianes is considered. 18. ID; ID.; ID.; DUE PROCESS OF LAW; EQUAL PROTECTION OF THE LAWS. "Due process of law" is defined and analyzed in the opinion. The pledge that no person shall be denied the equal protection of the laws is not infringed by a statute which is applicable to all of a class. 19. ID.; ID.; ID.; ID.; ID. Due process of law and the equal protection of the laws are not violated by Section 2145 of the Administrative Code of 1917 since there exists a law; the law seems to be reasonable; it is enforced according to regular methods of procedure; and it applies to all of a class. 20. ID.; ID.; ID.; SLAVERY AND INVOLUNTARY SERVITUDE. Slavery and involuntary servitude, together with their corollary, peonage, all denote "a condition of enforced, compulsory service of one to another." 21. ID.; ID.; ID.; ID. Confinement in reservations in accordance with Section 2145 of the Administrative Code of 1917 does not constitute slavery and involuntary servitude. 22. ID.; ID.; ID.; THE POLICE POWER. The police power of the State is a power coextensive with self-protection, and is not inaptly termed the "law of overruling necessity."

23. ID.; ID.; ID.; ID. The Government of the Philippine Islands has both on reason and authority the right to exercise the sovereign police power in the promotion of the general welfare and the public interest. 24. ID.; ID.; ID.; ID. The doctrines of laissez faire and of unrestricted freedom of the individual, as axioms of economics and political theory, are of the past. The modern period has shown a widespread belief in the amplest possible demonstration of governmental activity. 25. ID.; ID.; ID.; ID. Considered purely as an exercise of the police power, the courts cannot fairly say that the Legislature has exceeded its rightful authority in enacting Section 2145 of the Administrative Code of 1917. 26. ID.; ID.; ID.; STATUTORY CONSTRUCTION; LEGISLATIVE INTENTION. The fundamental objective of governmental policy is to establish friendly relations with the so-called non-Christians, and to promote their educational, agricultural, industrial, and economic development and advancement in civilization. 27. ID.; ID; ID.; ID.; ID. In so far as the Manguianes themselves are concerned, the purposes of the Government are to gather together the children for educational purposes, and to improve the health and morals is in fine, to begin the process of civilization. 28. ID.; ID.; ID.; ID.; ID. In so far as the relation of the Manguianes to the State is concerned, the purposes of the Legislature in enacting the law, and of the executive branch in enforcing it, are to protect the settlers in Mindoro and to develop the resources of that great Island. 29. ID.; ID.; ID.; ID.; PRESUMPTION. Most cautiously should the power of this court to overrule the judgment of the Philippine Legislature, a coordinate branch, be exercised. The whole tendency of the best considered cases is toward non-interference on the part of the courts whenever political ideas are the moving consideration. 30. ID.; ID.; ID. Section 2145 of the Administrative Code of 1917 is constitutional. Per CARSON, J., concurring: 31. STATUTES; "NON-CHRISTIAN;" DEFINED. The words "non-Christian" have a clear, definite and well settled signification when used in the Philippine statute-book as a descriptive adjective applied to "tribes," "peoples" or "inhabitants," dwelling in more or less remote districts and provinces throughout the Islands. 32. ID.; ID.; ID.; TESTS. The tests for the determination of the fact that an individual or tribe is, or is not of the "low grade of civilization" denoted by the words "nonChristian" are, and throughout the period of American occupation always have been, "the mode of life, the degree of advancement in civilization, and connection or lack of connection with some civilized community." 33. ID.; ID.; STANDARD OF CIVILIZATION OF INHABITANTS NOT NON-CHRISTIAN. The legislative

and administrative history of the Philippine Islands clearly discloses that the standard of civilization to which a specific tribe must be found to have advanced, to justify its removal from the class embraced within the descriptive term "nonChristian," as that term is used in the Philippine statute-book, is that degree of civilization which results in a mode of life within the tribe, such that it is feasible and practicable to extend to, and enforce upon its membership the general laws and regulations, administrative, legislative and judicial, which control the conduct of the admittedly civilized inhabitants of the Islands; a mode of life, furthermore, which does not find expression in tribal customs or practices which tend to brutalize or debauch the members of the tribe indulging in such customs or practices, or to expose to loss or peril the lives or property of those who may be brought in contact with the members of the tribe. 34. ID.; ID.; ID. So the standard of civilization to which any given number or group of inhabitants of a particular province in these Islands, or any individual member of such a group, must be found to have advanced, in order to remove such group or individual from the class embraced within the statutory description of "non-Christian," is that degree of civilization which would naturally and normally result in the withdrawal by such persons of permanent allegiance or adherence to a "non-Christian" tribe, had they at any time adhered to or maintained allegiance to such a tribe; and which would qualify them whether they reside within or beyond the habitat of a "non-Christian" tribe, not only to maintain a mode of life independent of and apart from that maintained by such tribe, but such a mode of life as would not be inimical to the lives or property or general welfare of the civilized inhabitants of the Islands with whom they are brought in contact. 35. ID.; SECTION 2145 OF THE ADMINISTRATIVE CODE OF 1917; BASIS; WHEN PROPERLY APPLICABLE. The power to provide for the issuance of the reconcentration orders contemplated in Section 2145 of the Administrative Code rests upon analogous principles to those upon which the liberty and freedom of action of children and persons of unsound minds is restrained, without consulting their wishes, but for their own good and the general welfare. The power rests upon necessity, that "great master of all things," and is properly exercised only where certain individuals or groups of individuals are found to be of such a low grade of civilization, that their own wishes cannot be permitted to determine their mode of life or place of residence. DECISION MALCOLM, J p: In one of the cases which denote a landmark in American Constitutional History (Worcester vs. Georgia [1832], 6 Pet., 515), Chief Justice Marshall, the first luminary of American jurisprudence, began his opinion (relating to the status of an Indian) with words which, with a slight change in phraseology, can be made to introduce the present opinion This cause, in every point of view in which it can be placed, is of the deepest interest. The legislative power of a state, the controlling power of the constitution and laws, the rights, if they have any, the political existence of a people, the personal liberty of a citizen, are all involved in the subject now to be

considered. To imitate still further the opinion of the Chief Justice, we adopt his outline and proceed first, to introduce the facts and the issues, next to give a history of the so-called "non-Christians," next to compare the status of the "nonChritans" with that of the American Indians, and, lastly, to resolve the constitutional questions presented. I. INTRODUCTION.

This is an application for habeas corpus in favor of Rubi and other Manguianes of the Province of Mindoro. It is alleged that the Manguianes are being illegally deprived of their liberty by the provincial officials of that province. Rubi and his companions are said to be held on the reservation established at Tigbao, Mindoro, against their will, and one Dabalos is said to be held under the custody of the provincial sheriff in the prison at Calapan for having run away from the reservation. The return of the Solicitor-General alleges: "1. That on February 1, 1917, the provincial board of Mindoro adopted resolution No. 25 which is as follows: "'The provincial governor, Hon. Juan Morente, Jr., presented the following resolution: " 'Whereas several attempts and schemes have been made for the advancement of the nonChristian people of Mindoro, which were all a failure, "'Whereas it has been found out and proved that unless some other measure is taken for the Mangyan work of this province, no successful result will be obtained toward educating these people, "'Whereas it is deemed necessary to oblige them to live in one place in order to make a permanent settlement, "'Whereas the provincial governor of any province in which non-Christian inhabitants are found is authorized, when such a course is deemed necessary in the interest of law and order, to direct such inhabitants to take up their habitation on sites on unoccupied public lands to be selected by him and approved by the provincial board, "'Whereas the provincial governor is of the opinion that the sitio of Tigbao on Lake Naujan is a place most convenient for the Mangyanes to live on, Now, therefore be it "'Resolved, That under Section 2077 of the Administrative Code, 800 hectares of public land in the sitio of Tigbao on Naujan Lake be selected as a site for the permanent settlement of Mangyanes in Mindoro subject to the approval of the Honorable Secretary of the Interior, and "'Resolved further, That Mangyans may only solicit homesteads on this reservation providing that said homestead applications are previously recommended by the provincial governor.' "2. That said Resolution No. 25 (series 1917) of the provincial board of Mindoro was approved by the Secretary of the Interior of February 21, 1917.

"3. That on December 4, 1917, the provincial governor of Mindoro issued Executive Order No. 2 which says: "'Whereas the provincial board, by Resolution No. 25, current series, has selected a site in the sitio of Tigbao on Naujan Lake for the permanent settlement of Mangyanes in Mindoro. "'Whereas said resolution has been duly approved by the Honorable, the Secretary of the Interior, on February 21, 1917. "'Now, therefore, I, Juan Morente, Jr., provincial governor of Mindoro, pursuant to the provisions of Section 2145 of the Revised Administrative Code, do hereby direct that all the Mangyans in the vicinities of the townships of Naujan and Pola and the Mangyans east of the Baco River including those in the districts of Dulangan and Rubi's place in Calapan, to take up their habitation on the site of Tigbao, Naujan Lake, not later than December 31, 1917. "'Any Mangyan who shall refuse to comply with this order shall upon conviction be imprisoned not exceeding sixty days, in accordance with section 2759 of the revised Administrative Code.' "4. That the resolution of the provincial board of Mindoro copied in paragraph 1 and the executive order of the governor of the same province copied in paragraph 3, were necessary measures for the protection of the Mangyanes of Mindoro as well as the protection of public forests in which they roam, and to introduce civilized customs among them. "5. That Rubi and those living in his rancheria have not fixed their dwellings within the reservation of Tigbao and are liable to be punished in accordance with section 2759 of Act No. 2711. "6. That the undersigned has no information that Doroteo Dabalos is being detained by the sheriff of Mindoro but if he is so detained it must be by virtue of the provisions of articles Nos. 2145 and 2759 of Act No. 2711." It thus appears that the provincial governor of Mindoro and the provincial board thereof directed the Manguianes in question to take up their habitation in Tigbao, a site on the shore of Lake Naujan, selected by the provincial governor and approved by the provincial board. The action was taken in accordance with Section 2145 of the Administrative Code of 1917, and was duly approved by the Secretary of the Interior as required by said action. Petitioners, however, challenge the validity of this section of the Administrative Code. This, therefore, becomes the paramount question which the court is called upon to decide. Section 2145 of the Administrative Code of 1917 reads as follows: "SEC. 2145. Establishment of non-Christians upon sites selected by provincial governor. With the prior approval of the Department Head, the provincial governor of any province in which non-Christian inhabitants are found is authorized, when such a course is deemed necessary in the interest of law and order, to direct such inhabitants to take up their habitation on sites on unoccupied public lands to be selected by him and approved by the provincial board." In connection with the

above-quoted provision, there should be noted Section 2759 of the same Code, which reads as follows: "SEC. 2759. Refusal of a non-Chritian to take up appointed habitation. Any non-Christian who shall refuse to comply with the directions lawfully given by a provincial governor, pursuant to section two thousand one hundred and forty-five of this Code, to take up habitation upon a site designated by said governor shall upon conviction be imprisoned for a period not exceeding sixty days." The substance of what is now found in said Section 2145 is not new to Philippine law. The genealogical tree of this section, if we may be permitted to use such terminology, would read: Section 2077, Administrative Code of 1916; Section 62, Act No. 1397; Section 2 of various special provincial laws, notably of Act No. 547, specifically relating to the Manguianes; Section 69, Act No. 387. Section 2145 and its antecedent laws make use of the term "non-Christians." This word, as will later be disclosed, is also found in varying forms in other laws of the Philippine Islands. In order to put the phrase in its proper category, and in order to understand the policy of the Government of the Philippine Islands with reference to the uncivilized elements of the Islands, it is well first of all to set down a skeleton history of the attitude assumed by the authorities towards these "nonChristians," with particular regard for the legislation on the subject. II. HISTORY. A. BEFORE ACQUISITION OF THE PHILIPPINES BY THE UNITED STATES. The most important of the laws of the Indies having reference to the subject at hand are compiled in Book VI, Title III, in the following language: "LAW I. "The Emperor Charles and the Prince, the governor, at Cigales, on March 21,1551. Philip II at Toledo, on February 19, 1560. In the forest of Segovia on September 13, 1565. In the Escorial on November 10, 1568. Ordinance 149 of the poblaciones of 1573. In San Lorenzo, on May 20. 1578. "THAT THE 'INDIOS' BE 'POBLACIONES'(COMMUNITIES). REDUCED INTO

"In order that the indios may be instructed in the Sacred Catholic Faith and the evangelical law, and in order that they may forget the blunders of their ancient rites and ceremonies to the end that they may live in harmony and in a civilized manner, it has always been endeavored, with great care and special attention, to use all the means most convenient to the attainment o these purposes. To carry out this work with success, our Council of the Indies and other religious persons met at various times; the prelates of New Spain assembled by order of Emperor Charles V of glorious memory in the year one thousand five hundred and forty-six all of which meetings were actuated with a desire to serve God and our Kingdom. At these meetings it was resolved that indios be

made to live in communities, and not to live in places divided and separated from one another by sierras and mountains, wherein they are deprived of all spiritual and temporal benefits and wherein they can not profit from the aid of our ministers and from that which gives rise to those human necessities which men are obliged to give one another. Having realized the convenience of this resolution, our kings, our predecessors, by different orders, have entrusted and ordered the viceroys, presidents, and governors to execute with great care and moderation the concentration of the indios into reducciones; and to deal with their doctrine with such forbearance and gentleness, without causing inconveniences, so that those who would not presently settle and who would see the good treatment and the protection of those already in settlements would, of their own accord, present themselves, and it is ordained that they be not required to pay taxes more than what is ordered. Because the above has been executed in the greater part of our Indies, we hereby order and decree that the same be complied with in all the remaining parts of the Indies, and the encomenderos shall entreat compliance thereof in the manner and form prescribed by the laws of this title." xxx "LAW VIII. "Philip II at the Pardo, on December 1, 1573. Philip III at Madrid, October 10, 1618. THAT THE 'REDUCCIONES' BE MADE IN ACCORDANCE WITH THE CONDITIONS OF THIS LAW. "The places wherein the pueblos and reducciones shall be formed should have the facilities of waters, lands, and mountains, ingress and egress, husbandry and a passageway of one league long, wherein the indios can have their live stock that they may not be mixed with those of the Spaniards. "LAW IX "Philip II at Toledo, on February 19, 1560. THAT THE 'INDIOS' IN 'REDUCCIONES' BE NOT DEPRIVED OF THE LANDS PREVIOUSLY HELD BY THEM. "With more good-will and promptness, the indios shall be concentrated in reducciones. Provided they shall not be deprived of the lands and granaries which they may have in the places left by them. We hereby order that no change shall be made in this respect, and that they be allowed to retain the lands held by them previously so that they may cultivate them and profit therefrom." xxx "LAW XIII. "THE SAME AS ABOVE. "THAT THE 'REDUCCIONES' BE NOT REMOVED WITHOUT ORDER OF THE KING, VICEROY, OR COURT. "No governor, or magistrate, or alcalde mayor, or any other court, has the right to alter or to remove the pueblos or the xxx xxx xxx xxx

reducciones once constituted and founded, without our express order or that of the viceroy, president, or the royal district court, provided, however, that the encomenderos, priests, or indios request such a change or consent to it by offering or giving information to that end. And, because these claims are often made for private interests and not for those of the indios, we hereby order that this law be always complied with, otherwise the change will be considered fraudulently obtained. The penalty of one thousand pesos shall be imposed upon the judge or encomendero who should violate this law." "LAW XV. "Philip III at Madrid, on October 10, 1618. THAT THERE BE MAYORS AND ALDERMAN IN THE REDUCCIONES,' WHO SHALL BE 'INDIOS.' "We order that in each town and reduccion there be a mayor, who should be an indio of the same reduccion; if there be more than eighty houses, there should be two mayors and two aldermen, also indios; and, even if the town be a big one, there should, nevertheless, be more than two mayors and four aldermen. If there be less than eighty indios but not less than forty, there should be not more than one mayor and one alderman, who should annually elect nine others, in the presence of the priests, as is the practice in town inhabited by Spaniards and indios." "LAW XXI. "Philip II, in Madrid, on May 2, 1563, and on November 25, 1578. At Tomar, on May 8, 1581. At Madrid, on January 10, 1589. Philip III, at Tordesillas, on July 12,1600. Philip IV, at Madrid, on October 1 and December 17, 1646. For this law and the one following, see Law I, Tit. 4, Book 7. "THAT IN THE TOWNS OF THE 'INDIOS,' THERE SHALL LIVE NO SPANIARDS, NEGROES, 'MESTIZOS,' AND MULATTOES. "We hereby prohibit and forbid Spaniards, negroes, mulattoes, or mestizos to live in the reducciones and towns of the indios, because it has been found that some Spaniards who deal, trade, live, and associate with the indios are men of troublesome nature, of dirty ways of living; robbers, gamblers, and vicious and useless men; and, to avoid the wrongs done them, the indios would leave their towns and provinces; and the negroes, mestizos, and mulattoes, besides maltreating them and utilizing their services, contaminate them with their bad customs, idleness, and also some of their blunders and vices which may corrupt and pervert the goal which we desire to reach with regard to their salvation, increase, and tranquility. We hereby order the imposition of grave penalties upon the commission of the acts above-mentioned which should not be tolerated in the towns, and that the viceroys, presidents, governors, and courts take great care in executing the law within their powers and avail themselves of the cooperation of the ministers who are truly honest. As regards the mestizos and Indian and Chinese half-breeds (zambaigos), who are children of indias and born among them, and who are to inherit their houses and haciendas, they shall not be affected by this law, it appearing to be a harsh thing to separate them

from their parents." (Law of the Indies, vol. 2, pp. 228, 229, 230, 231.) A clear exposition of the purposes of the Spanish government, in its efforts to improve the condition of the less advanced inhabitants of the Islands by concentrating them in "reducciones," is found in the Decree of the Governor-General of the Philippine Islands of January 14, 1881, reading as follows: "It is a legal principle as well as a national right that every inhabitant of a territory recognized as an integral part of a nation should respect and obey the laws in force therein; while, on the other-hand, it is the duty to conscience and to humanity for all governments to civilize those backward races that might exist in the nation, and which, living in the obscurity of ignorance, lack all the notions which enable them to grasp the moral and material advantages that may be acquired in those towns under the protection and vigilance afforded them by the same laws. "It is equally highly depressive to our national honor to tolerate any longer the separation and isolation of the nonChristian races from the social life of the civilized and Christian towns; to allow any longer the commission of depredations, precisely in the Island of Luzon wherein is located the seat of the representative of the Government of the metropolis. "It is but just to admit the fact that all the governments have occupied themselves with this most important question, and that much has been heretofore accomplished with the help and self-denial of the missionary fathers who have even sacrificed their lives to the end that those degenerate races might be brought to the principles of Christianity, but the means and the preaching employed to allure them have been insufficient to complete the work undertaken. Neither have the punishments imposed been sufficient in certain cases and in those which have not been guarded against, thus giving way for the majority of these races to persist in their mode of living and customs of isolation. "As it is impossible to consent to the continuation of such a lamentable state of things, taking into account the prestige which the country demands and the inevitable duty which every government has in enforcing respect and obedience to the national laws on the part of all who reside within the territory under its control, I have proceeded in the premises by giving the most careful study of this serious question which involves important interests for civilization, from the moral and material as well as the political standpoints. After hearing the illustrious opinions of all the local authorities, ecclesiastics, and missionaries of the provinces of Northern Luzon, and also after finding the unanimous conformity of the meeting held with the Archbishop of Manila, the Bishops of Jaro and Cebu, and the provincial prelates of the Orders of the Dominicans, Agustinians, Recoletos, Franciscans, and Jesuits as also of the meeting of the Council of Authorities, held for the object so indicated, I have arrived at an intimate conviction of the inevitable necessity of proceeding in a practical manner for the submission of the said pagan and isolated races, as well as of the manner and the only form of accomplishing such a task.

"For the reasons above stated and for the purpose of carrying out these objects, I hereby promulgate the following: "DECREE. "1. All the indian inhabitants (indios) of the Island of Luzon are, from this date, to be governed by the common law, save those exceptions prescribed in this decree which are based upon the differences of instruction, of the customs, and of the necessities of the different pagan races which occupy a part of its territory. "2. The diverse rules which should be promulgated for each of these races which may be divided into three classes: one, which comprises those which live isolated and roaming about without forming a town nor a home; another, made up of those subdued pagans who have not as yet entered completely the social life; and the third, of those mountain and rebellious pagans shall be published in their respective dialects, and the officials, priests, and missionaries of the provinces wherein they are found are hereby entrusted in the work of having these races learn these rules. These rules shall have executive character, beginning with the first day of next April, and, as to their compliance, they must be observed in the manner prescribed below. "3. The provincial authorities in conjunction with the priests shall proceed, from now on, with all the means which their zeal may suggest to them, to the taking of the census of the inhabitants of the towns or settlements already subdued, and shall adopt the necessary regulations for the appointment of local authorities, if there be none as yet; for the construction of courts and schools, and for the opening or fixing up of means of communication, endeavoring, as regards the administrative organization of the said towns or settlements, that this be finished before the first day of next July, so that at the beginning of the fiscal year they shall have the same rights and obligations which affect the remaining towns of the archipelago, with the only exception that in the first two years they shall not be obliged to render personal services other than those previously indicated. "4. So long as these subdued towns or settlements are located in fertile lands appropriate for cultivation, the inhabitants thereof shall not be obliged to move their dwelling-houses; and only in case of absolute necessity shall a new residence be fixed for them, choosing for this purpose the place most convenient for them and which prejudices the least their interests; and, in either of these cases, an effort must be made to establish their homes within the reach of the sound of the bell. "5. For the protection and defense of these new towns, there shall be established an armed force composed precisely of native Christians, the organization and service of which shall be determined in a regulation based upon that of the abolished Tercios de Policia (division of the Guardia Civil). "6. The authorities shall see to it that the inhabitants of the new towns understand all the rights and duties affecting them and the liberty which they have as to where and how they shall till their lands and sell the products thereof, with the only exception of the tobacco which shall be bought by the

Hacienda at the same price and conditions allowed other producers, and with the prohibition against these new towns as well as the others from engaging in commerce or any other transaction with the rebellious indios, the violation of which shall be punished with deportation. "7. In order to properly carry out this express prohibition, the limits of the territory of the rebellious indios shall be fixed; and whoever should go beyond the said limits shall be detained and assigned governmentally wherever convenient. "8. For the purpose of assisting in the conversion of the pagans into the fraternity of the Catholic Church, all who have settled and who profess our sacred religion shall by this fact alone be exempt for eight years from rendering personal labor. "9. The authorities shall offer in the name of the State to the races not subdued (aetas and mountain igorots) the following advantages in return for their voluntary submission: to live in towns; unity among their families; concession of good lands and the right to cultivate them in the manner they wish and in the way they deem most productive; support during a year, and clothes upon affecting submission; respect for their habits and customs in so far as the same are not opposed to natural law; freedom to decide of their own accord as to whether they want to be Christians or not; the establishment of missions and families of recognized honesty who shall teach, direct, protect, and give them security and trust them; the purchase or facility of the sale of their harvests; the exemption from contributions and tributes for ten years and from the quintas (a kind of tax) for twenty years; and lastly, that those who are governed by the local authorities as the ones who elect such officials under the direct charge of the authority of the province or district. "10. The races indicated in the preceding article, who voluntarily admit the advantages offered, shall, in return, have the obligation of constituting their new towns, of constructing their town hall, schools, and country roads which place them in communication with one another and with the Christians; provided, that the location of these towns be distant from their actual residences, when the latter do not have the good conditions of location and cultivation, and provided further that the putting of families in a place so selected by them be authorized in the towns already constituted. "11. The armed force shall proceed to the prosecution and punishment of the tribes, that, disregarding the peace, protection, and advantages offered them, continue in their rebellious attitude on the first of next April, committing from now on the crimes and vexations against the Christian towns; and for this purpose, the Captain General's Office shall proceed with the organization of the divisions of the Army which, in conjunction with the rural guards (cuadrilleros), shall have to enter the territory of such tribes. On the expiration of the term, they shall destroy their dwellinghouses, labors, and implements, and confiscate their products and cattle. Such a punishment shall necessarily be repeated twice a year, and for this purpose the military headquarters shall immediately order a detachment of the military staff to study the zones where such operations shall take place and everything conducive to the successful accomplishment of the same.

"12. The chiefs of provinces, priests, and missionaries, local authorities, and other subordinates to my authority, civil as well as military authorities, shall give the most effective aid and cooperation to the said forces in all that is within the attributes and the scope of the authority of each. "13. With respect to the reduccion of the pagan races found in some of the provinces in the southern part of the Archipelago, which I intend to visit, the preceding provisions shall conveniently be applied to them. "14. There shall be created, under my presidency as Governor-General, Vice-Royal Patron, a council or permanent commission which shall attend to and decide all the questions relative to the application of the foregoing regulations that may be brought to it for consultation by the chiefs of provinces and priests and missionaries. "15. The secondary provisions which may be necessary, as a complement to the foregoing, in bringing about due compliance with this decree, shall be promulgated by the respective official centers within their respective jurisdictions." (Gaceta de Manila, No. 15) (Diccionario de la Administracion, vol. 7, pp. 128-134.) B AFTER ACQUISITION OF THE PHILIPPINES BY THE UNITED STATES. Ever since the acquisition of the Philippine Islands by the United States, the question as to the best method for dealing with the primitive inhabitants has been a perplexing one. 1. Organic law.

The first order of an organic character after the inauguration of the American Government in the Philippines, was President McKinley's Instructions to the Commission of April 7, 1900, later expressly approved and ratified by section 1 of the Philippine Bill, the Act of Congress of July 1, 1902. Portions of these instructions have remained undisturbed by subsequent congressional legislation. One paragraph of particular interest should here be quoted, namely: "In dealing with the uncivilized tribes of the Islands, the Commission should adopt the same course followed by Congress in permitting the tribes of our North American Indians to maintain their tribal organization and government and under which many of these tribes are now living in peace and contentment, surrounded by civilization to which they are unable or unwilling to conform. Such tribal governments should, however, be subjected to wise and firm regulation; and, without undue or petty interference, constant and active effort should be exercised to prevent barbarous practices and introduce civilized customs." Next comes the Philippine Bill, the Act of Congress of July 1, 1902, in the nature of an Organic Act for the Philippines. The purpose of Section 7 of the Philippine Bill was to provide for a legislative body and, with this end in view, to name the prerequisites for the organization of the Philippine Assembly. The Philippine Legislature, composed of the Philippine Commission and the Philippine Assembly, was to have jurisdiction over the Christian portion of the Islands. The

Philippine Commission was to retain exclusive jurisdiction of that part of said Islands inhabited by Moros or other nonChristian tribes. The latest Act of Congress, nearest to a Constitution for the Philippines, is the Act of Congress of August 29, 1916, commonly known as the Jones Law. This law transferred the exclusive legislative jurisdiction and authority theretofore exercised by the Philippine Commission, to the Philippine Legislature (Sec. 12). It divided the Philippine Islands into twelve senatorial districts, the twelfth district to be composed of the Mountain Province, Baguio, Nueva Vizcaya, and the Department of Mindanao and Sulu. The Governor-General of the Philippine Islands was authorized to appoint senators and representatives for the territory which, at the time of the passage of the Jones Law, was not represented in the Philippine Assembly, that is, for the twelfth district (Sec. 16). The law established a bureau to be known as the "Bureau of non-Christian Tribes" which shall have general supervision over the public affairs of the inhabitants which are represented in the Legislature by appointed senators and representatives (Sec. 22). Philippine organic law may, therefore, be said to recognize a dividing line between the territory not inhabited by Moros or other non-Christian tribes, and the territory which is inhabited by Moros or other non-Christian tribes. 2. Statute law.

"By authority of the United States, be it enacted the Philippine Commission, that: "SECTION 1. Whereas the Manguianes of the Province of Mindoro have not progressed sufficiently in civilization to make it practicable to bring them under any form of municipal government, the provincial governor is authorized, subject to the approval of the Secretary of the Interior, in dealing with these Manguianes to appoint officers from among them, to fix their designations and badges of office, and to prescribe their powers and duties: Provided, That the powers and duties thus prescribed shall not be in excess of those conferred upon township officers by Act Numbered Three hundred and eighty-seven entitled 'An Act providing for the establishment of local civil governments in the townships and settlements of Nueva Vizcaya.' "SEC. 2. Subject to the approval of the Secretary of the Interior, the provincial governor is further authorized, when he deems such a course necessary in the interest of law and order, to direct such Manguianes to take up their habitation on sites on unoccupied public lands to be selected by him and approved by the provincial board. Manguianes who refuse to comply with such directions shall upon conviction be imprisoned for a period not exceeding sixty days. "SEC. 3. The constant aim of the governor shall be to aid the Manguianes of his province to acquire the knowledge and experience necessary for successful local popular government, and his supervision and control over them shall be exercised to this end, and to the end that law and order and individual freedom shall be maintained. "SEC. 4. When in the opinion of the provincial board of Mindoro any settlement of Manguianes has advanced sufficiently to make such a course practicable, it may be organized under the provisions of sections one to sixty-seven, inclusive, of Act Numbered three hundred and eighty-seven, as a township, and the geographical limits of such township shall be fixed by the provincial board. "SEC. 5. The public good requiring the speedy enactment of this bill, the passage of the same is hereby expedited in accordance with section two of 'An Act prescribing the order of procedure by the Commission in the enactment of laws,' passed September twenty-sixth, nineteen hundred. "SEC. 6. This Act shall take effect on its passage. "Enacted, December 4, 1902." All of these special laws, with the exception of Act No. 1306, were repealed by Acts Nos. 1396 and 1397. The last named Act incorporated and embodied the provisions in general language. In turn, Act No. 1397 was repealed by the Administrative Code of 1916. The two Administrative Codes retained the provisions in question. These different laws, if they mean anything, denote an anxious regard for the welfare of the non-Christian inhabitants of the Philippines and a settled and consistent practice with reference to the methods to be followed for their advancement.

Local governments in the Philippines have been provided for by various acts of the Philippine Commission and Legislature. The most notable are Acts Nos. 48 and 49 concerning the Province of Benguet and the Igorots; Act No. 82, the Municipal Code; Act No. 83, the Provincial Government Act; Act No. 183, the Charter of the city of Manila; Act No. 787, providing for the organization and government of the Moro Province; Act No. 1396, the Special Provincial Government Act; Act No. 1397, the Township Government Act; Act No. 1667, relating to the organization of settlements; Act No. 1963, the Baguio Charter; and Act No. 2408, the Organic Act of the Department of Mindanao and Sulu. The major portion of these laws have been carried forward into the Administrative Codes of 1916 and 1917. Of more particular interest are certain special laws concerning the government of the primitive peoples. Beginning with Act No. 387, Sections 68-71, enacted on April 9, 1902, by the United States Philippine Commission, having reference to the Province of Nueva Vizcaya, Acts Nos. 411, 422, 445, 500, 547, 548, 549, 550, 579, 753 855, 1113, 1145, 1268, 1306 were enacted for the provinces of Abra. Antique, Bataan, Ilocos Norte, Ilocos Sur, Isabela, Lepanto-Bontoc, Mindoro, Misamis, Nueva Vizcaya, Pangasinan, Paragua (Palawan), Tarlac, Tayabas, and Zambales. As an example of these laws, because referring to the Manguianes, we insert Act No. 547: "No. 547. AN ACT PROVIDING FOR THE ESTABLISHMENT OF LOCAL CIVIL GOVERNMENTS FOR THE MANGUIANES IN THE PROVINCE OF MINDORO.

C.

TERMINOLOGY.

The terms made use of by these laws, organic and statutory, are found in varying forms. "Uncivilized tribes" is the denomination in President McKinley's instructions to the Commission. The most commonly accepted usage has sanctioned the term "non-Christian tribes." These words are to be found in Section 7 of the Philippine Bill and in Section 22 of the Jones Law., They are also to be found in Act No. 253 of the Philippine Commission, establishing a Bureau of non-Christian Tribes and in Act No. 2674 of the Philippine Legislature, carried forward into Sections 701-705 of the Administrative Code of 1917, reestablishing this Bureau. Among other laws which contain the phrase, there can be mentioned Acts Nos. 127, 128, 387, 547, 548, 549, 550, 1397 1639, and 2551. "Non-Christian people," "non-Christian inhabitants," and "non-Christian Filipinos" have been the favorite nomenclature, in lieu of the unpopular word "tribes," since the coming into being of a Filipinized legislature. These terms can be found in Sections 2076, 2077, 2390, 2394, Administrative Code of 1916; Sections 701-705, 2145, 2422, 2426 Administrative Code of 1917; and in Acts Nos. 2404, 2435, 2444, 2674 of the Philippine Legislature, as well as in Act No. 1667 of the Philippine Commission. The Administrative Code specifically provides that the term "non-Christian" shall include Mohammedans and pagans. (Sec. 2576, Administrative Code of 1917; Sec. 2561, Administrative Code of 1916, taken from Act No. 2408, Sec. 3.) D. MEANING OF TERM "NON-CHRISTIAN."

making certain other acts applicable to that "part" of the Philippine Islands inhabited by Moros or other non-Christian tribes. Section 2145, is found in Article XII of the Provincial Law of the Administrative Code. The first section of this article, preceding Section 2145, makes the provisions of the article applicable only in specially organized provinces. The specially organized provinces are the Mountain Province, Nueva Vizcaya, Mindoro, Batanes, and Palawan. These are the provinces to which the Philippine Legislature has never seen fit to give all the powers of local self-government. They do not, however, exactly coincide with the portion of the Philippines which is not granted popular representation. Nevertheless, it is still a geographical description. It is well-known that within the specially organized provinces, there live persons some of whom are Christians and some of whom are not Christians. In fact, the law specifically recognizes this. (Sec. 2422, Administrative Code of 1917, etc.) If the religious conception is not satisfactory, so again the geographical conception is likewise inadequate. The reason is that the motive of the law relates not to a particular people, because of their religion, or to a particular province because of its location, but the whole intent of the law is predicated on the civilization or lack of civilization of the inhabitants. At most, "non-Christian" is an awkward and unsatisfactory word. Apologetic words usually introduce the term. "The socalled non-Christian" is a favorite expression. The Secretary of the Interior who for so many years had these people under his jurisdiction, recognizing the difficulty of selecting an exact designation, speaks of the "backward Philippine peoples, commonly known as the 'non-Christian tribes.'" (See Hearings before the Committee on the Philippines, United States Senate, Sixty-third Congress, third session on H.R. 18459, An Act to declare the purpose of the people of the United States as to the future political status of the Philippine Islands and to provide a more autonomous government for the Islands, pp. 346, 351; letter of the Secretary of the Interior of June 30, 1906 circulated by the Executive Secretary.) The idea that the term "non-Christian" is intended to relate to degree of civilization, is substantiated by reference to legislative, judicial, and executive authority. The legislative intent is borne out by Acts Nos. 48, 253, 387, 1667, and 2674, and Sections 701 et seq., and Sections 2422 et seq., of the Administrative Code of 1917. For instance, Act No. 253 charged the Bureau of non-Christian tribes to conduct "systematic investigations with reference to non-Christian tribes . . . with special view to determining the most practicable means for bringing about their advancement in civilization and material prosperity." As authority of a judicial nature is the decision of the Supreme Court in the case of United States vs. Tubban [Kalinga] ([1915], 29 Phil., 434). The question here arose as to the effect of a tribal marriage in connection with Article 423 of the Penal Code concerning the husband who surprises his wife in the act of adultery. In discussing the point, the court makes use of the following language:

If we were to follow the literal meaning of the word "nonChristian," it would of course result in giving to it a religious signification. Obviously, Christians would be those who profess the Christian religion, and non-Christians, would be those who do not profess the Christian religion. In partial corroboration of this view, there could also be cited Section 2576 of the last Administrative Code and certain well-known authorities, as Zuniga, "Estadismo de las Islas Filipinas," Professor Ferdinand Blumentritt, "Philippine Tribes and Languages," and Dr. N. M. Saleeby, "The Origin of Malayan Filipinos." (See Blair & Robertson, "The Philippine Islands," 1493-1898, vol. III, p. 300, note; Craig-Benitez, "Philippine Progress prior to 1898," vol. I, p. 107.) Not content with the apparent definition of the word, we shall investigate further to ascertain what is its true meaning. In one sense, the word can have a geographical signification. This is plainly to be seen by the provisions of many laws. Thus, according to the Philippine Bill, the authority of the Philippine Assembly was recognized in the "territory" of the Islands not inhabited by Moros or other non-Christian tribes. Again, the Jones Law confers similar recognition in the authorization of the twelfth senatorial district for the "territory not now represented in the Philippine Assembly. " The Philippine Legislature has, time and again, adopted acts

". . . we are not advised of any provision of law which recognizes as legal a tribal marriage of so-called nonChristians or members of uncivilized tribes, celebrated within that province without compliance with the requisites prescribed by General Orders No. 68. . . . We hold also that the fact that the accused is shown to be a member of an uncivilized tribe, of a low order of intelligence, uncultured and uneducated, should be taken into consideration as a second marked extenuating circumstance." Of much more moment is the uniform construction of executive officials who have been called upon to interpret and enforce the law. The official who, as a member of the Philippine Commission, drafted much of the legislation relating to the so-called non-Christians and who had these people under his authority, was the former Secretary of the Interior. Under date of June 30, 1906, this official addressed a letter to all governors of provinces, organized under the Special Provincial Government Act, a letter which later received recognition by the Governor-General and was circulated by the Executive Secretary, reading as follows: "SIR: Within the past few months, the question has arisen as to whether people who were originally non-Christians but have recently been baptized or who are children of persons who have been recently baptized are, for the purposes of Acts 1396 and 1397, to be considered Christian or non-Christians. "It has been extremely difficult, in framing legislation for the tribes in these islands which are not advanced far in civilization, to hit upon any suitable designation which will fit all cases. The number of individual tribes is so great that it is almost out of the question to enumerate all of them in an Act. It was finally decided to adopt the designation 'non-Christians' as the one most satisfactory, but the real purpose of the Commission was not so much to legislate for people having any particular religious belief as for those lacking sufficient advancement so that they could, to their own advantage, be brought under the Provincial Government Act and the Municipal Code. "The mere act of baptism does not, of course, in itself change the degree of civilization to which the person baptized has attained at the time the act of baptism is performed. For practical purposes, therefore, you will give the member of socalled 'wild tribes' of your province the benefit of the doubt even though they may recently have embraced Christianity. "The determining factor in deciding whether they are to be allowed to remain under the jurisdiction of regularly organized municipalities or what form of government shall be afforded to them should be the degree of civilization to which they have attained and you are requested to govern yourself accordingly. "I have discussed this matter with the Honorable, the Governor-General, who concurs in the opinion above expressed and who will have the necessary instructions given to the governors of the provinces organized under the Provincial Government Act." (Internal Revenue Manual, p. 214.)

The present Secretary of the Interior, in a memorandum furnished a member of this court, has the following to say on the subject: "As far as names are concerned the classification is indeed unfortunate, but while no other better classification has as yet been made the present classification should be allowed to stand. . . . I believe the term carries the same meaning as that expressed in the letter of the Secretary of the Interior (of June 30, 1906, herein quoted). It is indicative of the degree of civilization rather than of religious denomination, for to hold that it is indicative of religious denomination will make the law invalid as against that Constitutional guaranty of religious freedom." Another official who was concerned with the status of the non-Christians, was the Collector of Internal Revenue. The question arose for ruling relative to the cedula taxation of the Manobos and the Aetas. Thereupon, the view of the Secretary of the Interior , was requested on the point, who, by return indorsement, agreed with the interpretation of the Collector of Internal Revenue. This construction of the Collector of Internal Revenue can be found in circular letter No. 188 of the Bureau of Internal Revenue, dated June 11, 1907, reading as follows (Internal Revenue Manual, p. 214): "The internal revenue law exempts 'members of non-Christian tribes' from the payment of cedula taxes. The Collector of Internal Revenue has interpreted this provision of law to mean not that persons who profess some form of Christian worship are alone subject to the cedula tax, and that all other persons are exempt; he has interpreted it to mean that all persons preserving tribal relations with the so-called non-Christian tribes are exempt from the cedula tax, and that all others, including Jews, Mohammedans, Confucians, Buddists, etc., are subject to said tax so long as they live in cities or towns, or in the country in a civilized condition. In other words, it is not so much a matter of a man's form of religious worship or profession that decides whether or not he is subject to the cedula tax; it is more dependent on whether he is living in a civilized manner or is associated with the mountain tribes, either as a member thereof or as a recruit. So far, this question has not come up as to whether a Christian, maintaining his religious belief, but throwing his lot and living with a nonChristian tribe, would or would not be subject to the cedula tax. On one occasion a prominent Hebrew of Manila claimed to this office that he was exempt from the cedula tax, inasmuch as he was not a Christian. This Office, however, continued to collect cedula taxes from all of the Jews, East Indians, Arabs, Chinamen, etc., residing in Manila. Quite a large proportion of the cedula taxes paid in this city are paid by men belonging to the nationalities mentioned. Chinamen, Arabs and others are quite widely scattered throughout the Islands, and a condition similar to that which exist in Manila also exists in most of the large provincial towns. Cedula taxes are therefore being collected by this Office in all parts of these Islands on the broad ground that civilized people are subject to such taxes, and non-civilized people preserving their tribal relations are not subject thereto. (Sgd.) "JNO. S. HORD, "Collector of Internal Revenue."

"Approved: On September 17, 1910, the Collector of Internal Revenue addressed circular letter No. 327, approved by the Secretary of Finance and Justice, to all provincial treasurers. This letter in part reads: "In view of the many questions that have been raised by provincial treasurers regarding cedula taxes due from members of non-Christian tribes when they come in from the hills for the purpose of settling down and becoming members of the body politic of the Philippine Islands, the following clarification of the laws governing such questions and digest of rulings thereunder is hereby published for the information of all concerned: "Non-Christian inhabitants of the Philippine Islands are so classed, not by reason of the fact that they do not profess Christianity, but because of their uncivilized mode of life and low state of development. All inhabitants of the Philippine Islands classed as members of non-Christian tribes may be divided into three classes in so far as the cedula tax law is concerned. . . . "Whenever any member of a non-Christian tribe leaves his wild and uncivilized mode of life, severs whatever tribal relations he may have had and attaches himself to some civilized community, becoming a member of the body politic, he thereby makes himself subject to precisely the same law that governs the other members of that community and from and after the date when he so attaches himself to the community the same cedula and other taxes are due from him as from other members thereof. If he comes in after the expiration of the delinquency period the same rule should apply to him as to persons arriving from foreign countries or reaching the age of eighteen subsequent to the expiration of such period, and a regular class A, D, F, or H cedula, as the case may be, should be furnished him without penalty and without requiring him to play the tax for former years. "In conclusion, it should be borne in mind that the prime factor in determining whether or not a man is subject to the regular cedula tax is not the circumstance that he does or does not profess Christianity, nor even his maintenance of or failure to maintain tribal relations with some of the well known wild tribes, but his mode of life, degree of advancement in civilization and connection or lack of connection with some civilized community. For this reason so called 'Remontados' and 'Montescos' will be classed by this office as members of non-Christian tribes in so far as the application of the Internal Revenue Law is concerned, since, even though they belong to no well recognized tribe, their mode of life, degree of advancement and so forth are practically the same as those of the Igorrots and members of other recognized non-Christian tribes. "Very respectfully, ( Sgd. ) "ELLIS CROMWELL, " Collector of Internal Revenue, (Sgd.) "GREGORIO ARANETA, "Secretary of Finance and Justice."

The two circulars above quoted have since been repealed by Bureau of Internal Revenue Regulations No. 1, promulgated by Venancio Concepcion, Acting Collector of Internal Revenue, and approved on April 16, 1915, by Honorable Victorino Mapa, Secretary of Finance and Justice. Section 30 of the regulations is practically a transcript of Circular Letter No. 327. The subject has come before the Attorney-General for consideration. The Chief of Constabulary requested the opinion of the Attorney-General as to the status of a nonChristian who has been baptized by a minister of the Gospel. The precise questions were these: "Does he remain nonChristian or is he entitled to the privileges of a Christian? By purchasing intoxicating liquors, does he commit an infraction of the law and does the person selling same lay himself liable under the provision of Act No. 1639?" The opinion of Attorney-General Avancea, after quoting the same authorities hereinbefore set out, concludes: "In conformity with the above quoted constructions, it is probable that the person in question remains a non-Christian, so that in purchasing intoxicating liquors both he and the person selling the same make themselves liable to prosecution under the provisions of Act No. 1639. At least, I advise you that these should be the constructions placed upon the law until a court shall hold otherwise." Solicitor-General Paredes in his brief in this case says: "With respect to the meaning which the phrase non-Christian inhabitants has in the provisions of the Administrative Code which we are studying, we submit that said phrase does not have its natural meaning which would include all nonChristian inhabitants of the Islands, whether Filipinos or strangers, civilized or uncivilized, but simply refers to those uncivilized members of the non-Christian tribes of the Philippines who, living without home or fixed residence, roam in the mountains, beyond the reach of law and order. . . . "The Philippine Commission in denominating in its laws that portion of the inhabitants of the Philippines which live in tribes as non-Christian tribes, as distinguished from the common Filipinos which carry on a social and civilized life, did not intend to establish a distinction based on the religious beliefs of the individual, but, without dwelling on the difficulties which later would be occasioned by the phrase, adopted the expression which the Spanish legislation employed to designate the uncivilized portion of the inhabitants of the Philippines. "The phrase 'non-Christian inhabitants' used in the provisions of Articles 2077 and 2741 of Act No. 2657 (Articles 2145 and 2759) should be understood as equivalent to members of uncivilized tribes of the Philippines, not only because this is

the evident intention of the law, but because to give it its literal meaning would make the law null and unconstitutional as making distinctions based on the religion of the individual." The Official Census of 1903, in the portion written by no less an authority than Dr. David P. Barrows, then "Chief of the Bureau of non-Christian Tribes," divides the population into Christian or Civilized Tribes, and non-Christian or Wild Tribes. (Census of the Philippine Islands [1903], vol. 1, pp. 411 et seq.) The present Director of the Census, Hon. Ignacio Villamor, writes that the classification likely to be used in the Census now being taken is: "Filipinos and Primitive Filipinos. " In a Pronouncing Gazetteer and Geographical Dictionary of the Philippine Islands, prepared in the Bureau of Insular Affairs, War Department, a subdivision under the title nonChristian tribes is, "Physical and Political Characteristics of the non-Christian Tribes," which sufficiently shows that the term refers to culture and not to religion. In resume, therefore, the Legislature and the Judiciary, inferentially, and different executive officials, specifically, join in the proposition that the term "non-Christian" refers, not to religious belief, but, in a way, to geographical area, and, more directly, to natives of the Philippine Islands of a low grade of civilization, usually living in tribal relationship apart from settled communities. E. THE MANGUIANES.

III.

COMPARATIVE THE AMERICAN INDIANS.

Reference was made in the President's instructions to the Commission to the policy adopted by the United States for the Indian Tribes. The methods followed by the Government of the Philippine Islands in its dealings with the so-called nonChristian people is said, on argument, to be practically identical with that followed by the United States Government in its dealings with the Indian tribes. Valuable lessons, it is insisted, can be derived by an investigation of the AmericanIndian policy. From the beginning of the United States, and even before, the Indians have been treated as "in a state of pupilage." The recognized relation between the Government of the United States and the Indians may be described as that of guardian and ward. It is for the Congress to determine when and how the guardianship shall be terminated. The Indians are always subject to the plenary authority of the United States. Chief Justice Marshall in his opinion in Worcester vs. Georgia, hereinbefore mentioned, tells how the Congress passed an Act in 1819 "for promoting those humane designs of civilizing the neighboring Indians." After quoting the Act, the opinion goes on "This act avowedly contemplates the preservation of the Indian nations as an object sought by the United States, and proposes to effect this object by civilizing and converting them from hunters into agriculturists." A leading case which discusses the status of the Indians is that of the United States vs. Kagama ( [1886], 118 U. S., 375). Reference is herein made to the clause of the United States Constitution which gives Congress "power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes." The court then proceeds to indite a brief history of the position of the Indians in the United States (a more extended account of which can be found in Marshall's opinion in Worcester vs. Georgia, supra), as follows: "The relation of the Indian tribes living within the borders of the United States, both before and since the Revolution, to the people of the United States, has always been an anomalous one and of a complex character. "Following the policy of the European Governments in the discovery of America towards the Indians who were found here, the colonies before the Revolution and the States and the United States since, have recognized in the Indians a possessory right to the soil over which they roamed and hunted and established occasional villages. But they asserted an ultimate title in the land itself, by which the Indian tribes were forbidden to sell or transfer it to other nations or peoples without the consent of this paramount authority. When a tribe wished to dispose of its land, or any part of it, or the State or the United States wished to purchase it, a treaty with the tribe was the only mode in which this could be done. The United States recognized no right in private persons, or in other nations, to make such a purchase by treaty or otherwise. With the Indians themselves these relations are equally difficult to define. They were, and always have been, regarded as having a semi-independent position when they preserved their tribal relations; not as States, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the

The so-called non-Christians are in various stages approaching civilization. The Philippine Census of 1903 divided them into four classes. Of the third class, are the Manguianes (or Mangyans) of Mindoro. Of the derivation of the name "Manguian" Dr. T. H. Pardo de Tavera in his Etimologia de los nombres de Razas de Filipinas, says: "In Tagalog, Bicol, and Visaya, Manguian signifies 'savage,' 'mountainer,' 'pagan,' 'negro.' It may be that the se of this word is applicable to a great number of Filipinos, but nevertheless it has been applied only to certain inhabitants of Mindoro. Even in primitive times without doubt this name was given to those of that island who bear it to-day, but its employment in three Filipino languages shows that the radical ngian had in all these languages a sense to-day forgotten. In Pampango this ending still exists and signifies 'ancient,' from which we can deduce that the name was applied to men considered to be the ancient inhabitants, and that these men were pushed back into the interior by the modern invaders, in whose language they were called the 'ancients.' " The Manguianes are very low in culture. They have considerable Negrito blood and have not advanced beyond the Negritos in civilization. They are a peaceful, timid, primitive, semi-nomadic people. They number approximately 15,000. The Manguianes have shown no desire for community life, and, as indicated in the preamble to Act No. 547, have not progressed sufficiently in civilization to make it practicable to bring them under any form of municipal government. (See Census of the Philippine Islands [1903], vol. I, pp. 22, 23, 460.)

power of regulating their internal and social relations, and thus far not brought under the laws of the Union or of the State within whose limits they resided." The opinion then continues: "It seems to us that this (effect of the law) is within the competency of Congress. These Indian tribes are the wards of the nation. They are communities dependent on the United States. Dependent largely for their daily food. Dependent for their political rights. They owe no allegiance to the States, and receive from them no protection. Because of the local ill feeling, the people of the States where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the Federal Government with them and the treaties in which it has been promised, there arise the duty of protection, and with it the power. This has always been recognized by the Executive and by Congress, and by this court, whenever the question has arisen. . . . The power of the General Government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell. It must exist in that government, because it never has existed anywhere else, because the theater of its exercise is within the geographical limits of the United States, because it has never been denied, and because it alone can enforce its laws on all the tribes." In the later case of United States vs. Sandoval ([1913], 231 U. S., 28) the question to be considered was whether the status of the Pueblo Indians and their lands was such that Congress could prohibit the introduction of intoxicating liquor into those lands notwithstanding the admission of New Mexico to statehood. The court looked to the reports of the different superintendents charged with guarding their interests and found that these Indians are dependent upon the fostering care and protection of the government "like reservation Indians in general." Continuing, the court said "that during the Spanish dominion, the Indians of the pueblos were treated as wards requiring special protection, were subjected to restraints and official supervision in the alienation of their property." And finally, we note the following: "Not only does the Constitution expressly authorize Congress to regulate commerce with the Indian tribes, but long-continued legislative and executive usage and an unbroken current of judicial decisions have attributed to the United States as a superior and civilized nation the power and the duty of exercising a fostering care and protection over all dependent Indian communities within its borders, whether within its original territory or territory subsequently acquired, and whether within or without the limits of a state." With reference to laws affecting the Indians, it has been held that it is not within the power of the courts to overrule the judgment of Congress. For very good reason, the subject has always been deemed political in nature, not subject to the jurisdiction of the judicial department of the government. (Matter of Heff [1905], 197 U. S., 488; U. S. vs. Celestine [1909], 215 U. S., 278; U. S. vs. Sandoval, supra; Worcester vs. Georgia, supra; U. S. vs. Rogers [1846], 4 How., 567; The Cherokee Tobacco [1871], 11 Wall., 616; Roff vs. Burney [1897], 168 U. S., 218; Thomas vs. Gay [1898], 169 U. S., 264; Lone Wolf vs. Hitchcock [1903], 187 U. S., 553; Wallace

vs. Adams [1907], 204 U.S., 415; Conley vs. Bollinger [1910], 216 U. S., 84; Tiger vs. Western Invest. Co. [1911], 221 U. S., 286; U. S. vs. Lane [1913], 232 U. S., 598; Cyr vs. Walker [1911], 29 Okla., 281; 35 L. R. A. [N. S.], 795.) Whenever, therefore, the United States sets apart any public land as an Indian reservation, it has full authority to pass such laws and authorize such measures as may be necessary to give to the Indians thereon full protection in their persons and property. (U. S. vs. Thomas [1894], 151 U. S., 577.) All this is borne out by long-continued legislative and executive usage, and an unbroken line of judicial decisions. The only case which is even remotely in point and which, if followed literally, might result in the issuance of habeas corpus, is that of United States vs. Crook ( [1879], Fed. Cas. No. 14891). This was a hearing upon return to a writ of habeas corpus issued against Brigadier General George Crook at the relation of Standing Bear and other Indians, formerly belonging to the Ponca Tribe of Indians. The petition alleged in substance that the relators are Indians who have formerly belonged to the Ponca tribe of Indians, now located in the Indian Territory; that they had some time previously withdrawn from the tribe, and completely severed their tribal relations therewith, and had adopted the general habits of the whites, and were then endeavoring to maintain themselves by their own exertions, and without aid or assistance from the general government; that whilst they were thus engaged, and without being guilty of violating any of the laws of the United States, they were arrested and restrained of their liberty by order of the respondent, George Crook. The substance of the return to the writ was that the relators are individual members of, and connected with, the Ponca tribe of Indians; that they had fled or escaped from a reservation situated some place within the limits of the Indian Territory had departed therefrom without permission from the Government; and, at the request of the Secretary of the Interior, the General of the Army had issued an order which required the respondent to arrest and return the relators to their tribe in the Indian Territory, and that, pursuant to the said order, he had caused the relators to be arrested on the Omaha Indian Territory. The first question was whether an Indian can test the validity of an illegal imprisonment by habeas corpus. The second question, of much greater importance, related to the right of the Government to arrest and hold the relators for a time, for the purpose of being returned to the Indian Territory from which it was alleged the Indian escaped. In discussing this question, the court reviewed the policy the Government had adopted in its dealings with the friendly tribe of Poncas. Then, continuing, the court said: "Laws passed for the government of the Indian country, and for the purpose of regulating trade and intercourse with the Indian tribes, confer upon certain officers of the Government almost unlimited power over the persons who go upon the reservations without lawful authority. . . . Whether such an extensive discretionary power is wisely vested in the commissioner of Indian affairs or not, need not be questioned. It is enough to know that the power rightfully exists, and, where existing, the exercise of the power must be upheld. "The decision concluded as follows: "The reasoning advanced in support of my views, leads me to conclude:

"1. That an Indian is a 'person' within the meaning of the laws of the United States, and has, therefore, the right to sue out a writ of habeas corpus in a federal court, or before a federal judge, in all cases where he may be confined or in custody under color of authority of the United States or where he is restrained of liberty in violation of the constitution or laws of the United States. "2. That General George Crook, the respondent, being commander of the military department of the Platte, has the custody of the relators, under color of authority of the United States, and in violation of the laws thereof. "3. That no rightful authority exists for removing by force any of the relators to the Indian Territory, as the respondent has been directed to do. "4. That the Indians possess the inherent right of expatriation, as well as the more fortunate white race, and have the inalienable right to 'life, liberty, and the pursuit of happiness,' so long as they obey the laws and do not trespass on forbidden ground. And, "5. Being restrained of liberty under color of authority of the United States, and in violation of the laws thereof, the relators must be discharged from custody, and it is so ordered." As far as the first point is concerned, the decision just quoted could be used as authority to determine that Rubi, the Manguian petitioner, a Filipino, and a citizen of the Philippine Islands, is a "person" within the meaning of the Habeas Corpus Act, and as such, entitled to sue out a writ in the Philippine courts. (See also In re Race Horse [1895], 70 Fed., 598.) We so decide. As to the second point, the facts in the Standing Bear case and the Rubi case are not exactly identical. But even admitting similarity of facts, yet it is known to all that Indian reservations do exist in the United States, that Indians have been taken from different parts of the country and placed on these reservations, without any previous consultation as to their own wishes, and that, when once so located, they have been made to remain on the reservation for their own good and for the general good of the country. If any lesson can be drawn from the Indian policy of the United States, it is that the determination of this policy is for the legislative and executive branches of the government and that when once so decided upon, the courts should not interfere to upset a carefully planned governmental system. Perhaps, just as many forceful reasons exist for the segregation of the Manguianes in Mindoro as existed for the segregation of the different Indian tribes in the United States. IV. CONSTITUTIONAL QUESTIONS. A. DELEGATION OF LEGISLATIVE POWER.

That the maxim of Constitutional Law forbidding the delegation of legislative power should be zealously protected, we agree. An understanding of the rule will, however, disclose that it has not been violated in this instance. The rule has nowhere been better stated than in the early Ohio case decided by Judge Ranney, and since followed in a multitude of cases, namely: "The true distinction therefore is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made." (Cincinnati, W. & Z. R. Co. vs. Comm'rs. Clinton County [1852], 1 Ohio St., 88.) Discretion, as held by Chief Justice Marshall in Wayman vs. Southard ([1825], 10 Wheat., 1) may be committed by the Legislature to an executive department or official. The Legislature may make decisions of executive departments or subordinate officials thereof, to whom it has committed the execution of certain acts, final on questions of fact. (U. S. vs. Kinkead [1918], 248 Fed., 141.) The growing tendency in the decisions is to give prominence to the "necessity" of the case. Is not all this exactly what the Legislature has attempted to accomplish by the enactment of Section 2145 of the Administrative Code? Has not the Legislature merely conferred upon the provincial governor, with the approval of the provincial board and the Department Head, discretionary authority as to the execution of the law? Is not this "necessary"? The case of West vs. Hitchcock, ([1906], 205 U. S., 80) was a petition for mandamus to require the Secretary of the Interior to approve the selection and taking of one hundred and sixty acres by the relator out of the lands ceded to the United States by the Wichita and affiliated bands of Indians. Section 463 of the United States Revised Statutes provided: "The Commissioner of Indian Affairs shall, under the direction of the Secretary of the Interior, and agreeably to such regulations as the President may prescribe, have the management of all Indian affairs, and of all matters arising out of the Indian relations." Justice Holmes said: "We should hesitate a good deal, especially in view of the long established practice of the Department, before saying that this language was not broad enough to warrant a regulation obviously made for the welfare of the rather helpless people concerned. The power of Congress is not doubted. The Indians have been treated as wards of the nation. Some such supervision was necessary, and has been exercised. In the absence of special provisions naturally it would be exercised by the Indian Department." (See also as corroborative authority, if any is needed, Union Bridge Co. vs. U. S. [1907], 204 U. S., 364, reviewing the previous decisions of the United States Supreme Court; U. S. vs. Lane [1914], 232 U. S., 598.) There is another aspect of the question, which once accepted, is decisive. An exception to the general rule, sanctioned by immemorial practice, permits the central legislative body to delegate legislative powers to local authorities. The Philippine Legislature has here conferred authority upon the Province of Mindoro, to be exercised by the provincial governor and the provincial board.

The first constitutional objection which confronts us is that the Legislature could not delegate this power to provincial authorities. In so attempting, it is contended, the Philippine Legislature has abdicated its authority and avoided its full responsibility.

Who but the provincial governor and the provincial board, as the official representatives of the province, are better qualified to judge "when such a course is deemed necessary in the interest of law and order?" As officials charged with the administration of the province and the protection of its inhabitants, who but they are better fitted to select sites which have the conditions most favorable for improving the people who have the misfortune of being in a backward state ? Section 2145 of the Administrative Code of 1917 is not an unlawful delegation of legislative power by the Philippine Legislature to provincial officials and a department head. B. RELIGIOUS DISCRIMINATION.

"Every man may claim the fullest liberty to exercise his faculties, compatible with the possession of like liberty by every other." (Spencer, Social Statistics, p. 94.) "Liberty is the creature of law, essentially different from that authorized licentiousness that trespasses on right. It is a legal and a refined idea, the offspring of high civilization, which the savage never understood, and never can understand. Liberty exists in proportion to wholesome restraint; the more restraint on others to keep off from us, the more liberty we have . . . That man is free who is protected from injury." (II Webster's Works, p. 393.) "Liberty consists in the ability to do what one ought to desire and in not being forced to do what one ought not to desire." (Montesquieu, Spirit of the Laws.) "Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others." (Field, J., in Crowley vs. Christensen [1890], 137 U. S., 86.) "Liberty does not import 'absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others . . . There is, of course, a sphere within which the individual may assert the supremacy of his own will, and rightfully dispute the authority of any human government especially of any free government existing under a written Constitution to interfere with the exercise of that will. But it is equally true that in every well-ordered society charged with the duty of conserving the safety of its members, the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint to be enforced by reasonable regulations, as the safety of the general public may demand.' " (Harlan, J., in Jacobson vs. Massachusetts [1905] 197 U. S., 11.) "Liberty is freedom to do right and never wrong; it is ever guided by reason and the upright and honorable conscience of the individual." (Apolinario Mabini.) Civil liberty may be said to mean that measure of freedom which may be enjoyed in a civilized community, consistently with the peaceful enjoyment of like freedom in others. The right to liberty guaranteed by the Constitution includes the right to exist and the right to be free from arbitrary personal restraint or servitude. The term cannot be dwarfed into mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the faculties with which he has been endowed by his Creator, subject only to such restraints as are necessary for the common welfare. As enunciated in a long array of authorities including epoch-making decisions of the United States

The attorney de officio, for petitioners, in a truly remarkable brief, submitted on behalf of his unknown clients, says that "The statute is perfectly clear and unambiguous. In limpid English, and in words as plain and unequivocal as language can express, it provides for the segregation of 'non-Christians' and none other." The inevitable result, then, is that the law "constitutes an attempt by the Legislature to discriminate between individuals because of their religious beliefs, and is, consequently, unconstitutional." Counsel's premise once being conceded, his argument is unanswerable the Legislature must be understood to mean what it has plainly expressed; judicial construction is then excluded; religious equality is demanded by the Organic Law; the statute has violated this constitutional guaranty, and Q. E. D. is invalid. But, as hereinbefore stated, we do not feel free to discard the long continued meaning given to a common expression, especially as classification of inhabitants according to religious belief leads the court to what it should avoid, the nullification of legislative action. We hold that the term "non-Christian" refers to natives of the Philippine Islands of a low grade of civilization, and that Section 2145 of the Administrative Code of 1917, does not discriminate between individuals on account of religious differences. C. LIBERTY; DUE PROCESS OF LAW; EQUAL PROTECTION OF THE LAWS. The third constitutional argument is grounded on those portions of the President's instructions to the Commission, the Philippine Bill, and the Jones Law, providing "That no law shall be enacted in said Islands which shall deprive any person of life, liberty, or property without due process of law, or deny to any person therein the equal protection of the laws." This constitutional limitation is derived from the Fourteenth Amendment to the United States Constitution and these provisions, it has been said, "are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality." (Yick Wo vs. Hopkins [1886], 118 U. S., 356.) The protection afforded the individual is then as much for the non-Christian as for the Christian. The conception of civil liberty has been variously expressed thus:

Supreme Court, liberty includes the right of the citizen to be free to use his faculties in lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any avocation, and for that purpose, to enter into all contracts which may be proper, necessary, and essential to his carrying out these purposes to a successful conclusion. The chief elements of the guaranty are the right to contract, the right to choose one's employment, the right to labor, and the right of locomotion. In general, it may be said that liberty means the opportunity to do those things which are ordinarily done by free men. (There can be noted Cummings vs. Missouri [1866], 4 Wall., 277, Wilkinson vs. Leland [18293, 2 Pet., 627; Williams vs. Fears [1900], 179 U. S., 274; Allgeyer vs. Louisiana [1896], 165 U. S., 578; State vs. Kreutzberg [1902], 114 Wis., 530. See 6 R. C. L., 258, 261.) One thought which runs through all these different conceptions of liberty is plainly apparent. It is this: "Liberty" as understood in democracies, is not license; it is "liberty regulated by law." Implied in the term is restraint by law for the good of the individual and for the greater good of the peace and order of society and the general well-being. No man can do exactly as he pleases. Every man must renounce unbridled license. The right of the individual is necessarily subject to reasonable restraint by general law for the common good. Whenever and wherever the natural rights of citizens would, if exercised without restraint, deprive other citizens of rights which are also and equally natural, such assumed rights must yield to the regulation of law. The liberty of the citizen may be restrained in the interest of the public health, or of the public order and safety, or otherwise within the proper scope of the police power. (See Hall vs. Geiger-Jones [1916], 242 U. S., 539: Hardie-Tynes Manufacturing Co. vs. Cruz [1914], 189 Ala., 66.) None of the rights of the citizen can be taken away except by due process of law. Daniel Webster, in the course of the argument in the Dartmouth College Case before the United States Supreme Court, since a classic in forensic literature, said that the meaning of "due process of law" is, that "every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society." To constitute "due process of law," as has been often held, a judicial proceeding is not always necessary. In some instances, even a hearing and notice are not requisite, a rule which is especially true where much must be left to the discretion of the administrative officers in applying a law to particular cases. (See McGehee, Due Process of Law, p. 371.) Neither is due process a stationary and blind sentinel of liberty. "Any legal proceeding enforced by public authority, whether sanctioned by age and custom, or newly devised in the discretion of the legislative power, in furtherance of the public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law." (Hurtado vs. California [1883], 110 U. S., 516.) "Due process of law" means simply . . . "first, that there shall be a law prescribed in harmony with the general powers of the legislative department of the Government; second, that this law shall be reasonable in its operation; third, that it shall be enforced according to the regular methods of procedure prescribed; and fourth, that it shall be applicable alike to all

the citizens of the state or to all of a class." (U. S. vs. Ling Su Fan [1908], 10 Phil., 104, affirmed on appeal to the United States Supreme Court. 1) "What is due process of law depends on circumstances. It varies with the subject-matter and necessities of the situation." (Moyer vs. Peabody [1909], 212 U. S., 82.) The pledge that no person shall be denied the equal protection of the laws is not infringed by a statute which is applicable to all of a class. The classification must have a reasonable basis and cannot be purely arbitrary in nature. We break off with the foregoing statements, leaving the logical deductions to be made later on. D. SLAVERY AND INVOLUNTARY SERVITUDE.

The fourth constitutional contention of petitioner relates to the Thirteenth Amendment to the United States Constitution particularly as found in those portions of Philippine Organic Law providing "That slavery shall not exist in said Islands; nor shall involuntary servitude exist except as a punishment for crime whereof the party shall have been duly convicted." It is quite possible that the Thirteenth Amendment, since reaching to "any place subject to" the "jurisdiction" of the United States, has force in the Philippines. However this may be, the Philippine Legislature has, by adoption, with necessary modifications, of Sections 268 to 271 inclusive of the United States Criminal Code, prescribed the punishment for these crimes. Slavery and involuntary servitude, together with their corollary, peonage, all denote "a condition of enforced, compulsory service of one to another." (Hodges vs. U. S. [1906], 208 U. S., 1.) The term of broadest scope is possibly involuntary servitude. It has been applied to any servitude in fact involuntary, no matter under what form such servitude may have been disguised. (Bailey vs. Alabama [1910], 219 U. S., 219.) So much for an analysis of those constitutional provisions on which petitioners rely for their freedom. Next must come a description of the police power under which the State must act if Section 2145 is to be held valid. E. THE POLICE POWER.

Not attempting to phrase a definition of police power, all that it is necessary to note at this moment is the far reaching scope of the power, that it has become almost impossible to limit its sweep, and that among its purposes is the power to prescribe regulations to promote the health. peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the State, develop its resources and add to its wealth and prosperity. (See Barbier vs. Connolly [1884], 113 U. S., 27.) What we are most interested in is the right of the government to restrain liberty by the exercise of the police power. "The police power of the State," one court has said, . . . "is a power coextensive with self-protection, and is not inaptly termed the 'law of overruling necessity.' It may be said to be that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety and welfare of society." (Lake View vs. Rose Hill Cemetery Co. [1873],

70 Ill., 191.) Carried onward by the current of legislation, the judiciary rarely attempts to dam the onrushing power of legislative discretion, provided the purposes of the law do not go beyond the great principles that mean security for the public welfare or do not arbitrarily interfere with the right of the individual. The Government of the Philippine Islands has both on reason and authority the right to exercise the sovereign police power in the promotion of the general welfare and the public interest. "There can be no doubt that the exercise of the police power of the Philippine Government belongs to the Legislature and that this power is limited only by the Acts of Congress and those fundamental principles which lie at the foundation of all republican forms of government." (Churchill and Tait vs. Rafferty [1915], 32 Phil., 580; U. S. vs. Pompeya [1915], 31 Phil., 245.) With the foregoing approximation of the applicable basic principles before us, before finally deciding whether any constitutional provision has indeed been violated by Section 2145 of the Administrative Code, we should endeavor to ascertain the intention of the Legislature in enacting this section. If legally possible, such legislative intention should be effectuated. F. LEGISLATIVE INTENT.

" 'It is not deemed wise to abandon the present policy over those who prefer to live a nomadic life and evade the influence of civilization. The Government will follow its policy to organize them into political communities and to educate their children with the object of making them useful citizens of this country. To permit them to live a way-faring life will ultimately result in a burden to the state and on account of their ignorance, they will commit crimes and make depredations, or if not they will be subject to involuntary servitude by those who may want to abuse them.' " The Secretary of the Interior, who is the official charged with the supervision of all the non-Christian people, has adopted as the polaris of his administration The advancement of the non-Christian elements of our population to equality and unification with the highly civilized Christian inhabitants." This is carried on by the adoption of the following measures: "(a) Pursuance of the closer settlement policy whereby people of seminomadic race are induced to leave their wild habitat and settle in organized communities. "(b) The extension of the public school system and the system of public health throughout the regions inhabited by the non-Christian people. "(c) The extension of public works throughout the Mohammedan regions to facilitate their development and the extension of government control. "(d)Construction of roads and trails between one place and another among non-Christians, to promote social and commercial intercourse and maintain amicable relations among them and with the Christian people. "(e) Pursuance of the development of natural economic resources, especially agriculture. "(f) The encouragement of immigration into, and of the investment of private capital in, the fertile regions of Mindanao and Sulu." The Secretary adds: "To attain the end desired, work of a civilizing influence have been continued among the non-Christian people. These people are being taught and guided to improve their living conditions in order that they may fully appreciate the benefits of civilization. Those of them who are still given to nomadic habits are being persuaded to abandon their wild habitat and settle in organized settlements. They are being made to understand that it is the purpose of the Government to organize them politically into fixed and permanent communities, thus bringing them under the control of the Government, to aid them to live and work, protect them from involuntary servitude and abuse, educate their children, and show them the advantages of leading a civilized life with their civilized brothers. In short, they are being impressed with the purposes and objectives of the Government of leading them to economic, social, and political equality, and unification with the more highly civilized inhabitants of the country." (See Report of the Department for 1917.)

The preamble of the resolution of the provincial board of Mindoro which set apart the Tigbao reservation, it will be remembered, assigned as reasons for the action, the following: (1) The failure of former attempts for the advancement of the non-Christian people of the province; and (2) the only successful method for educating the Manguianes was to oblige them to live in a permanent settlement. The Solicitor-General adds the following: (3) The protection of the Manguianes; (4) the protection of the public forests in which they roam; (5) the necessity of introducing civilized customs among the Manguianes. The present Secretary of the Interior says of the Tigbao reservation and of the motives for its selection, the following: "To inform himself of the conditions of those Manguianes who were taken together to Tigbao, the Secretary of the Interior on June 10 to 13, 1918, made a trip to that place. There he found that the site selected is a good one; that creditable progress has been made in the clearing of forests, construction of buildings, etc., that there appears to be encouraging reaction by the boys to the work of the school the requirements of which they appear to meet with enthusiastic interest after the first weeks which are necessarily a somewhat trying period for children wholly unaccustomed to orderly behaviour and habit of life. He also gathered the impression that the results obtained during the period of less than one year since the beginning of the institution definitely justify its continuance and development. "Of course, there were many who were protesting against that segregation. Such was naturally to be expected. But the Secretary of the Interior, upon his return to Manila, made the following statement to the press:

The fundamental objective of governmental policy is to establish friendly relations with the so-called non-Christians, and to promote their educational, agricultural, industrial, and economic development and advancement in civilization. (Note Acts Nos. 2208, 2404, 2444.) Act No. 2674 in reestablishing the Bureau of non-Christian Tribes, defines the aim of the Government towards the non-Christian people in the following unequivocal terms: "It shall be the duty of the Bureau of non-Christian Tribes to continue the work for advancement and liberty in favor of the regions inhabited by non-Christian Filipinos and foster by all adequate means and in a systematical, rapid, and complete manner the moral, material, economic, social, and political development of those regions, always having in view the aim of rendering permanent the mutual intelligence between, and complete fusion of, all the Christian and non-Christian elements populating the provinces of the Archipelago." (Sec. 3.) May the Manguianes not be considered, as are the Indians in the United States, proper wards of the Filipino people? By the fostering care of a wise Government, may not these unfortunates advance in the "habits and arts of civilization?" Would it be advisable for the courts to intrude upon a plan, carefully formulated, and apparently working out for the ultimate good of these people? In so far as the Manguianes themselves are concerned, the purpose of the Government is evident. Here, we have on the Island of Mindoro, the Manguianes, leading a nomadic life, making depredations on their more fortunate neighbors, uneducated in the ways of civilization, and doing nothing for the advancement of the Philippine Islands. What the Government wished to do by bringing them into a reservation was to gather together the children for educational purposes, and to improve the health and morals was in fine, to begin the process of civilization. This method was termed in Spanish times, "bringing under the bells." The same idea adapted to the existing situation, has been followed with reference to the Manguianes and other peoples of the same class, because it required, if they are to be improved, that they be gathered together. On these few reservations there live under restraint in some cases, and in other instances voluntarily, a few thousands of the uncivilized people. Segregation really constitutes protection for the Manguianes. Theoretically, one may assert that all men are created free and equal. Practically, we know that the axiom is not precisely accurate. The Manguianes, for instance, are not free, as civilized men are free, and they are not the equals of their more fortunate brothers. True, indeed, they are citizens, with many but not all the rights which citizenship implies. And true, indeed, they are Filipinos. But just as surely, the Manguianes are citizens of a low degree of intelligence, and Filipinos who are a drag upon the progress of the State. In so far as the relation of the Manguianes to the State is concerned, the purposes of the Legislature in enacting the law, and of the executive branch in enforcing it, are again plain. Settlers in Mindoro must have their crops and persons protected from predatory men, or they will leave the country. It is no argument to say that such crimes are punished by the

Penal Code, because these penalties are imposed after commission of the offense and not before. If immigrants are to be encouraged to develop the resources of the great Island of Mindoro, and its, as yet, unproductive regions, the Government must be in a position to guarantee peace and order. Waste lands do not produce wealth. Waste people do not advance the interest of the State. Illiteracy and thriftlessness are not conducive to homogeneity. The State to protect itself from destruction must prod on the laggard and the sluggard. The great law of overwhelming necessity is all convincing. To quote again from the instructive memorandum of the Secretary of the Interior: "Living a nomadic and a wayfaring life and evading the influence of civilization, they (the Manguianes) are engaged in the works of destruction burning and destroying the forests and making illegal caigins thereon. Not bringing any benefit to the State but instead injuring and damaging its interests, what will ultimately become of these people with the sort of liberty they wish to preserve and for which they are now fighting in court? They will ultimately become a heavy burden to the State and on account of their ignorance they will commit crimes and make depredations, or if not they will be subjected to involuntary servitude by those who may want to abuse them. "There is no doubt in my mind that this people has not a right conception of liberty and does not practise liberty in a rightful way. They understand liberty as the right to do anything they will going from one place to another in the mountains, burning and destroying forests and making illegal caigins thereon. "Not knowing what true liberty is and not practising the same rightfully, how can they allege that they are being deprived thereof without due process of law? xxx xxx xxx

"But does the Constitutional guaranty that 'no person shall be deprived of his liberty without due process of law' apply to a class of persons who do not have a correct idea of what liberty is and do not practise liberty in a rightful way? "To say that it does will mean to sanction and defend an erroneous idea of such class of persons as to what liberty is. It will mean, in the case at bar, that the Government should not adopt any measures looking to the welfare and advancement of the class of persons in question. It will mean that this people should be let alone in the mountains and in a permanent state of savagery without even the remotest hope of coming to understand liberty in its true and noble sense. "In dealing with the backward population, like the Manguianes, the Government has been placed in the alternative of either letting them alone or guiding them in the path of civilization. The latter measure was adopted as the one more in accord with humanity and with national conscience." xxx xxx xxx

"The national legislation on the subject of non-Christian people has tended more and more towards the education and civilization of such people and fitting them to be citizens. The progress of those people under the tutelage of the Government is indeed encouraging and the signs of the times point to a day which is not far distant when they will become useful citizens. In the light of what has already been accomplished which has been winning the gratitude of most of the backward people, shall we give up the noble work simply because a certain element, believing that their personal interests would be injured by such a measure has come forward and challenged the authority of the Government to lead this people in the path of civilization? Shall we, after expending sweat, treasure, and even blood only to redeem this people from the claws of ignorance and superstition, now willingly retire because there has been erroneously invoked in their favor that Constitutional guaranty that no person shall be deprived of his liberty without due process of law? To allow them to successfully invoke that Constitutional guaranty at this time will leave the Government without recourse to pursue the works of civilizing them and making them useful citizens. They will thus be left in a permanent state of savagery and become a vulnerable point of attack by those who doubt, any challenge, the ability of the nation to deal with our backward brothers. "The Manguianes in question have been directed to live together at Tigbao. There they are being taught and guided to improve their living conditions. They are being made to understand that the object of the government is to organize them politically into fixed and permanent communities. They are being aided to live and work. Their children are being educated in a school especially established for them. In short, everything is being done for them in order that their advancement in civilization and material prosperity may be assured. Certainly their living together in Tigbao does not make them slaves or put them in a condition compelled to do services for another. They do not work for anybody but for themselves. There is, therefore, no involuntary servitude. "But they are compelled to live there and prohibited from emigrating to some other place under penalty of imprisonment. Attention in this connection is invited to the fact that this people, living a nomadic and wayfaring life, do not have permanent individual property. They move from one place to another as the conditions of living warrant, and the entire space where they are roving about is the property of the nation, the greater part being lands of public domain. Wandering from one place to another on the public lands, why can not the government adopt a measure to concentrate them in a certain fixed place on the public lands, instead of permitting them to roam all over the entire territory? This measure is necessary both in the interest of the public as owner of the lands about which they are roving and for the proper accomplishment of the purposes and objectives. of the Government. For as people accustomed to nomadic habit, they will always long to return to the mountains and follow a wayfaring life, and unless a penalty is provided for, you can not make them live together and the noble intention of the Government of organizing them politically will come to naught." G. APPLICATION AND CONCLUSION.

Our exhaustive study should have left us in a position to answer specific objections and to reach a general conclusion. In the first place, it is argued that the citizen has the right, generally speaking, to go where he pleases. Could he not, however, be kept away from certain localities? To furnish an example from the Indian legislation. The early Act of Congress of 1802 (2 U. S. Stat. at L., p. 141) punished those intruders who should cross the line into an Indian reservation. Those citizens certainly did not possess absolute freedom of locomotion. Again the same law provided for the apprehension of marauding Indians. Without any doubt, this law and other similar laws were accepted and followed time and again without question. It is said that, if we hold this section to be constitutional, we leave this weak and defenseless people confined as in a prison at the mercy of unscrupulous officials. What, it is asked, would be the remedy of any oppressed Manguian? The answer would naturally be that the official into whose hands are given the enforcement of the law would have little or no motive to oppress these people; on the contrary, the presumption would all be that they would endeavor to carry out the purposes of the law intelligently and patriotically. If, indeed, they did illtreat any person thus confined, there always exists the power of removal in the hands of superior officers, and the courts are always open for a redress of grievances. When, however, only the validity of the law is generally challenged and no particular case of oppression is called to the attention of the courts, it would seem that the Judiciary should not unnecessarily hamper the Government in the accomplishment of its laudable purpose. The question is above all one of sociology. How far, consistently with freedom, may the rights and liberties of the individual members of society be subordinated to the will of the Government? It is a question which has as sailed the very existence of government from the beginning of time. Not now purely an ethical or philosophical subject, nor now to be decided by force, it has been transferred to the peaceful forum of the Judiciary. In resolving such an issue, the Judiciary must realize that the very existence of government renders imperative a power to restrain the individual to some extent, dependent, of course, on the necessities of the class attempted to be benefited. As to the particular degree to which the Legislature and the Executive can go in interfering with the rights of the citizen, this is, and for a long time to come will be, impossible for the courts to determine. The doctrines of laissez faire and of unrestricted freedom of the individual, as axioms of economics and political theory, are of the past. The modern period has shown a widespread belief in the amplest possible demonstration of governmental activity. The courts unfortunately have sometimes seemed to trail after the other two branches of the Government in this progressive march. Considered, therefore, purely as an exercise of the police power, the courts cannot fairly say that the Legislature has exceeded its rightful authority. It is, indeed, an unusual exercise of that power. But a great malady requires an equally drastic remedy.

Further, one cannot hold that the liberty of the citizen is unduly interfered with when the degree of civilization of the Manguianes is considered. They are restrained for their own good and the general good of the Philippines. Nor can one say that due process of law has not been followed. To go back to our definition of due process of law and equal protection of the laws. there exists a law; the law seems to be reasonable; it is enforced according to the regular methods of procedure prescribed; and it applies alike to all of a class. As a point which has been left for the end of this decision and which, in case of doubt, would lead to the determination that Section 2145 is valid, is the attitude which the courts should assume towards the settled policy of the Government. In a late decision with which we are in full accord, Gamble vs. Vanderbilt University (200 Southwestern Reporter, 510) the Chief Justice of the Supreme Court of Tennessee writes: "We can see no objection to the application of public policy as a ratio decidendi. Every really new question that comes before the courts is, in the last analysis, determined on that theory, when not determined by differentiation of the principle of a prior case or line of cases, or by the aid of analogies furnished by such prior cases. In balancing conflicting solutions, that one is perceived to tip the scales which the court believes will best promote the public welfare in its probable operation as a general rule or principle. But public policy is not a thing inflexible. No court is wise enough to forecast its influence in all possible contingencies. Distinctions must be made from time to time as sound reason and a true sense of justice may dictate." Our attempt at giving a brief history of the Philippines with reference to the so-called non-Christians has been in vain, if we fail to realize that a consistent governmental policy has been effective in the Philippines from early days to the present. The idea is to unify the people of the Philippines so that they may approach the highest conception of nationality. If all are to be equal before the law, all must be approximately equal in intelligence. If the Philippines is to be a rich and powerful country, Mindoro must be populated, and its fertile regions must be developed. The public policy of the Government of the Philippine Islands is shaped with a view to benefit the Filipino people as a whole. The Manguianes, in order to fulfill this governmental policy, must be confined for a time, as we have said, for their own good and the good of the country. Most cautiously should the power of this court to overrule the judgment of the Philippine Legislature, a coordinate branch, be exercised. The whole tendency of the best considered cases is toward non-interference on the part of the courts whenever political ideas are the moving consideration. Justice Holmes, in one of the aphorisms for which he is justly famous, said that "constitutional law, like other mortal contrivances, has to take some chances." (Blinn vs. Nelson [1911], 222 U. S., 1.) If in the final decision of the many grave questions which this case presents, the court must take "a chance," it should be, with a view to upholding the law, with a view to the effectuation of the general governmental policy, and with a view to the court's performing its duty in no narrow and bigoted sense, but with that broad conception which will make the courts as

progressive and effective a force as are the other departments of the Government. We are of the opinion that action pursuant to Section 2145 of the Administrative Code does not deprive a person of his liberty without due process of law and does not deny to him the equal protection of the laws. and that confinement in reservations in accordance with said section does not constitute slavery and involuntary servitude. We are further of the opinion that Section 2145 of the Administrative Code is a legitimate exertion of the police power, somewhat analogous to the Indian policy of the United States. Section 2145 of the Administrative Code of 1917 is constitutional. Petitioners are not unlawfully imprisoned or restrained of their liberty. Habeas corpus can, therefore, not issue. This is the ruling of the court. Costs shall be taxed against petitioners. So ordered. Arellano, C.J., Torres and Avancea, JJ., concur. Separate Opinions CARSON, J., concurring: I fully concur in the reasoning and the conclusions of Justice Malcolm as set forth in the prevailing opinion. The words "non-Christian" have a clear, definite and well settled signification when used in the Philippine statute-book as a descriptive adjective, applied to "tribes," "people," or "inhabitants," dwelling in more or less remote districts and provinces throughout the Islands. Justice Malcolm as I think, correctly finds that these words, as used in this connection in our statute-book, denote the "low grade of civilization" of the individuals included in the class to which they are applied. To this I would add that the tests for the determination of the fact that an individual or tribe is, or is not of the "low grade of civilization" denoted by the words "non-Christian" are, and throughout the period of American occupation always have been, "the mode of life, the degree of advancement in civilization, and connection or lack of connection with some civilized community." (Cf. letter of Collector of Internal Revenue dated September 17, 1910, and set out in the principal opinion.) The legislative and administrative history of the Philippine Islands clearly discloses that the standard of civilization to which a specific tribe must be found to have advanced, to justify its removal from the class embraced within the descriptive term "non-Christian," as that term is used in the Philippine statute-book, is that degree of civilization which results in a mode of life within the tribe, such that it is feasible and practicable to extend to, and enforce upon its membership the general laws and regulations, administrative, legislative, and judicial, which control the conduct of the admittedly civilized inhabitants of the Islands; a mode of life, furthermore, which does not find expression in tribal customs or practices which tend to brutalize or debauch the members of the tribe indulging in such customs or practices, or to expose to loss or peril the lives or property of those who may be brought in contact with the members of the tribe.

So the standard of civilization to which any given number or group of inhabitants of a particular province in these Islands, or any individual member of such a group, must be found to have advanced, in order to remove such group or individual from the class embraced within the statutory description of "non-Christian," is that degree of civilization which would naturally and normally result in the withdrawal by such persons of permanent allegiance or adherence to a "nonChristian" tribe, had they at any time adhered to or maintained allegiance to such a tribe; and which would qualify them whether they reside within or beyond the habitat of a "nonChristian" tribe, not only to maintain a mode of life independent of and apart from that maintained by such tribe, but a mode of life as would not be inimical to the lives or property or general welfare of the civilized inhabitants of the Islands with whom they are brought in contact. The contention that, in this particular case, and without challenging the validity of the statute, the writ should issue because of the failure to give these petitioners, as well as the rest of the fifteen thousand Manguianes affected by the reconcentration order, an opportunity to be heard before any attempt was made to enforce it, begs the question and is, of course, tantamount to a contention that there is no authority in law for the issuance of such an order. If the fifteen thousand Manguianes affected by the order complained of had attained that degree of civilization which would have made it practicable to serve notice upon, and give an opportunity for a real hearing, to all the members of the tribe affected by the order, it may well be doubted whether the provincial board and the Secretary of the Interior would have been justified in its enforcement By what proceeding known to the law, or to be especially adopted in a particular case, could the officers of any province provide for a genuine hearing upon a proposal to issue a reconcentration order upon a headhunting tribe in the north of the Island of Luzon; or upon one of the nomadic tribes whose habitat is in the mountain fastnesses of Mindanao, and whose individual members have no fixed or known place of residence, or upon the fifteen thousand Manguianes roaming in the wilds of Mindoro? Of course, friendly headmen or chief might and, as a rule, should be consulted, after the practice in the United States when tribes or groups of American Indians have been placed upon reservations; but since non-Christian headmen and chiefs in the Philippines have no lawful authority to bind their peoples by their acts or their consent, the objection based on lack of a hearing, would have the same force whether the issuance of a reconcentration order was or was not preceded by a pow-wow of this kind. The truth of the matter is that the power to provide for the issuance of such orders rests upon analogous principles to those upon which the liberty and freedom of action of children and persons of unsound minds is restrained, without consulting their wishes, but for their own good and the general welfare. The power rests upon necessity, that "great master of all things," and is properly exercised only where certain individuals or groups of individuals are found to be of such a low grade of civilization that their own wishes cannot be permitted to determine their mode of life or place of residence.

The status of the non-Christian inhabitants of these Islands, and the special and necessarily paternal attitude assumed toward them by the Insular Government is well illustrated by the following provisions found in the Administrative Code of 1917: "SEC. 705. Special duties and purposes of Bureau (of non-Christian tribes). It shall be the duty of the Bureau of non-Christian tribes to continue the work for advancement and liberty in favor of the regions inhabited by non-Christian Filipinos and to foster by all adequate means and in a systematic, rapid, and complete manner the moral, material, economic, social and political development of those regions, always having in view the aim of rendering permanent the mutual intelligence between and complete fusion of all the Christian and non-Christian elements populating the provinces of the Archipelago." "SEC. 2116. Township and settlement fund. There shall be maintained in the provincial treasuries of the respective specially organized provinces a special fund to be known as the township and settlement fund, which shall be available, exclusively, for expenditures for the benefit of the townships and settlements of the province, and non-Christian inhabitants of the province, upon approval of the Secretary of the Interior." As I understand it, the case at bar does not raise any real question as to the jurisdiction of the courts of these Islands in habeas corpus proceedings, to review the action of the administrative authorities in the enforcement of reconcentration orders issued, under authority of Section 2145 of the Administrative Code, against a petitioner challenging the alleged fact that he is a "non-Christian" as that term is used in the statute. I, therefore, express no opinion on that question at this time. JOHNSON, J., dissenting: I dissent. The petitioners were deprived of their liberty without a hearing. That fact is not denied. I cannot give my consent to any act which deprives the humblest citizen of his just liberty without a hearing, whether he be a Christian or non-Christian. All persons in the Philippine Islands are entitled to a hearing, at least, before they are deprived of their liberty. MOIR, J., with whom ARAULLO, and STREET, JJ., concur, dissenting: I dissent. I realize that a dissenting opinion carries little weight, but my sense of justice will not permit me to let this decision go on record without expressing my strong dissent from the opinion of Justice Malcolm, concurred in by a majority of the court. I shall not attempt to analyze the opinion or to go into the questions in detail. I shall simply state, as briefly as may be, the legal and human side of the case as it presents itself to my mind. The facts are that one Rubi and various other Manguianes in the Province of Mindoro were ordered by the provincial

governor of Mindoro to remove their residence from their native habitat and to establish themselves on a reservation at Tigbao in the Province of Mindoro and to remain there, or be punished by imprisonment if they escaped. This reservation, as appears from the resolution of the provincial board, extends over an area of 800 hectares of land, which is approximately 2,000 acres, on which about three hundred Manguianes are confined. One of the Manguianes, Dabalos, escaped from the reservation and was taken in hand by the provincial sheriff and placed in prison at Calapan, solely because he escaped from the reservation. The Manguianes sued out a writ of habeas corpus in this court, alleging that they are deprived of their liberty in violation of law. The Solicitor-General of the Philippine Islands makes return to the writ copied in the majority opinion which states that the provincial governor of Mindoro with the prior approval of his act by the Department Secretary ordered the placing of the petitioners and others on a reservation. The Manguianes, it is stated on page 694 of the majority opinion, "are very low in culture. They have considerable Negrito blood and have not advanced beyond the Negritos in civilization. They are peaceful, timid, primitive, seminomadic people. They number approximately 15,000 (?). The Manguianes have shown no desire for community life, and, as indicated in the preamble to Act No. 547, have not progressed sufficiently in civilization to make it practicable to bring them under any form of municipal government." It may be well to add that the last P.I. Census (1903) shows that the Island of Mindoro (not including the smaller islands which together make the Province of Mindoro) has an area of 3,851 square miles and a population of 28,361 of which 7,369 are wild or uncivilized tribes (Manguianes). This appears to be the total Mangyan population of the province. The total population was less than seven to the mile (Vol. 2, P.I. Census, pp. 30 and 407). The Island is fertile, heavily wooded and well watered. It has no savage population, but it is sparsely settled by Christian Filipinos along the coast and by Manguianes. The Manguianes roamed its mountains and valleys, fishing and hunting at will long before Magallanes [Magellan] anchored his boats in the waters of Cebu. They have made little or no progress in the ways of civilization. "They are a peaceful, timid, primitive, seminomadic people," whom the Government of the Philippine Islands would bring under the beneficient influence of civilization and progress. The law provides for it in Section 2145 of the Administrative Code, and for those who like Dabalos do not take kindly to the ways provided for civilizing them Section 2759 provides the punishment. The attorney for the petitioners has raised various constitutional questions, but only the fundamental one will be considered by me. It is that the sections of the Administrative Code, 2145 and 2759, quoted in the majority opinion, are in violation of the first paragraph of Section 3 of the Act of Congress of August 29, 1916, which reads as follows:

"That no law shall be enacted in said Islands which shall deprive any person of life, liberty or property without due process of law, or deny to any person therein the equal protection of the laws." It is not necessary to argue that a Mangyan is one of the persons protected by that provision. The Attorney-General argues that the treatment provided for the Manguianes is similar to that accorded the Indians in the United States, and reference is made all through the court's decision to the decisions of the United States Supreme Court with reference to the Indians. It is not considered necessary to go into these cases for the simple reason that all the Indian nations in the United States were considered as separate nations and all acts taken in regard to them were the result of separate treaties made by the United States Government with the Indian nations, and, in compliance with these treaties, reservations were set apart for them on which they lived and were protected from intrusion and molestation by white men. Some of these reservations were larger than the Island of Luzon, and they were not measured in hectares but in thousands of square miles. The Manguianes are not a separate state. They have no treaty with the Government of the Philippine Islands by which they have agreed to live within a certain district where they are accorded exclusive rights. They are citizens of the Philippine Islands. Legally they are Filipinos. They are entitled to all the rights and privileges of any other citizen of this country. And when the provincial governor of the Province of Mindoro attempted to take them from their native habitat and to hold them on the little reservation of about 800 hectares, he deprived them of their rights and their liberty without due process of law, and they were denied the equal protection of the law. The majority opinion says "they are restrained for their own good and the general good of the Philippines." They are to be made to accept the civilization of the more advanced Filipinos whether they want it or not. They are backward and deficient in culture and must be moved from their homes, however humble they may be and "brought under the bells" and made to stay on a reservation. Are these petitioners charged with any crime? There is no mention in the return of the Solicitor-General of the Philippine Islands of any crime having been committed by these "peaceful, timid, primitive, semi-nomadic people." A memorandum of the Secretary of the Interior of the Philippine Islands is copied in extenso in the majority opinion, and from it I gather the nature of their offense which is that "Living a nomadic and wayfaring life and evading the influence of civilization, they (the Manguianes) are engaged in the works of destruction burning and destroying the forests and making illegal caigins thereon. Not bringing any benefit to the State but, instead, injuring and damaging its interests, what will ultimately become of those people with the sort of liberty they wish to preserve and for which they are now fighting in court? They will ultimately become a heavy burden to the State and, on account of their ignorance, they will

commit crimes and make depredations, or if not they will be subjected to involuntary servitude by those who may want to abuse them. "There is no doubt in my mind that this people has not a right conception of liberty and does not practice liberty in a rightful way. They understand liberty as the right to do anything they will going from one place to another in the mountains, burning and destroying forests and making illegal caigins thereon. "Not knowing what true liberty is and not practising the same rightfully, how can they allege that they are being deprived thereof without due process of law? xxx xxx xxx

"But does the Constitutional guaranty that 'no person shall be deprived of his liberty without due process of law' apply to a class of persons who do not have a correct idea of what liberty is and do not practise liberty in a rightful way ? "To say that it does will mean to sanction and defend an erroneous idea of such class of persons as to what liberty is. It will mean, in the case at bar, that the Government should not adopt any measures looking to the welfare and advancement of the class of persons in question. It will mean that this people should be let alone in the mountains and in a permanent state of savagery without even the remotest hope of coming to understand liberty in its true and noble sense. "In dealing with the backward population, like the Manguianes, the Government has been placed in the alternative of either letting them alone or guiding them in the path of civilization. The latter measure was adopted as the one more in accord with humanity and with national conscience. xxx xxx xxx

they will commit crimes and make depredations, or if not they will be subjected to involuntary servitude by those who want to abuse them." They have never been a burden to the state and never will be. They have not committed crimes and, when they do, let the law punish them. The authorities are anticipating too much from these "peaceful, timid, primitive, semi-nomadic people." Their history does; not demonstrate that we must expect them to commit crimes and jail them to prevent the possibility. But the Secretary says "they will be subjected to involuntary servitude by those who want to abuse them." Are they more liable to be subjected to involuntary servitude when left free to roam their native hills and gain a livelihood as they have been accustomed to for hundreds of years, than they will be if closely confined on a narrow reservation from which they may not escape without facing a term in jail? Is it not more likely that they will be glad to exchange their "freedom" on a small reservation for the great boon of binding themselves and their children to the more fortunate Christian Filipinos who will feed them and clothe them in return for their services? I think it not only probable but almost a certainty that they will all be subjected to involuntary personal servitude if their freedom is limited as it has been. How will they live? There may be persons who are willing to lend them money with which to buy food on the promise that they will work for them. And if they accept the loan and do not work for the lender we have another law on the statute books, Act No. 2098, into whose noose they run their necks, and they may be fined not more than two hundred pesos or imprisoned for not exceeding six months or both, and when the sentence expires they must again go into debt or starve, and if they do not work will again go to jail, and this may be repeated till they are too old to work and are cast adrift. The Manguianes have committed no offense and are charged with none. It does not appear that they were ever consulted about their reconcentration. It does not appear that they had any hearing or were allowed to make any defense. It seems they were gathered here and there whenever found by the authorities of the law and forcibly placed upon the reservation, because they are "non-Christians," and because the provincial governor ordered it. Let it be clear there is no discrimination because of religion. The term "non-Christian" means one who is not a Christian Filipino, but it also means any of the socalled "wild" or backward tribes of the Philippines. These nonChristian tribes are Moros, Igorrotes, Bukidnons, Ifugaos, Manguianes and various others, about one million souls all together. Some of them, like the Moros, Tinguianes and Ifugaos, have made great progress in civilization. They have beautiful fields reclaimed by hard labor they have herds of cattle and horses and some few of them are well educated. Some of the non-Christians, like the Aetas and the Negritos, are very low in the scale of civilization, but they are one and all "non-Christians," as the term is used and understood in law and in fact. All of them, according to the court's opinion under the present law, may be taken from their homes and herded on a reservation at the instance of the provincial governor, with the prior approval of the department head. To state such a monstrous proposition is to show the wickedness and illegality of the section of the law under which these people are

"The national legislation on the subject of non-Christian people has tended more and more towards the education and civilization of such people and fitting them to be citizens." There appear to be two intimations or charges in this memorandum; one is that the Manguianes destroy the forests by making a caigin. What is a "caigin?" Simply this. These people move their camp or place of abode frequently and when they do move to a new place, it is necessary to clear the land in order to plant corn and camotes (sweet potatoes) and they cut down the smaller trees and burn these around the larger ones, killing them, so that they can plant their crops. The fires never spread in the tropical undergrowth of an island like Mindoro, but the trees within the caigin are killed and crops are planted and harvested. This land may be abandoned later on due to superstition, to a lack of game in the neighborhood, to poor crops from exhausted fertility, or to a natural desire to move on. Granting that the Manguianes do make caigins or clear lands in spots and then abandon them for the more fertile lands, which every man knows to be just over the hills, we cannot see that they are committing such a great abuse as to justify incarcerating them on a small tract of land for incarceration it is and nothing less. The second intimation or charge is that "they will become a heavy burden to the state and on account of their ignorance

restrained of their liberty. But it is argued that there is no probability of the department head ever giving his approval to such a crime, but the fact that he can do it and has done it in the present case is what makes the law unconstitutional. The arbitrary and unrestricted power to do harm should be the measure by which a law's legality is tested and not the probability of doing harm. "It has been said that this is a government of laws and not of men; that there is no arbitrary body of individuals; that the constitutional principles upon which our government and its institutions rest do not leave room for the play and action of purely personal and arbitrary power, but that all in authority are guided and limited by these provisions which the people have, through the organic law, declared shall be the measure and scope of all control exercised over them. In particular the fourteenth amendment, and especially the equal protection clause, thereof, forbids that the individual shall be subjected to any arbitrary exercise of the powers of government; it was intended to prohibit, and does prohibit, any arbitrary deprivation of life or liberty, or arbitrary spoliation of property. "As we have seen, a statute which makes a purely arbitrary or unreasonable classification, or which singles out any particular individual or class as the subject of hostile and discriminating legislation, is clearly unconstitutional as being opposed to the fourteenth amendment and especially to the equal protection clause thereof. This is a plain case, and requires no further discussion." (Vol. 4, Encyclopedia of U.S. Supreme Court Reports, p. 366.) "When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. It is, indeed, quite true, that there must always be lodged somewhere, and in some person or body, the authority of final decision; and, in many cases of mere administration the responsibility is purely political, no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of opinion or by means of the suffrage. But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of Massachusetts Bill of Rights, the Government of Commonwealth 'may be a government of law and not of men.' For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself." (Yick Wo vs. Hopkins, 118 U. S., 374.)

It is said that the present law is an old Act being in substance Act No. 547 of the Philippine Commission. But it has never been brought before this court for determination of its constitutionality. No matter how beneficient the motives of the lawmakers if the law tends to deprive any man of life, liberty, or property without due process of law, it is void. In my opinion the acts complained of which were taken in conformity with Section 2145 of the Administrative Code not only deprive these Manguianes of their liberty, without due process of law, but will in all probability deprive them of their life, without due process of law. History teaches that to take a semi-nomadic tribe from their native fastnesses and to transfer them to the narrow confines of a reservation is to invite disease and suffering and death. From my long experience in the Islands, I should say that it would be a crime of little less magnitude to take the Ifugaos from their mountain homes where they have reclaimed a wilderness and made it a land of beauty and fruitfulness and to transfer them to the more fertile, unoccupied, malaria infested valleys which they look down upon from their fields than it would be to order their decapitation en masse. There can be no denial that the Ifugaos are "non-Christians," or "wild tribes" and are in exactly the same category as the Manguianes. If the Manguianes may be so taken from their native habitat and reconcentrated on a reservation in effect an open air jail then so may the Ifugaos, so may the Tinguianes, who have made more progress than the Ifugaos, and so may the Moros. There are "non-Christian" in nearly every province in the Philippine Islands. All of the thirty-nine governors upon the prior approval of the head of the department, have the power under this law to take the non-Christian inhabitants of their different provinces from their homes and put them on a reservation for "their own good and the general good of the Philippines," and the courts will grant them no relief. These unfortunate citizens of the Philippine Islands would hold their liberty, and their lives, may be, subject to the unregulated discretion of the provincial governor. And who would be safe? After the reservation is once established might not a provincial governor decide that some political enemy was a nonChristian, and that he would be safer on the reservation. No matter what his education and culture, he could have no trial, he could make no defense, the judge of the court might be in a distant province and not within reach, and the provincial governor's fiat is final. The case of the United States vs. Crook (Federal Cases 14891), cited in the majority opinion, should be quoted at length. District Judge Dundy said: "During the fifteen years in which I have been engaged in administering the laws of my country, I have never been called upon to hear or decide a case that appealed so strongly to my sympathy as the one now under consideration. On the one side, we have a few of the remnants of a once numerous and powerful, but now weak, insignificant, unlettered, and generally despised race; and the other, we have the

representative of one of the most powerful, most enlightened, and most christianized nations of modern times. On the one side, we have the representatives of this wasted race coming into this national tribunal of ours, asking for justice and liberty to enable them to adopt our boasted civilization, and to pursue the arts of peace, which have made us great and happy as a nation; on the other side, we have this magnificent, if not magnanimous, government, resisting this application with the determination of sending these people back to the country which is to them less desirable than perpetual imprisonment in their own native land. But I think it is creditable to the heart and mind of the brave and distinguished officer who is made respondent herein to say that he has no sort of sympathy in the business in which he is forced by his position to bear a part so conspicuous; and, so far as I am individually concerned, I think it not improper to say that, if the strongest possible sympathy could give the relators title to freedom, they would have been restored to liberty the moment the arguments in their behalf were closed. No examination or further thought would then have been necessary or expedient. But in a country where liberty is regulated by law, something more satisfactory and enduring than mere sympathy must furnish and constitute the rule and basis of judicial action. It follows that this case must be examined and decided on principles of law, and that unless the relators are entitled to their discharge under the constitution or laws of the United States, or some treaty made pursuant thereto, they must be remanded to the custody of the officer who caused their arrest, to be returned to the Indian Territory which they left without the consent of the government. "On the 8th of April, 1879, the relators Standing Bear and twenty-five others, during the session of the court held at that time at Lincoln, presented their petition, duly verified, praying for the allowance of a writ of habeas corpus and their final discharge from custody thereunder. "The petition alleges, in substance, that the relators are Indians who have formerly belonged to the Ponca tribe of Indians now located in the Indian Territory; that they had some time previously withdrawn from the tribe, and completely severed their tribal relations therewith, and had adopted the general habits of the whites, and were then endeavoring to maintain themselves by their own exertions, and without aid or assistance from the general government; that whilst they were thus engaged, and without being guilty of violating any of the laws of the United States, they were arrested and restrained of their liberty by order of the respondent, George Crook. "The writ was issued and served on the respondent on the 8th day of April, and, the distance between the place where the writ was made returnable and the place where the relators were confined being more than twenty miles, ten days were allotted in which to make return. "On the 18th of April the writ was returned, and the authority or the arrest and detention is therein shown. The substance of the return to the writ, and the additional statement since filed, is that the relators are individual members if, and connected with, the Ponca tribe of Indians; that they had fled or escaped from a reservation situated in some place within the limits of the Indian Territory had departed therefrom without permission from the government; and, at the request of the

secretary of the interior, the general of the army had issued an order which required the respondent to arrest and return the relators to their tribe in the Indian Territory, and that, pursuant to the said order, he had caused the relators to be arrested on the Omaha Indian reservation, and that they were in his custody for the purpose of being returned to the Indian Territory. "It is claimed upon the one side, and denied upon the other, that the relators had withdrawn and severed, for all time, their connection with the tribe to which they belonged; and upon this point alone was there any testimony produced by either party hereto. The other matter stated in the petition and the return to the writ are conceded to be true; so that the questions to be determined are purely questions of law. "On the 8th of March, 1859, a treaty was made by the United States with the Ponca tribe of Indians, by which a certain tract of country, north of the Niobrara river and west of the Missouri, was set apart for the permanent home of the said Indians, in which the government agreed to protect them during their good behaviour. But just when or how, or why, or under what circumstances, the Indians left their reservation in Dakota and went to the Indian Territory does not appear. xxx xxx xxx

"A question of much greater importance remains for consideration, which, when determined, will be decisive of this whole controversy. This relates to the right of the government to arrest and hold the relators for a time, for the purpose of being returned to a point in the Indian Territory from which it is alleged the Indians escaped. I am not vain enough to think that I can do full justice to a question like the one under consideration. But, as the matter furnishes so much valuable material for discussion, and so much food for reflection, I shall try to present it as viewed from my own standpoint, without reference to consequences or criticisms, which, though not specially invited, will be sure to follow. xxx xxx xxx

"On the 15th day of August, 1876, Congress passed the general Indian appropriation bill, and in it we find a provision authorizing the secretary of the interior to use $25,000 for the removal of the Poncas to the Indian Territory, and providing them a home therein, with consent of the tribe. (19 Sta., 192.) xxx xxx xxx

"The Poncas lived upon their reservation in southern Dakota, and cultivated a portion of the same, until two or three years ago, when they removed therefrom, but whether by force or otherwise does not appear. At all events, we find a portion of them, including the relators, located at some point in the Indian Territory. There, the testimony seems to show, is where the trouble commenced. Standing Bear, the principal witness, states that out of five hundred and eighty-one Indians who went from the reservation in Dakota to the Indian Territory, one hundred and fifty-eight died within a year or so, and a great proportion of the others were sick and disabled, caused, in a great measure, no doubt, from change of climate; and to save himself and the survivors of his wasted family, and the

feeble remnant of his little band of followers, he determined to leave the Indian Territory and return to his old home, where, to use his own language, 'he might live and die in peace, and be buried with his fathers.' He also stated that he informed the agent of their final purpose to leave, never to return, and that he and his followers had finally, fully, and forever severed his and their connection with the Ponca tribe of Indians, and had resolved to disband as a tribe, or band of Indians, and to cut loose from the government, go to work, become selfsustaining, and adopt the habits and customs of a higher civilization. To accomplish what would seem to be a desirable and laudable purpose, all who were able to do so went to work to earn a living. The Omaha Indians, who speak the same language, and with whom many of the Poncas have long continued to intermarry, gave them employment and ground to cultivate, so as to make them self-sustaining. And it was when at the Omaha reservation, and when thus employed, that they were arrested by order of the government, for the purpose of being taken back to the Indian Territory. They claim to be unable to see the justice, or reason, or wisdom, or necessity, of removing them by force from their own native plains and blood relations to a far-off country, in which they can see little but new-made graves opening for their reception. The land from which they fled in fear has no attractions for them. The love of home and native land was strong enough in the minds of these people to induce them to brave every peril to return and live and die where they had been reared. The bones of the dead son of Standing Bear were not to repose in the land they hoped to be leaving forever, but were carefully preserved and protected and formed a part of what was to them a melancholy procession homeward. Such instances of parental affections, and such love of home and native land, may be heathen in origin, but it seems to me that they are not unlike Christian in principle." And the court declared that the Indians were illegally held by authority of the United States and in violation of their right to life, liberty, and the pursuit of happiness, and ordered their release from custody. This case is very similar to the case of Standing Bear and others. I think this Court should declare that Sections 2145 and 2759 of the Administrative Code of 1917 are unconstitutional, null and void, and that the petitioners are illegally restrained of their liberty, and that they have been denied the equal protection of the laws, and order the respondents immediately to liberate all of the petitioners.

[G.R. No. L-24693. July 31, 1967.] ERMITA-MALATE HOTEL AND MOTEL OPERATORS ASSOCIATION, INC., HOTEL DEL MAR, INC. and GO CHIU, petitioners-appellees, vs. THE HONORABLE CITY MAYOR OF MANILA, respondent-appellant, VICTOR ALABANZA, intervenor-appellee. Panganiban, Abad & Associates and Asst. City Fiscal L.L. Arguelles for appellant. Jose M . Aruego, Arsenio Tenchavez and Luis Go for appellees. Alfredo Concepcion for intervenor. SYLLABUS 1. CONSTITUTIONAL LAW; MUNICIPAL ORDINANCES; VALIDITY, PRESUMPTION OF. An ordinance, having been enacted by councilors who must, in the very nature of things, be familiar with the necessities of their particular municipality or city and with all the facts and circumstances which surround the subject and necessitate action, must be presumed to be valid and should not be set aside unless there is a clear invasion of personal property rights under the guise of police regulation. Unless, therefore, the ordinance is void on its face, the necessity for evidence to rebut its validity is unavoidable. In the case at bar, there being no factual foundation laid for overthrowing Ord. No. 4760 of Manila as void on its face, the presumption of constitutionality must prevail. 2. ID.; POLICE POWER; MANIFESTATION OF. Ordinance No. 4760 of the City of Manila is a manifestation of a police power measure specifically aimed to safeguard public morals. As such it is immune from any imputation of nullity resting purely on conjecture and unsupported by anything of substance. To hold otherwise would be to unduly restrict and narrow the scope of police power which has been properly characterized as the most essential, insistent and the least limitable of powers extending as it does "to all the great public needs." 3. ID.; ID.; JUDICIAL INQUIRY. On the legislative organs of the government, whether national or local, primarily rests the exercise of the police power, which is the power to prescribe regulations to promote the health, morals, peace, good order, safety and general welfare of the people. In view of the requirements of certain constitutional guaranties, the exercise of such police power, however, insofar as it may affect the life, liberty or property of any person, is subject to judicial inquiry. Where such exercise of police power may be considered as either capricious, whimsical, unjust or unreasonable, a denial of due process or a violation of any other applicable constitutional guaranty may call for correction by the courts. 4. ID.; ID.; LICENSES INCIDENTAL TO. Municipal license fees can be classified into those imposed for regulating occupations or regular enterprises, for the

regulation or restriction of non-useful occupations or enterprises and for revenue purposes only. Licenses for nonuseful occupations are incidental to the police power, and the right to exact a fee may be implied from the power to license and regulate, but in taking the amount of license fees the municipal corporations are allowed a wide discretion in this class of cases. Aside from applying the well known legal principle that municipal ordinances must not be unreasonable, oppressive, or tyrannical, courts have, as a general rule, declined to interfere with such discretion. The desirability of imposing restraint upon the number of persons who might otherwise engage in non-useful enterprises is, of course, generally an important factor in the determination of the amount of this kind of license fee. (Cu Unjieng v. Patstone [1922], 42 Phil,, 818, 828). 5. ID.; ID.; EXERCISE OF. Much discretion is given to municipal corporations in determining the amount of license fees to be imposed for revenue. The mere fact that some individuals in the community may be deprived of their present business or a particular mode of earning a living cannot prevent the exercise of the police power. Persons licensed to pursue occupations which may in the public need and interest be affected by the exercise of the police power embark in those occupations subject to the disadvantages which may result from the exercise of that power. 6. ID.; DUE PROCESS; STANDARDS OF LEGAL INFIRMITY. There is no controlling and precise definition of due process. It furnishes though a standard to which governmental action should conform in order that deprivation of life, liberty or property, in each appropriate case, be valid. The standard of due process which must exist both as a procedural and as substantive requisite to free the challenged ordinance, or any governmental action for that matter, from imputation of legal infirmity, is responsiveness to the supremacy of reason, obedience to the dictates of justice. It would be an affront to reason to stigmatize an ordinance enacted precisely to meet what a municipal lawmaking body considers an evil of rather serious proportion an arbitrary and capricious exercise of authority. What should be deemed unreasonable and what would amount to be an abdication of the power to govern is inaction in the face of an admitted deterioration of the state of public morals. 7. ID.; ID.; MUNICIPAL ORDINANCES; PROHIBITIONS IN. The provision in Ordinance No. 4760 of the City of Manila making it unlawful for the owner, manager, keeper or duly authorized representative of any hotel, motel, lodging house, tavern, common inn or the like, to lease or rent any room or portion thereof more than twice every 24 hours, with a proviso that in all cases full payment shall be charged, cannot be viewed as transgression against the command of due process. The prohibition is neither unreasonable nor arbitrary, because there appears a correspondence between the undeniable existence of an undesirable situation and the legislative attempt at correction. Moreover, every regulation of conduct amounts to curtailment of liberty, which cannot be absolute. 8. ID.; ID.; PUBLIC INTEREST; GOVERNMENT INTERFERENCE. The policy of laissez faire has to some extent given way to the assumption by the government of the

right of intervention even in contractual relations affected with public interest. 9. ID.; ID.; ID.; ID.; SCOPE. If the liberty invoked were freedom of the mind or the person, the standard for the validity of governmental acts is much more rigorous and exacting, but where the liberty curtailed affects at the most rights of property, the permissible scope of regulatory measures is wider. 10. ID.; DUE PROCESS REQUIREMENT; AMBIGUITY OF STATUTES AS DENIAL OF DUE PROCESS. What makes a statute susceptible to a charge that it is void on its face for alleged vagueness or uncertainty is an enactment either for bidding or requiring the doing of an act that men of common intelligence must necessarily guess at its meaning and differ as to its application. DECISION FERNANDO, J p: The principal question in this appeal from a judgment of the lower court in an action for prohibition is whether Ordinance No. 4760 of the City of Manila is violative of the due process clause. The lower court held that it is and adjudged it "unconstitutional, and, therefore, null and void." For reasons to be more specifically set forth, such judgment must be reversed, there being a failure of the requisite showing to sustain an attack against its validity. The petition for prohibition against Ordinance No. 4760 was filed on July 5, 1963 by the petitioners, Ermita-Malate Hotel and Motel Operators Association, one of its members, Hotel del Mar, Inc., and a certain Go Chiu, who is "the president and general manager of the second petitioner" against the respondent Mayor of the City of Manila who was sued in his capacity as such "charged with the general power and duty to enforce ordinances of the City of Manila and to give the necessary orders for the faithful execution and enforcement of such ordinances." (par. 1). It was alleged that the petitioner non-stock corporation is dedicated to the promotion and protection of the interest of its eighteen (18) members "operating hotels and motels, characterized as legitimate businesses duly licensed by both national and city authorities regularly paying taxes, employing and giving livelihood to not less than 2,500 persons and representing an investment of more than P3 million." 1 (par. 2). It was then alleged that on June 13, 1963, the Municipal Board of the City of Manila enacted Ordinance No. 4760, approved on June 14, 1963 by the then Vice-Mayor Herminio Astorga, who was at the time acting Mayor of the City of Manila. (par. 3). After which the alleged grievances against the ordinance were set forth in detail. There was the assertion of its being beyond the powers of the Municipal Board of the City of Manila to enact insofar as it would regulate motels, on the ground that in the revised charter of the City of Manila or in any other law, no reference is made to motels; that Section 1 of the challenged ordinance is unconstitutional and void for being unreasonable and violative of due process insofar as it would impose P6,000.00 fee per annum for first class motels and P4,500.00 for second c]ass motels; that the provision in the

same section which would require the owner, manager, keeper or duly authorized representative of a hotel, motel, or lodging house to refrain from entertaining or accepting any guest or customer or letting any room or other quarter to any person or persons without his filling up the prescribed form in a lobby open to public view at all times and in his presence, wherein the surname, given name and middle name, the date of birth, the address, the occupation, the sex, the nationality, the length of stay and the number of companions in the room, if any, with the name, relationship, age and sex would be specified, with data furnished as to his residence certificate as well as his passport number, if any, coupled with a certification that a person signing such form has personally filled it up and affixed his signature in the presence of such owner, manager, keeper or duly authorized representative, with such registration forms and records kept and bound together, it also being provided that the premises and facilities of such hotels, motels and lodging houses would be open for inspection either by the City Mayor, or the Chief of Police, or their duly authorized representatives is unconstitutional and void again on due process grounds, not only for being arbitrary, unreasonable or oppressive but also for being vague, indefinite and uncertain, and likewise for the alleged invasion of the right to privacy and the guaranty against self-incrimination; that Section 2 of the challenged ordinance classifying motels into two classes and requiring the maintenance of certain minimum facilities in first class motels such as a telephone in each room, a dining room or restaurant and laundry similarly offends against the due process clause for being arbitrary, unreasonable and oppressive, a conclusion which applies to the portion of the ordinance requiring second class motels to have a dining room; that the provision of Section 2 of the challenged ordinance prohibiting a person less than 18 years old from being accepted in such hotels, motels, lodging houses, tavern or common inn unless accompanied by parents or a lawful guardian and making it unlawful for the owner, manager, keeper or duly authorized representative of such establishments to lease any room or portion thereof more than twice every 24 hours, runs counter to the due process guaranty for lack of certainty and for its unreasonable, arbitrary and oppressive character; and that insofar as the penalty provided for in Section 4 of the challenged ordinance for a subsequent conviction would cause the automatic cancellation of the license of the offended party, in effect causing the destruction of the business and loss of its investments, there is once again a transgression of the due process clause. There was a plea for the issuance of preliminary injunction and for a final judgment declaring the above ordinance null and void and unenforceable. The lower court on July 6, 1963 issued a writ of preliminary injunction ordering respondent Mayor to refrain from enforcing said Ordinance No. 4760 from and after July 8, 1963. In the answer filed on August 3, 1963, there was an admission of the personal circumstances regarding the respondent Mayor and of the fact that petitioners are licensed to engage in the hotel or motel business in the City of Manila, of the provisions of the cited Ordinance but a denial of its alleged nullity, whether on statutory or constitutional grounds. After setting forth that the petition did fail to state a cause of action and that the challenged ordinance bears a reasonable relation to a

proper purpose, which is to curb immorality, a valid and proper exercise of the police power and that only the guests or customers not before the court could complain of the alleged invasion of the right to privacy and the guaranty against selfincrimination, with the assertion that the issuance of the preliminary injunction ex parte was contrary to law, respondent Mayor prayed for its dissolution and the dismissal of the petition. Instead of evidence being offered by both parties, there was submitted a stipulation of facts dated September 28, 1964, which reads: "1. That the petitioners Ermita-Malate Hotel and Motel Operators Association, Inc. and Hotel del Mar, Inc. are duly organized and existing under the laws of the Philippines, both with offices in the City of Manila, while the petitioner Go Chiu is the president and general manager of Hotel del Mar, Inc., and the intervenor Victor Alabanza is a resident of Baguio City, all having the capacity to sue and be sued; "2. That the respondent Mayor is the duly elected and incumbent City Mayor and chief executive of the City of Manila charged with the general power and duty to enforce ordinances of the City of Manila and to give the necessary orders for the faithful execution and enforcement of such ordinances; "3. That the petitioners are duly licensed to engage in the business of operating hotels and motels in Malate and Ermita districts in Manila; "4. That on June 13, 1963, the Municipal Board of the City of Manila enacted Ordinance No. 4760, which was approved on June 14, 1963, by Vice-Mayor Herminio Astorga, then the acting City Mayor of Manila, in the absence of the respondent regular City Mayor, amending sections 661, 662, 668-a, 668-b and 669 of the compilation of ordinances of the City of Manila besides inserting therein three new sections. This ordinance is similar to the one vetoed by the respondent Mayor (Annex A) for the reasons stated in his 4th Indorsement dated February 15, 1963 (Annex B); "5. That the explanatory noted signed by then Councilor Herminio Astorga was submitted with the proposed ordinance (now Ordinance 4760) to the Municipal Board, copy of which is attached hereto as Annex C; "6. That the City of Manila derived in 1963 an annual income of P101,904.05 from license fees paid by the 105 hotels and motels (including herein petitioners) operating in the City of Manila." Thereafter came a memorandum for respondent on January 22, 1965, wherein stress was laid on the presumption of the validity of the challenged ordinance, the burden of showing its lack of conformity to the Constitution resting on the party who assails it, citing not only U.S. v. Salaveria, but likewise applicable American authorities. Such a memorandum likewise refuted point by point the arguments advanced by petitioners against its validity. Then barely two weeks later, on February 4, 1965, the memorandum for petitioners was filed reiterating in detail what was set forth in the petition, with

citations of what they considered to be applicable American authorities and praying for a judgment declaring the challenged ordinance "null and void and unenforceable" and making permanent the writ of preliminary injunction issued. After referring to the motels and hotels, which are members of the petitioners association, and referring to the alleged constitutional questions raised by the party the lower court observed: "The only remaining issue here being purely a question of law, the parties, with the nod of the Court, agreed to file memoranda and thereafter, to submit the case for decision of the Court." It does appear obvious then that without any evidence submitted by the parties, the decision passed upon the alleged infirmity on constitutional grounds of the challenged ordinance, dismissing as is undoubtedly right and proper the untenable objection on the alleged lack of authority of the City of Manila to regulate motels, and came to the conclusion that "the challenged Ordinance No. 4760 of the City of Manila, would be unconstitutional and, therefore, null and void." It made permanent the preliminary injunction issued against respondent Mayor and his agents "to restrain him from enforcing the ordinance in question." Hence this appeal. As noted at the outset, the judgment must be reversed. A decent regard for constitutional doctrines of a fundamental character ought to have admonished the lower court against such a sweeping condemnation of the challenged ordinance. Its decision cannot be allowed to stand, consistently with what has hitherto been the accepted standards of constitutional adjudication, in both procedural and substantive aspects. Primarily what calls for a reversal of such a decision is the absence of any evidence to offset the presumption of validity that attaches to a challenged statute or ordinance. As was expressed categorically by Justice Malcolm: "The presumption is all in favor of validity . . . The action of the elected representatives of the people cannot be lightly set aside. The councilors must, in the very nature of things, be familiar with the necessities of their particular municipality and with all the facts and circumstances which surround the subject and necessitate action. The local legislative body, by enacting the ordinance, has in effect given notice that the regulations are essential to the well being of the people . . . The Judiciary should not lightly set aside legislative action when there is not a clear invasion of personal or property rights under the guise of police regulation." 2 It admits of no doubt therefore that there being a presumption of validity, the necessity for evidence to rebut it is unavoidable, unless the statute or ordinance is void on its face, which is not the case here. The principle has been nowhere better expressed than in the leading case of O'Gorman & Young v. Hartford Fire Insurance Co., 3 where the American Supreme Court through Justice Brandeis tersely and succinctly summed up the matter thus: "The statute here questioned deals with a subject clearly within the scope of the police power. We are asked to declare it void on the ground that the specific method of regulation prescribed is unreasonable and hence deprives the plaintiff of due process of law. As underlying questions of fact may condition the constitutionality of legislation of this character, the presumption of constitutionality must prevail in the absence of some factual

foundation of record for overthrowing the statute." No such factual foundation being laid in the present case, the lower court deciding the matter on the pleadings and the stipulation of facts, the presumption of validity must prevail and the judgment against the ordinance set aside. Nor may petitioners assert with plausibility that on its face the ordinance is fatally defective as being repugnant to the due process clause of the Constitution. The mantle of protection associated with the due process guaranty does not cover petitioners. This particular manifestation of a police power measure being specifically aimed to safeguard public morals is immune from such imputation of nullity resting purely on conjecture and unsupported by anything of substance. To hold otherwise would be to unduly restrict and narrow the scope of police power which has been properly characterized as the most essential, insistent and the least limitable of powers, 4 extending as it does "to all the great public needs." 5 It would be, to paraphrase another leading decision, to destroy the very purpose of the state if it could be deprived or allowed itself to be deprived of its competence to promote public health, public morals, public safety and the general welfare. 6 Negatively put, police power is "that inherent and plenary power in the State which enables it to prohibit all that is hurtful to the comfort, safety, and welfare of society." 7 There is no question but that the challenged ordinance was precisely enacted to minimize certain practices hurtful to public morals. The explanatory note of the then Councilor Herminio Astorga included as annex to the stipulation of facts speaks of the alarming increase in the rate of prostitution, adultery and fornication in Manila traceable in great part to the existence of motels, which "provide a necessary atmosphere for clandestine entry, presence and exit" and thus become the "ideal haven for prostitutes and thrill seekers." The challenged ordinance then "proposes to check the clandestine harboring of transients and guests of these establishments by requiring these transients and guests to fill up a registration form, prepared for the purpose, in a lobby open to public view at all times, and by introducing several other amendatory provisions calculated to shatter the privacy that characterizes the registration of transients and guests." Moreover, the increase in the license fees was intended to discourage "establishments of the kind from operating for purpose other than legal" and at the same time, to increase "the income of the city government." It would appear therefore that the stipulation of facts, far from sustaining any attack against the validity of the ordinance, argues eloquently for it. It is a fact worth noting that this Court has invariably stamped with the seal of its approval, ordinances punishing vagrancy and classifying a pimp or procurer as a vagrant; 8 providing a license tax for and regulating the maintenance or operation of public dance hall; 9 prohibiting gambling; 10 prohibiting jueteng; 11 and monte; 12 prohibiting playing of panguingui on days other than Sundays or legal holidays; 13 prohibiting the operation of pinball machines; 14 and prohibiting any person from keeping, conducting or maintaining an opium joint or visiting a place where opium is smoked or otherwise used, 15 all of which are intended to protect public morals. On the legislative organs of the government, whether national of local, primarily rest the exercise of the police power, which,

it cannot be too often emphasized, is the power to prescribe regulations to promote the health, morals, peace, good order, safety and general welfare of the people. In view of the requirements of due process, equal protection and other applicable constitutional guaranties, however, the exercise of such police power insofar as it may affect the life, liberty or property of any person is subject to judicial inquiry. Where such exercise of police power may be considered as either capricious, whimsical, unjust or unreasonable, a denial of due process or a violation of any other applicable constitutional guaranty may call for correction by the courts. We are thus led considering the insistent, almost shrill tone, in which the objection is raised to the question of due process. 16 There is no controlling and precise definition of due process. It furnishes though a standard to which governmental action should conform in order that deprivation of life, liberty or property, in each appropriate case, be valid. What then is the standard of due process which must exist both as a procedural and as substantive requisite to free the challenged ordinance, or any government action for that matter, from the imputation of legal infirmity; sufficient to spell its doom? It is responsiveness to the supremacy of reason, obedience to the dictates of justice. Negatively put, arbitrariness is ruled out and unfairness avoided. To satisfy the due process requirement, official action, to paraphrase Cardozo, must not outrun the bounds of reasons and result in sheer oppression. Due process is thus hostile to any official action marred by lack of reasonableness. Correctly has it been identified as freedom from arbitrariness. It is the embodiment of the sporting idea of fair play. 17 It exacts fealty "to those strivings for justice" and judges the act of officialdom of whatever branch" in the light of reason drawn from considerations of fairness that reflect [democratic] traditions of legal and political thought." 18 It is not a narrow or "technical conception with fixed content unrelated to time, place and circumstances," 19 decisions based on such a clause requiring a "close and perceptive inquiry into fundamental principles of our society." 20 Questions of due process are not to be treated narrowly or pedantically in slavery to form or phrases. 21 It would thus be an affront to reason to stigmatize an ordinance enacted precisely to meet what a municipal lawmaking body considers an evil of rather serious proportion an arbitrary and capricious exercise of authority. It would seem that what should be deemed unreasonable and what would amount to an abdication of the power to govern is inaction in the face of an admitted deterioration of the state of public morals. To be more specific, the Municipal Board of the City of Manila felt the need for a remedial measure. It provided it with the enactment of the challenged ordinance. A strong case must be found in the records, and as has been set forth, none is even attempted here, to attach to an ordinance of such character the taint of nullity for an alleged failure to meet the due process requirement. Nor does it lend any semblance even of deceptive plausibility to petitioners' indictment of Ordinance No. 4760 on due process grounds to single out such features as the increased fees for motels and hotels, the curtailment of the area of freedom to contract, and, in certain particulars, its alleged vagueness. Admittedly there was a decided increase of the annual license fees provided for by the challenged ordinance for both hotels

and motels, 150% for the former and over 200% for the latter, first-class motels being required to pay a P6,000 annual fee and second-class motels, P4,500 yearly. It has been the settled law however, as far back as 1922 that municipal license fees could be classified into those imposed for regulating occupations or regular enterprises, for the regulation or restriction of non-useful occupations or enterprise and for revenue purposes only. 22 As was explained more in detail in the above Cu-Unjieng case: "(2) Licenses for non-useful occupations are also incidental to the police power and the right to exact a fee may be implied from the power to license and regulate, but in fixing amount of the license fees the municipal corporations are allowed a much wider discretion in this class of cases than in the former, and aside from applying the well-known legal principle that municipal ordinances must not be unreasonable, oppressive, or tyrannical, courts have, as a general rule, declined to interfere with such discretion. The desirability of imposing restraint upon the number of persons who might otherwise engage in non-useful enterprises is, of course, generally an important factor in the determination of the amount of this kind of license fee. Hence license fees clearly in the nature of privilege taxes for revenue have frequently been upheld, especially in cases of licenses for the sale of liquors. In fact, in the latter cases the fees have rarely been declared unreasonable." 23 Moreover, in the equally leading case of Lutz V. Araneta 24 this Court affirmed the doctrine earlier announced by the American Supreme Court that taxation may be made to implement the state's police power. Only the other day, this Court had occasion to affirm that the broad taxing authority conferred by the Local Autonomy Act of 1959 to cities and municipalities is sufficiently plenary to cover a wide range of subjects with the only limitation that the tax so levied is for public purpose, just and uniform. 25 As a matter of fact, even without reference to the wide latitude enjoyed by the City of Manila in imposing licenses for revenue, it has been explicitly held in one case that "much discretion is given to municipal corporations in determining the amount," here the license fee of the operator of a massage clinic, even if it were viewed purely as a police power measure. 26 The discussion of this particular matter may fitly close with this pertinent citation from another decision of significance: "It is urged on behalf of the plaintiffs-appellees that the enforcement of the ordinance would deprive them of their lawful occupation and means of livelihood because they can not rent stalls in the public markets. But it appears that plaintiffs are also dealers in refrigerated or cold storage meat, the sale of which outside the city markets under certain conditions is permitted . . . And surely, the mere fact, that some individuals in the community may be deprived of their present business or a particular mode of earning a living cannot prevent the exercise of the police power. As was said in a case, persons licensed to pursue occupations which may in the public need and interest be affected by the exercise of the police power embark in those occupations subject to the disadvantages which may result from the legal exercise of that power." 27 Nor does the restriction on the freedom to contract, insofar as the challenged ordinance makes it unlawful for the owner, manager, keeper or duly authorized representative of any

hotel, motel, lodging house, tavern, common inn or the like, to lease or rent any room or portion thereof more than twice every 24 hours, with a proviso that in all cases full payment shall be charged, call for a different conclusion. Again, such a limitation cannot be viewed as a transgression against the command of due process. It is neither unreasonable nor arbitrary. Precisely it was intended to curb the opportunity for the immoral or illegitimate use to which such premises could be, and, according to the explanatory note, are being devoted. How could it then be arbitrary or oppressive when there appears a correspondence between the undeniable existence of an undesirable situation and the legislative attempt at correction. Moreover, petitioners cannot be unaware that every regulation of conduct amounts to curtailment of liberty, which as pointed out by Justice Malcolm cannot be absolute. Thus: "One thought which runs through all these different conceptions of liberty is plainly apparent. It is this: 'Liberty' as understood in democracies, is not license; it is 'liberty regulated by law.' Implied in the term is restraint by law for the good of the individual and for the greater good of the peace and order of society and the general well-being. No man can do exactly as he pleases. Every man must renounce unbridled license. The right of the individual is necessarily subject to reasonable restraint by general law for the common good . . . The liberty of the citizen may be restrained in the interest of the public health, or of the public order and safety, or otherwise within the proper scope of the police power." 28 A similar observation was made by Justice Laurel: "Public welfare, then, lies at the bottom of the enactment of said law, and the state in order to promote the general welfare may interfere with personal liberty, with property, and with business and occupations. Persons and property may be subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the state . . . To this fundamental aim of our Government the rights of the individual are subordinated. Liberty is a blessing without which life is a misery, but liberty should not be made to prevail over authority because then society will fall into anarchy. Neither should authority be made to prevail over liberty because then the individual will fall into slavery. The citizen should achieve the required balance of liberty and authority in his mind through education and personal discipline, so that there may be established the resultant equilibrium, which means peace and order and happiness for all." 29 It is noteworthy that the only decision of this Court nullifying legislation because of undue deprivation of freedom to contract, People v. Pomar, 30 no longer "retains its virtuality as a living principle. The policy of laissez faire has to some extent given way to the assumption by the government of the right of intervention even in contractual relations affected with public interest." 31 What cannot be stressed sufficiently is that if the liberty involved were freedom of the mind or the person, the standard for the validity of governmental acts is much more rigorous and exacting, but where the liberty curtailed affects at the most rights of property, the permissible scope of regulatory measures is wider. 32 How justify then the allegation of a denial of due process? Lastly, there is the attempt to impugn the ordinance on another due process ground by invoking the principle of vagueness or

uncertainty. It would appear from a recital in the petition itself that what seems to be the gravamen of the alleged grievance is that the provisions are too detailed and specific rather than vague or uncertain. Petitioners, however, point to the requirement that a guest should give the name, relationship, age and sex of the companion or companions as indefinite and uncertain in view of the necessity for determining whether the companion or companions referred to are those arriving with the customer or guest at the time of the registry or entering the room with him at about the same time or coming at any indefinite time later to join him; a proviso in one of its sections which cast doubt as to whether the maintenance of a restaurant in a motel is dependent upon the discretion of its owners or operators; another proviso which from their standpoint would require a guess as to whether the "full rate of payment" to be charged for every such lease thereof means a full day's or merely a half-day's rate. It may be asked, do these allegations suffice to render the ordinance void on its face for alleged vagueness or uncertainty? To ask the question is to answer it. From Connally v. General Construction Co. 33 to Adderley v. Florida, 34 the principle has been consistently upheld that what makes a statute susceptible to such a charge is an enactment either forbidding or requiring the doing of an act that men of common intelligence must necessarily guess at its meaning and differ as to its application. Is this the situation before us? A citation from Justice Holmes would prove illuminating: "We agree to all the generalities about not supplying criminal laws with what they omit, but there is no canon against using common sense in constructing laws as saying what they obviously mean." 35 That is all then that this case presents. As it stands, with all due allowance for the arguments pressed with such vigor and determination, the attack against the validity of the challenged ordinance cannot be considered a success. Far from it. Respect for constitutional law principles so uniformly held and so uninterruptedly adhered to by this Court compels a reversal of the appealed decision. Wherefore, the judgment of the lower court is reversed and the injunction issued lifted forthwith. With costs. Reyes, J .B.L., Makalintal, Bengzon, J .P., Zaldivar, Sanchez, Castro and Angeles, JJ ., concur. Concepcion, C .J . and Dizon, J ., are on official leave. Footnotes 1. The eighteen members are Waldorf Hotel, Hotel Monte Carlo, Golden Gate Motel, Miami Hotel, Palm Spring Hotel, Flamingco Motel, Holiday Motel, Rainbow Motel, Palo Alto Hotel, Paradise Hotel, Mayfair Hotel, Siesta Court, Sun Valley Hotel, Springfield Hotel, New Palace Hotel, Hotel del Mar, Longbeach Hotel and Ritz Motel. 2. U.S. v. Salaveria (1918) 39 Phil. 102, at p. 111. There was an affirmation of the presumption of validity of municipal ordinance as announced in the leading Salaveria decision in Eboa v. Daet, (1950) 85 Phil. 369. 3. 282 U.S. 251, 328, January 5, 1931.

4. Cf. Ichong v. Hernandez (1957) 101 Phil. 1155, at p. 1163. Also: "To Frankfurter the police power, true to its etymology, is the power to shape policy. It defies legal definition; as a response to the dynamic aspects of society, it cannot be reduced to a constitutional formula. The law must be sensitive to life; in resolving cases, it must not fall back upon sterile cliches; its judgments are not to derive from an abstract dialectic between liberty and the police power. Instead, in a world of trust and unions and large-scale industry, it must meet the challenge of drastic social change. For him as for Holmes, 'society is more than bargain and business' and the jurist's art rises to no higher peak than in vindicating interests not represented by the items in a balancesheet. In a progressive society, new interests emerge, new attitudes appear, social consciousness quickens. In the face of the unknown one cannot choose with certainty. Nor as yet, has the whole truth been brought up from its bottomless well: and how fragile in scientific proof is the ultimate validity of any particular economic adjustment. Social development is a process of trial and error; in the making of policy the fullest possible opportunity must be given for the play of human mind. If Congress or legislature does not regulate, laissez faire not the individual must be the regulator. (Hamilton, Preview of a Justice (1939) 48 Yale Law Journal, 819). 5. 6. 7. 8. Noble State Bank v. Haskell, 219 US 412. U.S. v. Gomez-Jesus (1915) 31 Phil. 218. Rubi v. Provincial Board (1918) 39 Phil. 660. U.S. v. Giner Cruz (1918) 38 Phil. 677.

9. U.S. v. Rodriguez (1918) 38 Phil. 759. See also Sarmiento v. Belderol, 60 Off. Gaz. (2) 196; Lapera v. Vicente, L-18102, June 30, 1962. 10. U.S. v. Pacis (1915) 31 Phil. 524.

11. U.S. v. Espiritu-Santo (1912) 23 Phil. 610; U.S. v. Joson (1913) 26 Phil. 1; People v. Chan Hong (1938) 65 Phil. 625. 12. 13. U.S. v. Tamparong (1915) 31 Phil. 321. U.S. v. Salaveria (1918) 39 Phil. 102.

14. Uy Ha v. The City Mayor, 108 Phil. 400; Miranda v. City of Manila L-17252, May 31, 1961. 15. U.S. v. Ten Yu (1912) 24 Phil. 1.

16. There is no occasion to consider even cursorily the alleged invasion of the right of privacy or the prohibition against self- incrimination. Petitioners obviously are not the proper parties to do so. Nor may such an incurable defect be remedied by an accommodating intervenor "who has always taken advantage of, as he exclusively relies on, the facilities, services and accommodations" offered by petitioner-motels. A general merchant, doing business not only in Baguio City but in the City of Manila, has no legitimate cause for complaint. At least, not according to the case as it has been developed.

17. Frankfurter, Mr. Justice Holmes and the Supreme Court (1938) pp. 32-33. 18. 487. 19. 20. 21. 22. Frankfurter, Hannah v. Larche (1960) 363 US 420, at Cafeteria Workers v. McElroy (1961) 367 US 1230. Bartkus v. Illinois (1959) 359 US 121. Pearson v. McGraw (1939) 308 US 313. Cu Unjieng v. Patstone, (1922) 42 Phil. 818, 828.

23. Citing Swarth v. People, 109 Ill. 621; Dennehy v. City of Chicago, 120 Ill. 627; 12 N.E., 227; United States Distilling Co. v. City of Chicago, 112 Ill., 19; Drew County v. Bennet, 43 Ark., 364; Merced County v. Fleming, 111 Cal., 46; 43 Pac., 392; Williams v. City Council of West Point, 68 Ga., 816; Cheny v. Shellbyville, 19 Ind., 84; Wiley v. Owens, 39 Ind., 429; Sweet v. City of Wabash, 41 Ind., 7; Jones v. Grady, 25 La. Ann., 586; Goldsmith v. City of New Orlean, 31 La. Ann., 646; People exrel., Cramer v. Medberry, 39 N.Y.S., 207; 17 Misc. Rep., 8; McGuigan v. Town of Belmont, 89 Wis. 637; 62 N.W., 421; Ex parte Burnett, 30 Ala., 461; Craig v. Burnett, 32 Ala., 728, and Muhlenbinck v. Long Branch Commissioners, 42 N.J.L., 364; 36 Am. Rep. 518. At pp. 829830. 24. 98 Phil. 148 (1955) citing Great Atl. & Pac. Tea Co. v. Grosjean, 301 U.S. 412, 81 L. Ed. 1193; U.S. v. Butler, 297 U.S. 1, 80 L. Ed. 477; M'Culloch v. Maryland, 4 Wheat, 316, 4 L. Ed. 579. The Lutz decision was followed in Republic v. Bacolod-Murcia Milling, L-19824, July 9, 1966. 25. Ormoc Sugar Co. v. Municipal Board of Ormoc City, 65 Off. Gaz. (12) 2861. 26. Physical Therapy Organization v. Municipal Board (1957) 101 Phil. 1142. 27. Co Kian & Lee Ban v. City of Manila (1955) 96 Phil. 649, 654, citing City of New Orleans v. Stafford, 27 L. Ann. 417. 28. Rubi v. Provincial Board (1919) 39 Phil. 660, at 706, citing Hall v. Geiger-Jones (1916), 242 U.S., 539; HardieTynes Manufacturing Co. v. Cruz (1914), 189 Al., 66. 29. Calalang v. Williams (1940) 70 Phil. 726, at 733-734.

32. Cf. "In weighing arguments of the parties it is important to distinguish between the due process clause of the Fourteenth Amendment as an instrument for transmitting the principles of the First Amendment and those cases in which it is applied for its own sake. The test of legislation which collides with the Fourteenth Amendment, because it also collides with the principles of the First, is much more definite than the test when only the fourteenth is involved. Much of the vagueness of the due process clause disappears when the specific prohibitions of the First become its standard. The right of a State to regulate, for example, a public utility may well include, so far as the due process test is concerned, power to impose all of the restrictions which a legislature may have a 'rational basis' for adopting. But freedoms of speech and of press, of assembly, and of worship may not be infringed on such slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect." (West Virginia State Bd. of Edu v. Barnette, (1942) 319 US 624, at 639). 33. 34. 35. 269 US 385 (1926). 17 L. Ed. 2d 149, Nov. 14, 1966. Roschen v. Ward (1929) 279 US 337, 339.

30. 46 Phil. 440 (1924). The Philippines was then under American sovereignty, American Supreme Court decisions having thus an obligatory effect. No alternative was left to this Court except to follow the then controlling decision in Adkins v. Children's Hospital (1924) 261 US 525, which subsequently was overruled in West Coast Hotel v. Parrish (1937) 300 US 379. 31. Antamok Goldfields Mining Co. v. Court (1940) 70 Phil. 340, at 360, quoting a concurring opinion of Justice Laurel in Ang Tibay v. Court, G.R. No. 46496.

[G.R. No. 111953. December 12, 1997.] HON. RENATO C. CORONA, in his capacity as Assistant Secretary for Legal Affairs, HON. JESUS B. GARCIA, in his capacity as Acting Secretary, Department of Transportation and Communications, and ROGELIO A. DAYAN, in his capacity as General Manager of Philippine Ports Authority, petitioners, vs. UNITED HARBOR PILOTS ASSOCIATION OF THE PHILIPPINES and MANILA PILOTS ASSOCIATION, respondents. The Solicitor General for petitioners. Manuel E. Valenzuela and Jesus P. Amparo for private respondents. SYNOPSIS July 15, 1992, PPA General Manager Rogelio A. Dayan issued PPA-AO No. 04-92, limiting the term of Appointment of harbor pilots to one (1) year subject to renewal or cancellation by the authority after conduct of a rigid evaluation of the appointee's performance. Respondents, through Capt. Alberto C. Compas, questioned PPA-AO No. 04-92 before the Department of Transportation and Communication, but they were informed by the Department Secretary that the matter of reviewing, recalling or annulling PPA's administrative issuances lies exclusively with its Board of Directors as its governing body. Respondents appealed to the Office of the President which ordered the PPA to hold in abeyance the implementation of the administrative order. However, the Office of the President through then Assistant Executive Secretary for Legal Affairs Renato C. Corona dismissed the appeal/petition and lifted the restraining order issued earlier. Respondents filed a petition for certiorari, prohibition and injunction with the Regional Trial Court of Manila. The trial court ruled that herein petitioners have acted in excess of jurisdiction and with grave abuse of discretion in promulgating PPA AO No. 04-92 including its implementing memoranda. The trial court also declared the administrative order null and void and permanently enjoined its implementation. Hence, herein petitioners elevated the case to the Court on certiorari. The Supreme Court ruled that PPA-AO No. 04-92 was issued in utter disregard of respondent's right against deprivation of property without due process of law. The Court held that the provision limiting the term of appointment of harbor pilots unduly restricts the right of harbor pilots to enjoy their profession before their retirement. Renewal of the license is now dependent on a rigid evaluation of performance which is conducted only after the license has been canceled. Hence, the use of the term "renewal." It is the "pre-evaluation" cancellation which primarily makes PPA-AO No. 04-92 unreasonable and constitutionally infirm. In a real sense, it is deprivation of property without due process of law. Petition denied. SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; PPA-AO NO. 04-92; DECLARED UNCONSTITUTIONAL; THE PRE-EVALUATION CANCELLATION OF THE HARBOR PILOTS' LICENSES IS WHAT PRIMARILY MAKES THE ADMINISTRATIVE ORDER UNREASONABLE AND CONSTITUTIONALLY INFIRM; IT CONSTITUTES DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS OF LAW. It is readily apparent that PPA-AO No. 04-92 unduly restricts the right of harbor pilots to enjoy their profession before their compulsory retirement. In the past, they enjoyed a measure of security knowing that after passing five examinations and undergoing years of on-the-job training, they would have a license which they could use until their retirement, unless sooner revoked by the PPA for mental or physical unfitness. Under the new issuance, they have to contend with an annual cancellation of their license which can be temporary or permanent depending on the outcome of their performance evaluation. Veteran pilots and neophytes alike are suddenly confronted with one-year terms which ipso facto expire at the end of that period. Renewal of their license is now dependent on a "rigid evaluation of performance" which is conducted only after the license has already been canceled. Hence, the use of the term "renewal." It is this pre-evaluation cancellation which primarily makes PPA-AO No. 04-92 unreasonable and constitutionally infirm. In a real sense, it is a deprivation of property without due process of law. 2. ID.; ID.; AN UNNECESSARY ENACTMENT; SINCE THE LAW ADDS NOTHING NEW OR SUBSTANTIAL IT MUST BE STRUCK DOWN. The Court notes that PPA-AO No. 04-92 and PPA-MO No. 08-92 are already covered by PPA-AO No. 03-85, which is still operational. Respondents are correct in pointing out that PPAAO No. 04-92 is a "surplusage" and, therefore an unnecessary enactment. PPA-AO 03-85 is a comprehensive order setting forth the "Rules and Regulations Governing Pilotage Services, the Conduct of Pilots and Pilotage Fees in Philippine Ports." It provides, inter alia, for the qualification, appointment, performance evaluation, disciplining and removal of harbor pilots matters which are duplicated in PPA-AO No. 04-92 and its implementing memorandum order. Since it adds nothing new or substantial, PPA-AO No. 04-92 must be struck down. DECISION ROMERO, J p: In issuing Administrative Order No. 04-92 (PPA-AO No. 0492) limiting the term of appointment of harbor pilots to one year subject to yearly renewal or cancellation, did the Philippine Ports Authority (PPA) violate respondents' right to exercise their profession and their right to due process of law? The PPA was created on July 11, 1974, by virtue of Presidential Decree No. 505. On December 23, 1975, Presidential Decree No. 857 was issued revising the PPA's charter. Pursuant to its power of control, regulation, and supervision of pilots and the pilotage profession, 1 the PPA promulgated PPA-AO-03-85 2 on March 21, 1985, which embodied the "Rules and Regulations Governing Pilotage Services, the Conduct of Pilots and Pilotage Fees in Philippine

Ports." These rules mandate, inter alia, that aspiring pilots must be holders of pilot licenses 3 and must train as probationary pilots in outports for three months and in the Port of Manila for four months. It is only after they have achieved satisfactory performance 4 that they are given permanent and regular appointments by the PPA itself 5 to exercise harbor pilotage until they reach the age of 70, unless sooner removed by reason of mental or physical unfitness by the PPA General Manager. 6 Harbor pilots in every harbor district are further required to organize themselves into pilot associations which would make available such equipment as may be required by the PPA for effective pilotage services. In view of this mandate, pilot associations invested in floating, communications, and office equipment. In fact, every new pilot appointed by the PPA automatically becomes a member of a pilot association and is required to pay a proportionate equivalent equity or capital before being allowed to assume his duties, as reimbursement to the association concerned of the amount it paid to his predecessor. Subsequently, then PPA General Manager Rogelio A. Dayan issued PPA-AO No. 04-92 7 on July 15, 1992, whose avowed policy was to "instill effective discipline and thereby afford better protection to the port users through the improvement of pilotage services." This was implemented by providing therein that "all existing regular appointments which have been previously issued either by the Bureau of Customs or the PPA shall remain valid up to 31 December 1992 only" and that "all appointments to harbor pilot positions in all pilotage districts shall, henceforth, be only for a term of one (1) year from date of effectivity subject to yearly renewal or cancellation by the Authority after conduct of a rigid evaluation of performance." On August 12, 1992, respondents United Harbor Pilots Association and the Manila Pilots Association, through Capt. Alberto C. Compas, questioned PPA-AO No. 04-92 before the Department of Transportation and Communication, but they were informed by then DOTC Secretary Jesus B. Garcia that "the matter of reviewing, recalling or annulling PPA's administrative issuances lies exclusively with its Board of Directors as its governing body." Meanwhile, on August 31, 1992, the PPA issued Memorandum Order No. 08-92 8 which laid down the criteria or factors to be considered in the reappointment of harbor pilots viz.: (1) Qualifying Factors: 9 safety record and physical/mental medical exam report and, (2) Criteria for Evaluation: 10 promptness in servicing vessels, compliance with PPA Pilotage Guidelines, number of years as a harbor pilot, average GRT of vessels serviced as pilot, awards/commendations as harbor pilot, and age. Respondents reiterated their request for the suspension of the implementation of PPA-AO No. 04-92, but Secretary Garcia insisted on his position that the matter was within the jurisdiction of the Board of Directors of the PPA. Compas appealed this ruling to the Office of the President (OP), reiterating his arguments before the DOTC. On December 23, 1992, the OP issued an order directing the PPA to hold in abeyance the implementation of PPA-AO No. 04-92. In its answer, the PPA countered that said administrative order was issued in the exercise of its

administrative control and supervision over harbor pilots under Section 6-a (viii), Article IV of P. D. No. 857, as amended, and it, along with its implementing guidelines, was intended to restore order in the ports and to improve the quality of port services. On March 17, 1993, the OP, through then Assistant Executive Secretary for Legal Affairs Renato C. Corona, dismissed the appeal/petition and lifted the restraining order issued earlier. 11 He concluded that PPA-AO No. 04-92 applied to all harbor pilots and, for all intents and purposes, was not the act of Dayan, but of the PPA, which was merely implementing Section. 6 of P.D. No .857, mandating it "to control, regulate and supervise pilotage and conduct of pilots in any port district." On the alleged unconstitutionality and illegality of PPA-AO No. 04-92 and its implementing memoranda and circulars, Secretary Corona opined that: "The exercise of one's profession falls within the constitutional guarantee against wrongful deprivation of, or interference with, property rights without due process. In the limited context of this case, PPA-AO 04-92 does not constitute a wrongful interference with, let alone a wrongful deprivation of, the property rights of those affected thereby. As may be noted, the issuance aims no more. than to improve pilotage services by limiting the appointment to harbor pilot positions to one year, subject to renewal or cancellation after a rigid evaluation of the appointee's performance. PPA-AO 04-92 does not forbid, but merely regulates, the exercise by harbor pilots of their profession in PPA's jurisdictional area." (Emphasis supplied) Finally, as regards the alleged "absence of ample prior consultation" before the issuance of the administrative order, Secretary Corona cited Section 26 of P.D. No. 857, which merely requires the PPA to consult with "relevant Government agencies." Since the PPA Board of Directors is composed of the Secretaries of the DOTC, the Department of Public Works and Highways, the Department of Finance, and the Department of Environment and Natural Resources, as well as the Director-General of the National Economic Development Agency, the Administrator of the Maritime Industry Authority (MARINA), and the private sector representative who, due to his knowledge and expertise, was appointed by the President to the Board, he concluded that the law has been sufficiently complied with by the PPA in issuing the assailed administrative order. Consequently, respondents filed a petition for certiorari, prohibition and injunction with prayer for the issuance of a temporary restraining order and damages, before Branch 6 of the Regional Trial Court of Manila, which was docketed as Civil Case No. 93-65673. On September 6, 1993, the trial court rendered the following judgment: 12 "WHEREFORE, for all the foregoing, this court hereby rules that: 1. Respondents (herein petitioners) have acted in excess of jurisdiction and with grave abuse of discretion and in a

capricious, whimsical and arbitrary manner in promulgating PPA Administrative Order 04-92 including all its implementing Memoranda, Circulars and Orders; 2. PPA Administrative Order 04-92 and its implementing Circulars and Orders are declared null and void; 3. The respondents are permanently enjoined from implementing PPA Administrative Order 04-92 and its implementing Memoranda, Circulars and Orders. No costs. SO ORDERED." The court a quo pointed out that the Bureau of Customs, the precursor of the PPA, recognized pilotage as a profession and, therefore, a property right under Callanta v. Carnation Philippines, Inc. 13 Thus, abbreviating the term within which that privilege may be exercised would be an interference with the property rights of the harbor pilots. Consequently, any "withdrawal or alteration" of such property right must be strictly made in accordance with the constitutional mandate of due process of law. This was apparently not followed by the PPA when it did not conduct public hearings prior to the issuance of PPA-AO No. 04-92; respondents allegedly learned about it only after its publication in the newspapers. From this decision, petitioners elevated their case to this Court on certiorari. After carefully examining the records and deliberating on the arguments of the parties, the Court is convinced that PPA-AO No. 04-92 was issued in stark disregard of respondents' right against deprivation of property without due process of law. Consequently, the instant petition must be denied. Section 1 of the Bill of Rights lays down what is known as the "due process clause" of the Constitution, viz.: "SEC. 1. No person shall be deprived of life, liberty, or property without due process of law, . . ." In order to fall within the aegis of this provision, two conditions must concur, namely, that there is a deprivation and that such deprivation is done without proper observance of due process. When one speaks of due process of law, however, a distinction must be made between matters of procedure and matters of substance. In essence, procedural due process "refers to the method or manner by which the law is enforced," while substantive due process "requires that the law itself, not merely the procedures by which the law would be enforced, is fair, reasonable, and just." 14 PPA-AO No. 04-92 must be examined in light of this distinction. prLL Respondents argue that due process was not observed in the adoption of PPA-AO No. 04-92 allegedly because no hearing was conducted whereby "relevant government agencies" and the pilots themselves could ventilate their views. They are obviously referring to the procedural aspect of the enactment. Fortunately, the Court has maintained a clear position in this regard, a stance it has stressed in the recent case of Lumiqued v. Hon. Exevea, 15 where it declared that "(a)s long as a party was given the opportunity to defend his interests in due

course, he cannot be said to have been denied due process of law, for this opportunity to be heard is the very essence of due process. Moreover, this constitutional mandate is deemed satisfied if a person is granted an opportunity to seek reconsideration of the action or ruling complained of." In the case at bar, respondents questioned PPA-AO No. 04-92 no less than four times 16 before the matter was finally elevated to this Tribunal. Their arguments on this score, however, fail to persuade. While respondents emphasize that the Philippine Coast Guard, "which issues the licenses of pilots after administering the pilots' examinations," was not consulted, 17 the facts show that the MARINA, which took over the licensing function of the Philippine Coast Guard, was duly represented in the Board of Directors of the PPA. Thus, petitioners correctly argued that, there being no matters of naval defense involved in the issuance of the administrative order, the Philippine Coast Guard need not be consulted. 18 Neither does the fact that the pilots themselves were not consulted in any way taint the validity of the administrative order. As a general rule, notice and hearing, as the fundamental requirements of procedural due process, are essential only when an administrative body exercises its quasijudicial function. In the performance of its executive or legislative functions, such as issuing rules and regulations, an administrative body need not comply with the requirements of notice and hearing. 19 Upon the other hand, it is also contended that the sole and exclusive right to the exercise of harbor pilotage by pilots is a settled issue. Respondents aver that said right has become vested and can only be "withdrawn or shortened" by observing the constitutional mandate of due process of law. Their argument has thus shifted from the procedural to one of substance. It is here where PPA-AO No. 04-92 fails to meet the condition set by the organic law. There is no dispute that pilotage as a profession has taken on the nature of a property right. Even petitioner Corona recognized this when he stated in his March 17, 1993, decision that "(t)he exercise of one's profession falls within the constitutional guarantee against wrongful deprivation of, or interference with, property rights without due process." 20 He merely expressed the opinion that "(i)n the limited context of this case PPA-AO 04-92 does not constitute a wrongful interference with, let alone a wrongful deprivation of, the property rights of those affected thereby, and that "PPA-AO 04-92 does not forbid, but merely regulates, the exercise by harbor pilots of their profession." As will be presently demonstrated, such supposition is gravely erroneous and tends to perpetuate an administrative order which is not only unreasonable but also superfluous. Pilotage, just like other professions, may be practiced only by duly licensed individuals. Licensure is "the granting of license especially to practice a profession." It is also "the system of granting licenses (as for professional practice) in accordance with established standards." 21 A license is a right or permission granted by some competent authority to carry on a business or do an act which, without such license, would be illegal. 22

Before harbor pilots can earn a license to practice their profession, they literally have to pass through the proverbial eye of a needle by taking, not one but five examinations, each followed by actual training and practice. Thus, the court a quo observed: "Petitioners (herein respondents) contend, and the respondents (herein petitioners) do not deny, that here (sic) in this jurisdiction, before a person can be a harbor pilot, he must pass five (5) government professional examinations, namely, (1) For Third Mate and after which he must work, train and practice on board a vessel for at least a year; (2) For Second Mate and after which he must work, train and practice for at least a year; (3) For chief Mate and after which he must work, train and practice for at least a year; (4) For a Master Mariner and after which he must work as Captain of vessels for at least two (2) years to qualify for an examination to be a pilot; and finally, of course, that given for pilots." Their license is granted in the form of an appointment which allows them to engage in pilotage until they retire at the age 70 years. This is a vested right. Under the terms of PPA-AO No. 04-92, "(a)ll existing regular appointments which have been previously issued by the Bureau of Customs or the PPA shall remain valid up to 31 December 1992 only," and "(a)ll appointments to harbor pilot positions in all pilotage districts shall, henceforth, be only for a term of one (1) year from date of effectivity subject to renewal or cancellation by the Authority after conduct of a rigid evaluation of performance." It is readily apparent that PPA-AO No. 04-92 unduly restricts the right of harbor pilots to enjoy their profession before their compulsory retirement. In the past, they enjoyed a measure of security knowing that after passing five examinations and undergoing years of on-the-job training, they would have a license which they could use until their retirement, unless sooner revoked by the PPA for mental or physical unfitness. Under the new issuance, they have to contend with an annual cancellation of their license which can be temporary or permanent depending on the outcome of their performance evaluation. Veteran pilots and neophytes alike are suddenly confronted with one-year terms which ipso facto expire at the end of that period. Renewal of their license is now dependent on a "rigid evaluation of performance" which is conducted only after the license has already been cancelled. Hence, the use of the term "renewal " It is this pre-evaluation cancellation which primarily makes PPA-AO No. 04-92 unreasonable and constitutionally infirm. In a real sense, it is a deprivation of property without due process of law. The Court notes that PPA-AO No. 04-92 and PPA-MO No. 08-92 are already covered by PPA-AO No. 03-85, which is still operational. Respondents are correct in pointing out that PPA-AO No. 04-92 is a "surplusage" 23 and, therefore, an unnecessary enactment. PPA-AO 03-85 is a comprehensive order setting forth the "Rules and Regulations Governing Pilotage Services, the Conduct of Pilots and Pilotage Fees in Philippine Ports." It provides, inter alia, for the qualification, appointment, performance evaluation, disciplining and removal of harbor pilots matters which are duplicated in PPA-AO No. 04-92 and its implementing memorandum order. Since it adds nothing new or substantial, PPA-AO No. 04-92 must be struck down.

Finally, respondents' insinuation that then PPA General Manager Dayan was responsible for the issuance of the questioned administrative order may have some factual basis; after all, power and authority were vested in his office to propose rules and regulations. The trial court's finding of animosity between him and private respondents might likewise have a grain of truth. Yet the number of cases filed in court between private respondents and Dayan, including cases which have reached this Court cannot certainly be considered the primordial reason for the issuance of PPA-AO No. 04-92. In the absence of proof to the contrary, Dayan should be presumed to have acted in accordance with law and the best of professional motives. In any event, his actions are certainly always subject to scrutiny by higher administrative authorities. WHEREFORE the instant petition is hereby DISMISSED and the assailed decision of the court a quo dated September 6, 1993, in Civil Case No. 93-65673 is AFFIRMED. No pronouncement as to costs. Cdpr SO ORDERED. Narvasa, C .J ., Regalado, Davide, Jr., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco and Panganiban, JJ ., concur. Martinez, J ., took no part. Footnotes 1. Pilotage is the act of conducting a vessel from the high seas into a port. Usually, pilotage is conducted within a two-mile area offshore to an assigned berthing area and vice versa. 2. Rollo, p. 87.

3. The pilot licensing function itself which used to be exercised by the Philippine Coast Guard pursuant to the Revised Coast Guard Law of 1974 (P. D. No. 601) has been transferred to the Maritime Industry Authority (MARINA) by virtue of Executive Order No. 125, which took effect on January 30, 1987. 4. Determined by an Evaluation Committee.

5. Upon the recommendation of the PPA General Manager. 6. 7. 8. Article IV, Section 20. Rollo, p. 41. Ibid., p. 42.

9. Qualifying factors are requirements which must be met before a pilot's application for reappointment is even evaluated by the PPA. 10. These criteria are used for evaluation by the PPA after a pilot has complied with all the requirements to qualify for evaluation. Each criterion is assigned a certain number of points.

11. 12. 13.

Rollo, pp. 36-40. Ibid., pp. 29-35. 145 SCRA 268 (1986).

14. De Leon, Textbook on the Philippine Constitution, 1991, p. 81. 15. G.R. No. 117565, November 18, 1997, citing Legarda v. Court of Appeals, G.R. No. 94457, October 16, 1997, and Pizza Hut/Progressive Development Corporation v. NLRC, 322 Phil. 573. 16. Questioned twice before the DOTC, appealed to the OP, before finding affirmative relief with the RTC of Manila. 17. 18. Rollo, p. 55. Ibid., p. 163.

19. Philippine Communications Satellite Corporation v. Alcuaz, 180 SCRA 218 (1989), citing 73 C.J.S. 452-453. 20. Rollo, p. 38.

21. Webster's Third World International Dictionary, 1993 ed., p. 1304. 22. 53 C.J.S. 445, citing 37 C.J. 168, In Tan v. Director of Forestry, 210 Phil. 244 (1983), the Court defined a license as merely a permit or privilege to do what otherwise would be unlawful. It is not a contract between the authority, federal, state, or municipal, granting it and the person to whom it is granted. Neither is it property or a property right, nor does it create a vested right; nor is it taxation. 23. Rollo, p. 65.

[G.R. No. 133640. November 25, 2005.] RODOLFO S. BELTRAN, doing business under the name and style, OUR LADY OF FATIMA BLOOD BANK, FELY G. MOSALE, doing business under the name and style, MOTHER SEATON BLOOD BANK; PEOPLE'S BLOOD BANK, INC.; MARIA VICTORIA T. VITO, M.D., doing business under the name and style, AVENUE BLOOD BANK; JESUS M. GARCIA, M.D., doing business under the name and style, HOLY REDEEMER BLOOD BANK, ALBERT L. LAPITAN, doing business under the name and style, BLUE CROSS BLOOD TRANSFUSION SERVICES; EDGARDO R. RODAS, M.D., doing business under the name and style, RECORD BLOOD BANK, in their individual capacities and for and in behalf of PHILIPPINE ASSOCIATION OF BLOOD BANKS, petitioners, vs. THE SECRETARY OF HEALTH, respondent. [G.R. No. 133661. November 25, 2005.] DOCTORS' BLOOD CENTER, petitioner, DEPARTMENT OF HEALTH, respondent. [G.R. No. 139147. November 25, 2005.] RODOLFO S. BELTRAN, doing business under the name and style, OUR LADY OF FATIMA BLOOD BANK, FELY G. MOSALE, doing business under the name and style, MOTHER SEATON BLOOD BANK; PEOPLE'S BLOOD BANK, INC.; MARIA VICTORIA T. VITO, M.D., doing business under the name and style, AVENUE BLOOD BANK; JESUS M. GARCIA, M.D., doing business under the name and style, HOLY REDEEMER BLOOD BANK, ALBERT L. LAPITAN, doing business under the name and style, BLUE CROSS BLOOD TRANSFUSION SERVICES; EDGARDO R. RODAS, M.D., doing business under the name and style, RECORD BLOOD BANK, in their Individual capacities and for and in behalf of PHILIPPINE ASSOCIATION OF BLOOD BANKS, petitioners, vs. THE SECRETARY OF HEALTH, respondent. Adviento Mallonga Adviento Law Offices for petitioners. The Solicitor General for public respondent. SYLLABUS 1. POLITICAL LAW; ADMINISTRATIVE LAW; ADMINISTRATIVE AGENCIES; QUASI-LEGISLATIVE OR RULE MAKING POWER; DELEGATION OF LEGISLATIVE POWER, WHEN VALID; CASE AT BAR. In testing whether a statute constitutes an undue delegation of legislative power or not, it is usual to inquire whether the statute was complete in all its terms and provisions when it left the hands of the Legislature so that nothing was left to the judgment of the administrative body or any other appointee or delegate of the Legislature. Except as to matters of detail that may be left to be filled in by rules and regulations to be adopted or promulgated by executive officers and administrative boards, an act of the Legislature, as a general rule, is incomplete and hence invalid if it does not lay down vs.

any rule or definite standard by which the administrative board may be guided in the exercise of the discretionary powers delegated to it. Republic Act No. 7719 or the National Blood Services Act of 1994 is complete in itself. It is clear from the provisions of the Act that the Legislature intended primarily to safeguard the health of the people and has mandated several measures to attain this objective. One of these is the phase out of commercial blood banks in the country. The law has sufficiently provided a definite standard for the guidance of the Secretary of Health in carrying out its provisions, that is, the promotion of public health by providing a safe and adequate supply of blood through voluntary blood donation. By its provisions, it has conferred the power and authority to the Secretary of Health as to its execution, to be exercised under and in pursuance of the law. Congress may validly delegate to administrative agencies the authority to promulgate rules and regulations to implement a given legislation and effectuate its policies. . . . The true distinction between the power to make laws and discretion as to its execution is illustrated by the fact that the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made. CHATcE 2. ID.; CONSTITUTIONAL LAW; BILL OF RIGHTS; EQUAL PROTECTION CLAUSE; CLASSIFICATION, WHEN REASONABLE. What may be regarded as a denial of the equal protection of the laws is a question not always easily determined. No rule that will cover every case can be formulated. Class legislation, discriminating against some and favoring others is prohibited but classification on a reasonable basis and not made arbitrarily or capriciously is permitted. The classification, however, to be reasonable: (a) must be based on substantial distinctions which make real differences; (b) must be germane to the purpose of the law; (c) must not be limited to existing conditions only; and, (d) must apply equally to each member of the class. 3. ID.; ID.; INHERENT POWERS OF THE STATE; POLICE POWER; REQUISITES; CASE AT BAR. Police power of the state is validly exercised if (a) the interest of the public generally, as distinguished from those of a particular class, requires the interference of the State; and, (b) the means employed are reasonably necessary to the attainment of the objective sought to be accomplished and not unduly oppressive upon individuals. . . . The Court finds that the National Blood Services Act is a valid exercise of the State's police power. Therefore, the Legislature, under the circumstances, adopted a course of action that is both necessary and reasonable for the common good. Police power is the State authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare. SEACTH 4. ID.; ID.; ID.; ID.; PREVAILS OVER RIGHTS TO CONTRACT AND PROPERTY. [I]n the case of Philippine Association of Service Exporters, Inc. v. Drilon, settled is the rule that the non-impairment clause of the Constitution must yield to the loftier purposes targeted by the government. The right granted by this provision must submit to the demands and necessities of the State's power of

regulation. While the Court understands the grave implications of Section 7 of the law in question, the concern of the Government in this case, however, is not necessarily to maintain profits of business firms. In the ordinary sequence of events, it is profits that suffer as a result of government regulation. Furthermore, the freedom to contract is not absolute; all contracts and all rights are subject to the police power of the State and not only may regulations which affect them be established by the State, but all such regulations must be subject to change from time to time, as the general wellbeing of the community may require, or as the circumstances may change, or as experience may demonstrate the necessity. This doctrine was reiterated in the case of Vda. de Genuino v. Court of Agrarian Relations where the Court held that individual rights to contract and to property have to give way to police power exercised for public welfare. 5. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CONTEMPT; PRESUPPOSES A CONTUMACIOUS ATTITUDE, A FLOUTING OR ARROGANT BELLIGERENCE IN DEFIANCE OF THE COURT. Contempt of court presupposes a contumacious attitude, a flouting or arrogant belligerence in defiance of the court. There is nothing contemptuous about the statements and information contained in the health advisory that were distributed by DOH before the TRO was issued by this Court ordering the former to cease and desist from distributing the same. ICacDE 6. POLITICAL LAW; CONSTITUTIONAL LAW; STATUTES; ALL REASONABLE DOUBTS SHOULD BE RESOLVED IN FAVOR OF THE CONSTITUTIONALITY OF A STATUTE. The fundamental criterion is that all reasonable doubts should be resolved in favor of the constitutionality of a statute. Every law has in its favor the presumption of constitutionality. For a law to be nullified, it must be shown that there is a clear and unequivocal breach of the Constitution. The ground for nullity must be clear and beyond reasonable doubt. Those who petition this Court to declare a law, or parts thereof, unconstitutional must clearly establish the basis therefor. Otherwise, the petition must fail. DECISION AZCUNA, J p: Before this Court are petitions assailing primarily the constitutionality of Section 7 of Republic Act No. 7719, otherwise known as the "National Blood Services Act of 1994," and the validity of Administrative Order (A.O.) No. 9, series of 1995 or the Rules and Regulations Implementing Republic Act No. 7719. TCaEAD G.R. No. 133640, 1 entitled "Rodolfo S. Beltran, doing business under the name and style, Our Lady of Fatima Blood Bank, et al., vs. The Secretary of Health" and G.R. No. 133661, 2 entitled "Doctors Blood Bank Center vs. Department of Health" are petitions for certiorari and mandamus, respectively, seeking the annulment of the following: (1) Section 7 of Republic Act No. 7719; and, (2) Administrative Order (A.O.) No. 9, series of 1995. Both petitions likewise pray for the issuance of a writ of prohibitory injunction enjoining the Secretary of Health from

implementing and enforcing the aforementioned law and its Implementing Rules and Regulations; and, for a mandatory injunction ordering and commanding the Secretary of Health to grant, issue or renew petitioners' license to operate free standing blood banks (FSBB). cdtai 2006 The above cases were consolidated in a resolution of the Court En Banc dated June 2, 1998. 3 G.R. No. 139147, 4 entitled "Rodolfo S. Beltran, doing business under the name and style, Our Lady of Fatima Blood Bank, et al., vs. The Secretary of Health," on the other hand, is a petition to show cause why respondent Secretary of Health should not be held in contempt of court. This case was originally assigned to the Third Division of this Court and later consolidated with G.R. Nos. 133640 and 133661 in a resolution dated August 4, 1999. 5 Petitioners comprise the majority of the Board of Directors of the Philippine Association of Blood Banks, a duly registered non-stock and non-profit association composed of free standing blood banks. Public respondent Secretary of Health is being sued in his capacity as the public official directly involved and charged with the enforcement and implementation of the law in question. HcaDIA The facts of the case are as follows: Republic Act No. 7719 or the National Blood Services Act of 1994 was enacted into law on April 2, 1994. The Act seeks to provide an adequate supply of safe blood by promoting voluntary blood donation and by regulating blood banks in the country. It was approved by then President Fidel V. Ramos on May 15, 1994 and was subsequently published in the Official Gazette on August 18, 1994. The law took effect on August 23, 1994. On April 28, 1995, Administrative Order No. 9, Series of 1995, constituting the Implementing Rules and Regulations of said law was promulgated by respondent Secretary of the Department of Health (DOH). 6 Section 7 of R.A. 7719 7 provides: "Section 7. Phase-out of Commercial Blood Banks All commercial blood banks shall be phased-out over a period of two (2) years after the effectivity of this Act, extendable to a maximum period of two (2) years by the Secretary." Section 23 of Administrative Order No. 9 provides: "Section 23. Process of Phasing Out. The Department shall effect the phasing-out of all commercial blood banks over a period of two (2) years, extendible for a maximum period of two (2) years after the effectivity of R.A. 7719. The decision to extend shall be based on the result of a careful study and review of the blood supply and demand and public safety." 8 Blood banking and blood transfusion services in the country have been arranged in four (4) categories: blood centers run by the Philippine National Red Cross (PNRC), government-run

blood services, private hospital blood banks, and commercial blood services. AECacT Years prior to the passage of the National Blood Services Act of 1994, petitioners have already been operating commercial blood banks under Republic Act No. 1517, entitled "An Act Regulating the Collection, Processing and Sale of Human Blood, and the Establishment and Operation of Blood Banks and Blood Processing Laboratories." The law, which was enacted on June 16, 1956, allowed the establishment and operation by licensed physicians of blood banks and blood processing laboratories. The Bureau of Research and Laboratories (BRL) was created in 1958 and was given the power to regulate clinical laboratories in 1966 under Republic Act No. 4688. In 1971, the Licensure Section was created within the BRL. It was given the duty to enforce the licensure requirements for blood banks as well as clinical laboratories. Due to this development, Administrative Order No. 156, Series of 1971, was issued. The new rules and regulations triggered a stricter enforcement of the Blood Banking Law, which was characterized by frequent spot checks, immediate suspension and communication of such suspensions to hospitals, a more systematic record-keeping and frequent communication with blood banks through monthly information bulletins. Unfortunately, by the 1980's, financial difficulties constrained the BRL to reduce the frequency of its supervisory visits to the blood banks. 9 Meanwhile, in the international scene, concern for the safety of blood and blood products intensified when the dreaded disease Acute Immune Deficiency Syndrome (AIDS) was first described in 1979. In 1980, the International Society of Blood Transfusion (ISBT) formulated the Code of Ethics for Blood Donation and Transfusion. In 1982, the first case of transfusion-associated AIDS was described in an infant. Hence, the ISBT drafted in 1984, a model for a national blood policy outlining certain principles that should be taken into consideration. By 1985, the ISBT had disseminated guidelines requiring AIDS testing of blood and blood products for transfusion. 10 In 1989, another revision of the Blood Banking Guidelines was made. The DOH issued Administrative Order No. 57, Series of 1989, which classified banks into primary, secondary and tertiary depending on the services they provided. The standards were adjusted according to this classification. For instance, floor area requirements varied according to classification level. The new guidelines likewise required Hepatitis B and HIV testing, and that the blood bank be headed by a pathologist or a hematologist. 11 In 1992, the DOH issued Administrative Order No. 118-A institutionalizing the National Blood Services Program (NBSP). The BRL was designated as the central office primarily responsible for the NBSP. The program paved the way for the creation of a committee that will implement the policies of the program and the formation of the Regional Blood Councils. AEIcTD In August 1992, Senate Bill No. 1011, entitled "An Act Promoting Voluntary Blood Donation, Providing for an Adequate Supply of Safe Blood, Regulating Blood Banks and

Providing Penalties for Violations Thereof, and for other Purposes" was introduced in the Senate. 12 Meanwhile, in the House of Representatives, House Bills No. 384, 546, 780 and 1978 were being deliberated to address the issue of safety of the Philippine blood bank system. Subsequently, the Senate and House Bills were referred to the appropriate committees and subsequently consolidated. 13 In January of 1994, the New Tropical Medicine Foundation, with the assistance of the U.S. Agency for International Development (USAID) released its final report of a study on the Philippine blood banking system entitled "Project to Evaluate the Safety of the Philippine Blood Banking System." It was revealed that of the blood units collected in 1992, 64.4% were supplied by commercial blood banks, 14.5% by the PNRC, 13.7% by government hospital-based blood banks, and 7.4% by private hospital-based blood banks. During the time the study was made, there were only twenty-four (24) registered or licensed free-standing or commercial blood banks in the country. Hence, with these numbers in mind, the study deduced that each commercial blood bank produces five times more blood than the Red Cross and fifteen times more than the government-run blood banks. The study, therefore, showed that the Philippines heavily relied on commercial sources of blood. The study likewise revealed that 99.6% of the donors of commercial blood banks and 77.0% of the donors of private-hospital based blood banks are paid donors. Paid donors are those who receive remuneration for donating their blood. Blood donors of the PNRC and government-run hospitals, on the other hand, are mostly voluntary. 14 It was further found, among other things, that blood sold by persons to blood commercial banks are three times more likely to have any of the four (4) tested infections or blood transfusion transmissible diseases, namely, malaria, syphilis, Hepatitis B and Acquired Immune Deficiency Syndrome (AIDS) than those donated to PNRC. 15 Commercial blood banks give paid donors varying rates around P50 to P150, and because of this arrangement, many of these donors are poor, and often they are students, who need cash immediately. Since they need the money, these donors are not usually honest about their medical or social history. Thus, blood from healthy, voluntary donors who give their true medical and social history are about three times much safer than blood from paid donors. 16 What the study also found alarming is that many Filipino doctors are not yet fully trained on the specific indications for blood component transfusion. They are not aware of the lack of blood supply and do not feel the need to adjust their practices and use of blood and blood products. It also does not matter to them where the blood comes from. 17 On August 23, 1994, the National Blood Services Act providing for the phase out of commercial blood banks took effect. On April 28, 1995, Administrative Order No. 9, Series of 1995, constituting the Implementing Rules and Regulations of said law was promulgated by DOH. CAHaST The phase-out period was extended for two years by the DOH pursuant to Section 7 of Republic Act No. 7719 and Section

23 of its Implementing Rules and Regulations. Pursuant to said Act, all commercial blood banks should have been phased out by May 28, 1998. Hence, petitioners were granted by the Secretary of Health their licenses to open and operate a blood bank only until May 27, 1998. On May 20, 1998, prior to the expiration of the licenses granted to petitioners, they filed a petition for certiorari with application for the issuance of a writ of preliminary injunction or temporary restraining order under Rule 65 of the Rules of Court assailing the constitutionality and validity of the aforementioned Act and its Implementing Rules and Regulations. The case was entitled "Rodolfo S. Beltran, doing business under the name and style, Our Lady of Fatima Blood Bank," docketed as G.R. No. 133640. On June 1, 1998, petitioners filed an Amended Petition for Certiorari with Prayer for Issuance of a Temporary Restraining Order, writ of preliminary mandatory injunction and/or status quo ante order. 18 In the aforementioned petition, petitioners assail the constitutionality of the questioned legal provisions, namely, Section 7 of Republic Act No. 7719 and Section 23 of Administrative Order No. 9, Series of 1995, on the following grounds: 19 1. The questioned legal provisions of the National Blood Services Act and its Implementing Rules violate the equal protection clause for irrationally discriminating against free standing blood banks in a manner which is not germane to the purpose of the law; 2. The questioned provisions of the National Blood Services Act and its Implementing Rules represent undue delegation if not outright abdication of the police power of the state; and, THSaEC 3. The questioned provisions of the National Blood Services Act and its Implementing Rules are unwarranted deprivation of personal liberty. On May 22, 1998, the Doctors Blood Center filed a similar petition for mandamus with a prayer for the issuance of a temporary restraining order, preliminary prohibitory and mandatory injunction before this Court entitled "Doctors Blood Center vs. Department of Health," docketed as G.R. No. 133661. 20 This was consolidated with G.R. No. 133640. 21 Similarly, the petition attacked the constitutionality of Republic Act No. 7719 and its implementing rules and regulations, thus, praying for the issuance of a license to operate commercial blood banks beyond May 27, 1998. Specifically, with regard to Republic Act No. 7719, the petition submitted the following questions 22 for resolution: 1. Was it passed in the exercise of police power, and was it a valid exercise of such power? 2. Does it not amount to deprivation of property without due process? 3. Does it not unlawfully impair the obligation of contracts?

4. With the commercial blood banks being abolished and with no ready machinery to deliver the same supply and services, does R.A. 7719 truly serve the public welfare? On June 2, 1998, this Court issued a Resolution directing respondent DOH to file a consolidated comment. In the same Resolution, the Court issued a temporary restraining order (TRO) for respondent to cease and desist from implementing and enforcing Section 7 of Republic Act No. 7719 and its implementing rules and regulations until further orders from the Court. 23 On August 26, 1998, respondent Secretary of Health filed a Consolidated Comment on the petitions for certiorari and mandamus in G.R. Nos. 133640 and 133661, with opposition to the issuance of a temporary restraining order. 24 In the Consolidated Comment, respondent Secretary of Health submitted that blood from commercial blood banks is unsafe and therefore the State, in the exercise of its police power, can close down commercial blood banks to protect the public. He cited the record of deliberations on Senate Bill No. 1101 which later became Republic Act No. 7719, and the sponsorship speech of Senator Orlando Mercado. caIEAD The rationale for the closure of these commercial blood banks can be found in the deliberations of Senate Bill No. 1011, excerpts of which are quoted below: Senator Mercado: I am providing over a period of two years to phase out all commercial blood banks. So that in the end, the new section would have a provision that states: "ALL COMMERCIAL BLOOD BANKS SHALL BE PHASED OUT OVER A PERIOD OF TWO YEARS AFTER THE EFFECTIVITY OF THIS ACT. BLOOD SHALL BE COLLECTED FROM VOLUNTARY DONORS ONLY AND THE SERVICE FEE TO BE CHARGED FOR EVERY BLOOD PRODUCT ISSUED SHALL BE LIMITED TO THE NECESSARY EXPENSES ENTAILED IN COLLECTING AND PROCESSING OF BLOOD. THE SERVICE FEE SHALL BE MADE UNIFORM THROUGH GUIDELINES TO BE SET BY THE DEPARTMENT OF HEALTH." I am supporting Mr. President, the finding of a study called "Project to Evaluate the Safety of the Philippine Blood Banking System." This has been taken note of. This is a study done with the assistance of the USAID by doctors under the New Tropical Medicine Foundation in Alabang. Part of the long-term measures proposed by this particular study is to improve laws, outlaw buying and selling of blood and legally define good manufacturing processes for blood. This goes to the very heart of my amendment which seeks to put into law the principle that blood should not be subject of commerce of man. xxx xxx xxx

The Presiding Officer [Senator Aquino]: What does the sponsor say?

Senator Webb: Mr. President, just for clarity, I would like to find out how the Gentleman defines a commercial blood bank. I am at a loss at times what a commercial blood bank really is. TcIaHC Senator Mercado: We have a definition, I believe, in the measure, Mr. President. The Presiding Officer [Senator Aquino]: It is a business where profit is considered. Senator Mercado: If the Chairman of the Committee would accept it, we can put a provision on Section 3, a definition of a commercial blood bank, which, as defined in this law, exists for profit and engages in the buying and selling of blood or its components. Senator Webb: That is a good description, Mr. President. xxx xxx xxx

A blood bank owner expecting to gain profit from selling blood will also try his best to limit his expenses. Usually he tries to increase his profit by buying cheaper reagents or test kits, hiring cheaper manpower or skipping some tests altogether. He may also try to sell blood even though these have infections in them. Because there is no existing system of counterchecking these, the blood bank owner can usually get away with many unethical practices. The experience of Germany, Mr. President is illustrative of this issue. The reason why contaminated blood was sold was that there were corners cut by commercial blood banks in the testing process. They were protecting their profits. 25 The sponsorship speech of Senator Mercado further elucidated his stand on the issue: xxx xxx xxx

Senator Mercado: I refer, Mr. President, to a letter written by Dr. Jaime Galvez-Tan, the Chief of Staff, Undersecretary of Health, to the good Chairperson of the Committee on Health. In recommendation No. 4, he says: "The need to phase out all commercial blood banks within a two-year period will give the Department of Health enough time to build up government's capability to provide an adequate supply of blood for the needs of the nation . . . the use of blood for transfusion is a medical service and not a sale of commodity." Taking into consideration the experience of the National Kidney Institute, which has succeeded in making the hospital 100 percent dependent on voluntary blood donation, here is a success story of a hospital that does not buy blood. All those who are operated on and need blood have to convince their relatives or have to get volunteers who would donate blood. . . cDCaTS If we give the responsibility of the testing of blood to those commercial blood banks, they will cut corners because it will protect their profit. In the first place, the people who sell their blood are the people who are normally in the high-risk category. So we should stop the system of selling and buying blood so that we can go into a national voluntary blood program. It has been said here in this report, and I quote: "Why is buying and selling of blood not safe? This is not safe because a donor who expects payment for his blood will not tell the truth about his illnesses and will deny any risky social behavior such as sexual promiscuity which increases the risk of having syphilis or AIDS or abuse of intravenous addictive drugs. Laboratory tests are of limited value and will not detect early infections. Laboratory tests are required only for four diseases in the Philippines. There are other blood transmissible diseases we do not yet screen for and there could be others where there are no tests available yet.

Senator Mercado: Today, across the country, hundreds of poverty-stricken, sickly and weak Filipinos, who, unemployed, without hope and without money to buy the next meal, will walk into a commercial blood bank, extend their arms and plead that their blood be bought. They will lie about their age, their medical history. They will lie about when they last sold their blood. For doing this, they will receive close to a hundred pesos. This may tide them over for the next few days. Of course, until the next bloodletting. ACDTcE This same blood will travel to the posh city hospitals and urbane medical centers. This same blood will now be bought by the rich at a price over 500% of the value for which it was sold. Between this buying and selling, obviously, someone has made a very fast buck. Every doctor has handled at least one transfusion-related disease in an otherwise normal patient. Patients come in for minor surgery of the hand or whatever and they leave with hepatitis B. A patient comes in for an appendectomy and he leaves with malaria. The worst nightmare: A patient comes in for a Caesarian section and leaves with AIDS. We do not expect good blood from donors who sell their blood because of poverty. The humane dimension of blood transfusion is not in the act of receiving blood, but in the act of giving it . . . For years, our people have been at the mercy of commercial blood banks that lobby their interests among medical technologists, hospital administrators and sometimes even physicians so that a proactive system for collection of blood from healthy donors becomes difficult, tedious and unrewarding. The Department of Health has never institutionalized a comprehensive national program for safe blood and for voluntary blood donation even if this is a serious public health concern and has fallen for the linen of commercial blood bankers, hook, line and sinker because it is more convenient to tell the patient to buy blood. Commercial blood banks hold us hostage to their threat that if we are to close them down, there will be no blood supply. This

is true if the Government does not step in to ensure that safe supply of blood. We cannot allow commercial interest groups to dictate policy on what is and what should be a humanitarian effort. This cannot and will never work because their interest in blood donation is merely monetary. We cannot expect commercial blood banks to take the lead in voluntary blood donation. Only the Government can do it, and the Government must do it." 26 On May 5, 1999, petitioners filed a Motion for Issuance of Expanded Temporary Restraining Order for the Court to order respondent Secretary of Health to cease and desist from announcing the closure of commercial blood banks, compelling the public to source the needed blood from voluntary donors only, and committing similar acts "that will ultimately cause the shutdown of petitioners' blood banks." 27 On July 8, 1999, respondent Secretary filed his Comment and/or Opposition to the above motion stating that he has not ordered the closure of commercial blood banks on account of the Temporary Restraining Order (TRO) issued on June 2, 1998 by the Court. In compliance with the TRO, DOH had likewise ceased to distribute the health advisory leaflets, posters and flyers to the public which state that "blood banks are closed or will be closed." According to respondent Secretary, the same were printed and circulated in anticipation of the closure of the commercial blood banks in accordance with R.A. No. 7719, and were printed and circulated prior to the issuance of the TRO. 28 On July 15, 1999, petitioners in G.R. No. 133640 filed a Petition to Show Cause Why Public Respondent Should Not be Held in Contempt of Court, docketed as G.R. No. 139147, citing public respondent's willful disobedience of or resistance to the restraining order issued by the Court in the said case. Petitioners alleged that respondent's act constitutes circumvention of the temporary restraining order and a mockery of the authority of the Court and the orderly administration of justice. 29 Petitioners added that despite the issuance of the temporary restraining order in G.R. No. 133640, respondent, in his effort to strike down the existence of commercial blood banks, disseminated misleading information under the guise of health advisories, press releases, leaflets, brochures and flyers stating, among others, that "this year [1998] all commercial blood banks will be closed by 27 May. Those who need blood will have to rely on government blood banks." 30 Petitioners further claimed that respondent Secretary of Health announced in a press conference during the Blood Donor's Week that commercial blood banks are "illegal and dangerous" and that they "are at the moment protected by a restraining order on the basis that their commercial interest is more important than the lives of the people." These were all posted in bulletin boards and other conspicuous places in all government hospitals as well as other medical and health centers. 31 In respondent Secretary's Comment to the Petition to Show Cause Why Public Respondent Should Not Be Held in Contempt of Court, dated January 3, 2000, it was explained that nothing was issued by the department ordering the closure of commercial blood banks. The subject health advisory leaflets pertaining to said closure pursuant to Republic Act

No. 7719 were printed and circulated prior to the Court's issuance of a temporary restraining order on June 21, 1998. 32 Public respondent further claimed that the primary purpose of the information campaign was "to promote the importance and safety of voluntary blood donation and to educate the public about the hazards of patronizing blood supplies from commercial blood banks." 33 In doing so, he was merely performing his regular functions and duties as the Secretary of Health to protect the health and welfare of the public. Moreover, the DOH is the main proponent of the voluntary blood donation program espoused by Republic Act No. 7719, particularly Section 4 thereof which provides that, in order to ensure the adequate supply of human blood, voluntary blood donation shall be promoted through public education, promotion in schools, professional education, establishment of blood services network, and walking blood donors. DaCEIc Hence, by authority of the law, respondent Secretary contends that he has the duty to promote the program of voluntary blood donation. Certainly, his act of encouraging the public to donate blood voluntarily and educating the people on the risks associated with blood coming from a paid donor promotes general health and welfare and which should be given more importance than the commercial businesses of petitioners. 34 On July 29, 1999, interposing personal and substantial interest in the case as taxpayers and citizens, a Petition-in-Intervention was filed interjecting the same arguments and issues as laid down by petitioners in G.R. No. 133640 and 133661, namely, the unconstitutionality of the Acts, and, the issuance of a writ of prohibitory injunction. The intervenors are the immediate relatives of individuals who had died allegedly because of shortage of blood supply at a critical time. 35 The intervenors contended that Republic Act No. 7719 constitutes undue delegation of legislative powers and unwarranted deprivation of personal liberty. 36 In a resolution, dated September 7, 1999, and without giving due course to the aforementioned petition, the Court granted the Motion for Intervention that was filed by the above intervenors on August 9, 1999. In his Comment to the petition-in-intervention, respondent Secretary of Health stated that the sale of blood is contrary to the spirit and letter of the Act that "blood donation is a humanitarian act" and "blood transfusion is a professional medical service and not a sale of commodity (Section 2[a] and [b] of Republic Act No. 7719). The act of selling blood or charging fees other than those allowed by law is even penalized under Section 12." 37 Thus, in view of these, the Court is now tasked to pass upon the constitutionality of Section 7 of Republic Act No. 7719 or the National Blood Services Act of 1994 and its Implementing Rules and Regulations. HCacDE In resolving the controversy, this Court deems it necessary to address the issues and/or questions raised by petitioners concerning the constitutionality of the aforesaid Act in G.R. No. 133640 and 133661 as summarized hereunder:

I WHETHER OR NOT SECTION 7 OF R.A. CONSTITUTES UNDUE DELEGATION LEGISLATIVE POWER; II WHETHER OR NOT SECTION 7 OF R.A. 7719 AND ITS IMPLEMENTING RULES AND REGULATIONS VIOLATE THE EQUAL PROTECTION CLAUSE; III WHETHER OR NOT SECTION 7 OF R.A. 7719 AND ITS IMPLEMENTING RULES AND REGULATIONS VIOLATE THE NON-IMPAIRMENT CLAUSE; IV WHETHER OR NOT SECTION 7 OF R.A. 7719 AND ITS IMPLEMENTING RULES AND REGULATIONS CONSTITUTE DEPRIVATION OF PERSONAL LIBERTY AND PROPERTY; V WHETHER OR NOT R.A. 7719 IS A VALID EXERCISE OF POLICE POWER; and, VI WHETHER OR NOT SECTION 7 OF R.A. 7719 AND ITS IMPLEMENTING RULES AND REGULATIONS TRULY SERVE PUBLIC WELFARE. cIADaC As to the first ground upon which the constitutionality of the Act is being challenged, it is the contention of petitioners that the phase out of commercial or free standing blood banks is unconstitutional because it is an improper and unwarranted delegation of legislative power. According to petitioners, the Act was incomplete when it was passed by the Legislature, and the latter failed to fix a standard to which the Secretary of Health must conform in the performance of his functions. Petitioners also contend that the two-year extension period that may be granted by the Secretary of Health for the phasing out of commercial blood banks pursuant to Section 7 of the Act constrained the Secretary to legislate, thus constituting undue delegation of legislative power. In testing whether a statute constitutes an undue delegation of legislative power or not, it is usual to inquire whether the statute was complete in all its terms and provisions when it left the hands of the Legislature so that nothing was left to the judgment of the administrative body or any other appointee or delegate of the Legislature. 38 Except as to matters of detail that may be left to be filled in by rules and regulations to be adopted or promulgated by executive officers and administrative boards, an act of the Legislature, as a general rule, is incomplete and hence invalid if it does not lay down any rule or definite standard by which the administrative board may be guided in the exercise of the discretionary powers delegated to it. 39 7719 OF

Republic Act No. 7719 or the National Blood Services Act of 1994 is complete in itself. It is clear from the provisions of the Act that the Legislature intended primarily to safeguard the health of the people and has mandated several measures to attain this objective. One of these is the phase out of commercial blood banks in the country. The law has sufficiently provided a definite standard for the guidance of the Secretary of Health in carrying out its provisions, that is, the promotion of public health by providing a safe and adequate supply of blood through voluntary blood donation. By its provisions, it has conferred the power and authority to the Secretary of Health as to its execution, to be exercised under and in pursuance of the law. EcICDT Congress may validly delegate to administrative agencies the authority to promulgate rules and regulations to implement a given legislation and effectuate its policies. 40 The Secretary of Health has been given, under Republic Act No. 7719, broad powers to execute the provisions of said Act. Section 11 of the Act states: "SEC. 11. Rules and Regulations. The implementation of the provisions of the Act shall be in accordance with the rules and regulations to be promulgated by the Secretary, within sixty (60) days from the approval hereof . . . " This is what respondent Secretary exactly did when DOH, by virtue of the administrative body's authority and expertise in the matter, came out with Administrative Order No. 9, series of 1995 or the Rules and Regulations Implementing Republic Act No. 7719. Administrative Order. No. 9 effectively filled in the details of the law for its proper implementation. Specifically, Section 23 of Administrative Order No. 9 provides that the phase-out period for commercial blood banks shall be extended for another two years until May 28, 1998 "based on the result of a careful study and review of the blood supply and demand and public safety." This power to ascertain the existence of facts and conditions upon which the Secretary may effect a period of extension for said phase-out can be delegated by Congress. The true distinction between the power to make laws and discretion as to its execution is illustrated by the fact that the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made. 41 In this regard, the Secretary did not go beyond the powers granted to him by the Act when said phase-out period was extended in accordance with the Act as laid out in Section 2 thereof: "SECTION 2. Declaration of Policy In order to promote public health, it is hereby declared the policy of the state: a) to promote and encourage voluntary blood donation by the citizenry and to instill public consciousness of the principle that blood donation is a humanitarian act; CIAacS

b) to lay down the legal principle that the provision of blood for transfusion is a medical service and not a sale of commodity; c) to provide for adequate, safe, affordable and equitable distribution of blood supply and blood products; d) to inform the public of the need for voluntary blood donation to curb the hazards caused by the commercial sale of blood; e) to teach the benefits and rationale of voluntary blood donation in the existing health subjects of the formal education system in all public and private schools as well as the nonformal system; f) to mobilize all sectors of the community to participate in mechanisms for voluntary and non-profit collection of blood; g) to mandate the Department of Health to establish and organize a National Blood Transfusion Service Network in order to rationalize and improve the provision of adequate and safe supply of blood; h) to provide for adequate assistance to institutions promoting voluntary blood donation and providing non-profit blood services, either through a system of reimbursement for costs from patients who can afford to pay, or donations from governmental and non-governmental entities; i) to require all blood collection units and blood banks/centers to operate on a non-profit basis; j) to establish scientific and professional standards for the operation of blood collection units and blood banks/centers in the Philippines; cIHSTC k) to regulate and ensure the safety of all activities related to the collection, storage and banking of blood; and, l) to require upgrading of blood banks/centers to include preventive services and education to control spread of blood transfusion transmissible diseases." Petitioners also assert that the law and its implementing rules and regulations violate the equal protection clause enshrined in the Constitution because it unduly discriminates against commercial or free standing blood banks in a manner that is not germane to the purpose of the law. 42 What may be regarded as a denial of the equal protection of the laws is a question not always easily determined. No rule that will cover every case can be formulated. Class legislation, discriminating against some and favoring others is prohibited but classification on a reasonable basis and not made arbitrarily or capriciously is permitted. The classification, however, to be reasonable: (a) must be based on substantial distinctions which make real differences; (b) must be germane to the purpose of the law; (c) must not be limited to existing conditions only; and, (d) must apply equally to each member of the class. 43

Republic Act No. 7719 or The National Blood Services Act of 1994, was enacted for the promotion of public health and welfare. In the aforementioned study conducted by the New Tropical Medicine Foundation, it was revealed that the Philippine blood banking system is disturbingly primitive and unsafe, and with its current condition, the spread of infectious diseases such as malaria, AIDS, Hepatitis B and syphilis chiefly from blood transfusion is unavoidable. The situation becomes more distressing as the study showed that almost 70% of the blood supply in the country is sourced from paid blood donors who are three times riskier than voluntary blood donors because they are unlikely to disclose their medical or social history during the blood screening. 44 The above study led to the passage of Republic Act No. 7719, to instill public consciousness of the importance and benefits of voluntary blood donation, safe blood supply and proper blood collection from healthy donors. To do this, the Legislature decided to order the phase out of commercial blood banks to improve the Philippine blood banking system, to regulate the supply and proper collection of safe blood, and so as not to derail the implementation of the voluntary blood donation program of the government. In lieu of commercial blood banks, non-profit blood banks or blood centers, in strict adherence to professional and scientific standards to be established by the DOH, shall be set in place. 45 Based on the foregoing, the Legislature never intended for the law to create a situation in which unjustifiable discrimination and inequality shall be allowed. To effectuate its policy, a classification was made between nonprofit blood banks/centers and commercial blood banks. AaSTIH We deem the classification to be valid and reasonable for the following reasons: One, it was based on substantial distinctions. The former operates for purely humanitarian reasons and as a medical service while the latter is motivated by profit. Also, while the former wholly encourages voluntary blood donation, the latter treats blood as a sale of commodity. Two, the classification, and the consequent phase out of commercial blood banks is germane to the purpose of the law, that is, to provide the nation with an adequate supply of safe blood by promoting voluntary blood donation and treating blood transfusion as a humanitarian or medical service rather than a commodity. This necessarily involves the phase out of commercial blood banks based on the fact that they operate as a business enterprise, and they source their blood supply from paid blood donors who are considered unsafe compared to voluntary blood donors as shown by the USAID-sponsored study on the Philippine blood banking system. Three, the Legislature intended for the general application of the law. Its enactment was not solely to address the peculiar circumstances of the situation nor was it intended to apply only to the existing conditions. Lastly, the law applies equally to all commercial blood banks without exception.

Having said that, this Court comes to the inquiry as to whether or not Republic Act No. 7719 constitutes a valid exercise of police power. The promotion of public health is a fundamental obligation of the State. The health of the people is a primordial governmental concern. Basically, the National Blood Services Act was enacted in the exercise of the State's police power in order to promote and preserve public health and safety. ScCDET Police power of the state is validly exercised if (a) the interest of the public generally, as distinguished from those of a particular class, requires the interference of the State; and, (b) the means employed are reasonably necessary to the attainment of the objective sought to be accomplished and not unduly oppressive upon individuals. 46 In the earlier discussion, the Court has mentioned of the avowed policy of the law for the protection of public health by ensuring an adequate supply of safe blood in the country through voluntary blood donation. Attaining this objective requires the interference of the State given the disturbing condition of the Philippine blood banking system. In serving the interest of the public, and to give meaning to the purpose of the law, the Legislature deemed it necessary to phase out commercial blood banks. This action may seriously affect the owners and operators, as well as the employees, of commercial blood banks but their interests must give way to serve a higher end for the interest of the public. The Court finds that the National Blood Services Act is a valid exercise of the State's police power. Therefore, the Legislature, under the circumstances, adopted a course of action that is both necessary and reasonable for the common good. Police power is the State authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare. 47 It is in this regard that the Court finds the related grounds and/or issues raised by petitioners, namely, deprivation of personal liberty and property, and violation of the nonimpairment clause, to be unmeritorious. Petitioners are of the opinion that the Act is unconstitutional and void because it infringes on the freedom of choice of an individual in connection to what he wants to do with his blood which should be outside the domain of State intervention. Additionally, and in relation to the issue of classification, petitioners asseverate that, indeed, under the Civil Code, the human body and its organs like the heart, the kidney and the liver are outside the commerce of man but this cannot be made to apply to human blood because the latter can be replenished by the body. To treat human blood equally as the human organs would constitute invalid classification. 48 Petitioners likewise claim that the phase out of the commercial blood banks will be disadvantageous to them as it will affect their businesses and existing contracts with hospitals and other health institutions, hence Section 7 of the Act should be struck down because it violates the non-impairment clause provided by the Constitution. CIcEHS

As stated above, the State, in order to promote the general welfare, may interfere with personal liberty, with property, and with business and occupations. Thus, persons may be subjected to certain kinds of restraints and burdens in order to secure the general welfare of the State and to this fundamental aim of government, the rights of the individual may be subordinated. 49 Moreover, in the case of Philippine Association of Service Exporters, Inc. v. Drilon, 50 settled is the rule that the nonimpairment clause of the Constitution must yield to the loftier purposes targeted by the government. The right granted by this provision must submit to the demands and necessities of the State's power of regulation. While the Court understands the grave implications of Section 7 of the law in question, the concern of the Government in this case, however, is not necessarily to maintain profits of business firms. In the ordinary sequence of events, it is profits that suffer as a result of government regulation. Furthermore, the freedom to contract is not absolute; all contracts and all rights are subject to the police power of the State and not only may regulations which affect them be established by the State, but all such regulations must be subject to change from time to time, as the general well-being of the community may require, or as the circumstances may change, or as experience may demonstrate the necessity. 51 This doctrine was reiterated in the case of Vda. de Genuino v. Court of Agrarian Relations 52 where the Court held that individual rights to contract and to property have to give way to police power exercised for public welfare. As for determining whether or not the shutdown of commercial blood banks will truly serve the general public considering the shortage of blood supply in the country as proffered by petitioners, we maintain that the wisdom of the Legislature in the lawful exercise of its power to enact laws cannot be inquired into by the Court. Doing so would be in derogation of the principle of separation of powers. 53 That, under the circumstances, proper regulation of all blood banks without distinction in order to achieve the objective of the law as contended by petitioners is, of course, possible; but, this would be arguing on what the law may be or should be and not what the law is. Between is and ought there is a far cry. The wisdom and propriety of legislation is not for this Court to pass upon. 54 Finally, with regard to the petition for contempt in G.R. No. 139147, on the other hand, the Court finds respondent Secretary of Health's explanation satisfactory. The statements in the flyers and posters were not aimed at influencing or threatening the Court in deciding in favor of the constitutionality of the law. HSIDTE Contempt of court presupposes a contumacious attitude, a flouting or arrogant belligerence in defiance of the court. 55 There is nothing contemptuous about the statements and information contained in the health advisory that were distributed by DOH before the TRO was issued by this Court ordering the former to cease and desist from distributing the same.

In sum, the Court has been unable to find any constitutional infirmity in the questioned provisions of the National Blood Services Act of 1994 and its Implementing Rules and Regulations. The fundamental criterion is that all reasonable doubts should be resolved in favor of the constitutionality of a statute. Every law has in its favor the presumption of constitutionality. For a law to be nullified, it must be shown that there is a clear and unequivocal breach of the Constitution. The ground for nullity must be clear and beyond reasonable doubt. 56 Those who petition this Court to declare a law, or parts thereof, unconstitutional must clearly establish the basis therefor. Otherwise, the petition must fail. Based on the grounds raised by petitioners to challenge the constitutionality of the National Blood Services Act of 1994 and its Implementing Rules and Regulations, the Court finds that petitioners have failed to overcome the presumption of constitutionality of the law. As to whether the Act constitutes a wise legislation, considering the issues being raised by petitioners, is for Congress to determine. 57 WHEREFORE, premises considered, the Court renders judgment as follows: 1. In G.R. Nos. 133640 and 133661, the Court UPHOLDS THE VALIDITY of Section 7 of Republic Act No. 7719, otherwise known as the National Blood Services Act of 1994, and Administrative Order No. 9, Series of 1995 or the Rules and Regulations Implementing Republic Act No. 7719. The petitions are DISMISSED. Consequently, the Temporary Restraining Order issued by this Court on June 2, 1998, is LIFTED. cIACaT 2. In G.R. No. 139147, the petition seeking to cite the Secretary of Health in contempt of court is DENIED for lack of merit. No costs. SO ORDERED. Davide, Jr., C.J., Puno, Panganiban, Quisumbing, YnaresSantiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Tinga and Garcia, JJ., concur. Chizo-Nazario, J., is on leave. Footnotes 1. Petition for Certiorari with Prayer for the Issuance of Writ of Preliminary Prohibitory Injunction or Temporary Restraining Order, dated May 20, 1998, and later an Amended Petition, dated June 1, 1998 under Rule 65 of the Rules of Court. 2. Petition for Mandamus with Prayer for the Issuance of Temporary Restraining Order, Preliminary Prohibitory and Mandatory Injunction, dated May 22, 1998. 3. Rollo (G.R. No. 133640), p. 106; Rollo (G.R. No. 133661), p. 69.

4. 5. 6. 7. 79. 8. 86. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24.

Petition, dated July 15, 1999. Rollo (G.R. No. 139147), p. 34. Rollo (G.R. No. 133640), pp. 7-8. Annex "G" of Petition, Rollo (G.R. No. 133640), p. Annex "H" of Petition, Rollo (G.R. No. 133640), p. Rollo (G.R. No. 133640), pp. 42-43. Id. at 46-47. Id. at 43. Rollo (G.R. No. 133661), p. 99. Id. at 100. Id. at 49-51. Rollo (G.R. No. 133640), p. 59. Id. Id. Rollo (G.R. No. 133640), p. 112. Rollo (G.R. No. 133640), p. 120. Rollo (G.R. No. 133661), p. 3 Rollo (G.R. No. 133640), p. 106. Rollo (G.R. No. 133661), pp. 7-8. Rollo (G.R. No. 133640), pp. 107-108. Rollo (G.R. No. 133661), p. 98.

25. Record of the Senate, Vol. IV, No. 59, pp. 286-287; rollo (G.R. No 133661), pp. 115-120. 26. Record of the Senate, Volume 1, No. 13, pp. 434436; rollo (G.R. No. 133661), pp. 121-123. 27. 28. 29. Rollo (G.R. No. 133640), pp. 227-232. Id. at pp. 406-408. Rollo (G.R. No. 139147), p. 9.

30. Rollo (G.R. No. 139147), pp. 5-6; Annexes "A" to "C-3," pp. 14-33. 31. 32. 33. 34. Rollo (G.R. No. 139147), p. 6. Id. at 49-50. Id. at 50. Id. at 50-51.

35. 36. 37. 38. 39.

Id. at 435-495. Rollo (G.R. No. 133640), pp. 467-468. Rollo (G.R. No. 133640), pp. 685-686. See United States v. Ang Tang Ho, 43 Phil. 1 (1922). People v. Vera, 65 Phil 56 (1937).

40. Vda. de Pineda v. Pea, G.R. No. 57665, July 2, 1990, 187 SCRA 22. 41. Id. citing Cincinnati, W. & Z.R. Co. v. Clinton County Comrs, 1 Ohio St., 77, 88 (1852).; Cruz v. Youngberg, 56 Phil. 234 (1931). 42. Rollo (G.R. No. 133640), p. 120; Rollo (G.R. No. 133661), p. 105. 43. People v. Vera, supra.

44. A Final Report on the Project to Evaluate the Safety of the Philippine Blood Banking System conducted on September 28, 1993 January 15, 1994, Rollo (G.R. No. 133640), Annex "A," p. 41. 45. Rollo (G.R. No. 133661), pp. 115-124.

46. Department of Education, Culture and Sports (DECS) and Director of Center for Educational Measurement v. Roberto Rey C. San Diego and Judge Teresita DizonCapulong, G.R. No. 89572, December 21, 1989, 180 SCRA 533. 47. Pita v. Court of Appeals, G.R. No. 80806, October 5, 1989, 178 SCRA 362. 48. Rollo (G.R. No. 133661), p. 12.

49. Patalinghug v. Court of Appeals, G.R. No. 104786, January 27, 1994, 229 SCRA 554. 50. 51. 52. No. L-81958, June 30, 1988, 163 SCRA 386. Ongsiako v. Gamboa, 86 Phil. 50 (1950). No. L-25035, February 26, 1968, 22 SCRA 792.

53. Misolas v. Panga, G.R. No. 83341, January 30, 1990, 181 SCRA 648. 54. People v. Vera, supra.

55. People v. Maceda, G.R. Nos. 89591-96, August 13, 1990, 188 SCRA 532. 56. Basco v. Philippine Amusements and Gaming Corporation (PAGCOR), G.R. No. 91649, May 14, 1991, 197 SCRA 52, citing Peralta v. Comelec, 82 SCRA 30.; Yu Cong Eng v. Trinidad, 47 Phil 387. 57. Basco v. PAGCOR, supra.

No. 105 which was adopted by the respondent PRC as a measure to preserve the integrity of licensure examinations. [G.R. No. 77372. April 29, 1988.] LUPO L. LUPANGCO, RAYMOND S. MUNGKAL, NORMAN A. MESINA, ALEXANDER R. REGUYAL, JOCELYN P. CATAPANG, ENRICO V. REGALADO, JEROME O. ARCEGA, ERNESTO C. BLAS, JR., ELPIDIO M. ALMAZAN, KARL CAESAR R. RIMANDO, petitioners, vs. COURT OF APPEALS and PROFESSIONAL REGULATION COMMISSION, respondents. Balgos & Perez Law Offices for petitioners. The Solicitor General for respondents. SYLLABUS 1. REMEDIAL LAW; P.D. NO. 223; PROFESSIONAL REGULATION COMMISSION; DECISION, ORDER OR RESOLUTION APPEALABLE TO THE REGIONAL TRIAL COURT. There is no law providing for the next course of action for a party who wants to question a ruling or order of the Professional Regulation Commission. Consequently, Civil Case No. 86-37950, which was filed in order to enjoin the enforcement of a resolution of the respondent Professional Regulation Commission alleged to be unconstitutional, should fall within the general jurisdiction of the Court of First Instance, now the Regional Trial Court. 2. ID.; ID.; ID.; BASIS. What is clear from Presidential Decree No. 223 is that the Professional Regulation Commission is attached to the Office of the President for general direction and coordination. Well settled in our jurisprudence is the view that even acts of the Office of the President may be reviewed by the Court of First Instance (now the Regional Trial Court). 3. ID.; B.P. BLG 129; EXCLUSIVE APPELLATE JURISDICTION OF COURT OF APPEALS OVER FINAL ORDER OR RULING OF ADMINISTRATIVE BODIES IN EXERCISING QUASI-JUDICIAL FUNCTIONS; "QUASIJUDICIAL," DEFINED. In order to invoke the exclusive appellate jurisdiction of the Court of Appeals as provided for in Section 9, paragraph 3 of B.P. Blg. 129, there has to be a final order or ruling which resulted from proceedings wherein the administrative body involved exercised its quasi-judicial functions. In Black's Law Dictionary, quasi-judicial is defined as a term applied to the action, discretion, etc., of public administrative officers or bodies required to investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions from them, as a basis for their official action, and to exercise discretion of a judicial nature. To expound thereon, quasi- judicial adjudication would mean a determination of rights, privileges and duties resulting in a decision or order which applies to a specific situation. 4. ID.; ID.; ID.; ID.; DOES NOT COVER RULES AND REGULATIONS OF GENERAL APPLICABILITY. This does not cover rules and regulations of general applicability issued by the administrative body to implement its purely administrative policies and functions like Resolution 5. ADMINISTRATIVE LAW; ADMINISTRATIVE RULES AND REGULATIONS MUST NOT BE ISSUED ARBITRARILY. It is an axiom in administrative law that administrative authorities should not act arbitrarily and capriciously in the issuance of rules and regulations. 6. CONSTITUTIONAL LAW; RESOLUTION NO. 105 ISSUED BY THE PROFESSIONAL REGULATION COMMISSION, UNCONSTITUTIONAL FOR BEING UNREASONABLE, ARBITRARY AND A VIOLATION OF ACADEMIC FREEDOM. Resolution No. 105 is not only unreasonable and arbitrary, it also infringes on the examinees' right to liberty guaranteed by the Constitution. Respondent PRC has no authority to dictate on the reviewees as to how they should prepare themselves for the licensure examinations. They cannot be restrained from taking all the lawful steps needed to assure the fulfillment of their ambition to become public accountants. They have every right to make use of their faculties in attaining success in their endeavors. They should be allowed to enjoy their freedom to acquire useful knowledge that will promote their personal growth. Another evident objection to Resolution No. 105 is that it violates the academic freedom of the schools concerned. Respondent PRC cannot interfere with the conduct of review that review schools and centers believe would best enable their enrolees to meet the standards required before becoming a full-pledged public accountant. Unless the means or methods of instruction are clearly found to be inefficient, impractical, or riddled with corruption, review schools and centers may not be stopped from helping out their students. DECISION GANCAYCO, J p: Is the Regional Trial Court of the same category as the Professional Regulation Commission so that it cannot pass upon the validity of the administrative acts of the latter? Can this Commission lawfully prohibit the examinees from attending review classes, receiving handout materials, tips or the like three (3) days before the date of examination? These are the issues presented to the court by this petition for certiorari to review the decision of the Court of Appeals promulgated on January 13, 1987, in CA-G.R. SP No. 10591, * declaring null and void the Order dated October 21, 1986 issued by the Regional Trial Court of Manila, Branch 32 in Civil Case No. 86-37950 entitled "Lupo L. Lupangco, et al. vs. Professional Regulation Commission." The records show the following undisputed facts: On or about October 6, 1986, herein respondent Professional Regulation Commission (PRC) issued Resolution No. 105 as part of its "Additional Instructions to Examinees," to all those applying for admission to take the licensure examinations in accountancy. The resolution embodied the following pertinent provisions: "No examinee shall attend any review class, briefing, conference or the like conducted by, or shall receive any hand-

out, review material, or any tip from any school, college or university, or any review center or the like or any reviewer, lecturer, instructor official or employee of any of the aforementioned or similar institutions during the three days immediately preceding every examination day including the examination day. "Any examinee violating this instruction shall be subject to the sanctions prescribed by Sec. 8, Art. III of the Rules and Regulations of the Commission." 1 On October 16, 1986, herein petitioners, all reviewees preparing to take the licensure examinations in accountancy scheduled on October 25 and November 2 of the same year, filed in their own behalf and in behalf of all others similarly situated like them, with the Regional Trial Court of Manila, Branch XXXII, a complaint for injunction with a prayer for the issuance of a writ of preliminary injunction against respondent PRC to restrain the latter from enforcing the above-mentioned resolution and to declare the same unconstitutional. Respondent PRC filed a motion to dismiss on October 21, 1987 on the ground that the lower court had no jurisdiction to review and to enjoin the enforcement of its resolution. In an Order of October 21, 1987, the lower court declared that it had jurisdiction to try the case and enjoined the respondent commission from enforcing and giving effect to Resolution No. 105 which it found to be unconstitutional. Not satisfied therewith, respondent PRC, on November 10, 1986, filed with the Court of Appeals a petition for the nullification of the above Order of the lower court. Said petition was granted in the Decision of the Court of Appeals promulgated on January 13, 1987, to wit: "WHEREFORE, finding the petition meritorious the same is hereby GRANTED and the order dated October 21, 1986 issued by respondent court is declared null and void. The respondent court is further directed to dismiss with prejudice Civil Case No. 86-37950 for want of jurisdiction over the subject matter thereof. No costs in this instance. cdrep SO ORDERED." 2 Hence, this petition. The Court of Appeals, in deciding that the Regional Trial Court of Manila had no jurisdiction to entertain the case and to enjoin the enforcement of Resolution No. 105, stated as its basis its conclusion that the Professional Regulation Commission and the Regional Trial Court are co-equal bodies. Thus it held "That the petitioner Professional Regulatory Commission is at least a co-equal body with the Regional Trial Court is beyond question, and co-equal bodies have no power to control each other or interfere with each other's acts." 3 To strengthen its position, the Court of Appeals relied heavily on National Electrification Administration vs. Mendoza, 4 which cites Pineda vs. Lantin 5 and Philippine Pacific Fishing, Inc. vs. Luna, 6 where this Court held that a Court of First

Instance cannot interfere with the orders of the Securities and Exchange Commission, the two being co-equal bodies. After a close scrutiny of the facts and the record of this case, We rule in favor of the petitioner. The cases cited by respondent court are not in point. It is glaringly apparent that the reason why this Court ruled that the Court of First Instance could not interfere with the orders of the Securities and Exchange Commission was that this was so provided for by the law. In Pineda vs. Lantin, We explained that whenever a party is aggrieved by or disagrees with an order or ruling of the Securities and Exchange Commission, he cannot seek relief from courts of general jurisdiction since under the Rules of Court and Commonwealth Act No. 83, as amended by Republic Act No. 635, creating and setting forth the powers and functions of the old Securities and Exchange Commission, his remedy is to go to the Supreme Court on a petition for review. Likewise, in Philippine Pacific Fishing Co., Inc. vs. Luna, it was stressed that if an order of the Securities and Exchange Commission is erroneous, the appropriate remedy to take is first, within the Commission itself, then, to the Supreme Court as mandated in Presidential Decree No. 902-A, the law creating the new Securities and Exchange Commission. Nowhere in the said cases was it held that a Court of First Instance has no jurisdiction over all other government agencies. On the contrary, the ruling was specifically limited to the Securities and Exchange Commission. The respondent court erred when it placed the Securities and Exchange Commission and the Professional Regulation Commission in the same category. As already mentioned, with respect to the Securities and Exchange Commission, the laws cited explicitly provide for the procedure that need be taken when one is aggrieved by its order or ruling. Upon the other hand, there is no law providing for the next course of action for a party who wants to question a ruling or order of the Professional Regulation Commission. Unlike Commonwealth Act No. 83 and Presidential Decree No. 902-A, there is no provision in Presidential Decree No. 223, the law creating the Professional Regulation Commission, that orders or resolutions of the Commission are appealable either to the Court of Appeals or to the Supreme Court. Consequently, Civil Case No. 86-37950, which was filed in order to enjoin the enforcement of a resolution of the respondent Professional Regulation Commission alleged to be unconstitutional, should fall within the general jurisdiction of the Court of First Instance, now the Regional Trial Court. 7 What is clear from Presidential Decree No. 223 is that the Professional Regulation Commission is attached to the Office of the President for general direction and coordination. 8 Well settled in our jurisprudence is the view that even acts of the Office of the President may be reviewed by the Court of First Instance (now the Regional Trial Court). In Medalla vs. Sayo, 9 this rule was thoroughly propounded on, to wit: "In so far as jurisdiction of the Court below to review by Certiorari decisions and/or resolutions of the Civil Service Commission and of the Presidential Executive Assistant is concerned, there should be no question but that the power of

judicial review should be upheld. The following rulings buttress this conclusion: 'The objection to a judicial review of a Presidential act arises from a failure to recognize the most important principle in our system of government, i.e., the separation of powers into three co-equal departments, the executive, the legislative and the judicial, each supreme within its own assigned powers and duties. When a presidential act is challenged before the courts of justice, it is not to be implied therefrom that the Executive is being made subject and subordinate to the courts. The legality of his acts are under judicial review, not because the Executive is inferior to the courts, but because the law is above the Chief Executive himself, and the courts seek only to interpret, apply or implement it (the law). A judicial review of the President's decision on a case of an employee decided by the Civil Service Board of Appeals should be viewed in this light and the bringing of the case to the Courts should be governed by the same principles as govern the judicial review of all administrative acts of all administrative officers." 10 Republic vs. Presiding Judge, CFI of Lanao del Norte, Br. II, 11 is another case in point. Here, "the Executive Office" of the Department of Education and Culture issued Memorandum Order No. 93 under the authority of then Secretary of Education Juan Manuel. As in this case, a complaint for injunction was filed with the Court of First Instance of Lanao del Norte because, allegedly, the enforcement of the circular would impair some contracts already entered into by public school teachers. It was the contention of petitioner therein that "the Court of First Instance is not empowered to amend, reverse and modify what is otherwise the clear and explicit provision of the memorandum circular issued by the Executive Office which has the force and effect of law." In resolving the issue, We held: " . . . , We definitely state that respondent Court lawfully acquired jurisdiction in Civil Case No. II-240 (8) because the plaintiff therein asked the lower court for relief, in the form of injunction, in defense of a legal right (freedom to enter into contracts) . . . Hence there is a clear infringement of private respondent's constitutional right to enter into agreements not contrary to law, which might ran the risk of being violated by the threatened implementation of Executive Office Memorandum Circular No. 93, dated February 5, 1968, which prohibits, with certain exceptions, cashiers and disbursing officers from honoring special powers of attorney executed by the payee employees. The respondent Court is not only right but duty bound to take cognizance of cases of this nature wherein a constitutional and statutory right is allegedly infringed by the administrative action of a government office. Courts of First Instance have original jurisdiction over all civil actions in which the subject of the litigation is not capable of pecuniary estimation (Sec. 44, Republic Act 296, as amended)." 12 (Emphasis supplied.) In San Miguel Corporation vs. Avelino, 13 We ruled that a judge of the Court of First Instance has the authority to decide on the validity of a city tax ordinance even after its validity had been contested before the Secretary of Justice and an opinion thereon had been rendered.

In view of the foregoing, We find no cogent reason why Resolution No. 105, issued by the respondent Professional Regulation Commission, should be exempted from the general jurisdiction of the Regional Trial Court. Respondent PRC, on the other hand, contends that under Section 9, paragraph 3 of B.P. Blg. 129, it is the Court of Appeals which has jurisdiction over the case. The said law provides: "SEC. 9. Jurisdiction. The Intermediate Appellate Court shall exercise: xxx xxx xxx

(3) Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders, or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commissions, except those falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, the provisions of this Act, and of subparagraph (1) of the third paragraph and subparagraph (4) of the fourth paragraph of Section 17 of the Judiciary Act of 1948." The contention is devoid of merit. cdrep In order to invoke the exclusive appellate jurisdiction of the Court of Appeals as provided for in Section 9, paragraph 3 of B.P. Blg. 129, there has to be a final order or ruling which resulted from proceedings wherein the administrative body involved exercised its quasi-judicial functions. In Black's Law Dictionary, quasi-judicial is defined as a term applied to the action, discretion, etc., of public administrative officers or bodies required to investigate facts, or ascertain the existence of facts, hold hearings, and draw conclusions from them, as a basis for their official action, and to exercise discretion of a judicial nature. To expound thereon, quasi- judicial adjudication would mean a determination of rights, privileges and duties resulting in a decision or order which applies to a specific situation. 14 This does not cover rules and regulations of general applicability issued by the administrative body to implement its purely administrative policies and functions like Resolution No. 105 which was adopted by the respondent PRC as a measure to preserve the integrity of licensure examinations. The above rule was adhered to in Filipinas Engineering and Machine Shop vs. Ferrer. 15 In this case, the issue presented was whether or not the Court of First Instance had jurisdiction over a case involving an order of the Commission on Elections awarding a contract to a private party which originated from an invitation to bid. The said issue came about because under the laws then in force, final awards, judgments, decisions or orders of the Commission on Elections fall within the exclusive jurisdiction of the Supreme Court by way of certiorari. Hence, it has been consistently held that "it is the Supreme Court, not the Court of First Instance, which has exclusive jurisdiction to review on certiorari final decisions, orders, or rulings of the Commission on Elections relative to the conduct of elections and the enforcement of election laws." 16

As to whether or not the Court of First Instance had jurisdiction in said case, We said: "We are however, far from convinced that an order of the COMELEC awarding a contract to a private party, as a result of its choice among various proposals submitted in response to its invitation to bid comes within the purview of a 'final order' which is exclusively and directly appealable to this court on certiorari. What is contemplated by the term 'final orders, rulings and decisions of the COMELEC reviewable by certiorari by the Supreme Court as provided by law are those rendered in actions or proceedings before the COMELEC and taken cognizance of by the said body in the exercise of its adjudicatory or quasi-judicial powers. (Emphasis supplied.) xxx xxx xxx

Although We have finally settled the issue of jurisdiction, We find it imperative to decide once and for all the validity of Resolution No. 105 so as to provide the much awaited relief to those who are and will be affected by it. Of course, We realize that the questioned resolution was adopted for a commendable purpose which is "to preserve the integrity and purity of the licensure examinations." However, its good aim cannot be a cloak to conceal its constitutional infirmities. On its face, it can be readily seen that it is unreasonable in that an examinee cannot even attend any review class, briefing, conference or the like, or receive any hand-out, review material, or any tip from any school, college or university, or any review center or the like or any reviewer, lecturer, instructor, official or employee of any of the aforementioned or similar institutions . . . . 21 The unreasonableness is more obvious in that one who is caught committing the prohibited acts even without any ill motives will be barred from taking future examinations conducted by the respondent PRC. Furthermore, it is inconceivable how the Commission can manage to have a watchful eye on each and every examinee during the three days before the examination period. It is an axiom in administrative law that administrative authorities should not act arbitrarily and capriciously in the issuance of rules and regulations. To be valid, such rules and regulations must be reasonable and fairly adapted to secure the end in view. If shown to bear no reasonable relation to the purposes for which they are authorized to be issued, then they must be held to be invalid. 22 Resolution No. 105 is not only unreasonable and arbitrary, it also infringes on the examinees' right to liberty guaranteed by the Constitution. Respondent PRC has no authority to dictate on the reviewees as to how they should prepare themselves for the licensure examinations. They cannot be restrained from taking all the lawful steps needed to assure the fulfillment of their ambition to become public accountants. They have every right to make use of their faculties in attaining success in their endeavors. They should be allowed to enjoy their freedom to acquire useful knowledge that will promote their personal growth. As defined in a decision of the United States Supreme Court: "The term 'liberty' means more than mere freedom from physical restraint or the bounds of a prison. It means freedom to go where one may choose and to act in such a manner not inconsistent with the equal rights of others, as his judgment may dictate for the promotion of his happiness, to pursue such callings and vocations as may be most suitable to develop his capacities, and give to them their highest enjoyment." 23 Another evident objection to Resolution No. 105 is that it violates the academic freedom of the schools concerned. Respondent PRC cannot interfere with the conduct of review that review schools and centers believe would best enable their enrolees to meet the standards required before becoming a full-fledged public accountant. Unless the means or methods of instruction are clearly found to be inefficient, impractical, or riddled with corruption, review schools and centers may not be stopped from helping out their students. At this juncture,

"We agree with petitioner's contention that the order of the Commission granting the award to a bidder is not an order rendered in a legal controversy before it wherein the parties filed their respective pleadings and presented evidence after which the questioned order was issued; and that this order of the commission was issued pursuant to its authority to enter into contracts in relation to election purposes. In short, the COMELEC resolution awarding the contract in favor of Acme was not issued pursuant to its quasi-judicial functions but merely as an incident of its inherent administrative functions over the conduct of elections, and hence, the said resolution may not be deemed as a ' final order' reviewable by certiorari by the Supreme Court. Being non-judicial in character, no contempt order may be imposed by the COMELEC from said order, and no direct and exclusive appeal by certiorari to this Tribunal be from such order. Any question arising from said order may be well taken in an ordinary civil action before the trial courts. (Emphasis supplied) 17 One other case that should be mentioned in this regard is Salud vs. Central Bank of the Philippines. 18 Here, petitioner Central Bank, like respondent in this case, argued that under Section 9, paragraph 3 of B.P. Blg. 129, orders of the Monetary Board are appealable only to the Intermediate Appellate Court. Thus: "The Central Bank and its Liquidator also postulate, for the very first time, that the Monetary Board is among the "quasijudicial . . . boards' whose judgments are within the exclusive appellate jurisdiction of the IAC; hence, it is only said Court, 'to the exclusion of the Regional Trial Courts,' that may review the Monetary Board's resolutions." 19 Anent the posture of the Central Bank, We made the following pronouncement: "The contention is utterly devoid of merit. The IAC has no appellate jurisdiction over resolutions or orders of the Monetary Board. No law prescribes any mode of appeal from the Monetary Board to the IAC." 20 In view of the foregoing, We hold that the Regional Trial Court has jurisdiction to entertain Civil Case No. 86-37950 and enjoin the respondent PRC from enforcing its resolution. LexLib

We call attention to Our pronouncement in Garcia vs. The Faculty Admission Committee, Loyola School of Theology, 24 regarding academic freedom, to wit: . . . It would follow then that the school or college itself is possessed of such a right. It decides for itself its aims and objectives and how best to attain them. It is free from outside coercion or interference save possibly when the overriding public welfare calls for some restraint. It has a wide spread of autonomy certainly extending to the choice of students. This constitutional provision is not to be construed in a niggardly manner or in a grudging fashion." Needless to say, the enforcement of Resolution No. 105 is not a guarantee that the alleged leakages in the licensure examinations will be eradicated or at least minimized. Making the examinees suffer by depriving them of legitimate means of review or preparation on those last three precious days when they should be refreshing themselves with all that they have learned in the review classes and preparing their mental and psychological make-up for the examination day itself would be like uprooting the tree to get ride of a rotten branch. What is needed to be done by the respondent is to find out the source of such leakages and stop it right there. If corrupt officials or personnel should be terminated from their loss, then so be it. Fixers or swindlers should be flushed out. Strict guidelines to be observed by examiners should be set up and if violations are committed, then licenses should be suspended or revoked. These are all within the powers of the respondent commission as provided for in Presidential Decree No. 223. But by all means the right and freedom of the examinees to avail of all legitimate means to prepare for the examinations should not be curtailed. LLjur In the light of the above, We hereby REVERSE and SET ASIDE, the decision of the Court of Appeals in CA-G.R. SP No. 10591 and another judgment is hereby rendered declaring Resolution No. 105 null and void and of no force and effect for being unconstitutional. This decision is immediately executory. No costs. SO ORDERED. Narvasa and Cruz, JJ., concur. Grio-Aquino, J., took no part. I signed the CA decision. Footnotes * Penned by Justice Segundino C. Chua, and concurred in by Justices Carolina C. Grio-Aquino and Nathanael P. de Pano, Jr., of the Fifth Division. 1. 2. 3. 4. 5. 6. Page 82, Rollo. Decision of the Court of Appeals, p. 34, Rollo. Page 32, Rollo. 138 SCRA 632. 6 SCRA 757. 112 SCRA 604.

7.

Sec. 19 of BP Blg. 129 provides:

"Sec. 19. Jurisdiction in civil cases. Regional Trial Courts shall exercise exclusive original jurisdiction. (1) In all civic actions in which the subject of the litigation is incapable of pecuniary estimation. xxx xxx xxx

(6) In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial functions." 8. 9. 10. 11. 12. 13. Section 1, Presidential Decree No. 223. 103 SCRA 587. 103 SCRA 594. 69 SCRA 235. 69 SCRA 238, 239. 89 SCRA 69.

14. Gonzales, Administrative Law, Law on Public Officers and Election Law, 1966 ed., p. 63. 15. 16. 17. 18. 19. 20. 21. 135 SCRA 25. 135 SCRA 31. 135 SCRA 31-32. 143 SCRA 590. 143 SCRA 600. 143 SCRA 600. Page 82, Rollo.

22. Gonzales, Administrative Law, Law on Public Officers and Election Law, 1966, page 52. 23. 24. Munn vs. Illinois, 94 U.S. 143. 68 SCRA 277.

[G.R. No. L-11390. March 26, 1918.] EL BLANCO ESPAOL-FILINO, plaintiff-appellee, vs. VICENTE PALANCA, administrator of the estate of Engracio Palanca Tanquinyeng, defendant-appellant. Aitken & DeSelms for appellant. Hartigan & Welch for appellee. SYLLABUS 1. MORTGAGES; FORECLOSURE; JURISDICTION OF COURT OVER NONRESIDENT MORTGAGOR. Where the defendant in a mortgage foreclosure lives out of the Islands and refuses to appear otherwise submit himself to the authority of the court, the jurisdiction of the latter is limited to the mortgaged property, with respect to which the jurisdiction of the court is based upon the fact that the property is located within the district and that the court, under the provisions of law applicable in such cases, is vested with the power to subject the property to the obligation created by the mortgage. In such case personal jurisdiction over the nonresident defendant is nonessential and in fact cannot be acquired. 2. ID.; ID.; ID.; FAILURE OF CLERK TO SEND NOTICE BY MAIL. The failure of the clerk to send notice by mail to the nonresident defendant in a foreclosure proceeding, as required by an order of the court, does not defeat the jurisdiction of the court over the mortgaged property. 3. ID.; ID.; ID.; PERSONAL LIABILITY. In an action to foreclose a mortgage against a nonresident defendant who fails to submit himself to the jurisdiction of the court, no adjudication can be made which involves a determination of a personal liability of either party arising out of the contract of mortgage. 4. ID.; ID.; ID.; ASCERTAINMENT OF AMOUNT DUE.- In a foreclosure proceeding against a nonresident owner it is necessary for the court, as in all cases of foreclosure, to ascertain the amount due, as prescribed in section 256 of the Code of Civil Procedure, and to make an order requiring the defendant to pay the money into court. This step is a necessary precursor of the order of sale. The mere fact that the court thus ascertains the amount of the debt and orders of the defendant to pay it into court does not constitute the entering of a judgment against him as upon a personal liability. 5. CONSTITUTIONAL LAW; DUE PROCESS. As applied to judicial proceedings, due process of law implies that there must be a court of tribunal clothed with the power to hear and determine the matter before it, that jurisdiction shall have been lawfully acquired, that the defendant shall have an opportunity to be heard, and that judgment shall be rendered upon lawful hearing. 6. ID.; ID.; MORTGAGE; FORECLOSURE. In an action to foreclose a mortgage against a nonresident, some notification of the proceedings must be given to the defendant.

Under statutes generally prevailing, this notification commonly takes the form of publication in a newspaper of general circulation and the sending of notice, by mail, by which means of the owner is admonished that his property is the subject of judicial proceedings. The provisions law providing for notice of this character must be complied with. 7. ID.; ID.; ID.; ORDER FOR MAILING OF NOTICE BY CLERK. In a foreclosure proceeding against a nonresident defendant, the court is required to make an order for the clerk to mail a copy of the summons and complaint to the defendant at this last place of residence if known. In the present case an order was made directing the clerk to mail the required copy to the defendant at Amoy China. No evidence appeared of record showing that such notice had in fact been mailed by the clerk; but publication was regularly made in a periodical as the law requires. Held: That the making of the order by the court constituted a compliance with the law, in so far as necessary to constitute due process of law, and that if the clerk failed to send the notice, his dereliction in the performance of his duty was in irregularity which did not constitute an infringement of the provision of the Philippine Bill declaring that no person shall have deprived of property without due process of law. 8. JUDGMENT; MOTION TO VACATE; IRREGULARITY IN GIVING OF NOTICE. A defendant who seeks to vacate a judgment in a foreclosure proceeding on the ground of irregularity in the sending of notice by post, or failure to send such notice pursuant to an order of the court, must show that as result of which irregularity he suffered some prejudice of which the law can take account. 9. ID.; ID.; PREJUDICE TO DEFENDANT. In a mortgage foreclosure proceeding the property was bought in at the public sale by the plaintiff, the mortgagee, at a price much below the upset value agreed upon in the mortgage. Held: That if any liability was incurred by the plaintiff by purchasing at a price below which had been agreed upon as the upset price, such liability was of a personal nature and could not be the subject of adjudication in a foreclosure against a nonresident defendant who did not come in and submit to the jurisdiction of the court. Such act of the plaintiff was, therefore, not such a prejudice to the defendant as would justify the opening of the judgment of foreclosure. 10. ID.; ID.; DELAY AS AFFECTING RIGHT TO RELIEF. A party who seeks to open a final judgment with a view to a renewal of the litigation should how that he has acted with diligence; and unexplained delay in seeking relief is a circumstance to be considered as affecting the application adversely. 11. ID.; ID.; ID.; PRESUMPTION OF KNOWLEDGE. Upon an application made by the representative of a deceased nonresident to vacate a judgment in a foreclosure proceeding, it is held that, under the circumstances of the particular case, knowledge of the proceedings, or of their result, should be imputed to him, upon the legal presumption that things have happened according to the ordinary habits of life, and that as a consequence his failure to apply for relief within the year and a half during which he survived the

foreclosure proceedings was a circumstance adversely affecting the application for relief. 12. ID.; UNSETTLEMENT OF JUDICIAL PROCEEDINGS; PUBLIC POLICY. An application which proposes to disturb judicial proceedings long closed cannot be considered with favor, unless based upon grounds which appeal to the conscience of the court. Public policy requires that judicial proceedings be upheld. The maxim here applicable is Non quieta movere. 13. PRESUMPTIONS; PERFORMANCE OF OFFICIAL DUTY. Where the court makes an order for the clerk to mail notice of a foreclosure proceeding to a nonresident defendant it will be presumed in the absence of affirmative proof to the contrary that the duty was performed. 14. ID.; ACTS OF COURT OF GENERAL JURISDICTION. After jurisdiction has once been acquired, every act of a court of general jurisdiction is presumed to have been rightly done. This rule is applied to every judgment rendered in the various stages of the proceedings; and if the record is silent with respect to any fact which should have been established before the court could have rightly acted, it will be presumed that such fact was properly brought to its knowledge. 15. ID.; JURISDICTIONAL FACT. Where the officer makes a return concerning the manner in which service was effected, and this service appears to have been insufficient, it cannot be presumed that other legal service was effected by the same officer or other authorized person. This rule, however, is not applicable to the case where an affidavit relative to mailing notice to a nonresident, instead of being made by the proper officer, is made by one acting without legal authority. 16. JUDGMENTS; MOTION TO VACATE; TIME WITHIN WHICH MOTION MAY BE MAINTAINED. Where a judgment is not void on its face, a motion to vacate the judgment with a view to a continuation of the litigation, can be maintained in a Court of First Instance only in accordance with section 113 of the Code of Civil Procedure, which sets time limit of six months from the date when the judgment is entered. After the expiration of this period the party who seeks relief against a judgment alleged to void for some defect not apparent on its face must have recourse to an appropriate original proceeding. DECISION STREET, J p: This action was instituted upon March 31, 1908, by "El Banco Espaol-Filipino" to foreclose a mortgage upon various parcels of real property situated in the city of Manila. The mortgage in question is dated June 16, 1906, and was executed by the original defendant herein, Engracio Palanca Tanquinyeng y Limquingco, as security for a debt owing to him to the bank. Upon March 31, 1906, the debt amounted to P218,294.10 and was drawing interest at the rate of 8 per centum per annum, payable at the end of each quarter. It appears that the parties to this mortgage at that time estimated

the value of the property in question at P292,558, which was about P75,000 in excess of the indebtedness. After the execution of this instrument by the mortgagor, he returned to China, which appears to have been his native country; and he there died, upon January 29,1910, without again returning to the Philippine Islands. As the defendant was a nonresident at the time of the institution of the present action, it was necessary for the plaintiff in the foreclosure proceeding to give notice to the defendant by publication pursuant to section 399 of the Code of Civil Procedure. An order for publication was accordingly obtained from the court, and publication was made in due form in a newspaper of the city of Manila. At the same time that the order of the court was entered directing that publication should be made in a newspaper, the court further directed that the clerk of the court should deposit in the post office in a stamped envelope a copy of the summons and complaint directed to the defendant at his last place of residence, to wit, the city of Amoy, in the Empire of China. This order was made pursuant to the following provision contained in section 399 of the Code of Civil Procedure: "In case of publication, where the residence of a nonresident or absent defendant is known, the judge must direct a copy of the summons and complaint to be forthwith deposited by the clerk in the post-office, postage prepaid, directed to the person to be served, at his place of residence." Whether the clerk complied with this order does not affirmatively appear. There is, however, among the papers pertaining to this case, an affidavit, dated April 4, 1908, signed by Bernardo Chan y Garcia, an employee of the attorneys for the bank, showing that upon that date he had deposited in Manila post-office a registered letter, addressed to Engracio Palanca Tanquinyeng, at Manila, containing copies of the complaint, the plaintiff's affidavit, the summons, and the order of the court directing publication as aforesaid. It appears from the postmaster's receipt that Bernardo probably used an enveloped obtained from the clerk's office, as the receipt purports to show that the letter emanated from said office. The cause proceeded in usual course in the Court of First Instance; and the defendant not having appeared, judgment was, upon July 2, 1908, taken against him by default. Upon July 3, 1908, a decision was rendered in favor of the plaintiff. In this decision it was recited that publication had been properly made in a periodical, but nothing was said about notice having been given by mail. The court, upon this occasion, found that the indebtedness of the defendant amounted to P249,355.32, with interest from March 31, 1908. Accordingly it was ordered that the defendant should, on or before July 6, 1908, deliver said amount to the clerk of the court to be applied to the satisfaction of the judgment, and it was declared that in case of the failure of the defendant to satisfy the judgment within such period, the mortgage property located in the city of Manila should be exposed to public sale. The payment contemplated in said order was never made; and upon July 8, 1908, the court ordered the sale of the property. The sale took place upon July 30, 1908, and the property was brought in by the bank for the sum of P110,200. Upon August 7, 1908, this sale was confirmed by the court.

About seven years after the confirmation of this sale, or to be precise, upon June 25, 1915, a motion was made in this cause by Vicente Palanca, as administrator of the estate of the original defendant, Engracio Palanca Tanquinyeng y Limquingco, wherein the applicant requested the court to set aside the order of default of July 2, 1908, and the judgment rendered upon July 3, 1908, and to vacate all the proceedings subsequent thereto. The basis for this application, as set forth in the motion itself, was that the order of default and the judgment rendered thereon were void because the court had never acquired jurisdiction over the defendant or over the subject of the action. At the hearing in the court below the application to vacate the judgment was denied, and from this action of the court Vicente Palanca, as administrator of the estate of the original defendant, has appealed. No other feature of the case is here under consideration than such as is related to the action of the court upon said motion. The case presents several questions of importance, which will be discussed in what appears to be the sequence of most convenient development. In the first part of this opinion we shall, for the purpose of the argument, assume that the clerk of the Court of First Instance did not obey the order of the court in the matter of mailing the papers which he was directed to send to the defendant in Amoy; and in this connection we shall consider, first, whether the court acquired the necessary jurisdiction to enable it to proceed with the foreclosure of the mortgage and, secondly, whether those proceedings were conducted in such manner as to constitute due process of law. The word "jurisdiction," as applied to the faculty of exercising judicial power, is used in several different, though related, senses since it may have reference (1) to the authority of the court to entertain a particular kind of action or to administer a particular kind of relief, or it may refer to the power of the court over the parties, (2) over the property which is the subject to the litigation. The sovereign authority which organizes a court determines the nature and extent of its powers in general and thus fixes its competency or jurisdiction with reference to the actions which it may entertain and the relief it may grant. Jurisdiction over the person is acquired by the voluntary appearance of a party in court and his submission to its authority, or it is acquired by the coercive power of legal process exerted over the person. Jurisdiction over the property which is subject of litigation may result either from a seizure of the property under legal process, whereby it is brought into the actual custody of the law, or it may result from the institution of legal proceedings wherein, under special provisions of law, the power of the court over the property is recognized and made effective. In the latter case the property, though at all times within the potential power of the court, may never be taken into actual custody at all. An illustration of the jurisdiction acquired by the actual seizure is found in attachment proceedings, where the property is seized at the beginning of the action, or some subsequent stage of its progress, and held to abide the final event of the litigation. An illustration of what we term

potential jurisdiction over the res, is found in the proceeding to register the title of land under our system for the registration of land. Here the court, without taking actual physical control over the property assumes, at the instance of some person claiming to be owner, to exercise a jurisdiction in rem over the property and to adjudicate the title in favor of the petitioner against all the world. In the terminology of American law the action to foreclose a mortgage is said to be a proceeding quasi in rem, by which is expressed the idea that while it is not strictly speaking an action in rem yet it partakes of that nature and is substantially such. The expression, "action in rem' is, in its narrow application, used only with reference to certain proceedings in courts of admiralty wherein the property alone is treated as responsible for the claim or obligation upon which the proceedings are based. The action quasi in rem differs from the true action in rem in the circumstance that in the former an individual is named as defendant, and the purpose of the proceeding is to subject his interest therein to the obligation or lien burdening the property. All proceedings having for their sole object the sale or other disposition of the property of the defendant, whether by attachment, foreclosure, or other form of remedy, are in general way thus designated. The judgment entered in these proceedings is conclusive only between the parties. In speaking of the proceeding to foreclose a mortgage the author of a well-known treatise, has said: "Though nominally against persons, such suits are to vindicate liens; they proceed upon seizure; they treat property as primarily indebted; and, with the qualification abovementioned, they are substantially property actions. In the civil law, they are styled hypothecary actions, and their sole object is the enforcement of the lien against the res; in common law, they would be different if chancery did not treat the conditional conveyance as a mere hypothecation, and the creditor's right as an equitable lien; so, in both, the suit is a real action so far as it is against property, and seeks the judicial recognition of a property debt, and an order for the sale of res." (Waples, Proceedings In Rem. Sec. 607.) It is true that in proceedings of this character, if the defendant for whom duplication is made appears, the action becomes as to him a personal action and is conducted as such. This, however, does not affect the proposition that where the defendant fails to appear the action is quasi in rem; and it should therefore be considered with reference to the principles governing actions in rem. There is an instructive analogy between the foreclosure proceeding and an action of attachment, concerning which the Supreme Court of the United States has used the following language: "If the defendant appears, the cause becomes mainly a suit in personam, with the added incident, that the property attached remains liable, under the control of the court, to answer to any demand which may be established against the defendant by the final judgment of the court. But, if there is no appearance of the defendant, and no service of process on him, the case becomes, in its essential nature, a proceeding in rem, the only

effect of which is to subject the property attached to the payment of the demand which the court may find to be due to the plaintiff." (Cooper vs. Reynolds, 10 Wall., 308.) In an ordinary attachment proceedings, if the defendant is not personally served, the preliminary seizure is to be considered necessary in order to confer jurisdiction upon the court. In this case the lien on the property is acquired by the seizure; and the purpose of the proceedings is to subject the property to that lien. If an lien already exists, whether created by mortgage, contract, or statute, the preliminary seizure is not necessary; and the court proceeds to enforce such lien in the manner provided by law precisely as though the property had been seized upon attachment. (Roller vs. Holly, 176 U.S., 398, 405; 44 L. ed., 520.) It results that mere circumstance that an attachment the property may be seized at the inception of the proceedings, while in the foreclosure suit it is not taken into legal custody until the time comes for the sale, does not materially affect the fundamental principle involved in both cases, which is that the court is here exercising a jurisdiction over the property in a proceeding directed essentially in rem. Passing now to a consideration of the jurisdiction of the Court of First Instance in a mortgage foreclosure, it is evident that the court derives its authority to entertain the action primarily from the statutes organizing the court. The jurisdiction of the court, in this most general sense, over the cause of action is obvious and requires no comment. Jurisdiction over the person on the defendant, if acquired at all in such an action, is obtained by the voluntary submission of the defendant or by the personal service of process upon him within the territory where the process is valid. If, however, the defendant is nonresident and, remaining beyond the range of the personal process of the court, refuses to come in voluntarily, the court never acquires jurisdiction over the person at all. Here the property itself is in fact the sole thing which is impleaded and is the responsible object which is the subject of the exercise of judicial power. It follows that the jurisdiction of the court in such case is based exclusively on the power which, under the law, it possesses over the property; and any discussion relative to the jurisdiction of the court over the person of the defendant is entirely apart from the case. The jurisdiction of the court over the property, considered as the exclusive object of such an action, is evidently based upon the following conditions and considerations, namely : (1) that the property is located within the district; (2) that the purpose of the litigation is to subject the property by sale to an obligation fixed upon it by the mortgage; and (3) that the court at a proper stage of the proceedings takes the property into its custody, if necessary, and exposes it to sale for the purpose of satisfying the mortgage debt. An obvious corollary is that no other relief can be granted in this proceeding than such as can be enforce enforced against the property. We may then, from that has been stated, formulate the following propositions relative to the foreclosure proceeding against the property of a nonresident mortgagor who fails to come in and submit himself personally to the jurisdiction of the court: (1) That the jurisdiction of the court is derived from the power which it possesses over the property; (II) that jurisdiction over the person is not acquired and is nonessential; (III) that the relief granted by the court must be limited to such as can be enforced against the property itself.

It is important that the bearing of these propositions be clearly apprehended, for there are many expressions in the American reports from which it might be inferred that the court acquires personal jurisdiction over the person of the defendant by publication and notice; but such is not the case. In truth the proposition that the jurisdiction over the person of a nonresident cannot be acquired by publication and notice was never clearly understood even in the American courts until after the decision had been rendered by the Supreme Court of the United States in the leading case of Pennoyer vs. Neff (95 U.S., 714; 24 L. ed. 565). In the light of that decision, and of other decisions which have subsequently been rendered in that and other courts, the proposition that the jurisdiction over the person cannot be thus acquired by publication and notice is no longer open to question; and it is now fully established that a personal judgment upon constructive or substituted service against a nonresident who does not appear is wholly invalid. This doctrine applies to all kinds of constructive or substituted process, including service by publication and personal service outside of the jurisdiction in which the judgment is rendered; and the only exception seems to be found in the case where the nonresident defendant has expressly or impliedly consented to the mode of service. (Note to Raher vs. Raher, 35 L.R.A. [N.S.], 292; see also 50 L.R.A., 585; 35 L.R.A., [N.S.] 312.) The idea upon which the decision in Pennoyer vs. Neff (supra) proceeds is that the process from the tribunals of one State cannot run into other States or countries and that due process of law requires that the defendant shall be brought under the power of the court by service of process within the State, or by his voluntary appearance, in order to authorize to court to pass upon the question of his personal liability. The doctrine established by the Supreme Court of the United States on this point, being based upon the constitutional conception of due process of law, is binding upon the courts of the Philippine Islands. Involved in this decision is the principle that the proceedings in rem or quasi in rem against a nonresident who is not served personally within the state, and who does not appear, the relief must be confined to the res, and the court cannot lawfully render a personal judgment against him. (Dewey vs. Des Moines, 173 U.S., 193; 43 L. ed., 665; Heidritter vs. Elizabeth Oil Cloth Co., 112 U.S., 294; 28 L. ed., 729.) Therefore in an action to foreclose a mortgage against a nonresident, upon whom service has been effected exclusively by publication, no personal judgment for the deficiency can be entered. (Latta vs. Tutton, 122 Cal., 279; Blumberg vs. Birch, 99 Cal., 416.) It is suggested in the brief of the appellant that the judgment entered in the court below offends against the principle just stated and that this judgment is void because the court in fact entered a personal judgment against the absent debtor for the full amount of the indebtedness secured by the mortgage. We do not so interpret the judgment. In a foreclosure proceeding against a nonresident owner it is necessary for the court, as in all cases of foreclosure, to ascertain the amount due, as prescribed in section 256 of the Code of Civil Procedure, and to make an order requiring the defendant to pay the money into court. This step is a necessary precursor of the order of sale. In the present case the judgment which was entered contains the following words:

"Because it is declared that the said defendant Engracio Palanca Tanquinyeng y Limquingco, is indebted in the amount P249,355.32, plus the interest, to the 'Banco Espaol-Filipino' . . . before said defendant is ordered to deliver the above amount etc., etc." This is not the language of a personal judgment. Instead it is clearly intended merely as compliance with the requirement that the amount due shall be ascertained and that the defendant shall be required to pay it. As further evidence of this it may be observed that according to the Code of Civil Procedure a personal judgment against the debtor for the deficiency is not to be rendered until after the property has been sold and the proceeds applied to the mortgage debt (sec. 260) The conclusion upon this phase is that whatever may be the effect in other respects of the failure of the clerk of the Court of First Instance to mail the proper papers to the defendant in Amoy, China, such irregularity could in no wise impair or defeat the jurisdiction of the court, for in our opinion that jurisdiction rests upon a basis much more secure than would be supplied by any form of notice that could be given to a resident of a foreign country. Before leaving this branch of the case, we wish to observe that we are fully aware that many reported cases can be cited in which it is assumed that the question of the sufficiency of publication or notice in a case of this kind is a question affecting the jurisdiction of the court, and the court sometimes said to acquire jurisdiction by virtue of the publication. This phraseology was undoubtedly originally adopted by the court because of the analogy between service by publication and personal service of process upon the defendant; and, as has already been suggested, prior to the decision of Pennoyer vs. Neff (supra) the difference between the legal effects of the two forms of service was obscure. It is accordingly not surprising that the modes of expression which had already been molded into legal tradition before that case was decided have been brought down to the present day. But it is clear that the legal principle here involved is not effected by the peculiar language in which the courts have expounded their ideas. We now proceed to a discussion of the question whether the supposed irregularity in the proceedings was of such gravity as to amount to a denial of that "due process of law" which was secured by the Act of Congress in force in these Islands at the time this mortgage was foreclosed. (Act of July 1, 1902, sec. 5.) In dealing with questions involving the application of the constitutional provisions relating to due process of law the Supreme Court of the United States has refrained from attempting to define with precision the meaning of that expression, the reason being that the idea expressed therein is applicable under so many diverse conditions as to make any attempt at precise definition hazardous and unprofitable. As applied to a judicial proceeding, however, it may be laid down with certainty that the requirement of due process is satisfied if the following conditions are present, namely; (1) There must be a court of tribunal clothed with judicial power to hear and determine the matter before it; (2) jurisdiction must be lawfully acquired over the person of the defendant or over the property which is the subject of the proceeding; (3) the defendant must be given an opportunity to be heard; and (4) judgment must rendered upon lawful hearing.

Passing at once to the requisite that the defendant shall have an opportunity to be heard, we observe that in a foreclosure case some notification of the proceedings to the nonresident owner, prescribing the time within which appearance must be made, is everywhere recognized as essential. To answer this necessity the statutes generally provide for publication, and usually in addition thereto, for the mailing of notice to the defendant, if his residence is known. Though commonly called constructive, or substituted service, such notification does not constitute a service of process in any true sense. It is merely a means provided by law whereby the owner may be admonished by his property is the subject of judicial proceedings and that it is uncumbent upon him to take such steps as he sees fit to protect it. In speaking of notice of this character a distinguished master of constitutional law has used the following language: " . . . if the owners are named in the proceedings, and personal notice is provided for, it is rather from tenderness of their interests, and in order to make sure that the opportunity for a hearing shall be lost to them, than from any necessity that the case shall assume that form." (Cooley on Taxation [2d. ed.], 527, quoted in Leigh vs. Green, 193 U.S., 79, 80.) It will be observed that this mode of notification does not involve any absolute assurance that the absent owner shall thereby receive actual notice. The periodical containing the publication may never in fact come to his hands, and the chances that he should discover the notice may often be very slight. Even where notice is sent by mail the probability of his receiving it, though much increased, is dependent upon the correctness of the address to which it is forwarded as well as upon the regularity and security of the mail service. It will be noted, furthermore, that the provision of our law relative to the mailing of notice does not absolutely require the mailing of notice unconditionally and in every event, but only in the case where the defendant's residence is known. In the light of all these facts, it is evident that the actual notice to the defendant in cases of this kind is not, under the law, to be considered absolutely necessary. The idea upon which the law proceeds in recognizing the efficacy of a means of notification which may fall short of actual notice is apparently this: Property is always assumed to be in the possession of its owner, in person or by agent; and he may be safely held, under certain conditions, to be affected with knowledge that proceedings have been instituted for its condemnation and sale. "It is the duty of the owner of real estate, who is a nonresident, to take measures that in some way he shall be represented when his property is called into requisition, and if he fails to do this and fails to get notice by the ordinary publications which have usually been required in such cases, it is his misfortune, and he must abide the consequences." (6 R.C.L., sec. 445 [p.450]). It has been well said by an American court: "If properly of a nonresident cannot be reached by legal process upon constructive notice, then our statutes were passed in vain, and are mere empty legislative declarations, without either force, or meaning; for if the person is not within

the jurisdiction of the court, no personal judgment can be rendered, and if the judgment cannot operate upon the property, then no effective judgment can be rendered, so that the result would be that the courts would be powerless to assist a citizen against a nonresident. Such a result would be a deplorable one." (Quarl vs. Abbett, 102 Ind., 233; 52 Am. Rep., 662, 667.) It is, of course, universally recognized that the statutory provisions relative to publication or other form of notice against a nonresident owner should be complied with; and in respect to the publication of notice in the newspaper it may be stated that strict compliance with the requirements of the law has been held to be essential. In Guaranty Trust etc. Co. vs. Green Cove etc., Railroad Co. (139 U.S., 137, 138), it was held that where newspaper publication was made for 19 weeks, when the statute required 20, the publication was insufficient. With respect to the provisions of our statute, relative to the sending of notice by mail, the requirement is that the judge shall direct that the notice be deposited in the mail by the clerk of the court, and it is not in terms declared that the notice must be deposited in the mail. We consider this to be some significance; and it seems to us that, having due regard to the principles upon which the giving of such notice is required, the absent owner of the mortgaged property must, so far as the due process of law is concerned, take the risk incident to the possible failure of the clerk to perform his duty, somewhat as he takes the risk that the mail clerk or the mail carrier might possibly lose or destroy the parcel or envelope containing the notice before it should reach its destination and be delivered to him. This idea seems to be strengthened by the consideration that in placing upon the clerk the study of sending notice by mail, the performance of that act is put effectually beyond the control of the plaintiff in the litigation. At any rate it is obvious that so much of section 339 of the Code of Civil Procedure as relates to the sending of notice by mail was complied with when the court made the order. The question as to what may be the consequences of the failure of the record to show the proof of compliance with that requirement will be discussed by us further on. The observations which have just been made lead to the conclusion that the failure of the clerk to mail the notice, if in fact he did so fail in his duty, is not such as irregularity as amounts to a denial of due process of law; and hence in our opinion that irregularity, if proved, would not avoid the judgment in this case. Notice was given by publication in a newspaper and this is the only form of notice which the law unconditionally requires. This is our opinion is all that was absolutely necessary to sustain the proceedings. It will be observed that in considering the effect of this irregularity, it makes a difference whether it be viewed as a question involving jurisdiction or as a question involving due process of law. In the matter of jurisdiction there can be no distinction between the much and the little. The court either has jurisdiction or it has not; and if the requirement as to the mailing of notice should be considered as a step antecedent to the acquiring of jurisdiction, there could be no escape from the conclusion that the failure to take that step was fatal to the validity of the judgment. In the application of the idea of due

process of law, on the other hand, it is clearly unnecessary to be so rigorous. The jurisdiction being once established, all that due process of law thereafter requires is an opportunity for the defendant to be heard; and as publication was duly made in the newspaper, it would seem highly unreasonable to hold that the failure to mail the notice was fatal. We think that in applying the requirement of due process of law, it is permissible to reflect upon the purposes of the provision which is supposed to have been violated and the principle underlying the exercise of judicial power in these proceedings. Judged in the light of these conceptions, we think that the provision of the Act of Congress declaring that no person shall be deprived of his property without due process of law has not been infringed. In the progress of this discussion we have stated the two conclusions; (1) that the failure of the clerk to send the notice to the defendant by mail did not destroy the jurisdiction of the court and (2) that such irregularity did not infringe the requirement of due process of law. As a consequence of these conclusions of irregularity in question is in some measure shorn of its potency. It is still necessary, however, to consider its effects considered as a simple irregularity of procedure; and it would be idle to pretend that even in this aspect the irregularity is not grave enough. From this point of view, however, it is obvious that any motion to vacate the judgment on the ground of the irregularity in question must fail unless it shows that the defendant was prejudiced by that irregularity. The least, therefore, that can be required of the proponent of such a motion is to show that he had a good defense against the action to foreclose the mortgage. Nothing of the kind is, however, shown either in the motion or in the affidavit which accompanies the motion. An application to open or vacate a judgment because of an irregularity or defect in the proceedings is usually required to be supported by an affidavit showing the grounds on which the relief is sought, and in addition to this showing also a meritorious defense to the action. It is held that a general statement that a party has a good defense to the action is insufficient. The necessary facts must be averred. Of course if a judgment is void upon its face a showing of the existence of a meritorious defense is not necessary. (10 R.C.L., 718.) The lapse of time is also a circumstance deeply affecting this aspect of the case. In this connection we quote the following passage from an encyclopedic treatise now in course of publication: "Where, however, the judgment is not void on its face, and may therefore be forced if permitted to stand on the record, courts in many instances refuse to exercise their quasi equitable powers to vacate a judgment after the lapse of the term at which it was entered, except in clear cases, to promote the ends of justice, and where it appears that the party making the application is himself without fault and has acted in good faith and with ordinary diligence. Laches on the part of the applicant, if unexplained, is deemed sufficient ground for refusing the relief to which he might otherwise be entitled. Something is due to the finality of judgments, and acquiescence or unnecessary delay is fatal to motions of this character, since courts are always reluctant to interfere with judgments, and especially where they have been executed or satisfied. The moving party has burden of showing diligence,

and unless it is shown affirmatively the court will not ordinarily exercise its discretion in his favor." (15 R.C. L., 694, 695.) It is stated in the affidavit that the defendant, Engracio Palanca Tanquinyeng y Limquingco, died on January 29, 1910. The mortgage under which the property was sold was executed far back in 1906; and in the proceedings in the foreclosure were closed by the order of the court confirming the sale dated August 7, 1908. It passes the rational bounds of human credulity to suppose that a man who had placed a mortgage upon property worth nearly P300,000 and had then gone away from the scene of his life activities to end his days in the city of Amoy, China, should have long remained in ignorance of the fact that the mortgage had been foreclosed and the property sold, even supposing that he had no knowledge of those proceedings while they were being conducted. It is more in keeping with the ordinary course of things that he should have acquired information as to what was transpiring in his affairs at Manila; and upon the basis of this rational assumption we are authorized, in the absence of proof to the contrary, to presume that he did have, or soon acquired, information as to the sale of his property. The Code of Civil Procedure, indeed, expressly declares that there is a presumption that things have happened according to the ordinary habits of life (sec. 334 [26]); and we cannot conceive of a situation more appropriate than this for applying the presumption thus defined by the lawgiver. In support of this presumption, as applied to the present case, it is permissible to consider the probability that the defendant may have received actual notice of these proceedings from the unofficial notice addressed to him in Manila which was mailed by an employee of the bank's attorneys. Adopting almost the exact words used by the Supreme Court of the United States in Grannis vs. Ordean (234 U.S., 385; 58 L. ed., 1363), we may say that in view of the well-known skill of postal officials and employees in making proper delivery of letters defectively addressed, we think the presumption is clear and strong that this notice reached the defendant, there being no proof that it was ever returned by the postal officials as undelivered. And if it was delivered in Manila, instead of being forwarded to Amoy, China, there is a probability that the recipient was a person sufficiently interested in his affairs to send it or communicate its contents to him. Of course if the jurisdiction of the court or the sufficiency of the process of law depended upon the mailing of the notice by the clerk, the reflections in which we are now indulging would be idle and frivolous; but the considerations mentioned are introduced in order to show the propriety of applying to this situation the legal presumption to which allusion has been made. Upon that presumption, supported by this circumstances of this case, we do not hesitate to found the conclusion that the defendant voluntarily abandoned all thought of saving his property from the obligation which he had placed upon it; that knowledge of the proceedings should be imputed to him; and that he acquiesced in the consequences of those proceedings after they had been accomplished. Under these circumstances it is clear that the merit of this motion is, as we have already stated, adversely affected in a high degree by the delay in asking for relief. Not is it an adequate reply to say that the proponent of this motion is a administrator who only qualified

a few months before this motion was made. No disability on the part of the defendant himself existed from the time when the foreclosure was effected until his death; and we believe that the delay in the appointment of the administrator and the institution of this action is a circumstance which is imputable to the parties in interest whoever they may have been. Of course in the minor heirs had instituted an action in their own right to recover to property, it would have been different. It is, however, argued that the defendant has suffered prejudice by reason of the fact that the bank became the purchaser of the property at the foreclosure sale for a price greatly below that which had been agreed upon in the mortgage as the upset price of the property. In this connection, it appears that in article nine of the mortgage which was the subject of this foreclosure, as amended by the notarial document of July 19, 1906, the parties to this mortgage made a stipulation to the effect that the value therein placed upon the mortgaged properties should served as a basis of sale in case the debt should remain unpaid and the bank should proceed to a foreclosure. The upset price stated in that stipulation for all the parcels involved in this foreclosure was P286,000. It is said in behalf of the appellant that when the bank bought in the property for the sum of P110,200 it violated that stipulation. It has been held by this court that a clause in a mortgage providing for a tipo, or upset the price, does not prevent a foreclosure, nor affect the validity of a sale made in the foreclosure proceedings. (Yangco vs. Cruz Herrera and Wy Piaco, 11, Phil. Rep., 402, Banco-Espaol Filipino vs. Donaldson, Sim & Co., 5 Phil. Rep. 418.) In both the cases here cited the property was purchased at the foreclosure sale, not by the creditor or mortgagee, but a third party. Whether the same rule should be applied in a case where the mortgagee himself becomes the purchaser has apparently not been decided by this court in any reported decision, and this question need not here be considered, since it is evident that if any liability was incurred by the bank by the purchasing for a price below that fixed in the stipulation, its liability was a personal liability derived from the contract of mortgage; and as we have already demonstrated such a liability count not be the subject of adjudication in an action where the court had no jurisdiction over the person of the defendant. If the plaintiff bank became liable to account for the difference between the upset price at which it bought in the property, that liability remains unaffected by the disposition which the court made of this case; and the fact that the bank may have violated such an obligation can in no wise affect the validity of the judgment entered in the Court of First Instance. In connection with the entire failure of the motion to show either a meritorious defense to the action or that the defendant had suffered any prejudice of which the law can take notice, we may be permitted to add that in our opinion a motion of this kind, which proposes to unsettle judicial proceedings long ago closed, can not be considered with favor, unless based upon the grounds which appeal to the conscience of the court. Public policy requires that judicial proceedings be upheld. The maxim here applicable is non quieta movere. As was once said by Judge Brewer, afterwards a member of the Supreme Court of the United States:

"Public policy requires that judicial proceedings be upheld, and titles obtained in those proceedings be safe from the ruthless hand of collateral attack. If technical defects are adjudged potent to destroy such titles, a judicial sale will never realized the value of the property, for no prudent man will risk his money in bidding for and buying that title which he has reason to fear may years thereafter be swept away through some occult and not readily discoverable defect." (Martin vs. Pond, 30 Fed., 15.) In the case where that language was used an attempt was made to annul certain foreclose proceedings on the ground that the affidavit upon which the order of publication was based erroneously stated that the absent partly was a resident of a certain town in the State of Kansas, when he was in fact residing in another State. It was held that this mistake did not affect the validity of the proceedings. In the preceding discussion we have assumed that the clerk failed to send the notice by post as required by the order of the court. We know proceed to consider whether this is a proper assumption; and the proposition which we propose to establish is that there is a legal presumption that the clerk performed his duty as the ministerial officer of the court, which presumption is not overcome by any other facts appearing in the cause. In subsection 14 of section 334 of the Code of Civil Procedure it is declared that there is presumption "that official duty has been regularly performed;" and in subsection 18 it is declared that there is a presumption "that the ordinary course of business has been followed." These presumption are of course in no sense novelties as they express ideas which have always been recognized. Omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium. There is therefore clearly a legal presumption that the clerk performed his duty about mailing this notice; and we think that strong considerations of policy require that this presumption should be allowed to operate with full force under the circumstances of this case. A party to an action has no control over the clerk of the court; and has no right to meddle unduly with the business of clerk in the performance of his duties. Having no control over this officer, the litigant must depend upon the court to see that the duties imposed in the clerk are performed. Other considerations are less potent contribute to strengthen the conclusion just stated. There is no principle of law better settled than that after jurisdiction has once been acquired, every act of a court of general jurisdiction shall be presumed to have been rightly done. This rule is applied to every judgment or decree rendered in the various stages of the proceedings from their initiations to their completion (Voorhees vs. United States Bank, 10 Pet., 314; 35 U.S., 449); and if the record is silent with respect to any fact which must have been established before the court could have rightly acted, it will be presumed that such fact was properly brought to its knowledge. (The Lessee of Grignon vs. Astor, 2 How., 319; 11 L. ed., 283.) "In making the order of sale [of the real estate of a decedent] the court are presumed to have adjudged every question necessary to justify such order or decree, viz: The death of the owners; that the petitioners were his administrators; that the

personal estate was insufficient to pay the debts of the deceased; that the private acts of Assembly, as to the manner of sale, were within the constitutional power of the Legislature, and that all the provisions of the law as to notices which are directory to the administrators have been complied with. . . . The court is not bound to enter upon the record the evidence on which any fact was decided." (Florentine vs. Barton, 2 Wall., 210; 17 L. ed., 785.) Especially does all his apply after long lapse of time. Applegate vs. Lexington and Carter County Mining Co. (117 U.S., 225) contains as instructive discussion in a case analogous to that which is now before us. It there appeared that in order to foreclose a mortgage in the State of Kentucky against a nonresident debtor it was necessary that publication should be made in a newspaper for a specified period of time, also that the order requiring the defendant to appear should be posted at the front door of the court house and be published on some Sunday, immediately after divine service, in such church as the court should direct. In a certain action judgment had been entered against a nonresident, after a publication in pursuance of this provisions. Many years later the validity of the proceedings was called in question in another action. It was proved from the files of an ancient periodical that publication had been made in its columns as required by law; but no proof was offered to show the publication of the order at the church, or the posting of it at the front door of the courthouse. It was insisted by one of the parties that the judgment of the court was void for lack of jurisdiction. But the Supreme Court of the United States said: "The court which made the decree . . . was a court of general jurisdiction. Therefore every presumption not inconsistent with the record is to be indulged in favor of its jurisdiction. . . . It is to be presumed that the court before making its decree took care to see that its order for constructive service, on which its right to make the decree depended, had been obeyed. It is true that in this case the former judgment was the subject of collateral, or indirect attack, while in the case at bar the motion to vacate the judgment is a direct proceeding for relief against it. The same general presumption, however, is indulged in favor of the judgment of a court of general jurisdiction, whether it is the subject of direct or indirect attack, the only difference being that in case of indirect attack the judgment is conclusively presumed to be a valid unless the record affirmatively shows it to be void, while in case of direct attack the presumption in favor of its validity may in certain cases be overcome by proof extrinsic to the record. The presumption that the clerk performed his duty and that the court made its decree with knowledge that the requirements of law had been complied with appear to be amply sufficient to support the conclusion that the notice was sent by the clerk as required by the order. It is true that there ought to be found among the papers on file in this cause an affidavit, as required by section 400 of the Code of Civil Procedure, showing that the order was in fact so sent by the clerk; and no such affidavit appears. The record is therefore silent where it ought to speak. But the very purpose of the law in recognizing these presumptions is to enable the court to sustain a prior judgment in the face of such an omission. If we were to hold that the judgment in this case is void because the proper affidavit is

not present in the file of papers which we call the record, the result would be that in the future every title in the Islands resting upon a judgment like the now before us would depend, for its continued security, upon the presence of such affidavit among the papers and would be liable at any moment to be destroyed by the disappearance of that piece of paper. We think that no court, with proper regard for the security of judicial proceedings and for the interests which have by law been confided to the courts, would incline to favor such a conclusion. It our opinion the proper course in a case of this kind is to hold h that the legal presumption that the clerk performed his duty still maintains notwithstanding the absence from the record of the proper proof of that fact. In this connection it is important to bear in mind that under the practice prevailing in the Philippine Islands the word "record" is used in a loose and broad sense, as indicating the collective mass of papers which contain the history of all the successive steps taken in case and which are finally deposited in the archives of the clerk's office as a memorial of the litigation. It is a matter of general information that no judgment roll, or book of final record, is commonly kept in our courts for the purpose of recording the pleadings and principal proceedings in actions which have been terminated; and in particular, no such record is kept in the Court of First Instance of the city of Manila. There is, indeed, a section of the Code of Civil Procedure which directs that such a book of final record shall be kept; but this provision has, a matter of common knowledge, been generally ignored. The result is that in the present case do not have the assistance of the recitals of such a record to enable us to pass upon the validity of this judgment and as already stated the question must be determined by examining the papers contained in the entire file. But it is insisted by the counsel for this motion that the affidavit of Bernardo Chan y Garcia showing that upon April 4, 1908, he sent a notification through the mail addressed to the defendant at Manila, Philippine Islands, should be accepted as affirmative proof that the clerk of the court failed in his duty and that, instead of himself sending that the requisite notice through the mail, he relied upon Bernardo to send it for him. We do not think that this is by means a necessary inference. Of course if it had affirmatively appeared that the clerk himself had attempted to comply with this order and had directed the notification to Manila when he would have directed it to Amoy, this would be conclusive that he had failed to comply with the exact terms of the order; but such is not this case. That the clerk of the attorneys for the plaintiff erroneously sent a notification to the defendant at a mistaken address affords in our opinion very slight basis for supposing that the clerk may not have sent notice to right address. There is undoubtedly good authority to support the position that when the record states the evidence or makes an averment with reference to a jurisdictional fact, it will not be presumed that there was other or different evidence respecting the fact, or that the fact was otherwise that as stated. If, to give an illustration, it appears from the return of the officer that the summons was served at a particular place of in a particular manner, it will not be presumed that service also made in another place or in a different manner; or if it appears that service was made a person other than the defendant, it will not be presumed, in the silence of the record, that it was made

upon the defendant also (Galpin vs. Page, 18 Wall., 350, 366; Settlemier vs. Sullivan, 97 U.S., 444,449). While we believe that these propositions are entirely correct as applied to the case where the person making the return is the officer who is by law required to make the return, we do not think that it is properly applicable where, as in the present case, the affidavit was made by a person who, so far as the provisions of law are concerned, was a mere intermeddler. The last question of importance which we propose to consider is whether the motion in the cause is admissible as a proceeding to obtain relief in such a case as this. If the motion prevails the judgment of July 2, 1908, and all subsequent proceedings will be set aside, and the litigation will be renewed, proceeding again from the date mentioned as if the progress of the action had not been interrupted. The proponent of the motion does not ask the favor of being permitted to interpose a defense. His purpose is merely to annul the effective judgment of the court, to the end that the litigation may again resume it regular course. There is only one section of the Code of Civil Procedure which expressly recognized the authority of a Court of First Instance to set aside a final judgment and permit a renewal of the litigation in the same cause. This is as follows: "SEC. 113. Upon such term as may be just the court may relieve a party on his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect; Provided, That the application therefor be made within the reasonable time, but in no case exceeding six months after such judgment order, or proceeding was taken." An additional remedy by petition to the Supreme Court is supplied by section 513 on the same Code. The first paragraph of this section, is in so far as pertinent to this discussion, provides as follows: "When a judgment is rendered by a Court of First Instance upon default, and a party thereto is unjustly deprived of a hearing fraud, accident, mistake or excusable negligence, and the Court of First Instance which rendered the judgment has finally adjourned so that no adequate remedy exists in that court, the party so deprived of hearing may present his petition to the Supreme Court within sixty days after he first learns of the rendition of such judgment, and not thereafter, setting forth the facts and praying to have judgment set aside. . . . " It is evident that the proceeding contemplated in this section is intended to supplement the remedy provided by section 113; and we believe that the conclusion irresistible that there is no other means recognized by law whereby a defeated party can, by a proceeding in the same cause, procure a judgment to be set aside, with a view to the renewal of the litigation. The Code of Civil Procedure purports to be a complete system of practice in civil causes, and it contains provisions describing with much fullness the various steps to be taken in the conduct of such proceedings. To this end it defines with precision the method of beginning, conducting, and concluding the civil action of whatever species; and by section 795 of the same Code it is declared that the procedure in all

civil action shall be in accordance with the provisions of this Code. We are therefore of the opinion that the remedies prescribed in sections 113 and 513 are exclusive of all others, so far as relates to the opening and continuation of a litigation which has been once concluded. The motion in the present case does not conform to the requirements of either of these provisions; and the consequence is that in our opinion the action of the court of First Instance in dismissing the motion was proper. If the question were admittedly one relating merely to an irregularity of procedure, we cannot suppose that this proceeding would have taken the form of a motion in the cause, since it is clear that, if based on such an error, the motion came too late for relief in the Court of First Instance. But as we have already seen, the motion attacks the judgment of the court as void for warrant of jurisdiction over the defendant. The idea underlying the motion therefore is that inasmuch as the judgment is a nullity it can be attacked in any way and at any time. If the judgment were in fact void upon its face, that is, if it were shown to by nullity by virtue of its own recitals, there might possibly be something in this. Where a judgment or judicial order is void in this sense it may be said to be a lawless thing, which can be treated as an outlaw and slain at sight, or ignored wherever and whenever it exhibits its head. But the judgment in question is not void in any such sense. It is entirely regular in form, and the alleged defect is one which is not apparent upon its face. It follows that even if the judgment could be shown could be shown to be void for want of jurisdiction, or for lack of due process of law, the party aggrieved thereby is bound to resort to some appropriate proceedings to obtain relief. Under accepted principles of law and practice, long recognized in American courts, a proper remedy in such case, after the time for appeal or review has passed, is for the aggrieved party to bring an action to enjoin the judgment, if not already carried into effect; or if the property has already been disposed of he may institute to recover it. In every situation of this character an appropriate remedy is at hand; and if property has been taken without due process, the law concedes due process to recover it. We accordingly hold that, assuming the judgment to have been void as alleged by the proponent of this motion, the proper remedy was by an original proceeding and not by motion in the cause. As we have already seen our Code of Civil Procedure defines the conditions under which relief against a judgment may be obtained by motion; and we think it would only be productive of confusion for this court to recognize such a proceeding as proper under conditions different from those defined by law. Upon the point of procedure here involved, we refer to the case of People vs. Harrison (84 Cal., 607) wherein it was held that a motion will not lie to vacate a judgment after the lapse of the time limited by statute if the judgment is not void on its face; and in all cases, after the lapse of such time, when an attempt is made to vacate the judgment by a proceeding in court for that purpose an action regularly brought is preferable, and should be required. It will be noted that section 113 of the Code of Civil Procedure was taken verbatim from the California Code (sec. 473).

The conclusions stated in this opinion indicate that the judgment appealed from is without error, and the same is accordingly affirmed, with costs. So ordered. Arellano, C.J. Torres, Carson, and Avancea, JJ., concur. Separate Opinions MALCOLM, J., dissenting: I dissent. It will not make me long to state my reason. An immutable attribute the fundamental idea of due process of law is that no man shall be condemned in his person or property without notice and an opportunity of being heard in his defense. Protection of the parties demands a strict and an exact compliance this constitutional provision in our organic law and of the statutory provisions in amplification. Literally hundreds or precedents could be cited in support of these axiomatic principles. Where as in the instant case the defendant received no notice and had no opportunity to be heard, certainly we cannot say that there is due process of law. Resultantly, "A judgment which is void upon its face, and which requires only in inspection of the judgment roll to demonstrate it want of vitality is a dead limb upon the judicial tree, which should be lopped off, if the power so to do exists. It can bear no fruit to the plaintiff, but is a constant menace to the defendant." (Mills vs. Dickson, 6 Rich. [S.C.], 487.)

[G.R. No. L-11390. March 26, 1918.] EL BLANCO ESPAOL-FILINO, plaintiff-appellee, vs. VICENTE PALANCA, administrator of the estate of Engracio Palanca Tanquinyeng, defendant-appellant. Aitken & DeSelms for appellant. Hartigan & Welch for appellee. SYLLABUS 1. MORTGAGES; FORECLOSURE; JURISDICTION OF COURT OVER NONRESIDENT MORTGAGOR. Where the defendant in a mortgage foreclosure lives out of the Islands and refuses to appear otherwise submit himself to the authority of the court, the jurisdiction of the latter is limited to the mortgaged property, with respect to which the jurisdiction of the court is based upon the fact that the property is located within the district and that the court, under the provisions of law applicable in such cases, is vested with the power to subject the property to the obligation created by the mortgage. In such case personal jurisdiction over the nonresident defendant is nonessential and in fact cannot be acquired. 2. ID.; ID.; ID.; FAILURE OF CLERK TO SEND NOTICE BY MAIL. The failure of the clerk to send notice by mail to the nonresident defendant in a foreclosure proceeding, as required by an order of the court, does not defeat the jurisdiction of the court over the mortgaged property. 3. ID.; ID.; ID.; PERSONAL LIABILITY. In an action to foreclose a mortgage against a nonresident defendant who fails to submit himself to the jurisdiction of the court, no adjudication can be made which involves a determination of a personal liability of either party arising out of the contract of mortgage. 4. ID.; ID.; ID.; ASCERTAINMENT OF AMOUNT DUE.- In a foreclosure proceeding against a nonresident owner it is necessary for the court, as in all cases of foreclosure, to ascertain the amount due, as prescribed in section 256 of the Code of Civil Procedure, and to make an order requiring the defendant to pay the money into court. This step is a necessary precursor of the order of sale. The mere fact that the court thus ascertains the amount of the debt and orders of the defendant to pay it into court does not constitute the entering of a judgment against him as upon a personal liability. 5. CONSTITUTIONAL LAW; DUE PROCESS. As applied to judicial proceedings, due process of law implies that there must be a court of tribunal clothed with the power to hear and determine the matter before it, that jurisdiction shall have been lawfully acquired, that the defendant shall have an opportunity to be heard, and that judgment shall be rendered upon lawful hearing. 6. ID.; ID.; MORTGAGE; FORECLOSURE. In an action to foreclose a mortgage against a nonresident, some notification of the proceedings must be given to the defendant.

Under statutes generally prevailing, this notification commonly takes the form of publication in a newspaper of general circulation and the sending of notice, by mail, by which means of the owner is admonished that his property is the subject of judicial proceedings. The provisions law providing for notice of this character must be complied with. 7. ID.; ID.; ID.; ORDER FOR MAILING OF NOTICE BY CLERK. In a foreclosure proceeding against a nonresident defendant, the court is required to make an order for the clerk to mail a copy of the summons and complaint to the defendant at this last place of residence if known. In the present case an order was made directing the clerk to mail the required copy to the defendant at Amoy China. No evidence appeared of record showing that such notice had in fact been mailed by the clerk; but publication was regularly made in a periodical as the law requires. Held: That the making of the order by the court constituted a compliance with the law, in so far as necessary to constitute due process of law, and that if the clerk failed to send the notice, his dereliction in the performance of his duty was in irregularity which did not constitute an infringement of the provision of the Philippine Bill declaring that no person shall have deprived of property without due process of law. 8. JUDGMENT; MOTION TO VACATE; IRREGULARITY IN GIVING OF NOTICE. A defendant who seeks to vacate a judgment in a foreclosure proceeding on the ground of irregularity in the sending of notice by post, or failure to send such notice pursuant to an order of the court, must show that as result of which irregularity he suffered some prejudice of which the law can take account. 9. ID.; ID.; PREJUDICE TO DEFENDANT. In a mortgage foreclosure proceeding the property was bought in at the public sale by the plaintiff, the mortgagee, at a price much below the upset value agreed upon in the mortgage. Held: That if any liability was incurred by the plaintiff by purchasing at a price below which had been agreed upon as the upset price, such liability was of a personal nature and could not be the subject of adjudication in a foreclosure against a nonresident defendant who did not come in and submit to the jurisdiction of the court. Such act of the plaintiff was, therefore, not such a prejudice to the defendant as would justify the opening of the judgment of foreclosure. 10. ID.; ID.; DELAY AS AFFECTING RIGHT TO RELIEF. A party who seeks to open a final judgment with a view to a renewal of the litigation should how that he has acted with diligence; and unexplained delay in seeking relief is a circumstance to be considered as affecting the application adversely. 11. ID.; ID.; ID.; PRESUMPTION OF KNOWLEDGE. Upon an application made by the representative of a deceased nonresident to vacate a judgment in a foreclosure proceeding, it is held that, under the circumstances of the particular case, knowledge of the proceedings, or of their result, should be imputed to him, upon the legal presumption that things have happened according to the ordinary habits of life, and that as a consequence his failure to apply for relief within the year and a half during which he survived the

foreclosure proceedings was a circumstance adversely affecting the application for relief. 12. ID.; UNSETTLEMENT OF JUDICIAL PROCEEDINGS; PUBLIC POLICY. An application which proposes to disturb judicial proceedings long closed cannot be considered with favor, unless based upon grounds which appeal to the conscience of the court. Public policy requires that judicial proceedings be upheld. The maxim here applicable is Non quieta movere. 13. PRESUMPTIONS; PERFORMANCE OF OFFICIAL DUTY. Where the court makes an order for the clerk to mail notice of a foreclosure proceeding to a nonresident defendant it will be presumed in the absence of affirmative proof to the contrary that the duty was performed. 14. ID.; ACTS OF COURT OF GENERAL JURISDICTION. After jurisdiction has once been acquired, every act of a court of general jurisdiction is presumed to have been rightly done. This rule is applied to every judgment rendered in the various stages of the proceedings; and if the record is silent with respect to any fact which should have been established before the court could have rightly acted, it will be presumed that such fact was properly brought to its knowledge. 15. ID.; JURISDICTIONAL FACT. Where the officer makes a return concerning the manner in which service was effected, and this service appears to have been insufficient, it cannot be presumed that other legal service was effected by the same officer or other authorized person. This rule, however, is not applicable to the case where an affidavit relative to mailing notice to a nonresident, instead of being made by the proper officer, is made by one acting without legal authority. 16. JUDGMENTS; MOTION TO VACATE; TIME WITHIN WHICH MOTION MAY BE MAINTAINED. Where a judgment is not void on its face, a motion to vacate the judgment with a view to a continuation of the litigation, can be maintained in a Court of First Instance only in accordance with section 113 of the Code of Civil Procedure, which sets time limit of six months from the date when the judgment is entered. After the expiration of this period the party who seeks relief against a judgment alleged to void for some defect not apparent on its face must have recourse to an appropriate original proceeding. DECISION STREET, J p: This action was instituted upon March 31, 1908, by "El Banco Espaol-Filipino" to foreclose a mortgage upon various parcels of real property situated in the city of Manila. The mortgage in question is dated June 16, 1906, and was executed by the original defendant herein, Engracio Palanca Tanquinyeng y Limquingco, as security for a debt owing to him to the bank. Upon March 31, 1906, the debt amounted to P218,294.10 and was drawing interest at the rate of 8 per centum per annum, payable at the end of each quarter. It appears that the parties to this mortgage at that time estimated

the value of the property in question at P292,558, which was about P75,000 in excess of the indebtedness. After the execution of this instrument by the mortgagor, he returned to China, which appears to have been his native country; and he there died, upon January 29,1910, without again returning to the Philippine Islands. As the defendant was a nonresident at the time of the institution of the present action, it was necessary for the plaintiff in the foreclosure proceeding to give notice to the defendant by publication pursuant to section 399 of the Code of Civil Procedure. An order for publication was accordingly obtained from the court, and publication was made in due form in a newspaper of the city of Manila. At the same time that the order of the court was entered directing that publication should be made in a newspaper, the court further directed that the clerk of the court should deposit in the post office in a stamped envelope a copy of the summons and complaint directed to the defendant at his last place of residence, to wit, the city of Amoy, in the Empire of China. This order was made pursuant to the following provision contained in section 399 of the Code of Civil Procedure: "In case of publication, where the residence of a nonresident or absent defendant is known, the judge must direct a copy of the summons and complaint to be forthwith deposited by the clerk in the post-office, postage prepaid, directed to the person to be served, at his place of residence." Whether the clerk complied with this order does not affirmatively appear. There is, however, among the papers pertaining to this case, an affidavit, dated April 4, 1908, signed by Bernardo Chan y Garcia, an employee of the attorneys for the bank, showing that upon that date he had deposited in Manila post-office a registered letter, addressed to Engracio Palanca Tanquinyeng, at Manila, containing copies of the complaint, the plaintiff's affidavit, the summons, and the order of the court directing publication as aforesaid. It appears from the postmaster's receipt that Bernardo probably used an enveloped obtained from the clerk's office, as the receipt purports to show that the letter emanated from said office. The cause proceeded in usual course in the Court of First Instance; and the defendant not having appeared, judgment was, upon July 2, 1908, taken against him by default. Upon July 3, 1908, a decision was rendered in favor of the plaintiff. In this decision it was recited that publication had been properly made in a periodical, but nothing was said about notice having been given by mail. The court, upon this occasion, found that the indebtedness of the defendant amounted to P249,355.32, with interest from March 31, 1908. Accordingly it was ordered that the defendant should, on or before July 6, 1908, deliver said amount to the clerk of the court to be applied to the satisfaction of the judgment, and it was declared that in case of the failure of the defendant to satisfy the judgment within such period, the mortgage property located in the city of Manila should be exposed to public sale. The payment contemplated in said order was never made; and upon July 8, 1908, the court ordered the sale of the property. The sale took place upon July 30, 1908, and the property was brought in by the bank for the sum of P110,200. Upon August 7, 1908, this sale was confirmed by the court.

About seven years after the confirmation of this sale, or to be precise, upon June 25, 1915, a motion was made in this cause by Vicente Palanca, as administrator of the estate of the original defendant, Engracio Palanca Tanquinyeng y Limquingco, wherein the applicant requested the court to set aside the order of default of July 2, 1908, and the judgment rendered upon July 3, 1908, and to vacate all the proceedings subsequent thereto. The basis for this application, as set forth in the motion itself, was that the order of default and the judgment rendered thereon were void because the court had never acquired jurisdiction over the defendant or over the subject of the action. At the hearing in the court below the application to vacate the judgment was denied, and from this action of the court Vicente Palanca, as administrator of the estate of the original defendant, has appealed. No other feature of the case is here under consideration than such as is related to the action of the court upon said motion. The case presents several questions of importance, which will be discussed in what appears to be the sequence of most convenient development. In the first part of this opinion we shall, for the purpose of the argument, assume that the clerk of the Court of First Instance did not obey the order of the court in the matter of mailing the papers which he was directed to send to the defendant in Amoy; and in this connection we shall consider, first, whether the court acquired the necessary jurisdiction to enable it to proceed with the foreclosure of the mortgage and, secondly, whether those proceedings were conducted in such manner as to constitute due process of law. The word "jurisdiction," as applied to the faculty of exercising judicial power, is used in several different, though related, senses since it may have reference (1) to the authority of the court to entertain a particular kind of action or to administer a particular kind of relief, or it may refer to the power of the court over the parties, (2) over the property which is the subject to the litigation. The sovereign authority which organizes a court determines the nature and extent of its powers in general and thus fixes its competency or jurisdiction with reference to the actions which it may entertain and the relief it may grant. Jurisdiction over the person is acquired by the voluntary appearance of a party in court and his submission to its authority, or it is acquired by the coercive power of legal process exerted over the person. Jurisdiction over the property which is subject of litigation may result either from a seizure of the property under legal process, whereby it is brought into the actual custody of the law, or it may result from the institution of legal proceedings wherein, under special provisions of law, the power of the court over the property is recognized and made effective. In the latter case the property, though at all times within the potential power of the court, may never be taken into actual custody at all. An illustration of the jurisdiction acquired by the actual seizure is found in attachment proceedings, where the property is seized at the beginning of the action, or some subsequent stage of its progress, and held to abide the final event of the litigation. An illustration of what we term

potential jurisdiction over the res, is found in the proceeding to register the title of land under our system for the registration of land. Here the court, without taking actual physical control over the property assumes, at the instance of some person claiming to be owner, to exercise a jurisdiction in rem over the property and to adjudicate the title in favor of the petitioner against all the world. In the terminology of American law the action to foreclose a mortgage is said to be a proceeding quasi in rem, by which is expressed the idea that while it is not strictly speaking an action in rem yet it partakes of that nature and is substantially such. The expression, "action in rem' is, in its narrow application, used only with reference to certain proceedings in courts of admiralty wherein the property alone is treated as responsible for the claim or obligation upon which the proceedings are based. The action quasi in rem differs from the true action in rem in the circumstance that in the former an individual is named as defendant, and the purpose of the proceeding is to subject his interest therein to the obligation or lien burdening the property. All proceedings having for their sole object the sale or other disposition of the property of the defendant, whether by attachment, foreclosure, or other form of remedy, are in general way thus designated. The judgment entered in these proceedings is conclusive only between the parties. In speaking of the proceeding to foreclose a mortgage the author of a well-known treatise, has said: "Though nominally against persons, such suits are to vindicate liens; they proceed upon seizure; they treat property as primarily indebted; and, with the qualification abovementioned, they are substantially property actions. In the civil law, they are styled hypothecary actions, and their sole object is the enforcement of the lien against the res; in common law, they would be different if chancery did not treat the conditional conveyance as a mere hypothecation, and the creditor's right as an equitable lien; so, in both, the suit is a real action so far as it is against property, and seeks the judicial recognition of a property debt, and an order for the sale of res." (Waples, Proceedings In Rem. Sec. 607.) It is true that in proceedings of this character, if the defendant for whom duplication is made appears, the action becomes as to him a personal action and is conducted as such. This, however, does not affect the proposition that where the defendant fails to appear the action is quasi in rem; and it should therefore be considered with reference to the principles governing actions in rem. There is an instructive analogy between the foreclosure proceeding and an action of attachment, concerning which the Supreme Court of the United States has used the following language: "If the defendant appears, the cause becomes mainly a suit in personam, with the added incident, that the property attached remains liable, under the control of the court, to answer to any demand which may be established against the defendant by the final judgment of the court. But, if there is no appearance of the defendant, and no service of process on him, the case becomes, in its essential nature, a proceeding in rem, the only

effect of which is to subject the property attached to the payment of the demand which the court may find to be due to the plaintiff." (Cooper vs. Reynolds, 10 Wall., 308.) In an ordinary attachment proceedings, if the defendant is not personally served, the preliminary seizure is to be considered necessary in order to confer jurisdiction upon the court. In this case the lien on the property is acquired by the seizure; and the purpose of the proceedings is to subject the property to that lien. If an lien already exists, whether created by mortgage, contract, or statute, the preliminary seizure is not necessary; and the court proceeds to enforce such lien in the manner provided by law precisely as though the property had been seized upon attachment. (Roller vs. Holly, 176 U.S., 398, 405; 44 L. ed., 520.) It results that mere circumstance that an attachment the property may be seized at the inception of the proceedings, while in the foreclosure suit it is not taken into legal custody until the time comes for the sale, does not materially affect the fundamental principle involved in both cases, which is that the court is here exercising a jurisdiction over the property in a proceeding directed essentially in rem. Passing now to a consideration of the jurisdiction of the Court of First Instance in a mortgage foreclosure, it is evident that the court derives its authority to entertain the action primarily from the statutes organizing the court. The jurisdiction of the court, in this most general sense, over the cause of action is obvious and requires no comment. Jurisdiction over the person on the defendant, if acquired at all in such an action, is obtained by the voluntary submission of the defendant or by the personal service of process upon him within the territory where the process is valid. If, however, the defendant is nonresident and, remaining beyond the range of the personal process of the court, refuses to come in voluntarily, the court never acquires jurisdiction over the person at all. Here the property itself is in fact the sole thing which is impleaded and is the responsible object which is the subject of the exercise of judicial power. It follows that the jurisdiction of the court in such case is based exclusively on the power which, under the law, it possesses over the property; and any discussion relative to the jurisdiction of the court over the person of the defendant is entirely apart from the case. The jurisdiction of the court over the property, considered as the exclusive object of such an action, is evidently based upon the following conditions and considerations, namely : (1) that the property is located within the district; (2) that the purpose of the litigation is to subject the property by sale to an obligation fixed upon it by the mortgage; and (3) that the court at a proper stage of the proceedings takes the property into its custody, if necessary, and exposes it to sale for the purpose of satisfying the mortgage debt. An obvious corollary is that no other relief can be granted in this proceeding than such as can be enforce enforced against the property. We may then, from that has been stated, formulate the following propositions relative to the foreclosure proceeding against the property of a nonresident mortgagor who fails to come in and submit himself personally to the jurisdiction of the court: (1) That the jurisdiction of the court is derived from the power which it possesses over the property; (II) that jurisdiction over the person is not acquired and is nonessential; (III) that the relief granted by the court must be limited to such as can be enforced against the property itself.

It is important that the bearing of these propositions be clearly apprehended, for there are many expressions in the American reports from which it might be inferred that the court acquires personal jurisdiction over the person of the defendant by publication and notice; but such is not the case. In truth the proposition that the jurisdiction over the person of a nonresident cannot be acquired by publication and notice was never clearly understood even in the American courts until after the decision had been rendered by the Supreme Court of the United States in the leading case of Pennoyer vs. Neff (95 U.S., 714; 24 L. ed. 565). In the light of that decision, and of other decisions which have subsequently been rendered in that and other courts, the proposition that the jurisdiction over the person cannot be thus acquired by publication and notice is no longer open to question; and it is now fully established that a personal judgment upon constructive or substituted service against a nonresident who does not appear is wholly invalid. This doctrine applies to all kinds of constructive or substituted process, including service by publication and personal service outside of the jurisdiction in which the judgment is rendered; and the only exception seems to be found in the case where the nonresident defendant has expressly or impliedly consented to the mode of service. (Note to Raher vs. Raher, 35 L.R.A. [N.S.], 292; see also 50 L.R.A., 585; 35 L.R.A., [N.S.] 312.) The idea upon which the decision in Pennoyer vs. Neff (supra) proceeds is that the process from the tribunals of one State cannot run into other States or countries and that due process of law requires that the defendant shall be brought under the power of the court by service of process within the State, or by his voluntary appearance, in order to authorize to court to pass upon the question of his personal liability. The doctrine established by the Supreme Court of the United States on this point, being based upon the constitutional conception of due process of law, is binding upon the courts of the Philippine Islands. Involved in this decision is the principle that the proceedings in rem or quasi in rem against a nonresident who is not served personally within the state, and who does not appear, the relief must be confined to the res, and the court cannot lawfully render a personal judgment against him. (Dewey vs. Des Moines, 173 U.S., 193; 43 L. ed., 665; Heidritter vs. Elizabeth Oil Cloth Co., 112 U.S., 294; 28 L. ed., 729.) Therefore in an action to foreclose a mortgage against a nonresident, upon whom service has been effected exclusively by publication, no personal judgment for the deficiency can be entered. (Latta vs. Tutton, 122 Cal., 279; Blumberg vs. Birch, 99 Cal., 416.) It is suggested in the brief of the appellant that the judgment entered in the court below offends against the principle just stated and that this judgment is void because the court in fact entered a personal judgment against the absent debtor for the full amount of the indebtedness secured by the mortgage. We do not so interpret the judgment. In a foreclosure proceeding against a nonresident owner it is necessary for the court, as in all cases of foreclosure, to ascertain the amount due, as prescribed in section 256 of the Code of Civil Procedure, and to make an order requiring the defendant to pay the money into court. This step is a necessary precursor of the order of sale. In the present case the judgment which was entered contains the following words:

"Because it is declared that the said defendant Engracio Palanca Tanquinyeng y Limquingco, is indebted in the amount P249,355.32, plus the interest, to the 'Banco Espaol-Filipino' . . . before said defendant is ordered to deliver the above amount etc., etc." This is not the language of a personal judgment. Instead it is clearly intended merely as compliance with the requirement that the amount due shall be ascertained and that the defendant shall be required to pay it. As further evidence of this it may be observed that according to the Code of Civil Procedure a personal judgment against the debtor for the deficiency is not to be rendered until after the property has been sold and the proceeds applied to the mortgage debt (sec. 260) The conclusion upon this phase is that whatever may be the effect in other respects of the failure of the clerk of the Court of First Instance to mail the proper papers to the defendant in Amoy, China, such irregularity could in no wise impair or defeat the jurisdiction of the court, for in our opinion that jurisdiction rests upon a basis much more secure than would be supplied by any form of notice that could be given to a resident of a foreign country. Before leaving this branch of the case, we wish to observe that we are fully aware that many reported cases can be cited in which it is assumed that the question of the sufficiency of publication or notice in a case of this kind is a question affecting the jurisdiction of the court, and the court sometimes said to acquire jurisdiction by virtue of the publication. This phraseology was undoubtedly originally adopted by the court because of the analogy between service by publication and personal service of process upon the defendant; and, as has already been suggested, prior to the decision of Pennoyer vs. Neff (supra) the difference between the legal effects of the two forms of service was obscure. It is accordingly not surprising that the modes of expression which had already been molded into legal tradition before that case was decided have been brought down to the present day. But it is clear that the legal principle here involved is not effected by the peculiar language in which the courts have expounded their ideas. We now proceed to a discussion of the question whether the supposed irregularity in the proceedings was of such gravity as to amount to a denial of that "due process of law" which was secured by the Act of Congress in force in these Islands at the time this mortgage was foreclosed. (Act of July 1, 1902, sec. 5.) In dealing with questions involving the application of the constitutional provisions relating to due process of law the Supreme Court of the United States has refrained from attempting to define with precision the meaning of that expression, the reason being that the idea expressed therein is applicable under so many diverse conditions as to make any attempt at precise definition hazardous and unprofitable. As applied to a judicial proceeding, however, it may be laid down with certainty that the requirement of due process is satisfied if the following conditions are present, namely; (1) There must be a court of tribunal clothed with judicial power to hear and determine the matter before it; (2) jurisdiction must be lawfully acquired over the person of the defendant or over the property which is the subject of the proceeding; (3) the defendant must be given an opportunity to be heard; and (4) judgment must rendered upon lawful hearing.

Passing at once to the requisite that the defendant shall have an opportunity to be heard, we observe that in a foreclosure case some notification of the proceedings to the nonresident owner, prescribing the time within which appearance must be made, is everywhere recognized as essential. To answer this necessity the statutes generally provide for publication, and usually in addition thereto, for the mailing of notice to the defendant, if his residence is known. Though commonly called constructive, or substituted service, such notification does not constitute a service of process in any true sense. It is merely a means provided by law whereby the owner may be admonished by his property is the subject of judicial proceedings and that it is uncumbent upon him to take such steps as he sees fit to protect it. In speaking of notice of this character a distinguished master of constitutional law has used the following language: " . . . if the owners are named in the proceedings, and personal notice is provided for, it is rather from tenderness of their interests, and in order to make sure that the opportunity for a hearing shall be lost to them, than from any necessity that the case shall assume that form." (Cooley on Taxation [2d. ed.], 527, quoted in Leigh vs. Green, 193 U.S., 79, 80.) It will be observed that this mode of notification does not involve any absolute assurance that the absent owner shall thereby receive actual notice. The periodical containing the publication may never in fact come to his hands, and the chances that he should discover the notice may often be very slight. Even where notice is sent by mail the probability of his receiving it, though much increased, is dependent upon the correctness of the address to which it is forwarded as well as upon the regularity and security of the mail service. It will be noted, furthermore, that the provision of our law relative to the mailing of notice does not absolutely require the mailing of notice unconditionally and in every event, but only in the case where the defendant's residence is known. In the light of all these facts, it is evident that the actual notice to the defendant in cases of this kind is not, under the law, to be considered absolutely necessary. The idea upon which the law proceeds in recognizing the efficacy of a means of notification which may fall short of actual notice is apparently this: Property is always assumed to be in the possession of its owner, in person or by agent; and he may be safely held, under certain conditions, to be affected with knowledge that proceedings have been instituted for its condemnation and sale. "It is the duty of the owner of real estate, who is a nonresident, to take measures that in some way he shall be represented when his property is called into requisition, and if he fails to do this and fails to get notice by the ordinary publications which have usually been required in such cases, it is his misfortune, and he must abide the consequences." (6 R.C.L., sec. 445 [p.450]). It has been well said by an American court: "If properly of a nonresident cannot be reached by legal process upon constructive notice, then our statutes were passed in vain, and are mere empty legislative declarations, without either force, or meaning; for if the person is not within

the jurisdiction of the court, no personal judgment can be rendered, and if the judgment cannot operate upon the property, then no effective judgment can be rendered, so that the result would be that the courts would be powerless to assist a citizen against a nonresident. Such a result would be a deplorable one." (Quarl vs. Abbett, 102 Ind., 233; 52 Am. Rep., 662, 667.) It is, of course, universally recognized that the statutory provisions relative to publication or other form of notice against a nonresident owner should be complied with; and in respect to the publication of notice in the newspaper it may be stated that strict compliance with the requirements of the law has been held to be essential. In Guaranty Trust etc. Co. vs. Green Cove etc., Railroad Co. (139 U.S., 137, 138), it was held that where newspaper publication was made for 19 weeks, when the statute required 20, the publication was insufficient. With respect to the provisions of our statute, relative to the sending of notice by mail, the requirement is that the judge shall direct that the notice be deposited in the mail by the clerk of the court, and it is not in terms declared that the notice must be deposited in the mail. We consider this to be some significance; and it seems to us that, having due regard to the principles upon which the giving of such notice is required, the absent owner of the mortgaged property must, so far as the due process of law is concerned, take the risk incident to the possible failure of the clerk to perform his duty, somewhat as he takes the risk that the mail clerk or the mail carrier might possibly lose or destroy the parcel or envelope containing the notice before it should reach its destination and be delivered to him. This idea seems to be strengthened by the consideration that in placing upon the clerk the study of sending notice by mail, the performance of that act is put effectually beyond the control of the plaintiff in the litigation. At any rate it is obvious that so much of section 339 of the Code of Civil Procedure as relates to the sending of notice by mail was complied with when the court made the order. The question as to what may be the consequences of the failure of the record to show the proof of compliance with that requirement will be discussed by us further on. The observations which have just been made lead to the conclusion that the failure of the clerk to mail the notice, if in fact he did so fail in his duty, is not such as irregularity as amounts to a denial of due process of law; and hence in our opinion that irregularity, if proved, would not avoid the judgment in this case. Notice was given by publication in a newspaper and this is the only form of notice which the law unconditionally requires. This is our opinion is all that was absolutely necessary to sustain the proceedings. It will be observed that in considering the effect of this irregularity, it makes a difference whether it be viewed as a question involving jurisdiction or as a question involving due process of law. In the matter of jurisdiction there can be no distinction between the much and the little. The court either has jurisdiction or it has not; and if the requirement as to the mailing of notice should be considered as a step antecedent to the acquiring of jurisdiction, there could be no escape from the conclusion that the failure to take that step was fatal to the validity of the judgment. In the application of the idea of due

process of law, on the other hand, it is clearly unnecessary to be so rigorous. The jurisdiction being once established, all that due process of law thereafter requires is an opportunity for the defendant to be heard; and as publication was duly made in the newspaper, it would seem highly unreasonable to hold that the failure to mail the notice was fatal. We think that in applying the requirement of due process of law, it is permissible to reflect upon the purposes of the provision which is supposed to have been violated and the principle underlying the exercise of judicial power in these proceedings. Judged in the light of these conceptions, we think that the provision of the Act of Congress declaring that no person shall be deprived of his property without due process of law has not been infringed. In the progress of this discussion we have stated the two conclusions; (1) that the failure of the clerk to send the notice to the defendant by mail did not destroy the jurisdiction of the court and (2) that such irregularity did not infringe the requirement of due process of law. As a consequence of these conclusions of irregularity in question is in some measure shorn of its potency. It is still necessary, however, to consider its effects considered as a simple irregularity of procedure; and it would be idle to pretend that even in this aspect the irregularity is not grave enough. From this point of view, however, it is obvious that any motion to vacate the judgment on the ground of the irregularity in question must fail unless it shows that the defendant was prejudiced by that irregularity. The least, therefore, that can be required of the proponent of such a motion is to show that he had a good defense against the action to foreclose the mortgage. Nothing of the kind is, however, shown either in the motion or in the affidavit which accompanies the motion. An application to open or vacate a judgment because of an irregularity or defect in the proceedings is usually required to be supported by an affidavit showing the grounds on which the relief is sought, and in addition to this showing also a meritorious defense to the action. It is held that a general statement that a party has a good defense to the action is insufficient. The necessary facts must be averred. Of course if a judgment is void upon its face a showing of the existence of a meritorious defense is not necessary. (10 R.C.L., 718.) The lapse of time is also a circumstance deeply affecting this aspect of the case. In this connection we quote the following passage from an encyclopedic treatise now in course of publication: "Where, however, the judgment is not void on its face, and may therefore be forced if permitted to stand on the record, courts in many instances refuse to exercise their quasi equitable powers to vacate a judgment after the lapse of the term at which it was entered, except in clear cases, to promote the ends of justice, and where it appears that the party making the application is himself without fault and has acted in good faith and with ordinary diligence. Laches on the part of the applicant, if unexplained, is deemed sufficient ground for refusing the relief to which he might otherwise be entitled. Something is due to the finality of judgments, and acquiescence or unnecessary delay is fatal to motions of this character, since courts are always reluctant to interfere with judgments, and especially where they have been executed or satisfied. The moving party has burden of showing diligence,

and unless it is shown affirmatively the court will not ordinarily exercise its discretion in his favor." (15 R.C. L., 694, 695.) It is stated in the affidavit that the defendant, Engracio Palanca Tanquinyeng y Limquingco, died on January 29, 1910. The mortgage under which the property was sold was executed far back in 1906; and in the proceedings in the foreclosure were closed by the order of the court confirming the sale dated August 7, 1908. It passes the rational bounds of human credulity to suppose that a man who had placed a mortgage upon property worth nearly P300,000 and had then gone away from the scene of his life activities to end his days in the city of Amoy, China, should have long remained in ignorance of the fact that the mortgage had been foreclosed and the property sold, even supposing that he had no knowledge of those proceedings while they were being conducted. It is more in keeping with the ordinary course of things that he should have acquired information as to what was transpiring in his affairs at Manila; and upon the basis of this rational assumption we are authorized, in the absence of proof to the contrary, to presume that he did have, or soon acquired, information as to the sale of his property. The Code of Civil Procedure, indeed, expressly declares that there is a presumption that things have happened according to the ordinary habits of life (sec. 334 [26]); and we cannot conceive of a situation more appropriate than this for applying the presumption thus defined by the lawgiver. In support of this presumption, as applied to the present case, it is permissible to consider the probability that the defendant may have received actual notice of these proceedings from the unofficial notice addressed to him in Manila which was mailed by an employee of the bank's attorneys. Adopting almost the exact words used by the Supreme Court of the United States in Grannis vs. Ordean (234 U.S., 385; 58 L. ed., 1363), we may say that in view of the well-known skill of postal officials and employees in making proper delivery of letters defectively addressed, we think the presumption is clear and strong that this notice reached the defendant, there being no proof that it was ever returned by the postal officials as undelivered. And if it was delivered in Manila, instead of being forwarded to Amoy, China, there is a probability that the recipient was a person sufficiently interested in his affairs to send it or communicate its contents to him. Of course if the jurisdiction of the court or the sufficiency of the process of law depended upon the mailing of the notice by the clerk, the reflections in which we are now indulging would be idle and frivolous; but the considerations mentioned are introduced in order to show the propriety of applying to this situation the legal presumption to which allusion has been made. Upon that presumption, supported by this circumstances of this case, we do not hesitate to found the conclusion that the defendant voluntarily abandoned all thought of saving his property from the obligation which he had placed upon it; that knowledge of the proceedings should be imputed to him; and that he acquiesced in the consequences of those proceedings after they had been accomplished. Under these circumstances it is clear that the merit of this motion is, as we have already stated, adversely affected in a high degree by the delay in asking for relief. Not is it an adequate reply to say that the proponent of this motion is a administrator who only qualified

a few months before this motion was made. No disability on the part of the defendant himself existed from the time when the foreclosure was effected until his death; and we believe that the delay in the appointment of the administrator and the institution of this action is a circumstance which is imputable to the parties in interest whoever they may have been. Of course in the minor heirs had instituted an action in their own right to recover to property, it would have been different. It is, however, argued that the defendant has suffered prejudice by reason of the fact that the bank became the purchaser of the property at the foreclosure sale for a price greatly below that which had been agreed upon in the mortgage as the upset price of the property. In this connection, it appears that in article nine of the mortgage which was the subject of this foreclosure, as amended by the notarial document of July 19, 1906, the parties to this mortgage made a stipulation to the effect that the value therein placed upon the mortgaged properties should served as a basis of sale in case the debt should remain unpaid and the bank should proceed to a foreclosure. The upset price stated in that stipulation for all the parcels involved in this foreclosure was P286,000. It is said in behalf of the appellant that when the bank bought in the property for the sum of P110,200 it violated that stipulation. It has been held by this court that a clause in a mortgage providing for a tipo, or upset the price, does not prevent a foreclosure, nor affect the validity of a sale made in the foreclosure proceedings. (Yangco vs. Cruz Herrera and Wy Piaco, 11, Phil. Rep., 402, Banco-Espaol Filipino vs. Donaldson, Sim & Co., 5 Phil. Rep. 418.) In both the cases here cited the property was purchased at the foreclosure sale, not by the creditor or mortgagee, but a third party. Whether the same rule should be applied in a case where the mortgagee himself becomes the purchaser has apparently not been decided by this court in any reported decision, and this question need not here be considered, since it is evident that if any liability was incurred by the bank by the purchasing for a price below that fixed in the stipulation, its liability was a personal liability derived from the contract of mortgage; and as we have already demonstrated such a liability count not be the subject of adjudication in an action where the court had no jurisdiction over the person of the defendant. If the plaintiff bank became liable to account for the difference between the upset price at which it bought in the property, that liability remains unaffected by the disposition which the court made of this case; and the fact that the bank may have violated such an obligation can in no wise affect the validity of the judgment entered in the Court of First Instance. In connection with the entire failure of the motion to show either a meritorious defense to the action or that the defendant had suffered any prejudice of which the law can take notice, we may be permitted to add that in our opinion a motion of this kind, which proposes to unsettle judicial proceedings long ago closed, can not be considered with favor, unless based upon the grounds which appeal to the conscience of the court. Public policy requires that judicial proceedings be upheld. The maxim here applicable is non quieta movere. As was once said by Judge Brewer, afterwards a member of the Supreme Court of the United States:

"Public policy requires that judicial proceedings be upheld, and titles obtained in those proceedings be safe from the ruthless hand of collateral attack. If technical defects are adjudged potent to destroy such titles, a judicial sale will never realized the value of the property, for no prudent man will risk his money in bidding for and buying that title which he has reason to fear may years thereafter be swept away through some occult and not readily discoverable defect." (Martin vs. Pond, 30 Fed., 15.) In the case where that language was used an attempt was made to annul certain foreclose proceedings on the ground that the affidavit upon which the order of publication was based erroneously stated that the absent partly was a resident of a certain town in the State of Kansas, when he was in fact residing in another State. It was held that this mistake did not affect the validity of the proceedings. In the preceding discussion we have assumed that the clerk failed to send the notice by post as required by the order of the court. We know proceed to consider whether this is a proper assumption; and the proposition which we propose to establish is that there is a legal presumption that the clerk performed his duty as the ministerial officer of the court, which presumption is not overcome by any other facts appearing in the cause. In subsection 14 of section 334 of the Code of Civil Procedure it is declared that there is presumption "that official duty has been regularly performed;" and in subsection 18 it is declared that there is a presumption "that the ordinary course of business has been followed." These presumption are of course in no sense novelties as they express ideas which have always been recognized. Omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium. There is therefore clearly a legal presumption that the clerk performed his duty about mailing this notice; and we think that strong considerations of policy require that this presumption should be allowed to operate with full force under the circumstances of this case. A party to an action has no control over the clerk of the court; and has no right to meddle unduly with the business of clerk in the performance of his duties. Having no control over this officer, the litigant must depend upon the court to see that the duties imposed in the clerk are performed. Other considerations are less potent contribute to strengthen the conclusion just stated. There is no principle of law better settled than that after jurisdiction has once been acquired, every act of a court of general jurisdiction shall be presumed to have been rightly done. This rule is applied to every judgment or decree rendered in the various stages of the proceedings from their initiations to their completion (Voorhees vs. United States Bank, 10 Pet., 314; 35 U.S., 449); and if the record is silent with respect to any fact which must have been established before the court could have rightly acted, it will be presumed that such fact was properly brought to its knowledge. (The Lessee of Grignon vs. Astor, 2 How., 319; 11 L. ed., 283.) "In making the order of sale [of the real estate of a decedent] the court are presumed to have adjudged every question necessary to justify such order or decree, viz: The death of the owners; that the petitioners were his administrators; that the

personal estate was insufficient to pay the debts of the deceased; that the private acts of Assembly, as to the manner of sale, were within the constitutional power of the Legislature, and that all the provisions of the law as to notices which are directory to the administrators have been complied with. . . . The court is not bound to enter upon the record the evidence on which any fact was decided." (Florentine vs. Barton, 2 Wall., 210; 17 L. ed., 785.) Especially does all his apply after long lapse of time. Applegate vs. Lexington and Carter County Mining Co. (117 U.S., 225) contains as instructive discussion in a case analogous to that which is now before us. It there appeared that in order to foreclose a mortgage in the State of Kentucky against a nonresident debtor it was necessary that publication should be made in a newspaper for a specified period of time, also that the order requiring the defendant to appear should be posted at the front door of the court house and be published on some Sunday, immediately after divine service, in such church as the court should direct. In a certain action judgment had been entered against a nonresident, after a publication in pursuance of this provisions. Many years later the validity of the proceedings was called in question in another action. It was proved from the files of an ancient periodical that publication had been made in its columns as required by law; but no proof was offered to show the publication of the order at the church, or the posting of it at the front door of the courthouse. It was insisted by one of the parties that the judgment of the court was void for lack of jurisdiction. But the Supreme Court of the United States said: "The court which made the decree . . . was a court of general jurisdiction. Therefore every presumption not inconsistent with the record is to be indulged in favor of its jurisdiction. . . . It is to be presumed that the court before making its decree took care to see that its order for constructive service, on which its right to make the decree depended, had been obeyed. It is true that in this case the former judgment was the subject of collateral, or indirect attack, while in the case at bar the motion to vacate the judgment is a direct proceeding for relief against it. The same general presumption, however, is indulged in favor of the judgment of a court of general jurisdiction, whether it is the subject of direct or indirect attack, the only difference being that in case of indirect attack the judgment is conclusively presumed to be a valid unless the record affirmatively shows it to be void, while in case of direct attack the presumption in favor of its validity may in certain cases be overcome by proof extrinsic to the record. The presumption that the clerk performed his duty and that the court made its decree with knowledge that the requirements of law had been complied with appear to be amply sufficient to support the conclusion that the notice was sent by the clerk as required by the order. It is true that there ought to be found among the papers on file in this cause an affidavit, as required by section 400 of the Code of Civil Procedure, showing that the order was in fact so sent by the clerk; and no such affidavit appears. The record is therefore silent where it ought to speak. But the very purpose of the law in recognizing these presumptions is to enable the court to sustain a prior judgment in the face of such an omission. If we were to hold that the judgment in this case is void because the proper affidavit is

not present in the file of papers which we call the record, the result would be that in the future every title in the Islands resting upon a judgment like the now before us would depend, for its continued security, upon the presence of such affidavit among the papers and would be liable at any moment to be destroyed by the disappearance of that piece of paper. We think that no court, with proper regard for the security of judicial proceedings and for the interests which have by law been confided to the courts, would incline to favor such a conclusion. It our opinion the proper course in a case of this kind is to hold h that the legal presumption that the clerk performed his duty still maintains notwithstanding the absence from the record of the proper proof of that fact. In this connection it is important to bear in mind that under the practice prevailing in the Philippine Islands the word "record" is used in a loose and broad sense, as indicating the collective mass of papers which contain the history of all the successive steps taken in case and which are finally deposited in the archives of the clerk's office as a memorial of the litigation. It is a matter of general information that no judgment roll, or book of final record, is commonly kept in our courts for the purpose of recording the pleadings and principal proceedings in actions which have been terminated; and in particular, no such record is kept in the Court of First Instance of the city of Manila. There is, indeed, a section of the Code of Civil Procedure which directs that such a book of final record shall be kept; but this provision has, a matter of common knowledge, been generally ignored. The result is that in the present case do not have the assistance of the recitals of such a record to enable us to pass upon the validity of this judgment and as already stated the question must be determined by examining the papers contained in the entire file. But it is insisted by the counsel for this motion that the affidavit of Bernardo Chan y Garcia showing that upon April 4, 1908, he sent a notification through the mail addressed to the defendant at Manila, Philippine Islands, should be accepted as affirmative proof that the clerk of the court failed in his duty and that, instead of himself sending that the requisite notice through the mail, he relied upon Bernardo to send it for him. We do not think that this is by means a necessary inference. Of course if it had affirmatively appeared that the clerk himself had attempted to comply with this order and had directed the notification to Manila when he would have directed it to Amoy, this would be conclusive that he had failed to comply with the exact terms of the order; but such is not this case. That the clerk of the attorneys for the plaintiff erroneously sent a notification to the defendant at a mistaken address affords in our opinion very slight basis for supposing that the clerk may not have sent notice to right address. There is undoubtedly good authority to support the position that when the record states the evidence or makes an averment with reference to a jurisdictional fact, it will not be presumed that there was other or different evidence respecting the fact, or that the fact was otherwise that as stated. If, to give an illustration, it appears from the return of the officer that the summons was served at a particular place of in a particular manner, it will not be presumed that service also made in another place or in a different manner; or if it appears that service was made a person other than the defendant, it will not be presumed, in the silence of the record, that it was made

upon the defendant also (Galpin vs. Page, 18 Wall., 350, 366; Settlemier vs. Sullivan, 97 U.S., 444,449). While we believe that these propositions are entirely correct as applied to the case where the person making the return is the officer who is by law required to make the return, we do not think that it is properly applicable where, as in the present case, the affidavit was made by a person who, so far as the provisions of law are concerned, was a mere intermeddler. The last question of importance which we propose to consider is whether the motion in the cause is admissible as a proceeding to obtain relief in such a case as this. If the motion prevails the judgment of July 2, 1908, and all subsequent proceedings will be set aside, and the litigation will be renewed, proceeding again from the date mentioned as if the progress of the action had not been interrupted. The proponent of the motion does not ask the favor of being permitted to interpose a defense. His purpose is merely to annul the effective judgment of the court, to the end that the litigation may again resume it regular course. There is only one section of the Code of Civil Procedure which expressly recognized the authority of a Court of First Instance to set aside a final judgment and permit a renewal of the litigation in the same cause. This is as follows: "SEC. 113. Upon such term as may be just the court may relieve a party on his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect; Provided, That the application therefor be made within the reasonable time, but in no case exceeding six months after such judgment order, or proceeding was taken." An additional remedy by petition to the Supreme Court is supplied by section 513 on the same Code. The first paragraph of this section, is in so far as pertinent to this discussion, provides as follows: "When a judgment is rendered by a Court of First Instance upon default, and a party thereto is unjustly deprived of a hearing fraud, accident, mistake or excusable negligence, and the Court of First Instance which rendered the judgment has finally adjourned so that no adequate remedy exists in that court, the party so deprived of hearing may present his petition to the Supreme Court within sixty days after he first learns of the rendition of such judgment, and not thereafter, setting forth the facts and praying to have judgment set aside. . . . " It is evident that the proceeding contemplated in this section is intended to supplement the remedy provided by section 113; and we believe that the conclusion irresistible that there is no other means recognized by law whereby a defeated party can, by a proceeding in the same cause, procure a judgment to be set aside, with a view to the renewal of the litigation. The Code of Civil Procedure purports to be a complete system of practice in civil causes, and it contains provisions describing with much fullness the various steps to be taken in the conduct of such proceedings. To this end it defines with precision the method of beginning, conducting, and concluding the civil action of whatever species; and by section 795 of the same Code it is declared that the procedure in all

civil action shall be in accordance with the provisions of this Code. We are therefore of the opinion that the remedies prescribed in sections 113 and 513 are exclusive of all others, so far as relates to the opening and continuation of a litigation which has been once concluded. The motion in the present case does not conform to the requirements of either of these provisions; and the consequence is that in our opinion the action of the court of First Instance in dismissing the motion was proper. If the question were admittedly one relating merely to an irregularity of procedure, we cannot suppose that this proceeding would have taken the form of a motion in the cause, since it is clear that, if based on such an error, the motion came too late for relief in the Court of First Instance. But as we have already seen, the motion attacks the judgment of the court as void for warrant of jurisdiction over the defendant. The idea underlying the motion therefore is that inasmuch as the judgment is a nullity it can be attacked in any way and at any time. If the judgment were in fact void upon its face, that is, if it were shown to by nullity by virtue of its own recitals, there might possibly be something in this. Where a judgment or judicial order is void in this sense it may be said to be a lawless thing, which can be treated as an outlaw and slain at sight, or ignored wherever and whenever it exhibits its head. But the judgment in question is not void in any such sense. It is entirely regular in form, and the alleged defect is one which is not apparent upon its face. It follows that even if the judgment could be shown could be shown to be void for want of jurisdiction, or for lack of due process of law, the party aggrieved thereby is bound to resort to some appropriate proceedings to obtain relief. Under accepted principles of law and practice, long recognized in American courts, a proper remedy in such case, after the time for appeal or review has passed, is for the aggrieved party to bring an action to enjoin the judgment, if not already carried into effect; or if the property has already been disposed of he may institute to recover it. In every situation of this character an appropriate remedy is at hand; and if property has been taken without due process, the law concedes due process to recover it. We accordingly hold that, assuming the judgment to have been void as alleged by the proponent of this motion, the proper remedy was by an original proceeding and not by motion in the cause. As we have already seen our Code of Civil Procedure defines the conditions under which relief against a judgment may be obtained by motion; and we think it would only be productive of confusion for this court to recognize such a proceeding as proper under conditions different from those defined by law. Upon the point of procedure here involved, we refer to the case of People vs. Harrison (84 Cal., 607) wherein it was held that a motion will not lie to vacate a judgment after the lapse of the time limited by statute if the judgment is not void on its face; and in all cases, after the lapse of such time, when an attempt is made to vacate the judgment by a proceeding in court for that purpose an action regularly brought is preferable, and should be required. It will be noted that section 113 of the Code of Civil Procedure was taken verbatim from the California Code (sec. 473).

The conclusions stated in this opinion indicate that the judgment appealed from is without error, and the same is accordingly affirmed, with costs. So ordered. Arellano, C.J. Torres, Carson, and Avancea, JJ., concur. Separate Opinions MALCOLM, J., dissenting: I dissent. It will not make me long to state my reason. An immutable attribute the fundamental idea of due process of law is that no man shall be condemned in his person or property without notice and an opportunity of being heard in his defense. Protection of the parties demands a strict and an exact compliance this constitutional provision in our organic law and of the statutory provisions in amplification. Literally hundreds or precedents could be cited in support of these axiomatic principles. Where as in the instant case the defendant received no notice and had no opportunity to be heard, certainly we cannot say that there is due process of law. Resultantly, "A judgment which is void upon its face, and which requires only in inspection of the judgment roll to demonstrate it want of vitality is a dead limb upon the judicial tree, which should be lopped off, if the power so to do exists. It can bear no fruit to the plaintiff, but is a constant menace to the defendant." (Mills vs. Dickson, 6 Rich. [S.C.], 487.)

[G.R. Nos. L-68379-81. September 22, 1986.] EVELIO B. JAVIER, petitioner, vs. THE COMMISSION ON ELECTIONS, and ARTURO F. PACIFICADOR, respondents. Raul S. Roco and Lorna Patajo-Kapunan for petitioner. SYLLABUS 1. REMEDIAL LAW; DISMISSAL OF ACTION; ISSUES BECAME MOOT AND ACADEMIC; NOT A CASE OF. The abolition of the Batasang Pambansa and the disappearance of the office in dispute between the petitioner and the private respondent both of whom have gone their separate ways could be a convenient justification for dismissing this case. But there are larger issues involved that must be resolved now, once and for all, not only to dispel the legal ambiguities here raised. The more important purpose is to manifest in the clearest possible terms that this Court will not disregard and in effect condone wrong on the simplistic and tolerant pretext that the case has become moot and academic. The Supreme Court is not only the highest arbiter of legal questions but also the conscience of the government. The citizen comes to us in quest of law but we must also give him justice. The two are not always the same. There are times when we cannot grant the latter because the issue has been settled and decision is no longer possible according to the law. But there are also times when although the dispute has disappeared, as in this case, it nevertheless cries out to be resolved. Justice demands that we act then, not only for the vindication of the outraged right, though gone, but also for the guidance of and as a restraint upon the future. 2. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; GIVEN FULL AUTHORITY TO HEAR AND DECIDE CASES FROM BEGINNING TO END AND ALL MATTERS RELATED THERETO. We believe that in making the Commission on Elections the sole judge of all contests involving the election, returns and qualifications of the members of the Batasang Pambansa and elective provincial and city officials, the Constitution intended to give it full authority to hear and decide these cases from beginning to end and on all matters related thereto, including those arising before the proclamation of the winners. 3. ID.; ID.; "CONTEST"; SHOULD NOT BE GIVEN A RESTRICTIVE MEANING. The word "contests" should not be given a restrictive meaning; on the contrary, it should receive the widest possible scope conformably to the rule that the words used in the Constitution should be interpreted liberally. As employed in the 1973 Constitution, the term should be understood as referring to any matter involving the title or claims as title to an elective office, made before or after proclamation of the winner, whether or not the contestant is claiming the office in dispute. Needless to stress, the term should be given a consistent meaning and understood in the same sense under both Section 2(2) and Section 3 of Article XII-C of the Constitution.

4. ID.; ID.; PHRASE "ELECTION RETURNS AND QUALIFICATION," DEFINED IN THE SAME SENSE UNDER SEC. 2(2) AND SEC. 3, ART. XII-C, CONSTITUTION. The phrase "election, returns and qualifications" should be interpreted in its totality as referring to all matters affecting the validity of the contestee's title. But if it is necessary to specify, we can say that "election" referred to the conduct of the polls, including the listing of voters, the holding of the electoral campaign, and the casting and counting of the votes; "returns" to the canvass of the returns and the proclamation of the winners, including questions concerning the composition of the board of canvassers and the authenticity of the election returns; and "qualifications" to matters that could be raised in a quo warranto proceeding against the proclaimed winner, such as his delivery or ineligibility or the inadequacy of his certificate of candidacy. 5. ID.; ID.; ISSUED ON ELECTION, RETURNS AND QUALIFICATIONS; TO BE HEARD AND DECIDED ONLY BY SITTING EN BAND INSOFAR AS THEY APPLIED TO MEMBERS OF B.P. All these came under the exclusive jurisdiction of the Commission on Elections insofar as they applied to the members of the defunct Batasang Pambansa and, under Article XII-C, Section 3, of the 1973 Constitution, could be heard and decided by it only en banc. 6. ID.; ID.; ID.; CASES INVOLVING MEMBERS OF B.P. TO BE HEARD AND DECIDED BY SITTING EN BANC; PURPOSE. As correctly observed by the petitioner, the purpose of Section 3 in requiring that cases involving members of the Batasang Pambansa be heard and decided by the Commission en banc was to insure the most careful consideration of such cases. Obviously, that objective could not be achieved if the Commission could act en banc only after the proclamation had been made, for it might then be too late already. We are all-too-familiar with the grab-theproclamation-and-delay-the-protest strategy of many unscrupulous candidates which has resulted in the frustration of the popular will and the virtual defeat of the real winners in the election. The respondent's theory would make this gambit possible for the pre-proclamation proceedings, being summary in nature, could be hastily decided by only three members in division, without the cause and deliberation that would have otherwise been observed by the Commission en banc. After that, the delay. The Commission en banc might then no longer be able to rectify in time the proclamation summarily and not very judiciously made by the division. While in the end the protestant might be sustained, he might find himself with only a Phyrric victory because the term of his office would have already expired. 7. ID.; BILL OF RIGHTS; DUE PROCESS GUARANTY; VIOLATED IN CASE AT BAR. Another matter deserving the highest consideration of this Court but accorded cavalier attention by the respondent Commission on Elections is due process of law, that ancient guaranty of justice and fair play which is the hallmark of the free society. Commissioner Opinion ignored it. Asked to inhibit himself on the ground that he was formerly a law partner of the private respondent, he obstinately insisted on participating in the case, denying he was biased.

8. ID.; ID.; COLD NEUTRALITY OF AN IMPARTIAL JUDGE; INDISPENSABLE IMPERATIVE OF DUE PROCESS. This Court has repeatedly and consistently demanded "the cold neutrality of an impartial judge" as the indispensable imperative of due process. To bolster that requirement we have held that the judge must not only be impartial but must also appear to be impartial as an added assurance to the parties that his decision will be just. The litigants are entitled to no less than that. They should be sure that when their rights are violated they can go to a judge who shall give them justice. They must trust the judge, otherwise they will not go to him at all. They must believe in his sense of fairness, otherwise they will not seek his judgment. Without such confidence, there would be no point in invoking his action for the justice they expect. 9. ID.; ID.; DUE PROCESS; INTENDED TO INSURE COMPLIANCE WITH RUDIMENTS OF FAIR PLAY. Due process is intended to insure that confidence by requiring compliance with what Justice Frankfurter calls the rudiments of fair play. Fair play calls for equal justice. There cannot be equal justice where a suitor approaches a court already committed to the other party and with a judgment already made and waiting only to be formalized after the litigants shall have undergone the charade of a formal hearing. Judicial (and also extra-judicial proceedings are not orchestrated plays in which the parties are supposed to make the motions and reach the denouement according to a prepared script. There is no writer to foreordain the ending. The judge will reach his conclusions only after all the evidence is in and all the arguments are filed, on the basis of the established facts and the pertinent law. 10. ID.; ID.; ID.; DEMANDS THAT THE JUDGE INHIBIT HIMSELF OUT OF A SENSE OF DELICADEZA. The relationship of the judge with one of the parties may color the facts and distort the law to the prejudice of a just decision. Where this is probable or even only possible, due possible, due process demands that the judge inhibit himself, if only out of a sense of delicadeza. For like Caesar's wife, he must be above suspicion. Commissioner Opinion, being a lawyer, should have recognized his duty and abided by this well-known rule of judicial conduct. For refusing to do so, he divested the Second Division of the necessary vote for the questioned decision, assuming it could act, and rendered the proceedings null and void. FELICIANO, J., concurring: 1. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; MUST DECIDE ALL ELECTION CONTESTS INVOLVING MEMBERS OF THE BATASAN PAMBANSA SITTING EN BANC. Although this petition has become moot and academic, the decision, dated 23 July 1984, of the Second Division of the Commission on Elections which had proclaimed Arturo F. Pacificador as the duly elected Assemblyman of the province of Antique must be set aside or, more accurately, must be disregarded as bereft of any effect in law. J. Feliciano reaches this result on the same single, precisely drawn, ground relied upon by MelencioHerrera, J., that all election contests involving members of the former Batasan Pambansa must be decided by the Commission on Elections en banc under Sections 2 and 3 of

Article XII-C of the 1973 Constitution. These Sections do not distinguish between "pre-proclamation" and "postproclamation" contests nor between "cases" and "contests." MELENCIO-HERRERA, J., concurring: 1. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; HAS JURISDICTION OVER CONTESTS INVOLVING MEMBERS OF THE BATASAN PAMBANSA. I concur in the result. The questioned Decision of the Second Division of the COMELEC, dated July 23, 1984, proclaiming private respondent, Arturo F. Pacificador, as the duly elected Assemblyman of the province of Antique, should be set aside for the legal reason that all election contests, without distinction as to cases or contests, involving members of the defunct Batasang Pambansa fall under the jurisdiction of the COMELEC en banc pursuant to Sections 2 and 3 of Article XII-C of the 1973 Constitution. DECISION CRUZ, J p: The new Solicitor General has moved to dismiss this petition on the ground that as a result of supervening events it has become moot and academic. It is not as simple as that, Several lives have been lost in connection with this case, including that of the petitioner himself. The private respondent is now in hiding. The purity of suffrage has been defiled and the popular will scorned through a confabulation of those in authority. This Court cannot keep silent in the face of these terrible facts. The motion is denied. The petitioner and the private respondent were candidates in Antique for the Batasang Pambansa in the May 1984 elections. The former appeared to enjoy more popular support but the latter had the advantage of being the nominee of the KBL with all its perquisites of power. On May 13, 1984, the eve of the elections, the bitter contest between the two came to a head when several followers of the petitioner were ambushed and killed, allegedly by the latter's men. Seven suspects, including respondent Pacificador, are now facing trial for these murders. The incident naturally heightened tension in the province and sharpened the climate of fear among the electorate. Conceivably, it intimidated voters against supporting the Opposition candidate or into supporting the candidate of the ruling party. It was in this atmosphere that the voting was held, and the post-election developments were to run true to form. Owing to what he claimed were attempts to railroad the private respondent's proclamation, the petitioner went to the Commission on Elections to question the canvass of the election returns. His complaints were dismissed and the private respondent was proclaimed winner by the Second Division of the said body. The petitioner thereupon came to this Court, arguing that the proclamation was void because made only by a division and not by the Commission on Elections en banc as required by the Constitution. Meanwhile, on the strength of his proclamation, the private respondent took his oath as a member of the Batasang Pambansa.

The case was still being considered by this Court when on February 11, 1986, the petitioner was gunned down in cold blood and in broad daylight. The nation, already indignant over the obvious manipulation of the presidential elections in favor of Marcos, was revolted by the killing, which flaunted a scornful disregard for the law by the assailants who apparently believed they were above the law. This ruthless murder was possibly one of the factors that strengthened the cause of the Opposition in the February revolution that toppled the Marcos regime and installed the present government under President Corazon C. Aquino. The abolition of the Batasang Pambansa and the disappearance of the office in dispute between the petitioner and the private respondent both of whom have gone their separate ways could be a convenient justification for dismissing this case. But there are larger issues involved that must be resolved now, once and for all, not only to dispel the legal ambiguities here raised. The more important purpose is to manifest in the clearest possible terms that this Court will not disregard and in effect condone wrong on the simplistic and tolerant pretext that the case has become moot and academic. The Supreme Court is not only the highest arbiter of legal questions but also the conscience of the government. The citizen comes to us in quest of law but we must also give him justice. The two are not always the same. There are times when we cannot grant the latter because the issue has been settled and decision is no longer possible according to the law. But there are also times when although the dispute has disappeared, as in this case, it nevertheless cries out to be resolved. Justice demands that we act then, not only for the vindication of the outraged right, though gone, but also for the guidance of and as a restraint upon the future. It is a notorious fact decried by many people and even by the foreign press that elections during the period of the Marcos dictatorship were in the main a desecration of the right of suffrage. Vote-buying, intimidation and violence, illegal listing of voters, falsified returns, and other elections anomalies misrepresented and vitiated the popular will and led to the induction in office of persons who did not enjoy the confidence of the sovereign electorate. Genuine elections were a rarity. The price at times was human lives. The rule was chicanery and irregularity, and on all levels of the polls, from the barangay to the presidential. This included the rigged plebiscites and referenda that also elicited the decision and provoked the resentments of the people. Antique in 1984 hewed to the line and equaled if it did not surpass the viciousness of elections in other provinces dominated by the KBL. Terrorism was a special feature, as demonstrated by the killings previously mentioned, which victimized no less than one of the main protagonists and implicated his rival as a principal perpetrator. Opposition leaders were in constant peril of their lives even as their supporters were gripped with fear of violence at the hands of the party in power. LLjur What made the situation especially deplorable was the apparently indifferent attitude of the Commission on Elections toward the anomalies being committed. It is a matter of record

that the petitioner complained against the terroristic acts of his opponents. All the electoral body did was refer the matter to the Armed Forces without taking a more active step as befitted its constitutional role as the guardian of free, orderly and honest elections. A more assertive stance could have averted the Sibalom election eve massacre and saved the lives of the nine victims of the tragedy. Public confidence in the Commission on Elections was practically nil because of its transparent bias in favor of the administration. This prejudice left many opposition candidates without recourse except only to this Court. Alleging serious anomalies in the conduct of the elections and the canvass of the election returns, the petitioner went to the Commission on Elections to prevent the impending proclamation of his rival, the private respondent herein. 1 Specifically, the petitioner charged that the elections were marred by "massive terrorism, intimidation, duress, votebuying, fraud, tampering and falsification of election returns under duress, threat and intimidation, snatching of ballot boxes perpetrated by the armed men of respondent Pacificador." 2 Particular mention was made of the municipalities of Caluya, Cabate, Tibiao, Barbaza, Laua-an, and also of San Remigio, where the petitioner claimed the election returns were not placed in the ballot boxes but merely wrapped in cement bags or manila paper. On May 18, 1984, the Second Division of the Commission on Elections directed the provincial board of canvassers of Antique to proceed with the canvass but to suspend the proclamation of the winning candidate until further orders. 3 On June 7, 1984, the same Second Division ordered the board to immediately convene and to proclaim the winner without prejudice to the outcome of the case before the Commission. 4 On certiorari before this Court, the proclamation made by the board of canvassers was set aside as premature, having been made before the lapse of the 5-day period of appeal, which the petitioner had seasonably made. 5 Finally, on July 23, 1984, the Second Division promulgated the decision now subject of this petition which inter alia proclaimed Arturo F. Pacificador the elected assemblyman of the province of Antique. 6 This decision was signed by Chairman Victoriano Savellano and Commissioners Jaime Opinion and Froilan M. Bacungan. Previously asked to inhibit himself on the ground that he was a former law partner of private respondent Pacificador, Opinion had refused. 7 The petitioner then came to this Court, asking us to annul the said decision. The core question in this case is one of jurisdiction, to wit: Was the Second Division of the Commission on Elections authorized to promulgate its decision of July 23, 1984, proclaiming the private respondent the winner in the election? LibLex The applicable provisions are found in Article XII-C, Sections 2 and 3, of the 1973 Constitution. Section 2 confers on the Commission on Elections the power to:

"(2) Be the sole judge of all contests relating to the election, returns and qualifications of all member of the Batasang Pambansa and elective provincial and city officials." Section 3 provides: "The Commission on Elections may sit en banc or in three divisions. All election cases may be heard and decided by divisions except contests involving members of the Batasang Pambansa, which shall be heard and decided en banc. Unless otherwise provided by law, all election cases shall be decided within ninety days from the date of their submission for decision." While both invoking the above provisions, the petitioner and the respondents have arrived at opposite conclusions. The records are voluminous and some of the pleadings are exhaustive and in part even erudite. And well they might be, for the noble profession of the law despite all the canards that have been flung against it exerts all efforts and considers all possible viewpoints in its earnest search of the truth. The petitioner complains that the proclamation made by the Second Division is invalid because all contests involving the members of the Batasang Pambansa come under the jurisdiction of the Commission on Elections en banc. This is as it should be, he says, to insure a more careful decision, considering the importance of the offices involved. The respondents, for their part, argue that only contests need to be heard and decided en banc and all other cases can be in fact, should be filed with and decided only by any of the three divisions. The former Solicitor General makes much of this argument and lays a plausible distinction between the terms "contests" and "cases" to prove his point. 8 Simply put, his contention is that the pre-proclamation controversy between the petitioner and the private respondent was not yet a contest at that time and therefore could be validly heard by a mere division of the Commission on Elections, consonant with Section 3. The issue was at this stage still administrative and so was resoluble by the Commission under its power to administer all laws relative to the conduct of elections, 9 not its authority as sole judge of the election contest. A contest, according to him, should involve a contention between the parties for the same office "in which the contestant seeks not only to oust the intruder but also to have himself inducted into the office." 10 No proclamation had as yet been made when the petition was filed and later decided. Hence, since neither the petitioner nor the private respondent had at that time assumed office, there was no Member of the Batasang Pambansa from Antique whose election, returns or qualifications could be examined by the Commission on Elections en banc. In providing that the Commission on Elections could act in division when deciding election cases, according to this theory, the Constitution was laying down the general rule. The exception was the election contest involving the members of the Batasang Pambansa, which had to be heard and decided en banc. 11 The en banc requirement would apply only from the

time a candidate for the Batasang Pambansa was proclaimed as winner, for it was only then that a contest could be permitted under the law. All matters arising before such time were, necessarily, subject to decision only by division of the Commission as these would come under the general heading of "election cases." As the Court sees it, the effect of this interpretation would be to divide the jurisdiction of the Commission on Elections into two, viz.: (1) over matters arising before the proclamation, which should be heard and decided by division in the exercise of its administrative power; and (2) over matters arising after the proclamation, which could be heard and decided only en banc in the exercise of its judicial power. Stated otherwise, the Commission as a whole could not act as sole judge as long as one of its divisions was hearing a pre-proclamation matter affecting the candidates for the Batasang Pambansa because there was as yet no contest; or to put it still another way, the Commission en banc could not do what one of its divisions was competent to do, i.e., decide a pre-proclamation controversy. Moreover, a mere division of the Commission on Elections could hear and decide, save only those involving the election, returns and qualifications of the members of the Batasang Pambansa, all cases involving elective provincial and city officials from start to finish, including preproclamation controversies and up to the election protest, In doing so, it would exercise first administrative and then judicial powers. But in the case of the Commission en banc, its jurisdiction would begin only after the proclamation was made and a contest was filed and not at any time and on any matter before that, and always in the exercise only of judicial power. This interpretation would give to the part more powers than were enjoyed by the whole, granting to the division while denying to the banc. We do not think this was the intention of the Constitution. The framers could not have intended such an irrational rule. We believe that in making the Commission on Elections the sole judge of all contests involving the election, returns and qualifications of the members of the Batasang Pambansa and elective provincial and city officials, the Constitution intended to give it full authority to hear and decide these cases from beginning to end and on all matters related thereto, including those arising before the proclamation of the winners. Cdpr It is worth observing that the special procedure for the settlement of what are now called "pre-proclamation controversies" is a relatively recent innovation in our laws, having been introduced only in 1978, through P.D. No. 1296, otherwise known as the 1978 Election Code. Section 175 thereof provided: "Sec. 175. Suspension and annulment of proclamation. The Commission shall be the sole judge of all preproclamation controversies and any of its decisions, orders or rulings shall be final and executory. It may, motu proprio or upon written petition, and after due notice and hearing order the suspension of the proclamation of a candidate-elect or annul any proclamation, if one has been made, on any of the grounds mentioned in Sections 172, 173 and 174 thereof."

Before that time all proceedings affecting the election, returns and qualifications of public officers came under the complete jurisdiction of the competent court or tribunal from beginning to end and in the exercise of judicial power only. It therefore could not have been the intention of the framers in 1935, when the Commonwealth Charter was adopted, and even in 1973, when the past Constitution was imposed, to divide the electoral process into the pre-proclamation stage and the postproclamation stage and to provide for a separate jurisdiction for each stage, considering the first administrative and the second judicial. Besides, the term "contest" as it was understood at the time Article XII-C, Section 2(2) was incorporated in the 1973 Constitution did not follow the strict definition of a contention between the parties for the same office. Under the Election Code of 1971, which presumably was taken into consideration when the 1973 Constitution was being drafted, election contests included the quo warranto petition that could be filed by any voter on the ground of disloyalty or ineligibility of the contestee although such voter was himself not claiming the office involved. 12 The word "contests" should not be given a restrictive meaning; on the contrary, it should receive the widest possible scope conformably to the rule that the words used in the Constitution should be interpreted liberally. As employed in the 1973 Constitution, the term should be understood as referring to any matter involving the title or claim of title to an elective office, made before or after proclamation of the winner, whether or not the contestant is claiming the office in dispute. Needless to stress, the term should be given a consistent meaning and understood in the same sense under both Section 2(2) and Section 3 of Article XII-C of the Constitution. The phrase "election, returns and qualifications" should be interpreted in its totality as referring to all matters affecting the validity of the contestee's title. But if it is necessary to specify, we can say that "election" referred to the conduct of the polls, including the listing of voters, the holding of the electoral campaign, and the casting and counting of the votes; "returns" to the canvass of the returns and the proclamation of the winners, including questions concerning the composition of the board of canvassers and the authenticity of the election returns; and "qualifications" to matters that could be raised in a quo warranto proceeding against the proclaimed winner, such as his disloyalty or ineligibility or the inadequacy of his certificate of candidacy. LLjur All these came under the exclusive jurisdiction of the Commission on Elections insofar as they applied to the members of the defunct Batasang Pambansa and, under Article XII-C, Section 3, of the 1973 Constitution, could be heard and decided by it only en banc. We interpret "cases" as the generic term denoting the actions that might be heard and decided by the Commission on Elections, only by division as a general rule except where the case was a "contest" involving members of the Batasang Pambansa, which had to be heard and decided en banc. As correctly observed by the petitioner, the purpose of Section 3 in requiring that cases involving members of the Batasang

Pambansa be heard and decided by the Commission en banc was to insure the most careful consideration of such cases. Obviously, that objective could not be achieved if the Commission could act en banc only after the proclamation had been made, for it might then be too late already. We are alltoo-familiar with the grab-the-proclamation-and-delay-theprotest strategy of many unscrupulous candidates which has resulted in the frustration of the popular will and the virtual defeat of the real winners in the election. The respondent's theory would make this gambit possible for the preproclamation proceedings, being summary in nature, could be hastily decided by only three members in division, without the care and deliberation that would have otherwise been observed by the Commission en banc. After that, the delay. The Commission en banc might then no longer be able to rectify in time the proclamation summarily and not very judiciously made by the division. While in the end the protestant might be sustained, he might find himself with only a Phyrric victory because the term of his office would have already expired. It may be argued that in conferring the initial power to decide the pre-proclamation question upon the division, the Constitution did not intend to prevent the Commission en banc from exercising the power directly, on the theory that the greater power embraces the lesser. It could if it wanted to but then it could also allow the division to act for it. That argument would militate against the purpose of the provision, which precisely limited all questions affecting the election contest, as distinguished from election cases in general, to the jurisdiction of the Commission en banc as sole judge thereof. "Sole judge" excluded not only all other tribunals but also and even the division of the Commission. A decision made on the contest by less than the Commission en banc would not meet the exacting standard of care and deliberation ordained by the Constitution. Incidentally, in making the Commission the "sole judge" of pre-proclamation controversies in Section 175, supra, the law was obviously referring to the body sitting en banc. In fact, the pre-proclamation controversies involved in Aratuc vs. Commission on Elections, 13 where the said provision was applied, were heard and decided en banc. Another matter deserving the highest consideration of this Court but accorded cavalier attention by the respondent Commission on Elections is due process of law, that ancient guaranty of justice and fair play which is the hallmark of the free society. Commissioner Opinion ignored it. Asked to inhibit himself on the ground that he was formerly a law partner of the private respondent, he obstinately insisted on participating in the case, denying he was biased. 14 Given the general attitude of the Commission on Elections toward the party in power at the time, and the particular relationship between Commissioner Opinion and MP Pacificador, one could not be at least apprehensive, if not certain, that the decision of the body would be adverse to the petitioner. As in fact it was. Commissioner Opinion's refusal to inhibit himself and his objection to the transfer of the case to another division cannot be justified by any criterion of propriety. His conduct on this matter belied his wounded

protestations of innocence and proved the motives of the Second Division when it rendered its decision. cdll This Court has repeatedly and consistently demanded "the cold neutrality of an impartial judge" as the indispensable imperative of due process. 15 To bolster that requirement, we have held that the judge must not only be impartial but must also appear to be impartial as an added assurance to the parties that his decision will be just. 16 The litigants are entitled to no less than that. They should be sure that when their rights are violated they can go to a judge who shall give them justice. They must trust the judge, otherwise they will not go to him at all. They must believe in his sense of fairness, otherwise they will not seek his judgment. Without such confidence, there would be no point in invoking his action for the justice they expect. Due process is intended to insure that confidence by requiring compliance with what Justice Frankfurter calls the rudiments of fair play. Fair play calls for equal justice. There cannot be equal justice where a suitor approaches a court already committed to the other party and with a judgment already made and waiting only to be formalized after the litigants shall have undergone the charade of a formal hearing. Judicial (and also extrajudicial) proceedings are not orchestrated plays in which the parties are supposed to make the motions and reach the denouement according to a prepared script. There is no writer to foreordain the ending. The judge will reach his conclusions only after all the evidence is in and all the arguments are filed, on the basis of the established facts and the pertinent law. The relationship of the judge with one of the parties may color the facts and distort the law to the prejudice of a just decision. Where this is probable or even only possible, due process demands that the judge inhibit himself, if only out of a sense of delicadeza. For like Caesar's wife, he must be above suspicion. Commissioner Opinion, being a lawyer, should have recognized his duty and abided by this well-known rule of judicial conduct. For refusing to do so, he divested the Second Division of the necessary vote for the questioned decision, assuming it could act, and rendered the proceeding null and void. 17 Since this case began in 1984, many significant developments have taken place, not the least significant of which was the February revolution of "people power" that dislodged the past regime and ended well nigh twenty years of travail for this captive nation. The petitioner is gone, felled by a hail of bullets sprayed with deadly purpose by assassins whose motive is yet to be disclosed. The private respondent has disappeared with the "pomp of power" he had before enjoyed. Even the Batasang Pambansa itself has been abolished, "an iniquitous vestige of the previous regime" discontinued by the Freedom Constitution. It is so easy now, as has been suggested not without reason, to send the records of this case to the archives and say the case is finished and the book is closed. But not yet. Let us first say these meager words in tribute to a fallen hero who was struck down in the vigor of his youth because he dared to speak against tyranny. Where many kept a meekly

silence for fear of retaliation, and still others feigned and fawned in hopes of safety and even reward, he chose to fight. He was not afraid. Money did not tempt him. Threats did not daunt him. Power did not awe him. His was a singular and all exacting obsession: the return of freedom to his country. And though he fought not in the barricades of war amid the sound and smoke of shot and shell, he was a soldier nonetheless, fighting valiantly for the liberties of his people against the enemies of his race, unfortunately of his race too, who would impose upon the land a perpetual night of dark enslavement. He did not see the breaking of the dawn, sad to say, but in a very real sense Evelio B. Javier made that dawn draw nearer because he was, like Saul and Jonathan, "swifter than eagles and stronger than lions." A year ago this Court received a letter which began: "I am the sister of the late Justice Calixto Zaldivar. I am the mother of Rhium Z. Sanchez, the grandmother of Plaridel Sanchez IV and Aldrich Sanchez, the aunt of Mamerta Zaldivar. I lost all four of them in the election eve ambush in Antique last year." She pleaded, as so did hundreds of others of her provincemates in separate signed petitions sent us, for the early resolution of that horrible crime, saying "I am 82 years old now. I am sick. May I convey to you my prayer in church and my plea to you, 'Before I die, I would like to see justice to my son and grandsons,' May I also add that the people of Antique have not stopped praying that the true winner of the last elections will be decided upon by the Supreme Court soon." LLpr That was a year ago and since then a new government has taken over in the wake of the February revolution. The despot has escaped, and with him, let us pray, all the oppressions and repressions of the past have also been banished forever. A new spirit is now upon our land. A new vision limns the horizon. Now we can look forward with new hope that under the Constitution of the future every Filipino shall be truly sovereign in his own country, able to express his will through the pristine ballow with only his conscience as his counsel. This is not an impossible dream. Indeed, it is an approachable goal. It can and will be won if we are able at last, after our long ordeal, to say never again to tyranny. If we can do this with courage and conviction, then and only then, and not until then, can we truly say that the case is finished and the book is closed. WHEREFORE, let it be spread in the records of this case that were it not for the supervening events that have legally rendered it moot and academic, this petition would have been granted and the decision of the Commission on Elections dated July 23, 1984, set aside as violative of the Constitution. SO ORDERED. Feria, Yap, Narvasa, Alampay and Paras, JJ ., concur. Teehankee, C . J ., I concur and reserve the filing of a separate concurrence. Fernan and Gutierrez, Jr., JJ ., concur in the result. Separate Opinions

MELENCIO-HERRERA, J ., concurring: I concur in the result. The questioned Decision of the Second Division of the COMELEC, dated July 23, 1984, proclaiming private respondent, Arturo F. Pacificador, as the duly elected Assemblyman of the province of Antique, should be set aside for the legal reason that all election contests, without any distinction as to cases or contests, involving members of the defunct Batasang Pambansa fall under the jurisdiction of the COMELEC en banc pursuant to Sections 2 and 3 of Article XII-C of the 1973 Constitution. FELICIANO, J ., concurring: I agree with the result reached, that is, although this petition has become moot and academic, the decision, dated 23 July 1984, of the Second Division of the Commission on Elections which had proclaimed Arturo F. Pacificador as the duly elected Assemblyman of the Province of Antique must be set aside or, more accurately, must be disregarded as bereft of any effect in law. I reach this result on the same single, precisely drawn, ground relied upon by Melencio-Herrera, J.: that all election contests involving members of the former Batasan Pambansa must be decided by the Commission on Elections en banc under Sections 2 and 3 of Article XII-C of the 1973 Constitution. These Sections do not distinguish between "preproclamation" and "post-proclamation" contests nor between "cases" and "contests." Footnotes 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. Rollo, p. 26. Rollo, p. 26. Ibid., p. 9; p. 28. Id., p. 30. Id., p. 30. Id., p. 62. Id., p. 62; pp. 107-111. Id., pp. 11-16; pp. 196-208. Art. XII-C, Sec. 2(1), 1973 Constitution. Vera vs. Avelino, 77 Phil. 191. Art. XII-C, Sec. 3, 1973 Constitution. Election Code of 1971, Sec. 219. 88 SCRA 251. Rollo, pp. 109-111.

17.

Comelec Res. No. 1669, Sec. 5.

15. Mateo vs. Villaluz, 50 SCRA 18; Gutierrez vs. Santos, 2 SCRA 249. 16. People vs. Opida, G.R. No. L-46272, July 13, 1986, citing Fernandez vs. Presbitero, 79 SCRA 61; Sardinia-Linco vs. Pineda, 104 SCRA 757.

[G.R. Nos. 103501-03. February 17, 1997.] LUIS A. TABUENA, petitioner, vs. HONORABLE SANDIGANBAYAN, and THE PEOPLE OF THE PHILIPPINES, respondents. [G.R. No. 103507. February 17, 1997.] ADOLFO M. PERALTA, petitioner, vs. HON. SANDIGANBAYAN (First Division), and THE PEOPLE OF THE PHILIPPINES, represented by the OFFICE OF THE SPECIAL PROSECUTOR, respondents. Siguion Reyna, Montecillo & Ongsiako for petitioner in G.R. No. 103501-03. Estebal & Associates Law Firm for petitioner in G.R. No. 103507. The Solicitor General for respondents. SYLLABUS 1. REMEDIAL LAW; CRIMINAL PROCEDURE; VARIANCE BETWEEN THE CRIME CHARGED AND THAT PROVED, IMMATERIAL. Tabuena and Peralta stress that they were being charged with intentional malversation. But they were convicted of malversation by negligence. Their theory is that such variance is a reversible flaw. We do not agree with Tabuena and Peralta on this point. Illuminative and controlling is "Cabello v. Sandiganbayan" where the Court passed upon similar protestations raised by therein accused-petitioner Cabello whose conviction for the same crime of malversation was affirmed, in this wise: ". . . even on the putative assumption that the evidence against petitioner yielded a case of malversation by negligence but the information was for intentional malversation, under the circumstances of this case his conviction under the first mode of misappropriation would still be in order. Malversation is committed either intentionally or by negligence. The dolo or the culpa present in the offense is only a modality in the perpetration of the felony. Even if the mode charged differs from the mode proved, the same offense of malversation is involved and conviction thereof is proper." 2. CRIMINAL LAW; MALVERSATION; GOOD FAITH, VALID DEFENSE. Good faith is a valid defense in a prosecution for malversation for it would negate criminal intent on the part of the accused. 3. ID.; ID.; ID.; CASE AT BAR. In so far as Tabuena is concerned, with the due presentation in evidence of the MARCOS Memorandum, we are swayed to give credit to his claim of having caused the disbursement of the P55 Million solely by reason of such memorandum. Tabuena had no other choice but to make the withdrawals, for that was what the MARCOS Memorandum required him to do. He could not be faulted if he had to obey and strictly comply with the presidential directive, and to argue otherwise is something easier said than done. Marcos was undeniably Tabuena's superior the former being then the President of the Republic who unquestionably exercised control over

government agencies such as the MIAA and PNCC. In other words, Marcos had a say in matters involving intergovernment agency affairs and transactions, such as for instance, directing payment of liability of one entity to another and the manner in which it should be carried out. And as a recipient of such kind of a directive coming from the highest official of the land no less, good faith should be read on Tabuena's compliance, without hesitation nor any question, with the MARCOS Memorandum. Tabuena therefore is entitled to the justifying circumstance of "Any person who acts in obedience to an order issued by a superior for some lawful purpose." The subordinate-superior relationship between Tabuena and Marcos is clear. And so too, is the lawfulness of the order contained in the MARCOS Memorandum, as it has for its purpose partial payment of the liability of one government agency (MIAA) to another (PNCC). The MARCOS Memorandum is patently legal (for on its face it directs payment of an outstanding liability) and that Tabuena acted under the honest belief that the P55 million was a due and demandable debt and that it was just a portion of a bigger liability to PNCC. Thus, even if the order is illegal if it is patently legal and the subordinate is not aware of its illegality, the subordinate is not liable, for then there would only be a mistake of fact committed in good faith. The principles underlying all that has been said above in exculpation of Tabuena equally apply to Peralta in relation to the P5 Million for which he is being held accountable, i.e., he acted in good faith when he, upon the directive of Tabuena, helped facilitate the withdrawal of P5 Million of the P55 Million of the MIAA funds. 4. ID.; ID.; ID.; ADMINISTRATIVE OR CIVIL LIABILITY FOR FAILURE TO COMPLY WITH AUDITING RULES. There is no denying that the disbursement, which Tabuena admitted as "out of the ordinary," did not comply with certain auditing rules and regulations. But this deviation was inevitable under the circumstances Tabuena was in. He did not have the luxury of time to observe all auditing procedures of disbursement considering the fact that the MARCOS Memorandum enjoined his "immediate compliance" with the directive that he forward to the President's Office the P55 Million in cash. Be that as it may, Tabuena surely cannot escape responsibility for such omission. But since he was acting in good faith, his liability should only be administrative or civil in nature, and not criminal. 5. ID.; ID.; CONVERSION; NEGATED WHERE MONEY WAS DELIVERED TO SECRETARY OF THE PRESIDENT; MEMORANDUM DIRECTED ACCUSED TO PAY IMMEDIATELY PNCC, THRU THE OFFICE OF THE PRESIDENT. The Sandiganbayan made the finding that Tabuena had already converted and misappropriated the P55 Million when he delivered the same to Mrs. Gimenez and not to the PNCC. We do not agree. It must be stressed that the MARCOS Memorandum directed Tabuena "to pay immediately the Philippine National Construction Corporation, thru this office, the sum of FIFTY FIVE MILLION . . .," and that was what Tabuena precisely did when he delivered the money to Mrs. Gimenez. Such delivery, no doubt, is in effect delivery to the Office of the President inasmuch as Mrs. Gimenez was Marcos' secretary then.

Furthermore, Tabuena had reasonable ground to believe that the President was entitled to receive the P55 Million since he was certainly aware that Marcos, as Chief Executive, exercised supervision and control over government agencies. And the good faith of Tabuena in having delivered the money to the President's office (thru Mrs. Gimenez), in strict compliance with the MARCOS Memorandum, was not at all affected even if it later turned out that PNCC never received the money. 6. ID.; ID.; CONSPIRACY TO SIPHON-OUT PUBLIC MONEY FOR PERSONAL BENEFIT OF THOSE THEN IN POWER; NOT PROVEN IN CASE AT BAR. Even assuming that the real and sole purpose behind the MARCOS Memorandum was to siphon-out public money for the personal benefit of those then in power, still, no criminal liability can be imputed to Tabuena. There is no showing that Tabuena had anything to do whatsoever with the execution of the MARCOS Memorandum. Nor is there proof that he profited from the felonious scheme. In short, no conspiracy was established between Tabuena and the real embezzler/s of the P55 Million. 7. POLITICAL LAW; BILL OF RIGHTS; DUE PROCESS; ACCUSED DENIED THEREOF WHERE THE SANDIGANBAYAN ACTIVELY TOOK PART IN THE QUESTIONING OF A DEFENSE WITNESS AND OF THE ACCUSED THEMSELVES. But what appears to be a more compelling reason for their acquittal is the violation of the accused's basic constitutional right to due process. "Respect for the Constitution," to borrow once again Mr. Justice Cruz's words, is more important than securing a conviction based on a violation of the rights of the accused." While going over the records, we were struck by the way the Sandiganbayan actively took part in the questioning of a defense witness and of the accused themselves. Hardly in fact can one avoid the impression that the Sandiganbayan had allied itself with, or to be more precise, had taken the cudgels for the prosecution in proving the case against Tabuena and Peralta when the Justices cross-examined the witnesses, their cross-examinations supplementing those made by Prosecutor Viernes and far exceeding the latter's questions in length. The "cold neutrality of an impartial judge" requirement of due process was certainly denied Tabuena and Peralta when the court, with its overzealousness, assumed the dual role of magistrate and advocate. 8. REMEDIAL LAW; ACTIONS; APPEALS; APPEAL THROWS THE WHOLE CASE OPEN TO REVIEW. Tabuena and Peralta may not have raised this as an error, there is nevertheless no impediment for us to consider such matter as additional basis for a reversal since the settled doctrine is that an appeal throws the whole case open to review, and it becomes the duty of the appellate court to correct such errors as may be found in the judgment appealed from whether they are made the subject of assignments of error or not. 9. JUDICIAL ETHICS; JUDGES; EXAMINATION OF WITNESSES MUST BE LIMITED TO CLARIFICATORY QUESTIONS. The Court has acknowledged the right of a trial judge to question witnesses with a view to satisfying his mind upon any material point

which presents itself during the trial of a case over which he presides. But not only should his examination be limited to asking "clarificatory" questions, the right should be sparingly and judiciously used; for the rule is that the court should stay out of it as much as possible neither interfering nor intervening in the conduct of the trial. "A trial judge should not participate in the examination of witnesses as to create the impression that he is allied with the prosecution." DAVIDE, J., Dissenting Opinion: 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS; EXTENSIVE QUESTIONING BY JUSTICES OF THE SANDIGANBAYAN OF APPELLANTS AND THEIR WITNESSES, NOT A VIOLATION THEREOF. The ponencia admits that the appellants did not raise as an issue the Sandiganbayan's violation of their right to due process; nevertheless, it ruled that such failure is not an impediment to the consideration of the violation "as additional basis for a reversal since the settled doctrine is that an appeal throws the whole case open to review, and it becomes the duty of the appellate court to correct such errors as may be found in the judgment appealed from whether they are made the subject of assignments of error or not." I beg to disagree. There is no showing at all that the extensive participation by the Justices of the Sandiganbayan in questioning the appellants and their witness indicated prejudgment of guilt, bias, hatred, or hostility against the said appellants. On the contrary, the quoted portions of the questions propounded by the Justices manifest nothing but a sincere desire to ferret out the facts to arrive at the truth which are crucial in the determination of the innocence or guilt of the appellants. These Justices, as trial magistrates, have only exercised one of the inherent rights of a judge in the exercise of judicial function. That the appellants themselves did not find any impropriety in the conduct of the Justices, or that if they did they find nothing therein to prejudice their right to due process is best proven by their failure to assign it as error. 2. ID.; ID.; RIGHT TO AN IMPARTIAL JUDGE, SUBJECT TO WAIVER. Even granting arguendo that the conduct of the Justices constituted such a violation, the appellants are forever estopped from raising that issue on ground of waiver This Court would risk an accusation of undue partiality for the appellants were it to give them premium for their torpor and then reward them with an acquittal. Such waiver is conclusively proven in these cases. From the quoted portions of the testimonies of the witnesses for the appellants, it is clear that their counsel did not object to, or manifest on record his misgivings on, the active participation of the Justices in the examination (or crossexamination) of the witnesses. Nothing could have prevented the counsel for the appellants from doing so. Then, too, as correctly pointed out in the ponencia, they made no assignment of error on the matter. In our jurisdiction, rights may be waived unless the waiver is contrary to law, public order, public policy, morals, or good customs, or is prejudicial to a third person with a right recognized by law. In the cases below, the perceived violation, if at all it existed, was not of the absolute totality of due process, but more appropriately of the right to an impartial trial, which is but an aspect of the guarantee of due process. I submit that the right to an impartial trial is waivable.

3. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCE; OBEDIENCE TO LAWFUL ORDER; MEMORANDUM OF PRESIDENT MARCOS TO DELIVER THRU HIS OFFICES, THE SUM OF P55,000,000.00 IN CASH AS PARTIAL PAYMENT OF MIAA'S ACCOUNT, UNLAWFUL. I also disagree with the view of the majority that all the requisites of the sixth justifying circumstance in Article II of the Revised Penal Code are present. I submit that the 8 January 1986 Memorandum of President Marcos can by no means be considered a "lawful" order to pay P55 million to the PNCC as alleged partial payment of the MIAA's account to the former. The alleged basis of such Memorandum is the 7 January 1985 Memorandum of Trade and Industry Minister Roberto Ongpin, which even confirms the absence of any factual basis for the order of payment of P55 million. If Ongpin's memorandum is given full faith, it is clear that PNCC's "accomplishment billings" for work accomplished, including accomplishments on the "supplemental contracts" (whose authority therefor was just sought for), aggregated to P98.4 million. Since there were advances given to PNCC in the total amount of P93.9 million, the net amount due the PNCC was only P4.5 million. However, in view of the approval by then President Marcos of Ongpin's request "for a deferment of the repayment of PNCC's advances to the extent of P30 million," only P63.9 million of PNCC's advances was to be deducted from the accomplishment billings of P98.4 million. The net amount due thus became P34.5 million. Hence, as pointed out by the Sandiganbayan, if any payments were due under Ongpin's Memorandum, they would only be for that amount (P34.5 million). The Order of then President Marcos to withdraw has, therefore, exceeded by P20.5 million. Clearly, the order of payment of P55 million had no factual and legal basis and was therefore unlawful. 4. ID.; MALVERSATION; GOOD FAITH, VALID DEFENSE; GOOD FAITH NEGATED BY NONOBSERVANCE OF PROCEDURES IN PAYMENT OF OBLIGATION. Being responsible accountable officers of the MIAA, they were presumed to know that, in light of "the undeferred portion of the repayment" of PNCC's advances in the amount of P63.9 million, the MIAA's unpaid balance was only P34.5 million. They also ought to know the procedure to be followed in the payment of contractual obligations. First and foremost there were the submission by the PNCC of its claims with the required supporting documents and the approval of the claims by the appropriate approving authority of MIAA. When then President Marcos ordered immediate payment, he should not have been understood as to order suspension of the accepted budgeting, accounting, and auditing rules on the matter. Parenthetically, it may be stated here that although President Marcos was a dictator, he was reported to be, and even projected himself as, a "faithful" advocate of the rule of law. As a matter of fact, he did not hesitate to issue a decree, letter of instruction, or any presidential issuance in anticipation of any planned actions or activities to give the latter the facade or semblance of legality, wisdom, or propriety. When he made the order to appellant Tabuena, President Marcos must only be understood to order expeditious compliance with the requirements to facilitate immediate release of the money. There was no way for Tabuena to entertain any fear that disobedience to the order

because of its unlawfulness or delay in the execution of the order due to compliance with the requirements would cause his head or life. He offered no credible evidence for such fear. This Court should not provide one for him. That Tabuena served Mr. Marcos until the end of the latter's regime and even beyond only proved a loyalty not based on fear but on other considerations. Moreover, the manner the appellant effected the withdrawal was most unusual, irregular, and anomalous. He has not shown any evidence that what he did was the usual practice in his office. What happened in this case showed the appellants' complicity as principals by direct participation in the malversation of the MIAA's funds. The appellants should, therefore, be thankful to the Sandiganbayan for holding them liable therefor only through negligence ROMERO, J., Dissenting Opinion: 1. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCES; OBEDIENCE TO A LAWFUL ORDER; REQUISITES. For an act to be justified under Article 11(6) of the Revised Penal Code three requisites must concur: (a) an order must have been issued by a superior; (b) the order must be for a lawful purpose; and (c) the means used by the subordinate in carrying out such order must itself be lawful. 2. ID.; ID.; ID.; ID.; UNLAWFUL MEANS IN CARRYING OUT UNLAWFUL ORDER; CASE AT BAR. In the case at bar, Tabuena was allegedly ordered by President Marcos to pay the PNCC from MIAA's fund, thus ostensibly meeting the first requirement but not the others. For there is a qualification which significantly changes the picture. The payment was to be in cash and immediately made through the Office of the President. It is to be pointed out that it is one thing to be ordered to pay a due and demandable obligation; it is another to make such payment to someone other than the lawful obligee and worse, when the subordinate is forced to breach official channels to comply with the order. It must be stressed that Tabuena and his co-accused, Peralta and Dabao, disregarded standard operating procedures in following the President's order. As observed by the Sandiganbayan, "there were no vouchers to authorize the disbursements in question. There were no bills to support the disbursement. There were no certifications as to the availability of funds for an unquestionably staggering sum of P55 Million." To compound the duplicity, the checks, issued by one branch of PNB were encashed in another all made in cash instead of by crossed check payable to PNCC! Conspicuously, such cash outlay was made without prior approval or authority of the Commission on Audit. Finally, the last two payments were made despite the non-issuance of a receipt for the first. In fact, the receipt given after the delivery of the last installment was not even issued by the PNCC, the legal obligee and avowed recipient of the money. Instead it emanated from the office of RoaGimenez, a complete stranger to the alleged contract between MIAA and PNCC, who did not even indicate in what capacity she signed it. To compound the mystery, the money was even delivered to her office, not in Malacaang, but at nearby Aguado Street. The entire process, done with haste and with a total disregard of appropriate auditing requirements was, in the words of petitioners themselves, "an extraordinary transaction," admittedly "out of the ordinary" and "not based on normal procedure." Far from being lawful the payment of

the alleged obligation of MIAA to PNCC through the Office of the President may at best be labelled as irregular. 3. ID.; MALVERSATION; GOOD FAITH, VALID DEFENSE; LIABILITY SUBSISTS WHERE ACCUSED WERE NEGLIGENT. Assuming arguendo that petitioners acted in good faith in following the President's order, undeniably, they were negligent as found by the trial court. The instructions in the President's order should have sufficed to put any accountable head of an office, Tabuena included, on guard. Being the general manager of such a mammoth organization like the MIAA, he should, at the very least, have exercised ordinary prudence by verifying with the proper official under him whether the agency had indeed an outstanding indebtedness to the PNCC before ordering any payment to be made through official channels. Such routine measures were cavalierly disregarded. The whole process seemed no different from a petty, personal transaction. As evidence later revealed, PNCC's receivables from MIAA amounted to P102,475,392.35, the bulk of which comprised escalation charges. Even the Ongpin Memorandum, which is the basis of the Marcos Memorandum, failed to show where the amount of P55 million cropped up. The only remaining piece of evidence which would show that MIAA owed PNCC anything as of the date of the Marcos Memorandum is MIAA's balance sheet, which indicates its liability to PNCC as of December 31, 1985 to be P27,931,000.00. How can petitioners claim to have acted in good faith when they withdrew the P55 million from MIAA's funds knowing fully well that the amount due PNCC was only a little over half that amount, as shown by their own evidence? 4. CIVIL LAW; OBLIGATIONS AND CONTRACTS; OBLIGATION NOT EXTINGUISHED WHERE PAYMENT WAS MADE TO A THIRD PERSON. As regards the payments to Roa-Gimenez, these were absolutely unwarranted because whatever "authority" she claimed to have emanated, not from the creditor PNCC but from the President Petitioners were required by law to settle their indebtedness with PNCC directly, the party in whose favor the obligation was constituted. The only instance when such questionable payment could have been valid was if it had redounded to PNCC's benefit. which was not proved at all in this case. As creditor, the PNCC was not even bound to accept payment, if any, from the President's private secretary, the latter being a third person who had no interest whatsoever in the discharge of MIAA's obligation. The ponencia states that the Marcos Memorandum was "patently lawful for no law makes the payment of an obligation illegal." This statement is premised on the existence of an established creditor-debtor relationship between the payor and the payee. In this case, however, the obligor was being made to pay to a party other than the legal obligee when no novation of the obligation has taken place. How can such an arrangement be possibly in accord with law? 5. REMEDIAL LAW; EVIDENCE; CREDIBILITY; FINDINGS OF FACT OF THE TRIAL COURT, GENERALLY UPHELD ON APPEAL. Time and again, this Court has deferred to the findings of fact of the trial court, owing to its enviable position of having seen the physical evidence and observed the witnesses as they testified. We see no reason to depart now from this policy. The Sandiganbayan's finding that petitioners converted and

misappropriated the P55 million cannot simply be brushed aside upon petitioners' claim that the money was delivered in good faith to the Office of the President under the mistaken assumption that the President was entitled to receive the same. They rely on the case of People v. Fabian, which declared that "(g)ood faith in the payment of public funds relieves a public officer from the crime of malversation." But the very same decision also cites Article 217 to the effect that malversation may be committed by an accountable public officer by negligence if he permits any other person to take the public funds or property in his custody. It is immaterial if petitioners actually converted or misappropriated MIAA's funds for their own benefit, for by their very negligence, they allowed another person to appropriate the same. 6. CRIMINAL LAW; CRIMINAL LIABILITY; CARRIES WITH IT CIVIL LIABILITY. The ponente points out that our reference to the Manual supports the view that Tabuena was only civilly liable. This is a misappreciation of the entire sense of the dissent. It must be borne in mind that said reference was made after the conclusion was reached that Tabuena was indeed criminally liable for his acts. It is hornbook knowledge that criminal liability carries with it the civil, specially when as in this case, the latter arose from the former. 7. ID.; MALVERSATION; IMMUNITY FROM CIVIL LIABILITY FOR ACTS DONE IN OFFICIAL DUTIES; BAD FAITH, MALICE OR GROSS NEGLIGENCE MUST BE WANTING. Sections 29.2 and 29.5 of the Manual, which the ponente uses to illustrate his point, actually includes exceptions to the grant of immunity from civil liability of a public officer for acts done in the performance of his official duties: (a) The preceding statement itself says that the acts must be done "in the performance of his official duties"; (b) Sec. 29.2 exempts him from civil liability, "unless there is a clear showing of bad faith, malice or gross negligence", and (c) Sec. 29.5 states that "he shall be liable for willful or negligent acts done by him which are contrary to law, morals, public policy and good customs even if he acted under order or instructions of his superiors." The quoted provisions have been once more underscored herein. 8. ID.; CRIMINAL PROCEDURE; VARIANCE IN CRIME CHARGED AND THAT PROVED, IMMATERIAL. The variance between the crime charged and that proved by the prosecution is immaterial, as stated by the ponente. Petitioners were found guilty of malversation by negligence, which is possible even if the charge was for intentional malversation. This does not negate, however, their criminal liability; it merely declares that negligence takes the place of malice. Article 3 of the Code provides the rationale when it explicitly states that "felonies are committed not only by means of deceit but also by means of fault." 9. ID.; MALVERSATION; CONSPIRACY NOT NECESSARY WHERE ACCUSED PERSONALLY AND KNOWINGLY PERMITTED OTHER PERSON TO TAKE PUBLIC FUNDS. The fact that no conspiracy was established between petitioners and the true embezzlers of the P55 million is likewise of no moment. The crime of malversation, as defined under Article 217 of the Code, was consummated the moment petitioners deliberately turned over

and allowed the President's private secretary to take custody of public funds intended as payment of MIAA's obligations to the PNCC, if obligation there was at all. That petitioner Tabuena who was then General Manager of MIAA personally and knowingly participated in the misfeasance compounds the maleficence of it all. Rank may have its privileges but certainly a blatant disregard of law and administrative rules is not one of them. It must be etched in the minds of public officials that the underside of privileges is responsibilities. 10. CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS; QUESTIONS FROM JUSTICE ELICITING THE TRUTH, NOT A DENIAL THEREOF. The ponencia makes the final observation that the limitations on the right of judges to ask questions during the trial were not observed by respondent court; that the three Justices who heard the testimonies asked 37 questions of witness Francis Monera, 67 of Tabuena, and 41 of Peralta more than what the prosecutors and defense counsels propounded. While such numbers unduly disturbed the ponente, it cannot be gainsaid that such action by the members of the First Division of respondent Sandiganbayan was, under the circumstances, not only necessary and called for, but likewise legally acceptable. Even the ponente makes the observation that petitioners did not raise this matter as error. In other words, they did not feel prejudiced by the respondent court's actuations; nor did they construe the series of questions asked of them by the Justices as indicative of any unfairness or partiality violative of their right to due process. Thus, while a trial judge is expected to be circumspect in his choice of words lest they be construed as signs of partiality, he "is not, however, required to remain silent and passive throughout a jury trial"; he should, instead, "conduct a trial in an orderly way with a view to eliciting the truth and to attaining justice between the parties." The numerous questions asked by the court a quo should have been scrutinized for any possible influence it may have had in arriving at the assailed decision. The true test for the appropriateness or inappropriateness of court queries is not their quantity but their quality, that is, whether the defendant was prejudiced by such questioning. To repeat, petitioners did not feel prejudiced by the trial court's actions; otherwise, they would have raised this issue in the instant petition. PUNO, J., Dissenting Opinion: 1. CRIMINAL LAW; MALVERSATION BY NEGLIGENCE; GOOD FAITH, NOT A DEFENSE. It should be immediately stressed that petitioners were convicted of the crime of malversation by negligence. The felony was committed by petitioners not by means of deceit (dolo) but by fault (culpa). According to Article 3 of the Revised Penal Code, there is fault when the wrongful act results from imprudence, negligence, lack of foresight, or lack of skill. Justice J.B.L. Reyes explains the difference between a felony committed by deceit and that committed by fault in this wise: ". . . In intentional crimes, the act itself is punished; in negligence or imprudence, what is principally penalized is the mental attitude or condition behind the act, the dangerous recklessness, lack of care or foresight, the imprudencia punible." In light of this well-carved distinction, the long discourse of the majority decision hailing petitioners' good faith or lack of intent to commit malversation is off-line. To justify the acquittal of petitioners, the majority should strive to

show that petitioners did not commit any imprudence, negligence, lack of foresight or lack of skill in obeying the order of former President Marcos. This is nothing less than a mission impossible for the totality of the evidence proves the utter carelessness of petitioners in the discharge of their duty as public officials. 2. ID.; CRIMINAL LIABILITY; DOCTRINE OF MISTAKE OF FACT; NEVER APPLIED WHERE NEGLIGENCE CAN BE IMPUTED TO THE ACCUSED. For the same reason, the majority cannot rely on the doctrine of mistake of fact as ground to acquit petitioners. It found as a fact that ". . . Tabuena acted under the honest belief that the P55 million was a due and demandable debt . . ." This Court has never applied the doctrine of mistake of fact when negligence can be imputed to the accused. In the old, familiar case of People vs. Ah Chong, Mr. Justice Carson explained that ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient to negative a particular intent which under the law is a necessary ingredient of the offense charge (e.g., in larceny animus furendi, in murder, malice, etc.), cancels the presumption of intent and works an acquittal, except in those cases where the circumstances demand a conviction under the penal provisions touching criminal negligence. Hence, Ah Chong was acquitted when he mistook his houseboy as a robber and the evidence showed that his mistake of fact was not due to negligence. In the case at bar, the negligence of the petitioners screams from page to page of the records of the case. Petitioners themselves admitted that the payments they made were "out of the ordinary" and "not based on normal procedure." 3. ID.; MALVERSATION; GOOD FAITH AS A DEFENSE; GOOD FAITH NEGATED WHERE ACCUSED VIOLATED AUDITING RULES. As aforestated, the cornerstone of the majority decision is its finding of good faith on the part of the petitioners. Viewed from a more critical lens, however, the evidence cannot justify a finding of good faith. The violations of auditing rules are too many yet the majority merely winks at them by ruling that petitioner Tabuena ". . . did not have the luxury of time to observe all auditing procedures of disbursement considering the fact that the Marcos Memorandum enjoined 'immediate compliance' with the directive that he forward to the President's Office the P55 million in cash." With due respect, I am disquieted by the mischiefs that will be mothered by this ruling. To begin with, the country was no longer under martial rule in 1986 and petitioners were under no compulsion to violate our laws. It also ought to be obvious that the order for immediate compliance even if made by the former President cannot be interpreted as a green signal by a subordinate official to disregard our laws. Indeed, no person, not even the President can order the violation of our laws under any excuse whatsoever. To be sure, the need for petitioners to make an immediate payment is really not that immediate. The facts show that former President Marcos first called petitioner Tabuena by telephone and asked him to make the payment. One week after or on January 8, 1986, the former President issued a written memorandum reiterating the order to pay. Payments were made in three tranches the first on January 10, 1986, the second on January 16, 1986 and the third on January 31, 1986. Clearly then, it took petitioner one month to

comply with the Order. Given the personnel of petitioner Tabuena in his office, one month provides enough time to comply with the rules. In any event, petitioners did not request former President Marcos for additional time to comply with the rules if they felt in good faith that they needed more time. Petitioners short-circuited the rules by themselves. Nothing in the Marcos Memorandum compelled them to disregard the rules. The Memorandum merely stated "Your immediate compliance is appreciated. The language of the Memorandum was as polite as it could be, I fail to discern any duress in the request as the majority did. PANGANIBAN, J., Dissenting Opinion: CRIMINAL LAW; JUSTIFYING CIRCUMSTANCES; OBEDIENCE TO A LAWFUL ORDER; DEFENSE UNTENABLE WHEN A MORAL CHOICE WAS IN FACT POSSIBLE TO THE ACCUSED. The defense of "obedience to a superior's order" is already obsolete. In 1947 the United Nations General Assembly adopted a Resolution firmly entrenching the principle of moral choice, inter alia, as follows: "The fact that a person acted pursuant to an order of his government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him." In the present case, the accused are civilian officials purportedly complying with a memorandum of the Chief Executive when martial law had already been lifted and the nation was in fact just about to vote in the "snap" presidential election in 1986. The Sandiganbayan did not impose death but only imprisonment ranging from seventeen years and one day to twenty years. Certainly a moral choice was not only possible. It was in fact available to the accused. They could have opted to defy the illegal order, with no risk of court martial or death. Or they could have resigned. They knew or should have known that the P55 million was to be paid for a debt that was dubious and in a manner that was irregular. That the money was to be remitted in cold cash and delivered to the private secretary of the President, and not by the normal crossed check to the alleged creditor, gave them a moral choice to refuse. That they opted to cooperate compounded their guilt to a blatant conspiracy to defraud the public treasury. DECISION FRANCISCO, J p: Through their separate petitions for review, 1 Luis A. Tabuena and Adolfo M. Peralta (Tabuena and Peralta, for short) appeal the Sandiganbayan decision dated October 12, 1990, 2 as well as the Resolution dated December 20, 1991 3 denying reconsideration, convicting them of malversation under Article 217 of the Revised Penal Code. Tabuena and Peralta were found guilty beyond reasonable doubt of having malversed the total amount of P55 Million of the Manila International Airport Authority (MIAA) funds during their incumbency as General Manager and Acting Finance Services Manager, respectively, of MIAA, and were thus meted the following sentence: "(1) In Criminal Case No. 11758, accused Luis A. Tabuena is sentenced to suffer the penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporal as

minimum to twenty (20) years of reclusion temporal as maximum, and to pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount malversed. He shall also reimburse the Manila International Airport Authority the sum of TWENTY-FIVE MILLION PESOS (P 25,000,000.00). In addition, he shall suffer the penalty of perpetual special disqualification from public office. "(2) In Criminal Case No. 11759, accused Luis A. Tabuena is sentenced to suffer the penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporal as minimum, and twenty (20) years of reclusion temporal as maximum, and to pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount malversed. He shall also reimburse the Manila International Airport Authority the sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00). In addition, he shall suffer the penalty of perpetual special disqualification from public office. "(3) In Criminal Case No. 11760, accused Luis A. Tabuena and Adolfo M. Peralta are each sentenced to suffer the penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporal as minimum and twenty (20) years of reclusion temporal as maximum and for each of them to pay separately a fine of FIVE MILLION PESOS (P5,000,000.00) the amount malversed. They shall also reimburse jointly and severally the Manila International Airport Authority the sum of FIVE MILLION PESOS (P5,000,000.00). In addition, they shall both suffer the penalty of perpetual special disqualification from public office." A co-accused of Tabuena and Peralta was Gerardo G. Dabao, then Assistant General Manager of MIAA, has remained at large. There were three (3) criminal cases filed (nos. 11758, 11759 and 11760) since the total amount of P55 Million was taken on three (3) separate dates of January, 1986. Tabuena appears as the principal accused he being charged in all three (3) cases. The amended informations in criminal case nos. 11758, 11759 and 11760 respectively read : "That on or about the 10th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay, Philippines, and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being then the General Manager and Assistant General Manager, respectively, of the Manila International Airport Authority (MIAA), and accountable for public funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash accounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00) from MIAA funds by applying for the issuance of a manager's check for said amount in the name of accused Luis A. Tabuena chargeable

against MIAA's Savings Account No. 274-500-354-3 in the PNB Extension Office at the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine National Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally take care of, when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned manager's check, accused Luis A. Tabuena encashed the same and thereafter both accused misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and prejudice of the government in the aforesaid amount. lexlib CONTRARY TO LAW." xxx xxx xxx

amount of FIVE MILLION PESOS (P5,000,000.00) from MIAA funds by applying for the issuance of a manager's check for said amount in the name of accused Luis A. Tabuena chargeable against MIAA's Savings Account No. 274-500-354-3 in the PNB Extension Office at the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine National Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally take care of, when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned manager's check, accused Luis A. Tabuena encashed the same and thereafter both accused misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and prejudice of the government in the aforesaid amount. CONTRARY TO LAW." Gathered from the documentary and testimonial evidence are the following essential antecedents: Then President Marcos instructed Tabuena over the phone to pay directly to the president's office and in cash what the MIAA owes the Philippine National Construction Corporation (PNCC), to which Tabuena replied, "Yes, sir, I will do it." About a week later, Tabuena received from Mrs. Fe RoaGimenez, then private secretary of Marcos, a Presidential Memorandum dated January 8, 1986 (hereinafter referred to as MARCOS Memorandum) reiterating in black and white such verbal instruction, to wit: "Office of the President of the Philippines Malacaang January 8, 1986 MEMO TO: The General Manager Manila International Airport Authority You are hereby directed to pay immediately the Philippine National Construction Corporation, thru this Office, the sum of FIFTY FIVE MILLION (P55,000,000.00) PESOS in cash as partial payment of MIAA's account with said Company mentioned in a Memorandum of Minister Roberto Ongpin to this Office dated January 7, 1985 and duly approved by this Office on February 4, 1985. Your immediate compliance is appreciated. (Sgd.) FERDINAND MARCOS." 4 The January 7, 1985 memorandum of then Minister of Trade and Industry Roberto Ongpin referred to in the MARCOS Memorandum, reads in full: "MEMORANDUM For : The President

"That on or about the 16th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay, Philippines and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being then the General Manager and Assistant General Manager, respectively, of the Manila International Airport Authority (MIAA), and accountable for public funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash accounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00) from MIAA funds by applying for the issuance of a manager's check for said amount in the name of accused Luis A. Tabuena chargeable against MIAA's Savings Account No. 274-500-354-3 in the PNB Extension Office at the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine National Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally take care of, when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC, and after the issuance of the above-mentioned manager' s check, accused Luis A. Tabuena encashed the same and thereafter both accused misappropriated and converted the proceeds thereof to their personal use and benefit, to the damage and prejudice of the government in the aforesaid amount. CONTRARY TO LAW." xxx xxx xxx

"That on or about the 29th day of January, 1986, and for sometime subsequent thereto, in the City of Pasay, Philippines, and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Adolfo M. Peralta, both public officers, being then the General Manager and Acting Manager, Financial Services Department, respectively, of the Manila International Airport Authority (MIAA), and accountable for public funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash accounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriate the

From : Date :

Minister Roberto V. Ongpin 7 January 1985

currently being evaluated by PEC 30.7 million Submitted by PNCC directly to PEC and currently under evaluation Total P99.1 million ========= There has been no funding allocation for any of the above escalation claims due to budgetary constraints. The MIA Project has been completed and operational as far back as 1982 and yet residual amounts due to PNCC have not been paid, resulting in undue burden to PNCC due to additional cost of money to service its obligations for this contract. To allow PNCC to collect partially its billings, and in consideration of its pending escalation billings, may we request for His Excellency's approval for a deferment of the repayment of PNCC's advances to the extent of P30 million corresponding to about 30% of P99.1 million in escalation claims of PNCC, of which P32.5 million has been officially recognized by MIADP consultants but could not be paid due to lack of funding. Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Project funds. This amount represents the excess of the gross billings of PNCC of P98.4 million over the undeferred portion of the repayment of advances of P63.9 million. (Sgd.) ROBERTO V. ONGPIN Minister" 5 In obedience to President Marcos' verbal instruction and memorandum, Tabuena, with the help of Dabao and Peralta, caused the release of P55 Million of MIAA funds by means of three (3) withdrawals. The first withdrawal was made on January 10, 1986 for P25 Million, following a letter of even date signed by Tabuena and Dabao requesting the PNB extension office at the MIAA the depository branch of MIAA funds, to issue a manager's check for said amount payable to Tabuena. The check was encashed, however, at the PNB Villamor Branch. Dabao and the cashier of the PNB Villamor branch counted the money after which, Tabuena took delivery thereof. The P25 Million in cash were then placed in peerless boxes and duffle bags, loaded on a PNB armored car and delivered on the same day to the office of Mrs. Gimenez located at Aguado Street fronting Malacaang. Mrs. Gimenez did not issue any receipt for the money received. Similar circumstances surrounded the second withdrawal/encashment and delivery of another P25 Million, made on January 16, 1986. 66.5 million

Subject : Approval of Supplemental Contracts and Request for Partial Deferment of Repayment of PNCC's Advances for MIA Development Project May I request your approval of the attached recommendations of Minister Jesus S. Hipolito for eight (8) supplemental contracts pertaining to the MIA Development Project (MIADP) between the Bureau of Air Transport (BAT) and Philippine National Construction Corporation (PNCC), formerly CDCP as follows: 1. Supplemental Contract No. 12 Package Contract No. 2 2. 3. P11,106,600.95 5,758,961.52

Supplemental Contract No. 13 Supplemental Contract No. 14 Package Contract No. 2

4,586,610.80 1,699,862.69

4. 5.

Supplemental Contract No. 15 Supplemental Contract No. 16 Package Contract No. 2

233,561.22

6.

Supplemental Contract No. 17 Package Contract No. 2 8,821,731.08

7.

Supplemental Contract No. 18 Package Contract No . 2 6,110,115.75

8.

Supplemental Contract No. 3 Package Contract No. II 16,617,655.49

(xerox copies only; original memo was submitted to the Office of the President on May 28, 1984) In this connection, please be informed that Philippine National Construction Corporation (PNCC), formerly CDCP, has accomplishment billings on the MIA Development Project aggregating P98.4 million, inclusive of accomplishments for the aforecited contracts. In accordance with contract provisions, outstanding advances totalling P93.9 million are to be deducted from said billings which will leave a net amount due to PNCC of only P4.5 million. At the same time, PNCC has potential escalation claims amounting to P99 million in the following stages of approval/evaluation: Approved by Price Escalation Committee (PEC) but pended for lack of funds P1.9 million Endorsed by project consultants and

The third and last withdrawal was made on January 31, 1986 for P5 Million. Peralta was Tabuena's co-signatory to the letter- request for a manager's check for this amount. Peralta accompanied Tabuena to the PNB Villamor branch as Tabuena requested him to do the counting of the P5 Million. After the counting, the money was placed in two (2) peerless boxes which were loaded in the trunk of Tabuena's car. Peralta did not go with Tabuena to deliver the money to Mrs. Gimenez' office at Aguado Street. It was only upon delivery of the P5 Million that Mrs. Gimenez issued a receipt for all the amounts she received from Tabuena. The receipt, dated January 30, 1986, reads: "Malacaang Manila January 30, 1986 RECEIVED FROM LOUIE TABUENA THE TOTAL AMOUNT OF FIFTY FIVE MILLION PESOS (P55,000,000.00) as of the following dates: Jan. 10 Jan. 16 Jan. 30 P25,000,000.00 25,000,000.00 5,000,000.00

Anent the first proposition, Tabuena and Peralta stress that they were being charged with intentional malversation, as the amended informations commonly allege that: ". . . accused . . . conspiring, confederating and confabulating with each other, did then and there willfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriated the amount of . . . ." But it would appear that they were convicted of malversation by negligence. In this connection, the Court's attention is directed to p. 17 of the December 20, 1991 Resolution (denying Tabuena's and Peralta's motion for reconsideration) wherein the Sandiganbayan said: "xxx xxx xxx

On the contrary, what the evidence shows is that accused Tabuena delivered the P55 Million to people who were not entitled thereto, either as representatives of MIAA or of the PNCC. It proves that Tabuena had deliberately consented or permitted through negligence or abandonment, some other person to take such public funds. Having done so, Tabuena, by his own narration, has categorically demonstrated that he is guilty of the misappropriation or malversation of P55 Million of public funds." (Emphasis supplied.) To support their theory that such variance is a reversible flaw, Tabuena and Peralta argue that: 1) While malversation may be committed intentionally or by negligence, both modes cannot be committed at the same time. 2) The Sandiganbayan was without jurisdiction to convict them of malversation of negligence where the amended informations charged them with intentional malversation. 7 3) Their conviction of a crime different from that charged violated their constitutional right to be informed of the accusation. 8 We do not agree with Tabuena and Peralta on this point. Illuminative and controlling is "Cabello v. Sandiganbayan" 9 where the Court passed upon similar protestations raised by therein accused-petitioner Cabello whose conviction for the same crime of malversation was affirmed, in this wise: . . . even on the putative assumption that the evidence against petitioner yielded a case of malversation by negligence but the information was for intentional malversation, under the circumstances of this case his conviction under the first mode of misappropriation would still be in order. Malversation is committed either intentionally or by negligence. The dolo or the culpa present in the offense is only a modality in the perpetration of the felony. Even if the mode charged differs from the mode proved, the same offense of malversation is involved and conviction thereof is proper . . .

(Sgd.) Fe Roa-Gimenez" The disbursement of the P55 Million was, as described by Tabuena and Peralta themselves, "out of the ordinary" and "not based on the normal procedure". Not only were there no vouchers prepared to support the disbursement, the P55 Million was paid in cold cash. Also, no PNCC receipt for the P55 Million was presented. Defense witness Francis Monera, then Senior Assistant Vice President and Corporate Comptroller of PNCC, even affirmed in court that there were no payments made to PNCC by MIAA for the months of January to June of 1986. The position of the prosecution was that there were no outstanding obligations in favor of PNCC at the time of the disbursement of the P55 Million. On the other hand, the defense of Tabuena and Peralta, in short, was that they acted in good faith. Tabuena claimed that he was merely complying with the MARCOS Memorandum which ordered him to forward immediately to the Office of the President P55 Million in cash as partial payment of MIAA's obligations to PNCC, and that he (Tabuena) was of the belief that MIAA indeed had liabilities to PNCC. Peralta for his part shared the same belief and so he heeded the request of Tabuena, his superior, for him (Peralta) to help in the release of P5 Million. With the rejection by the Sandiganbayan of their claim of good faith which ultimately led to their conviction, Tabuena and Peralta now set forth a total of ten (10) errors 6 6a committed by the Sandiganbayan for this Court's consideration. It appears, however, that at the core of their plea that we acquit them are the following: 1) the Sandiganbayan convicted them of a crime not charged in the amended informations, and 2) they acted in good faith.

In Samson vs. Court of Appeals, et al., we held that an accused charged with willful or intentional falsification can validly be convicted of falsification through negligence, thus: 'While a criminal negligent act is not a simple modality of a willful crime, as we held in Quizon vs. Justice of the Peace of Bacolor, G.R. No. L-6641, July 28, 1995, but a distinct crime in our Penal Code, designated as a quasi offense in our Penal Code, it may however be said that a conviction for the former can be had under an information exclusively charging the commission of a willful offense, upon the theory that the greater includes the lesser offense. This is the situation that obtains in the present case. Appellant was charged with willful falsification but from the evidence submitted by the parties, the Court of Appeals found that in effecting the falsification which made possible the cashing of the checks in question, appellant did not act with criminal intent but merely failed to take proper and adequate means to assure himself of the identity of the real claimants as an ordinary prudent man would do. In other words, the information alleges acts which charge willful falsification but which turned out to be not willful but negligent. This is a case covered by the rule when there is a variance between the allegation and proof, and is similar to some of the cases decided by this Tribunal. xxx xxx xxx

the mind of the person performing the act complained of is innocent." The rule was reiterated in "People v. Pacana," 12 although this case involved falsification of public documents and estafa: "Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus non facit reum, nisi mens sit rea. There can be no crime when the criminal mind is wanting." American jurisprudence echoes the same principle. It adheres to the view that criminal intent in embezzlement is not based on technical mistakes as to the legal effect of a transaction honestly entered into, and there can be no embezzlement if the mind of the person doing the act is innocent or if there is no wrongful purpose. 13 The accused may thus always introduce evidence to show he acted in good faith and that he had no intention to convert. 14 And this, to our mind, Tabuena and Peralta had meritoriously shown. In so far as Tabuena is concerned, with the due presentation in evidence of the MARCOS Memorandum, we are swayed to give credit to his claim of having caused the disbursement of the P55 Million solely by reason of such memorandum. From this premise flows the following reasons and/or considerations that would buttress his innocence of the crime of malversation. First. Tabuena had no other choice but to make the withdrawals, for that was what the MARCOS Memorandum required him to do. He could not be faulted if he had to obey and strictly comply with the presidential directive, and to argue otherwise is something easier said than done. Marcos was undeniably Tabuena's superior the former being then the President of the Republic who unquestionably exercised control over government agencies such as the MIAA and PNCC. 15 In other words, Marcos had a say in matters involving inter- government agency affairs and transactions, such as for instance, directing payment of liability of one entity to another and the manner in which it should be carried out. And as a recipient of such kind of a directive coming from the highest official of the land no less, good faith should be read on Tabuena's compliance, without hesitation nor any question, with the MARCOS Memorandum. Tabuena therefore is entitled to the justifying circumstance of "Any person who acts in obedience to an order issued by a superior for some lawful purpose." 16 The subordinate-superior relationship between Tabuena and Marcos is clear. And so too, is the lawfulness of the order contained in the MARCOS Memorandum, as it has for its purpose partial payment of the liability of one government agency (MIAA) to another (PNCC). However, the unlawfulness of the MARCOS Memorandum was being argued, on the observation, for instance, that the Ongpin Memo referred to in the presidential directive reveals a liability of only about P34.5 Million. The Sandiganbayan in this connection said: "Exhibits "2" and "2-a" (pages 1 and 2 of the memorandum of Min. Ongpin to the President dated January 7, 1985) were mainly: a.) for the approval of eight Supplemental Contracts; and

'Moreover; Section 5, Rule 116, of the Rules of Court does not require that all the essential elements of the offense charged in the information be proved, it being sufficient that some of said essential elements or ingredients thereof be established to constitute the crime proved. . . . 'The fact that the information does not allege that the falsification was committed with imprudence is of no moment for here this deficiency appears supplied by the evidence submitted by appellant himself and the result has proven beneficial to him. Certainly, having alleged that the falsification has been willful, it would be incongruous to allege at the same time that it was committed with imprudence for a charge of criminal intent is incompatible with the concept of negligence.' "Subsequently, we ruled in People vs. Consigna, et al., that the aforestated rationale and arguments also apply to the felony of malversation, that is, that an accused charged with willful malversation, in an information containing allegations similar to those involved in the present case, can be validly convicted of the same offense of malversation through negligence where the evidence sustains the latter mode of perpetrating the offense." Going now to the defense of good faith, it is settled that this is a valid defense in a prosecution for malversation for it would negate criminal intent on the part of the accused. Thus, in the two (2) vintage, but significant malversation cases of "US v. Catolico" 10 and "US v. Elvia," 11 the Court stressed that: "To constitute a crime, the act must, except in certain crimes made such by statute, be accompanied by a criminal intent, or by such negligence or indifference to duty or to consequences as, in law, is equivalent to criminal intent. The maxim is actus non facit reum, nisi mens sit rea a crime is not committed if

b.) a request for partial deferment of payment by PNCC for advances made for the MIAA Development Project, while at the same time recognizing some of the PNCC's escalation billings which would result in making payable to PNCC the amount of P34.5 million out of existing MIAA Project funds. Thus: xxx xxx xxx

"ATTY. ANDRES Q. Can you please show us in this Exhibit "7" and "7-a" where it is indicated the receivables from MIA as of December 31, 1985? A. As of December 31, 1985, the receivables from MIA is shown on page 2, marked as Exhibit "7-a", sir, P102,475,392.35. xxx xxx xxx 19

To allow PNCC to collect partially its billings, and in consideration of its pending escalation billings, may we request for His Excellency's approval for a deferment of repayment of PNCC's advances to the extent of P30 million corresponding to about 30% of P99.1 million in escalation claims of PNCC, of which P32.6 million has been officially recognized by MIADP consultants but could not be paid due to lack of funding. Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Project funds. This amount represents the excess of the gross billings of PNCC of P98.4 million over the undeferred portion of the repayment of advances of P63.9 million.' While Min. Ongpin may have, therefore recognized the escalation claims of the PNCC to MIAA to the extent of P99.1 million (Exhibit 2a), a substantial portion thereof was still in the stages of evaluation and approval, with only P32.6 million having been officially recognized by the MIADP consultants. If any payments were, therefore, due under this memo for Min. Ongpin (upon which President Marcos' Memo was based) they would only be for a sum of up to P34.5 million." 17 xxx xxx xxx

ATTY. ANDRES Q. Can you tell us, Mr. Witness, what these obligations represent? WITNESS A. These obligations represent receivables on the basis of our billings to MIA as contract-owner of the project that the Philippine National Construction Corporation constructed. These are billings for escalation mostly, sir. Q. What do you mean by escalation?

A. Escalation is the component of our revenue billings to the contract-owner that are supposed to take care of price increases, sir. xxx xxx xxx 20

ATTY. ANDRES Q. When you said these are accounts receivable, do I understand from you that these are due and demandable? A. Yes, sir." 21

"V. Pres. Marcos' order to Tabuena dated January 8, 1986 baseless. Not only was Pres. Marcos' Memo (Exhibit "1") for Tabuena to pay P55 million irrelevant, but it was actually baseless. This is easy to see. Exhibit "1" purports to refer itself to the Ongpin Memorandum (Exhibit "2", "2-a"); Exhibit "1", however, speaks of P55 million to be paid to the PNCC while Exhibit "2" authorized only P34.5 million. The order to withdraw the amount of P55 million exceeded the approved payment of P34.5 million by P20.5 million. Min. Ongpin's Memo of January 7, 1985 could not therefore serve as a basis for the President's order to withdraw P55 million." 18 Granting this to be true, it will not nevertheless affect Tabuena's good faith so as to make him criminally liable. What is more significant to consider is that the MARCOS Memorandum is patently legal (for on its face it directs payment of an outstanding liability) and that Tabuena acted under the honest belief that the P55 million was a due and demandable debt and that it was just a portion of a bigger liability to PNCC. This belief is supported by defense witness Francis Monera who, on direct examination, testified that:

Thus, even if the order is illegal if it is patently legal and the subordinate is not aware of its illegality, the subordinate is not liable, for then there would only be a mistake of fact committed in good faith. 22 Such is the ruling in "Nassif v. People" 23 the facts of which, in brief, are as follows: "Accused was charged with falsification of commercial document. A mere employee of R.J. Campos, he inserted in the commercial document alleged to have been falsified the word "sold" by order of his principal. Had he known or suspected that his principal was committing an improper act of falsification, he would be liable either as a co-principal or as an accomplice. However, there being no malice on his part, he was exempted from criminal liability as he was a mere employee following the orders of his principal." 24 Second. There is no denying that the disbursement, which Tabuena admitted as "out of the ordinary", did not comply with certain auditing rules and regulations such as those pointed out by the Sandiganbayan, to wit: a) [except for salaries and wages and for commutation of leaves] all disbursements above P1,000.00 should be made by check (Basic Guidelines for Internal Control dated January 31, 1977 issued by COA)

b) payment of all claims against the government had to be supported with complete documentation (Sec. 4, P. D. 1445, "State Auditing Code of the Philippines). In this connection, the Sandiganbayan observed that: "There were no vouchers to authorize the disbursements in question. There were no bills to support the disbursement. There were no certifications as to the availability of funds for an unquestionably staggering sum of P55 Million." 25 c) failure to protest (Sec. 106, P. D. 1445)

mean to one's personal advantage but every attempt by one person to dispose of the goods of another without right as if they were his own is 'conversion to his own use.' (Terry v. Water Improvement Dist. No. 5 of Tulsa County, 64 p. 2d 904, 906, 179 Okl. 106) At p. 207, Words and Phrases, Permanent Edition 9A. Conversion is any interference subversive of the right of the owner of personal property to enjoy and control it. The gist of conversion is the usurpation of the owner's right of property, and not the actual damages inflicted. Honesty of purpose is not a defense. (Ferrera v. Parks, 23 p. 883, 885 19 Or. 106) At page 168, id. xxx xxx xxx

But this deviation was inevitable under the circumstances Tabuena was in. He did not have the luxury of time to observe all auditing procedures of disbursement considering the fact that the MARCOS Memorandum enjoined his "immediate compliance" with the directive that he forward to the President's Office the P55 Million in cash. Be that as it may, Tabuena surely cannot escape responsibility for such omission. But since he was acting in good faith, his liability should only be administrative or civil in nature, and not criminal. This follows the decision in "Villacorta v. People" 26 where the Court, in acquitting therein accused municipal treasurer of Pandan, Catanduanes of malversation after finding that he incurred a shortage in his cash accountability by reason of his payment in good faith to certain government personnel of their legitimate wages, leave allowances, etc., held that: "Nor can negligence approximating malice or fraud be attributed to petitioner. If he made wrong payments, they were in good faith mainly to government personnel, some of them working at the provincial auditor's and the provincial treasurer's offices. And if those payments ran counter to auditing rules and regulations, they did not amount to a criminal offense and he should only be held administratively or civilly liable." Likewise controlling is "US v. Elvia" 27 where it was held that payments in good faith do not amount to criminal appropriation, although they were made with insufficient vouchers or improper evidence. In fact, the Dissenting Opinion's reference to certain provisions in the revised Manual on Certificate of Settlement and Balances apparently made to underscore Tabuena's personal accountability, as agency head, for MIAA funds would all the more support the view that Tabuena is vulnerable to civil sanctions only. Sections 29.2 and 29.5 expressly and solely speak of "civilly liable" to describe the kind of sanction imposable on a superior officer who performs his duties with "bad faith, malice or gross negligence"' and on a subordinate officer or employee who commits "willful or negligent acts . . . which are contrary to law, morals, public policy and good customs even if he acted under order or instructions of his superiors." Third. The Sandiganbayan made the finding that Tabuena had already converted and misappropriated the P55 Million when he delivered the same to Mrs. Gimenez and not to the PNCC, proceeding from the following definitions/concepts of "conversion": "'Conversion', as necessary element of offense of embezzlement, being the fraudulent 'appropriation to one's own use' of another's property which does not necessarily

The words 'convert' and 'misappropriate' connote an act of using or disposing of another's property as if it were one's own. They presuppose that the thing has been devoted to a purpose or use different from that agreed upon. To appropriate to one's own use includes not only conversion to one's personal advantage but every attempt to dispose of the property of another without right. People vs. Webber, 57 O.G. p. 2933, 2937 By placing them at the disposal of private persons without due authorization or legal justification, he became as guilty of malversation as if he had personally taken them and converted them to his own use. People vs. Luntao, 50 O.G. p. 1182, 1183" 28 We do not agree. It must be stressed that the MARCOS Memorandum directed Tabuena "to pay immediately the Philippine National Construction Corporation, thru this office, the sum of FIFTY FIVE MILLION . . .", and that was what Tabuena precisely did when he delivered the money to Mrs. Gimenez. Such delivery, no doubt, is in effect delivery to the Office of the President inasmuch as Mrs. Gimenez was Marcos' secretary then. Furthermore, Tabuena had reasonable ground to believe that the President was entitled to receive the P55 Million since he was certainly aware that Marcos, as Chief Executive, exercised supervision and control over government agencies. And the good faith of Tabuena in having delivered the money to the President's office (thru Mrs. Gimenez), in strict compliance with the MARCOS Memorandum, was not at all affected even if it later turned out that PNCC never received the money. Thus, it has been said that: "Good faith in the payment of public funds relieves a public officer from the crime of malversation. xxx xxx xxx

Not every unauthorized payment of public funds is malversation. There is malversation only if the public officer who has custody of public funds should appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or negligence shall permit any other person to take such public funds. Where the payment of public funds has been made in good faith, and there is reasonable ground to believe that the public officer to whom the fund had been paid was entitled thereto, he is deemed to have acted in good faith, there is no criminal intent, and the payment, if it turns out that it is unauthorized, renders him only civilly but not criminally liable." 29 Fourth. Even assuming that the real and sole purpose behind the MARCOS Memorandum was to siphon-out public money for the personal benefit of those then in power, still, no criminal liability can be imputed to Tabuena. There is no showing that Tabuena had anything to do whatsoever with the execution of the MARCOS Memorandum. Nor is there proof that he profited from the felonious scheme. In short, no conspiracy was established between Tabuena and the real embezzler/s of the P55 Million. In the cases of "US v. Acebedo" 30 and "Ang v. Sandiganbayan", 31 both also involving the crime of malversation, the accused therein were acquitted after the Court arrived at a similar finding of nonproof of conspiracy. In "Acebedo", therein accused, as municipal president of Palo, Leyte, was prosecuted for and found guilty by the lower court of malversation after being unable to turn over certain amounts to the then justice of the peace. It appeared, however, that said amounts were actually collected by his secretary Crisanto Urbina. The Court reversed Acebedo's conviction after finding that the sums were converted by his secretary Urbina without the knowledge and participation of Acebedo. The Court said, which we herein adopt: "No conspiracy between the appellant and his secretary has been shown in this case, nor did such conspiracy appear in the case against Urbina. No guilty knowledge of the theft committed by the secretary was shown on the part of the appellant in this case, nor does it appear that he in any way participated in the fruits of the crime. If the secretary stole the money in question without the knowledge or consent of the appellant and without negligence on his part, then certainly the latter can not be convicted of embezzling the same money or any part thereof." 32 In "Ang", accused-petitioner, as MWSS bill collector, allowed part of his collection to be converted into checks drawn in the name of one Marshall Lu, a non-customer of MWSS, but the checks were subsequently dishonored. Ang was acquitted by this Court after giving credence to his assertion that the conversion of his collections into checks were thru the machinations of one Lazaro Guinto, another MWSS collector more senior to him. And we also adopt the Court's observation therein, that: "The petitioner's alleged negligence in allowing the senior collector to convert cash collections into checks may be proof of poor judgment or too trusting a nature insofar as a superior officer is concerned but there must be stronger evidence to show fraud, malice, or other indicia of deliberateness in the conspiracy cooked up with Marshall Lu. The prosecution

failed to show that the petitioner was privy to the conspirational scheme. Much less is there any proof that he profited from the questioned acts. Any suspicions of conspiracy, no matter how sincerely and strongly felt by the MWSS, must be converted into evidence before conviction beyond reasonable doubt may be imposed." 33 The principles underlying all that has been said above in exculpation of Tabuena equally apply to Peralta in relation to the P5 Million for which he is being held accountable, i.e., he acted in good faith when he, upon the directive of Tabuena, helped facilitate the withdrawal of P5 Million of the P55 Million of the MIAA funds. This is not a sheer case of blind and misguided obedience, but obedience in good faith of a duly executed order. Indeed, compliance to a patently lawful order is rectitude far better than contumacious disobedience. In the case at bench, the order emanated from the Office of the President and bears the signature of the President himself, the highest official of the land. It carries with it the presumption that it was regularly issued. And on its face, the memorandum is patently lawful for no law makes the payment of an obligation illegal. This fact, coupled with the urgent tenor for its execution constrains one to act swiftly without question. Obedientia est legis essentia. Besides, the case could not be detached from the realities then prevailing. As aptly observed by Mr. .Justice Cruz in his dissenting opinion: "We reject history in arbitrarily assuming that the people were free during the era and that the judiciary was independent and fearless. We know it was not; even the Supreme Court at that time was not free. This is an undeniable fact that we can not just blink away. Insisting on the contrary would only make our sincerity suspect and even provoke scorn for what can only be described as our incredible credulity." 34 But what appears to be a more compelling reason for their acquittal is the violation of the accused's basic constitutional right to due process. "Respect for the Constitution", to borrow once again Mr. Justice Cruz's words, is more important than securing a conviction based on a violation of the rights of the accused." 35 While going over the records, we were struck by the way the Sandiganbayan actively took part in the questioning of a defense witness and of the accused themselves. Tabuena and Peralta may not have raised this as an error, there is nevertheless no impediment for us to consider such matter as additional basis for a reversal since the settled doctrine is that an appeal throws the whole case open to review, and it becomes the duty of the appellate court to correct such errors as may be found in the judgment appealed from whether they are made the subject of assignments of error or not. 36 Simply consider the volume of questions hurled by the Sandiganbayan. At the taking of the testimony of Francis Monera, then Senior Assistant Vice President and Corporate Comptroller of PNCC, Atty. Andres asked sixteen (16) questions on direct examination. Prosecutor Viernes only asked six (6) questions on cross-examination in the course of which the court interjected a total of twenty-seven (27) questions (more than four times Prosecutor Viernes' questions and even more than the combined total of direct and cross-

examination questions asked by the counsels). After the defense opted not to conduct any re-direct examination, the court further asked a total of ten (10) questions. 37 The trend intensified during Tabuena's turn on the witness stand. Questions from the court after Tabuena's cross-examination totalled sixty-seven (67). 38 This is more than five times Prosecutor Viernes' questions on cross-examination (14), and more than double the total of direct examination and crossexamination questions which is thirty-one (31) [17 direct examination questions by Atty. Andres plus 14 crossexamination questions by Prosecutor Viernes]. In Peralta's case, the Justices, after his cross-examination, propounded a total of forty-one (41) questions. 39 But more importantly, we note that the questions of the court were in the nature of cross examinations characteristic of confrontation, probing and insinuation. 40 (The insinuating type was best exemplified in one question addressed to Peralta, which will be underscored.) Thus we beg to quote in length from the transcripts pertaining to witness Monera, Tabuena and Peralta. (Questions from the Court are marked with asterisks and italicized for emphasis.) (MONERA) (As a background, what was elicited from his direct examination is that the PNCC had receivables from MIAA totalling P102,475,392.35, and although such receivables were largely billings for escalation, they were nonetheless all due and demandable. What follows are the cross-examination of Prosecutor Viernes and the court questions). "CROSS-EXAMINATION BY PROS. VIERNES Q. You admit that as shown by these Exhibits "7" and "7-a", the items here represent mostly escalation billings. Were those escalation billings properly transmitted to MIA authorities? A. I don't have the documents right now to show that they were transmitted, but I have a letter by our President, Mr. Olaguer, dated July 6, 1988, following up for payment of the balance of our receivables from MIA, sir. *AJ AMORES *Q. This matter of escalation costs, is it not a matter for a conference between the MIA and the PNCC for the determination as to the correct amount? A. I agree, your Honor. As far as we are concerned, our billings are what we deemed are valid receivables. And, in fact, we have been following up for payment. *Q. This determination of the escalation costs was it accepted as the correct figure by MIA? A. I don't have any document as to the acceptance by MIA, your Honor, but our company was able to get a document or a letter by Minister Ongpin to President Marcos, dated January 7, 1985, with a marginal note or approval by former President Marcos. *PJ GARCHITORENA

*Q.

Basically, the letter of Mr. Ongpin is to what effect?

A. The subject matter is approval of the supplementary contract and request for partial deferment of payment for MIA Development Project, your Honor. *Q. It has nothing to do with the implementation of the escalation costs? A. The details show that most of the accounts refer to our escalations, your Honor. *Q. Does that indicate the computation for escalations were already billed or you do not have any proof of that? A. Our subsidiary ledger was based on billings to MIA and this letter of Minister Ongpin appears to have confirmed our billings to MIA, your Honor. *AJ AMORES *Q. Were there partial payments made by MIA on these escalation billings? A. Based on records available as of today, the P102 million was reduced to about P56.7 million, if my recollection is correct, your Honor. *PJ GARCHITORENA *Q. Were the payments made before or after February 1986, since Mr. Olaguer is a new entrant to your company ? WITNESS A. The payments were made after December 31, 1985 but I think the payments were made before the entry of our President, your Honor. Actually, the payment was in the form of assignments to State Investment of about P23 million; and then there was P17.8 million application against advances made or formerly given; and there were payments to PNCC of about P2.6 million and there was a payment for application on withholding and contractual stock of about P1 million; that summed up to P44.4 million all in all. And you deduct that from the P102 million, the remaining balance would be about P57 million. *PJ GARCHITORENA *Q. What you are saying is that, for all the payments made on this P102 million, only P2 million had been payments in cash? A. Yes, your Honor.

*Q. The rest had been adjustments of accounts, assignments of accounts, or offsetting of accounts? A. *Q. Yes, your Honor. This is as of December 31, 1985?

A. The P102 million was as of December 31, 1985, your Honor, but the balances is as of August 1987.

*Q. We are talking now about the P44 million, more or less, by which the basic account has been reduced. These reductions, whether by adjustment or assignment or actual delivery of cash, were made after December 31, 1985? WITNESS A. Yes, your Honor.

A.

Yes, your Honor.

*Q. At all events, we are talking of settlement or partial liquidation prior to December 31, 1985? A. Yes, your Honor.

*PJ GARCHITORENA *Q. Subsequent thereto, we are talking merely of about P44 million? A. *Q. A. Yes, your Honor, as subsequent settlements. After December 31, 1985? Yes, your Honor.

*Q. And your records indicate when these adjustments and payments were made? A. Yes, your Honor.

*AJ AMORES *Q. You said there were partial payments before of these escalation billings. Do we get it from you that there was an admission of these escalation costs as computed by you by MIA, since there was already partial payments? A. Yes, your Honor.

*Q. And they have liquidated that, as you described it, by way of assignments, adjustments, by offsets and by P2 million of cash payment? A. Yes, your Honor.

*Q. How were these payments made before February 1986, in cash or check, if there were payments made? A. The P44 million payments was in the form of assignments, your Honor. *PJ GARCHITORENA *Q. The question of the Court is, before December 31, 1985, were there any liquidations made by MIA against these escalation billings? A. I have not reviewed the details of the record, your Honor. But the ledger card indicates that there were collections on page 2 of the Exhibit earlier presented. It will indicate that there were collections shown by credits indicated on the credit side of the ledger. *AJ AMORES *Q. Your ledger does not indicate the manner of giving credit to the MIA with respect to the escalation billings. Was the payment in cash or just credit of some sort before December 31, 1985? A. Before December 31, 1985, the reference of the ledger are official receipts and I suppose these were payments in cash, your Honor. *Q. Do you know how the manner of this payment in cash was made by MIA? A. I do not know, your Honor.

*AJ AMORES *Q. Your standard operating procedure before December 31, 1985 in connection with or in case of cash payment, was the payment in cash or check? A. *Q. A. I would venture to say it was by check, your Honor Which is the safest way to do it? Yes, your Honor

*PJ GARCHITORENA *Q. A. And the business way? Yes, your Honor.

PJ GARCHITORENA Continue. PROS VIERNES Q. You mentioned earlier about the letter of former Minister Ongpin to the former President Marcos, did you say that that letter concurs with the escalation billings reflected in Exhibits "7" and "7-a"? WITNESS A. The Company or the management is of the opinion that this letter, a copy of which we were able to get, is a confirmation of the acceptance of our billings, sir. Q. This letter of Minister Ongpin is dated January 7, 1985, whereas the entries of escalation billings as appearing in Exhibit "7" are dated June 30, 1985, would you still insist that the letter of January 1985 confirms the escalation billings as of June 1985?

*PJ GARCHITORENA *Q A. *Q. But your records will indicate that? The records will indicate that, your Honor. Except that you were not asked to bring them?

A. The entries started June 30 in the ledger card. And as of December 31, 1985, it stood at P102 million after payments were made as shown on the credit side of the ledger. I suppose that the earlier amount, before the payment was made, was bigger and therefore I would venture to say that the letter of January 7, 1985 contains an amount that is part of the original contract account. What are indicated in the ledger are escalation billings. *PJ GARCHITORENA *Q We are talking about the letter of Minister Ongpin?

*Q. From your records, for the month of January 1986, there was no payment of this escalation account by MIA ? WITNESS A. Yes, your Honor. But on page 2 of Exhibit "7" there appears an assignment of P23 million, that was on September 25, 1986. *Q. A. But that is already under the present administration? After February 1986, your Honor.

A. The letter of Minister Ongpin refers to escalation billings, sir. *Q. A. As of what date? The letter is dated January 7, 1985, your Honor.

*Q. But before February, in January 1986, there was no payment whatsoever by MIA to PNCC? A. Per record there is none appearing, your Honor.

*PJ GARCHITORENA *Q. The earliest payment, whether by delivery of cash equivalent or of adjustment of account, or by assignment, or by offsets, when did these payments begin ? A. Per ledger card, there were payments in 1985, prior to December 31, 1985, your Honor. *Q. After December 31, 1985?

PJ GARCHITORENA Continue. PROS. VIERNES Q In accordance with this letter marked Exhibit "7" and "7-a", there were credits made in favor of MIA in July and November until December 1985. These were properly credited to the account of MIA? WITNESS A. Yes, sir.

A. There appears also P23 million as credit, that is a form of settlement, your Honor. *Q. This is as of September 25?

Q. In 1986, from your records as appearing in Exhibit "7-a", there were no payments made to PNCC by MIA for the months of January to June 1986? A. Yes, sir.

A. Yes, your Honor. There were subsequent settlements. P23 million is just part of the P44 million. *Q. And what you are saying is that, PNCC passed the account to State Investment. In other words, State Investment bought the credit of MIA? A. Yes, your Honor.

Q. And neither was the amount of P22 million remitted to PNCC by MIA? A. Yes, sir.

*Q. And the amount of credit or receivables sold by PNCC to State Investment is P23 million? A. *Q. Yes, your Honor. Is there a payback agreement?

PROS. VIERNES That will be all, your Honor. PJ GARCHITORENA Redirect?

A. I have a copy of the assignment to State Investment but I have not yet reviewed the same, your Honor. *AJ AMORES

ATTY. ANDRES No redirect, your Honor. *PJ GARCHITORENA Questions from the Court. *AJ AMORES *Q. As of now, is this obligation of MIA, now NAIA, paid to PNCC? A. There is still a balance of receivables from MIA as evidenced by a collection letter by our President dated July 6, 1988, your Honor. The amount indicated in the letter is P55 million. PJ GARCHITORENA

Any clarifications you would like to make Mr. Estebal? ATTY ESTEBAL

*Q. When was Exhibit "3" delivered actually by Mrs. Gimenez? A. January 31st, your Honor.

None, your Honor. PJ GARCHITORENA PJ GARCHITORENA Continue. Mr. Viernes? PROS. VIERNES PROS. VIERNES Q. No more, your Honor. A. PJ GARCHITORENA The witness is excused. Thank you very much Mr. Monera. . . ." 41 (TABUENA) (In his direct examination, he testified that he caused the preparation of the checks totalling P55 Million pursuant to the MARCOS Memorandum and that he thereafter delivered said amount in cash on the three (3) dates as alleged in the information to Marcos' private secretary Mrs. Jimenez at her office at Aguado Street, who thereafter issued a receipt. Tabuena also denied having used the money for his own personal use.) cdasia "CROSS-EXAMINATION BY PROS. VIERNES Q. The amount of P55 million as covered by the three (3) checks Mr. Tabuena, were delivered on how many occasions? A. Three times, sir. Q. You asked for it on January 31, 1986 when you made the last delivery? A. Yes, sir. Q. Do you know at whose instance this Exhibit "3" was prepared? A. I asked for it, sir. Yes. sir. I did not. You did not go to Malacaang on January 30, 1986?

Q. Did you see this Exhibit "3" prepared in the Office of Mrs. Gimenez? A. Yes, sir. Malacaang

Q. This receipt was typewritten in stationery. Did you see who typed this receipt?

A. No, sir. What happened is that, she went to her room and when she came out she gave me that receipt. *PJ GARCHITORENA *Q. What you are saying is, you do not know who typed that receipt? WITNESS A. Yes, your Honor.

Q. And so, on the first two deliveries, you did not ask for a receipt from Mrs. Gimenez? A. Yes, sir.

Q. It was only on January 30, 1986 that this receipt Exhibit "3" was issued by Mrs. Gimenez? A. Yes, sir.

*Q. Are you making an assumption that she typed that receipt? A. *Q. A. Yes, your Honor, because she knows how to type. Your assumption is that she typed it herself? Yes, your Honor.

*PJ GARCHITORENA *Q. So January 30 is the date of the last delivery?

A. I remember it was on the 31st of January, your Honor. What happened is that, I did not notice the date placed by Mrs. Gimenez. *Q. Are you telling us that this Exhibit "3" was incorrectly dated? A. Yes, your Honor.

PJ GARCHITORENA Proceed. PROS. VIERNES Q. This receipt was prepared on January 31, although it is dated January 30? A. Yes, sir, because I was there on January 31st.

*Q. Because the third delivery was on January 31st and yet the receipt was dated January 30? A. Yes, your Honor.

Q. In what particular place did Mrs. Gimenez sign this Exhibit "3"? A. In her office at Aguado, sir.

That will be all, your Honor. PJ GARCHITORENA Redirect?

Q. Did you actually see Mrs. Gimenez signing this receipt Exhibit "3"? A. No, sir, I did not. She was inside her room.

ATTY. ANDRES No redirect, your Honor. *PJ GARCHITORENA Questions from the Court. AJ HERMOSISIMA *Q. Why did you not ask for receipt on the first and second deliveries? A. Because I know that the delivery was not complete yet, your Honor. *PJ GARCHITORENA *Q. So you know that the total amount to be delivered was P55 million? A. Yes, your Honor.

Q. So, she was in her room and when she came out of the room, she handed this receipt to you already typed and signed? A. Yes, sir.

*AJ HERMOSISIMA *Q. So, how did you know this was the signature of Mrs. Gimenez ? WITNESS A. Because I know her signature, your Honor. I have been receiving letters from her also and when she requests for something from me. Her writing is familiar to me *Q. So, when the Presiding Justice asked you as to how you knew that this was the signature of Mrs. Gimenez and you answered that you saw Mrs. Gimenez signed it, you were not exactly truthful? A. What I mean is, I did not see her sign because she went to her room and when she came out, she gave me that receipt, your Honor. PJ GARCHITORENA That is why you have to wait for the question to be finished and listen to it carefully. Because when I asked you, you said you saw her signed it. Be careful Mr. Tabuena. WITNESS Yes, your Honor. PJ GARCHITORENA Continue. PROS. VIERNES Q. Was there another person inside the office of Mrs. Gimenez when she gave you this receipt Exhibit "3"? A. Nobody, sir.

*PJ GARCHITORENA Response by Mr. Peralta to the testimony of Mr. Tabuena ATTY. ESTEBAL We are adopting the testimony of Mr. Tabuena and we will also present the accused, your Honor. *AJ DEL ROSARIO *Q. From whom did you receive the President's memorandum marked Exhibit "1"? Or more precisely, who handed you this memorandum? A. Mrs. Fe Roa Gimenez, your Honor.

*Q. Did you ask Mrs. Fe Gimenez for what purpose the money was being asked? A. The money was in payment for the debt of the MIA Authority to PNCC, your Honor. *Q. If it was for the payment of such obligation why was there no voucher prepared to cover such payment? In other words, why was the delivery of the money not covered by any voucher? A. The instruction to me was to give it to the Office of the President, your Honor. *PJ GARCHITORENA *Q. Be that as it may, why was there no voucher to cover this particular disbursement?

Q. I noticed in this receipt that the last delivery of the sum of P55 million was made on January 30. Do we understand from you that this date January 30 is erroneous? A. Yes, sir, that January 30 is erroneous. I noticed it only afterwards. This should be January 31st, sir. PROS. VIERNES

A. I was just told to bring it to the Office of the President, your Honor. *A J DEL ROSARIO *Q. Was that normal procedure for you to pay in cash to the Office of the President for obligations of the MIAA in payment of its obligation to another entity? WITNESS

accord already prepare the necessary papers and documents for the payment of that obligation? A. He told me verbally in the telephone that the Order for the payment of that obligation is forthcoming, your Honor. I will receive it. *Q. Is this the first time you received such a memorandum from the President? A. Yes, your Honor.

A. No, your Honor, I was just following the Order to me of the President. *PJ GARCHITORENA

*Q. And was that the last time also that you received such a memorandum? A. Yes, your Honor.

*Q. A.

So the Order was out of the ordinary? Yes, your Honor. *Q. Did you not inquire, if not from the President, at least from Mrs. Gimenez why this procedure has to be followed instead of the regular procedure? A. No, sir.

*AJ DEL ROSARIO *Q. Did you file any written protest with the manner with which such payment was being ordered? A. *Q. No, your Honor. Why not?

*A J DEL ROSARIO *Q. A. Why did you not ask ? I was just ordered to do this thing, your Honor.

A. Because with that instruction of the President to me, I followed, your Honor. *Q. Before receiving this memorandum Exhibit "I", did the former President Marcos discuss this matter with you ? A. *Q. Yes, your Honor. When was that?

AJ HERMOSISIMA *Q. A. *Q. You said there was an "I OWE YOU"? Yes, your Honor. Where is that "I OWE YOU" now?

A. All I know is that we owe PNCC the amount of P99.1 million, your Honor. MIAA owes PNCC that amount. *Q. Was this payment covered by receipt from the PNCC? A. It was not covered, your Honor.

A. He called me up earlier, a week before that, that he wants to me pay what I owe the PNCC directly to his office in cash, your Honor. *PJ GARCHITORENA *Q. By "I OWE", you mean the MIAA?

*Q. So the obligation of MIAA to PNCC was not, for the record, cancelled by virtue of that payment? A. Based on the order to me by the former President Marcos ordering me to pay that amount to his office and then the mechanics will come after, your Honor. *Q. Is the PNCC a private corporation or government entity ? A. I think it is partly government, your Honor.

WITNESS A. Yes, your Honor.

*A J DEL ROSARIO *Q. him ? A. And what did you say in this discussion you had with I just said, "Yes, sir, I will do it."

*Q. Were you the one who asked for a memorandum to be signed by him? A. No, your Honor.

*PJ GARCHITORENA *Q. A. That is the former CDCP? Yes, your Honor.

*Q. After receiving that verbal instruction for you to pay MIAA's obligation with PNCC, did you not on your own

*A J HERMOSISIMA

*Q. Why were you not made to pay directly to the PNCC considering that you are the Manager of MIA at that time and the PNCC is a separate corporation, not an adjunct of Malacaang? WITNESS

A. I became Manager of MIA way back, late 1968, your Honor. *Q. Long before the MIA was constituted as an independent authority? A. Yes, your Honor.

A. I was just basing it from the Order of Malacaang to pay PNCC through the Office of the President, your Honor. *Q. Do you know the President or Chairman of the Board of PNCC? A. Yes, your Honor.

*PJ GARCHITORENA *Q. And by 1986, you have been running the MIA for 18 years ? WITNESS A. Yes, your Honor.

*Q. How was the obligation of MIAA to PNCC incurred. Was it through the President or Chairman of the Board? A. PNCC was the one that constructed the MIA, your Honor. *Q. Was the obligation incurred through the President or Chairman of the Board or President of the PNCC? In other words, who signed the contract between PNCC and MIAA? A. Actually, we inherited this obligation, your Honor. The one who signed for this was the former Director of BAT which is General Singzon. Then when the MIA Authority was formed, all the obligations of BAT were transferred to MIAA. So the accountabilities of BAT were transferred to MIAA and we are the ones that are going to pay, your Honor. *Q. Why did you agree to pay to Malacaang when your obligation was with the PNCC? A. Honor. I was ordered by the President to do that, your

*Q. And prior to your joining the MIA, did you ever work for the government? A. No, your Honor.

*Q. So, is it correct for us to say that your joining the MIA in 1968 as its Manager was your first employment with the government? A. Yes, your Honor.

*Q. While you were Manager of MIA, did you have other subsequent concurrent positions in the government also ? A. I was also the Chairman of the Games and Amusement Board, your Honor. *Q. But you were not the executive or operating officer of the Games and Amusement Board? A. I was, your Honor.

*Q. You agreed to the order of the President notwithstanding the fact that this was not the regular course or Malacaang was not the creditor? A. I saw nothing wrong with that because that is coming from the President, your Honor. *Q. The amount was not a joke, amounting to P55 million, and you agreed to deliver money in this amount through a mere receipt from the private secretary? A. I was ordered by the President, your Honor.

*Q. As Chairman you were running the Games and Amusement Board? A. Yes, your Honor.

*Q. What else, what other government positions did you occupy that time? A. I was also Commissioner of the Game Fowl Commission, your Honor. *PJ GARCHITORENA *Q That is the cockfighting?

*PJ GARCHITORENA *Q. There is no question and it can be a matter of judicial knowledge that you have been with the MIA for sometime ? A. *Q. A. Yes, your Honor. Prior to 1986? Yes, your Honor.

WITNESS A. *Q. A. *Q. A. Yes, your Honor. Here, you were just a member of the Board? Yes, your Honor. So you were not running the commission? Yes, your Honor.

*Q. Can you tell us when you became the Manager of MIA ?

*Q. A.

Any other entity? No more, your Honor.

*Q. Did you not think that at least out of prudence, you should have asked the COA for some guidance on this matter so that you will do it properly? WITNESS A What I was going to do is, after those things I was going to tell that delivery ordered by the President to the COA, your Honor. *Q. That is true, but what happened here is that you and Mr. Dabao or you and Mr. Peralta signed requests for issuance of Manager's checks and you were accommodated by the PNB Office at Nichols without any internal documentation to justify your request for Manager's checks? A. Yes, your Honor.

*Q. As far as you can recall, besides being the Manager of the MIA and later the MIAA for approximately 18 years, you also ran the Games and Amusement Board as its executive officer? A. Yes, your Honor.

*Q. And you were a commissioner only of the Game Fowl Commission ? A. *Q. A. Yes, your Honor. Who was running the commission at that time? I forgot his name, but he retired already, your Honor.

*Q. All of us who joined the government, sooner or later, meet with our Resident COA representative? A. Yes, your Honor.

*Q. Of course we had no intimation at that time that Mr. Marcos will win the elections but even then, the Daily Express, which was considered to be a newspaper friendly to the Marcoses at that time, would occasionally come with socalled expose, is that not so? A. Yes, your Honor.

*PJ GARCHITORENA *Q. And one of our unfortunate experience (sic) is when the COA Representative comes to us and says: "Chairman or Manager, this cannot be". And we learn later on that COA has reasons for its procedure and we learn to adopt to them? WITNESS A. Yes, your Honor.

*Q. And worst, you had the so-called mosquito press that would always come out with the real or imagined scandal in the government and place it in the headline, do you recall that? A. Yes, your Honor.

*PJ GARCHITORENA *Q. Under these circumstances, did you not entertain some apprehension that some disloyal employees might leak you out and banner headline it in some mosquito publications like the Malaya at that time? WITNESS A. No, your Honor.

*Q. As a matter of fact, sometimes we consider it inefficient, sometimes we consider it foolish, but we know there is reason in this apparent madness of the COA and so we comply? A. Yes, your Honor.

*Q. And more than anything else the COA is ever anxious for proper documentation and proper supporting papers ? A. *Q. A. Yes, your Honor. Sometimes, regardless of the amount? Yes, your Honor.

*PJ GARCHITORENA I bring this up because we are trying to find out different areas of fear. We are in the government and we in the government fear the COA and we also fear the press. We might get dragged into press releases on the most innocent thing. You believe that? A. Yes, your Honor.

*Q. Now, you have P55 million which you were ordered to deliver in cash, not to the creditor of the particular credit, and to be delivered in armored cars to be acknowledged only by a receipt of a personal secretary. After almost 18 years in the government service and having had that much time in dealing with COA people, did it not occur to you to call a COA representative and say, "What will I do here?" A. I did not, your Honor.

*Q. And usually our best defense is that these activities are properly documented? A. Yes, your Honor.

*PJ GARCHITORENA

*Q. In this particular instance, your witnesses have told us about three (3) different trips from Nichols to Aguado usually late in the day almost in movie style fashion. I mean, the money being loaded in the trunk of your official car and then you had a back-up truck following your car? A. Yes, your Honor.

*Q. A.

Is that not quite a fearful experience to you ? I did not think of that at that time, your Honor.

PROS VIERNES Q. Was there a separate written order for you to co-sign with Mr. Tabuena? WITNESS

*PJ GARCHITORENA *Q. You did not think it fearful to be driving along Roxas Boulevard with P25 million in the trunk of your car? WITNESS A. We have security at that time your Honor. A. Yes, sir, an order was given to me by Mr. Tabuena.

*PJ GARCHITORENA Was that marked in evidence? WITNESS Yes, your Honor. *PJ GARCHITORENA

ATTY. ANDRES Your Honor, the P25 million was in the armored car; only P5 million was in the trunk of his car. *PJ GARCHITORENA

What exhibit? Thank you for the correction. Even P1 million only. How much more with P5 million inside the trunk of your car, was that not a nervous experience? A. As I have said, your Honor, I never thought of that. WITNESS I have here a copy, your Honor. This was the order and it was marked as exhibit "N". PROS VIERNES It was marked as Exhibit "M", your Honor. Q. How did you know there was an existing liability of MIAA in favor of PNCC at that time? A. Because prior to this memorandum of Mr. Tabuena, we prepared the financial statement of MIAA as of December 31, 1985 and it came to my attention that there was an existing liability of around P27,999,000.00, your Honor. Q. When was that Financial Statement prepared?

PJ GARCHITORENA Thank you very much, Mr. Tabuena. You are excused. . . ." 42 (PERALTA) (He testified on direct examination that he co-signed with Tabuena a memorandum request for the issuance of the Manager's Check for P5 Million upon order of Tabuena and that he [Peralta] was aware that MIAA had an existing obligation with PNCC in the amount of around P27 Million. He affirmed having accompanied Tabuena at the PNB Villamor Branch to withdraw the P5 Million, but denied having misappropriated for his own benefit said amount or any portion thereof.) "CROSS-EXAMINATION BY PROS VIERNES Q. Will you please tell the Honorable Court why was it necessary for you to co-sign with Mr. Tabuena the request for issuance of Manager's check in the amount of P5 million? A. At that time I was the Acting Financial Services Manager of MIAA, sir, and all withdrawals of funds should have my signature because I was one of the signatories at that time. Q. As Acting Financial Services Manager of MIAA, you always co-sign with Mr. Tabuena in similar requests for the issuance of Manager's checks by the PNB? A. That is the only occasion I signed, sir.

A. I prepared it around January 22 or 24, something like that, of 1986, sir. Q. Is it your usual practice to prepare the Financial Statement after the end of the year within three (3 ) weeks after the end of the year? A. Yes, sir, it was a normal procedure for the MIAA to prepare the Financial Statement on or before the 4th Friday of the month because there will be a Board of Directors Meeting and the Financial Statement of the prior month will be presented and discussed during the meeting. *PJ GARCHITORENA *Q. This matter of preparing Financial Statement was not an annual activity but a monthly activity? A. Yes, your Honor.

Q. Did you say you were ordered by Mr. Tabuena to sign the request? A. Yes, sir, and I think the order is part of the exhibits. And based on that order, I co-signed in the request for the issuance of Manager's check in favor of Mr. Luis Tabuena.

*Q. This Financial Statement you prepared in January of 1986 recapitulated the financial condition as of the end of the year? A. Yes, your Honor.

PJ GARCHITORENA Continue.

A. sir. Q.

The P5 million were placed in two (2) peerless boxes, And you also went with Mr. Tabuena to Aguado?

PROS VIERNES Q. You made mention of a request for Escalation Clause by former Minister Ongpin. Did you personally see that request? A. When this order coming from Mr. Tabuena was shown to me, I was shown a copy, sir. I have no file because I just read it. Q. It was Mr. Tabuena who showed you the letter of Minister Ongpin? A. Yes, sir. A. No, sir, I was left behind at Nichols. After it was placed at the trunk of the car of Mr. Tabuena, I was left behind and I went back to my office at MIA. Q. But the fact is that, this P5 million was withdrawn at passed 5:00 o'clock in the afternoon? A. I started counting it I think at around 4:30, sir. It was after office hours. But then I was there at around 4:00 o'clock and we started counting at around 4:30 p.m. because they have to place it in a room, which is the office of the Manager at that time. Q. And Mr. Tabuena left for Malacaang after 5:00 o'clock in the afternoon of that date? A. Yes, sir. After we have counted the money, it was placed in the peerless boxes and Mr. Tabuena left for Malacaang . PROS. VIERNES Q. And you yourself, returned to your office at MIA?

*PJ GARCHITORENA And that will be Exhibit? ATTY. ANDRES Exhibit "2" and "2-A", your Honor. PROS VIERNES Q. You also stated that you were with Mr. Tabuena when you withdrew the amount of P5 million from the PNB Extension Office at Villamor? A. Yes, sir.

WITNESS A. Q. Yes, sir. Until what time do you hold office at the MIA?

Q. Why was it necessary for you to go with him on that occasion? A. Mr. Tabuena requested me to do the counting by million, sir. So what I did was to bundle count the P5 million and it was placed in two (2) peerless boxes. Q. Did you actually participate in the counting of the money by bundles? A. Q. Yes, sir. Bundles of how much per bundle?

A. Usually I over-stayed for one (1) or two (2) hours just to finish the paper works in the office, sir. Q. So, even if it was already after 5: 00 o ' clock in the afternoon, you still went back to your office at MIA? A. Yes, sir.

PROS. VIERNES That will be all, your Honor. PJ GARCHITORENA Redirect? ATTY. ESTEBAL

A. If I remember right, the bundles consisted of P100s and P50s, sir. Q. A. No P20s and P10s?

No redirect, your Honor. Yes, sir, I think it was only P100s and P50s. *PJ GARCHITORENA *PJ GARCHITORENA Questions from the Court. *Q If there were other denominations, you can not recall? A. Yes, your Honor. *A J DEL ROSARIO *Q. Did you not consider it as odd that your obligation with the PNCC had to be paid in cash? WITNESS Q. In how many boxes were those bills placed?

PROS. VIERNES

A. Based on the order of President Marcos that we should pay in cash, it was not based on the normal procedure, your Honor *Q. And, as Acting Financial Services Manager, you were aware that all disbursements should be covered by vouchers ? A. Yes, your Honor, the payments should be covered by vouchers. But then, inasmuch as what we did was to prepare a request to the PNB, then this can be covered by Journal Voucher also. *Q. Was such payment of P5 million covered by a Journal Voucher? A. *Q. A. Yes, your Honor. Did you present that Journal Voucher here in Court? We have a copy, your Honor.

*Q.

How about a disbursement voucher?

A. Inasmuch as this was a request for Manager's check, no disbursement voucher was prepared, your Honor. *A J DEL ROSARIO *Q. Since the payment was made on January 31, 1986, and that was very close to the election held in that year, did you not entertain any doubt that the amounts were being used for some other purpose? ATTY. ESTEBAL With due respect to the Honorable Justice, we are objecting to the question on the ground that it is improper. *A J DEL ROSARIO I will withdraw the question. *PJ GARCHITORENA What is the ground for impropriety? ATTY. ESTEBAL This is not covered in the direct examination, and secondly, I don't think there was any basis, your Honor. *PJ GARCHITORENA Considering the withdrawal of the question, just make the objection on record. *A J HERMOSISIMA *Q. As a Certified Public Accountant and Financial Manager of the MIAA, did you not consider it proper that a check be issued only after it is covered by a disbursement voucher duly approved by the proper authorities ? A. Your Honor, what we did was to send a request for a Manager's check to the PNB based on the request of Mr. Tabuena and the order of Mr. Tabuena was based on the Order of President Marcos. *PJ GARCHITORENA *Q. In your capacity as Financial Services Manager of the MIAA, did you not think it proper to have this transaction covered by a disbursement voucher? WITNESS A. Based on my experience, payments out of cash can be made through cash vouchers, or even though Journal Vouchers, or even through credit memo, your Honor. *A J HERMOSISIMA *Q. This was an obligation of the MIAA to the PNCC. Why did you allow a disbursement by means of check in favor of Mr. Luis Tabuena, your own manager?

*Q. Do you have a copy or an excerpt of that Journal Voucher presented in Court to show that payment? A. We have a copy of the Journal Voucher, your Honor

*Q. Was this payment of P5 million ever recorded in a cashbook or other accounting books of MIAA? A. The payment of P5 million was recorded in a Journal Voucher, your Honor. *PJ GARCHlTORENA *Q. In other words, the recording was made directly to the Journal? WITNESS A. Yes, your Honor.

*Q. There are no other separate documents as part of the application for Manager's Check? A. Yes, your Honor, there was none.

*A J DEL ROSARIO *Q. After the payment was made, did your office receive any receipt from PNCC? A. I was shown a receipt by Mr. Tabuena, the receipt given by Mrs. Fe Roa Gimenez, your Honor. Inasmuch as the payment should be made through the Office of the President, I accepted the receipt given by Mrs. Fe Gimenez to Mr. Tabuena. *Q. After receiving that receipt, did you prepare the necessary supporting documents, vouchers, and use that receipt as a supporting document to the voucher? A. that. Your Honor, a Journal Voucher was prepared for

A. We based the payment on the order of Mr. Tabuena because that was the order of President Marcos to pay PNCC through the Office of the President and it should be paid in cash, your Honor. *Q. You are supposed to pay only on legal orders. Did you consider that legal? ATTY. ESTEBAL With due respect to the Honorable Justice, the question calls for a conclusion of the witness. *PJ GARCHITORENA Considering that the witness is an expert, witness may answer WITNESS A. The order of President Marcos was legal at that time because the order was to pay PNCC the amount of P5 million through the Office of the President and it should be paid in cash, your Honor. And at that time, I know for a fact also that there was an existing P.D. wherein the President of the Republic of the Philippines can transfer funds from one office to another and the PNCC is a quasi government entity at that time. *A J HERMOSISIMA *Q. Are you saying that this transaction was made on the basis of that P.D. which you referred to? A. I am not aware of the motive of the President, but then since he is the President of the Philippines, his order was to pay the PNCC through the Office of the President, your Honor. *Q. As Financial Manager, why did you allow a payment in cash when ordinarily payment of an obligation of MIAA is supposed to be paid in check? A. I caused the payment through the name of Mr. Tabuena because that was the order of Mr. Tabuena and also he received an order coming from the President of the Philippines at that time, your Honor. *PJ GARCHITORENA *Q. Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain statements of accounts earlier made in the same journal? In other words, really what you are telling us is that, a Journal Voucher is to explain a transaction was otherwise not recorded. WITNESS A. Yes, your Honor.

*Q. Therefore, when you said that a Journal Voucher here is proper, you are saying it is proper only because of the exceptional nature of the transactions? A. Yes, your Honor.

*Q. In other words, as an Accountant, you would not normally authorize such a movement of money unless it is properly documented? ATTY. ESTEBAL With due respect to the Honorable Presiding Justice, I think the question is misleading because what the witness stated is. . . . *PJ GARCHITORENA Be careful in your objection because the witness understands the language you are speaking, and therefore, you might be coaching him. ATTY. ESTEBAL No, your Honor. I am also an accountant that is why I could say that. . . . *PJ GARCHITORENA Please be simple in your objection. ATTY. ESTEBAL The question is misleading on the ground that what the witness stated earlier is that the Journal Voucher in this particular case was supported, your Honor. *PJ GARCHITORENA Overruled, may answer. WITNESS A. The transaction was fully documented since we have the order of the General Manager at that time and the order of President Marcos, your Honor. *Q. Are you saying the Order of the General Manager is an adequate basis for the movement of money? A. Yes, your Honor, because at that time we have also a recorded liability of P27 million. *Q. We are not talking of whether or not there was a liability. What we are saying is, is the order of the General Manager by itself adequate with no other supporting papers, to justify the movement of funds? A. Yes, your Honor. The order of Mr. Luis Tabuena was based on our existing liability of P27,931,000.00, inasmuch as we have that liability and I was shown the order of President Marcos to pay P5 million through the Office of the President, I considered the order of Mr. Luis Tabuena, the order of President Marcos and also the existing liability of P27 million sufficient to pay the amount of P5 million. Inasmuch as there

is also an escalation clause of P99.1 million, the payment of P5 million is fully covered by those existing documents. *PJ GARCHITORENA You keep flooding us with details we are not asking for. We are not asking you whether or not there was valid obligation. We are not asking you about the escalation clause. We are asking you whether or not this particular order of Mr. Tabuena is an adequate basis to justify the movement of funds? WITNESS When we pay, your Honor, we always look for the necessary documents and at that time I know for a fact that there was this existing liability. *PJ GARCHITORENA When we ask questions and when we answer them, we must listen to the question being asked and not to whatever you wanted to say. I know you are trying to protect yourself. We are aware of your statement that there are all of these memoranda. *Q. By your disbursement of such amount, you are saying that the order of Mr. Tabuena by itself is adequate? WITNESS A. As far as I am concerned, your Honor, inasmuch as we have a liability and I was shown the Order of President Marcos to pay PNCC through his office, I feel that the order of the General Manager, the order of President Marcos, and also the memorandum of Minister Ongpin are sufficient to cause the payment of P5 million. *PJ GARCHITORENA *Q. This Presidential Decree which authorizes the President to transfer funds from one department to another, is this not the one that refers to the realignment of funds insofar as the Appropriation Act concerned? WITNESS A. Because at that time, your Honor, I have knowledge that the President is authorized through a Presidential Decree to transfer government funds from one office to another. *PJ GARCHITORENA *Q Under the Appropriation Act. Are payments of debts of the MIAA covered by the Appropriation Act? A. I think the liability was duly recorded and appropriations to pay the amount is (interrupted) *PJ GARCHITORENA *Q. Tell me honestly, is your answer responsive to the question or are you just throwing words at us in the hope that we will forget what the question is?

A.

No, your Honor.

*Q. Are you telling us that the debts incurred by MIAA are covered by the Appropriations Act so that the payment of this debt would be in the same level as the realignment of funds authorized the President? Or are you telling as you did not read the Decree? A. I was aware of that Decree, your Honor.

*PJ GARCHITORENA Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this movement of funds? ATTY. ESTEBAL Yes, your Honor. *PJ GARCHITORENA *Q. It is true that President Marcos was the President, but he was not an officer of the MIAA, was he? A. No, your Honor.

*Q. In fact, for purposes of internal control, you have different officers and different officials in any company either government or private, which are supposed to check and balance each other, is it not? A. Yes, your Honor.

*Q. So that when disbursements of funds are made, they are made by authority of not only one person alone so that nobody will restrain him? A. Yes, your Honor.

*Q. These checks and balances exist in an entity so that no one person can dispose of funds in any way he likes? A. Yes, your Honor.

*Q. And in fact, the purpose for having two (2) signatories to documents and negotiable documents is for the same purpose? A. Yes, your Honor.

*PJ GARCHITORENA *Q. other? In other words, the co-signatories counter check each

WITNESS A. Yes, your Honor.

*Q. In your case, you would be the counter check for Mr. Tabuena? A. Yes, your Honor.

*Q. In other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager and as counter signatory are in a position to tell Mr. Tabuena, "I am sorry, you are my superior but this disbursement is not proper and, therefore, I will not sign it", if in your opinion the disbursement is not proper? A. Yes, your Honor.

*Q. Therefore, as co-signatory, you are expected to exercise your judgment as to the propriety of a particular transaction? A. Yes, your Honor.

*Q. And this is something you know by the nature of your position and because you are a Certified Public Accountant? A. Yes, your Honor.

*AJ DEL ROSARIO *Q. You admit that the payment of P5 million and P50 million were unusual in the manner with which they were disposed? A. Yes, your Honor.

"cold neutrality of an impartial judge" requirement of due process was certainly denied Tabuena and Peralta when the court, with its overzealousness, assumed the dual role of magistrate and advocate. In this connection, the observation made in the Dissenting Opinion to the effect that the majority of this Court was "unduly disturbed" with the number of court questions alone, is quite inaccurate. A substantial portion of the TSN was incorporated in the majority opinion not to focus on "numbers" alone, but more importantly to show that the court questions were in the interest of the prosecution and which thus depart from that common standard of fairness and impartiality. In fact, it is very difficult to be, upon review of the records, confronted with "numbers" without necessarily realizing the partiality of the Court. In "US v. De Sisto" (2 Cir., 1961, 289 F 2d 833), for example, a new trial was required because the trial judge, as in this case, indulged in extensive questioning of defendant and his witnesses, and the reviewing court also had to amplify on "numbers" to bolster this. It was pointed out in the "De Sisto" case that the judge asked 3,115 questions of all witnesses, the prosecutor asked but 1,381, defense counsel 3,330. The judge's questions to the defendant De Sisto totalled 306, the prosecutor's 347, and the defense counsel's, 201. After referring to these figures, the court stated: ". . . It is indeed an impressive proportion, but no such mathematical computation is of itself determinative. However, taking all this in conjunction with the long and vigorous examination of the defendant himself by the judge, and the repeated belittling by the judge of defendant's efforts to establish the time that Fine left the pier, we fear that in its zeal for arriving at the facts the court here conveyed to the jury too strong an impression of the court's belief in the defendant's probable guilt to permit the jury freely to perform its own function of independent determination of the facts. . . ." The majority believes that the interference by the Sandiganbayan Justices was just too excessive that it cannot be justified under the norm applied to a jury trial, or even under the standard employed in a non-jury trial where the judge is admittedly given more leeway in propounding questions to clarify points and to elicit additional relevant evidence. At the risk of being repetitious, we will amplify on this via some specific examples. Based on the evidence on record, and on the admission of Tabuena himself, the P55 million was delivered to the President's Office thru Mrs. Gimenez, in obedience to the Presidential directive. One Sandiganbayan Justice, however, hurled the following questions to Peralta: "AJ DEL ROSARIO Q: Since the payment was made on January 31, 1986, and that was very close to the election held in that year, did you not entertain any doubt that the amounts were being used for some other purposes? ATTY. ESTEBAL With due respect to the Honorable Justice, We are objecting to the question on the ground that it is improper. AJ DEL ROSARIO

*Q. Did you submit a written protest to the manner in which such amount was being disposed of? A. A written protest was not made, your Honor, but I called the attention of Mr. Tabuena that since this payment was upon the order of President Marcos, then I think as President he can do things which are not ordinary. *Q. If you did not prepare a written protest, did you at least prepare a memorandum for the record that this was an extra-ordinary transaction? A. I called the attention of Mr. Tabuena that this was an extra-ordinary transaction and no written note, your Honor. PJ GARCHITORENA Thank you very much Mr. Peralta, you are excused. . . ." 43 This Court has acknowledged the right of a trial judge to question witnesses with a view to satisfying his mind upon any material point which presents itself during the trial of a case over which he presides. 44 But not only should his examination be limited to asking "clarificatory" questions, 45 the right should be sparingly and judiciously used; for the rule is that the court should stay out of it as much as possible, neither interfering nor intervening in the conduct of the trial. 46 Here, these limitations were not observed. Hardly in fact can one avoid the impression that the Sandiganbayan had allied itself with, or to be more precise, had taken the cudgels for the prosecution in proving the case against Tabuena and Peralta when the Justices cross-examined the witnesses, their cross-examinations supplementing those made by Prosecutor Viernes and far exceeding the latter's questions in length. The

I will withdraw the question. PJ GARCHITORENA What is the ground for impropriety? ATTY. ESTEBAL This is not covered in the direct examination, and secondly, I don't think there was any basis, Your Honor. PJ GARCHITORENA

*PJ GARCHITORENA Please be simple in your objection. ATTY. ESTEBAL The question is misleading on the ground that what the witness stated earlier is that the Journal Voucher in this particular case was supported, your Honor. *PJ GARCHITORENA Overruled, may answer.

Considering the withdrawal of the question, just make the objection on record." Nothing from the preceding questions of counsels or of the court would serve as basis for this question. How then, can this be considered even relevant? What is the connection between the payment made to the President's office and the then forthcoming presidential "snap election"? In another instance, consider the following questions of Presiding Justice Garchitorena: *PJ GARCHITORENA *Q. Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain statements of accounts earlier made in the same journal? xxx xxx xxx

WITNESS A. The transaction was fully documented since we have the order of the General Manager at that time and the order of President Marcos, your Honor. *Q. Are you saying the Order of the General Manager is an adequate basis for the movement of money? *Q. We are not talking of whether or not there was a liability. What we are saying is, is the order of the General Manager by itself adequate with no other supporting papers, to justify the movement of funds? *PJ GARCHITORENA You keep flooding us with details we are not asking for. We are not asking you whether or not there was valid obligation. We are not asking you about the escalation clause. We are asking you whether or not this particular order of Mr. Tabuena is an adequate basis to justify the movement of funds? *PJ GARCHITORENA

*Q. In other words, really what you are telling us is that, a Journal Voucher is to explain a transaction was otherwise not recorded. xxx xxx xxx

*Q. Therefore, when you said that a Journal Voucher here is proper, you are saying it is proper only because of the exceptional nature of the transactions? xxx xxx xxx

*Q. In other words, as an Accountant, you would not normally authorize such a movement of money unless it is properly documented? ATTY. ESTEBAL With due respect to the Honorable Presiding Justice, I think the question is misleading because what the witness stated is. . . *PJ GARCHITORENA Be careful in your objection because the witness understands the language you are speaking, and therefore, you might be coaching him. ATTY. ESTEBAL No, your Honor. I am also an accountant that is why I could say that. . .

When we ask questions and when we answer them, we must listen to the question being asked and not to whatever you wanted to say. I know you are trying to protect yourself . We are aware of your statement that there are all of these memoranda. *Q. By your disbursement of such amount, you are saying that the order of Mr. Tabuena by itself is adequate? *PJ GARCHITORENA *Q. This Presidential Decree which authorizes the President to transfer funds from one department to another, is this not the one that refers to the realignment of funds insofar as the Appropriation Act concerned? *PJ GARCHITORENA *Q. Under the Appropriation Act. Are payments of debts of the MIAA covered by the Appropriation Act? *PJ GARCHITORENA *Q. Tell me honestly, is your answer responsive to the question or are you just throwing words at us in the hope that we will forget what the question is?

xxx

xxx

xxx

*Q. Are you telling us that the debts incurred by MIAA are covered by the Appropriations Act so that the payment of this debt would be in the same level as the realignment of funds authorized the President? Or are you telling as you did not read the Decree? *PJ GARCHITORENA Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this movement of funds? ATTY. ESTEBAL Yes, your Honor. *PJ GARCHITORENA *Q. It is true that President Marcos was the President, but he was not an officer of the MIAA, was he? *Q. In fact, for purposes of internal control, you have different officers and different officials in any company either government or private, which are supposed to check and balance each other, is it not? *Q. So that when disbursements of funds are made, they are made by authority of not only one person alone so that nobody will restrain him? *Q. These checks and balances exist in an entity so that no one person can dispose of funds in any way he likes? *Q. And in fact, the purpose for having two (2) signatories to documents and negotiable documents is for the same purpose? *PJ GARCHITORENA *Q. other? In other words, the co-signatories counter check each

between the two kinds of trial to justify the Sandiganbayan's active participation in the examination of petitioners Tabuena and Peralta and witness Monera, with due respect, appears insignificant to this case. Let it, therefore, be emphasized anew that: "A trial judge should not participate in the examination of witnesses as to create the impression that he is allied with the prosecution." 48 "We doubt not that the sole motive of the learned judge was to ascertain the truth of the transaction, but it is never proper for a judge to discharge the duties of a prosecuting attorney. However anxious a judge may be for the enforcement of the law, he should always remember that he is as much judge in behalf of the defendant accused of crime, and whose liberty is in jeopardy, as he is judge in behalf of the state, for the purpose of safeguarding the interests of society." 49 "Ordinarily it is not good practice for the presiding judge himself to examine witnesses at length. The circumstances may be such in a given case as to justify the court in so doing. . . . This court, however, has more than once said that the examination of witnesses is the more appropriate function of counsel, and the instances are rare and the conditions exceptional which will justify the presiding judge in conducting an extensive examination. It is always embarrassing for counsel to object to what he may deem improper questions by the court. Then, in conducting a lengthy examination, it would be almost impossible for the judge to preserve a judicial attitude. While he is not a mere figurehead or umpire in a trial, and it is his duty to see that justice is done, he will usually not find it necessary to conduct such examinations. The extent to which this shall be done must largely be a matter of discretion, to be determined by the circumstances of each particular case, but in so doing he must not forget the function of the judge and assume that of an advocate. . . ." 50 "While it is true that the manner in which a witness shall be examined is largely in the discretion of the trial judge, it must be understood that we have not adopted in this country the practice of making the presiding judge the chief inquisitor. It is better to observe our time-honored custom of orderly judicial procedure, even at the expense of occasional delays. . . . The judge is an important figure in the trial of a cause, and while he has the right, and it is often his duty, to question witnesses to the end that justice shall prevail, we can conceive of no other reason, for him to take the trial of the cause out of the hands of counsel." 51 "The examination of witnesses is the more appropriate function of counsel, and it is believed the instances are rare and the conditions exceptional in a high degree which will justify the presiding judge in entering upon and conducting an extended examination of a witness, and that the exercise of a sound discretion will seldom deem such action necessary or advisable." 52 "He [the judge] may properly intervene in a trial of a case to promote expedition, and prevent unnecessary waste of time, or to clear up some obscurity, but he should bear in mind that his undue interference, impatience, or participation in the

*Q. In your case, you would be the counter check for Mr. Tabuena ? *Q. In other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager and as counter signatory are in a position to tell Mr. Tabuena, "I am sorry, you are my superior but this disbursement is not proper and, therefore, I will not sign it.", if in your opinion the disbursement is not proper? *Q. Therefore, as co-signatory, you are expected to exercise your judgment as to the propriety of a particular transaction? *Q. And this is something you know by the nature of your position and because you are a Certified Public Accountant?" 47 How can these questions be considered clarificatory when they clearly border more on cross-examination questions? Thus, the Dissenting Opinion's focus on the distinction

examination of witnesses, or a severe attitude on his part toward witnesses, especially those who are excited or terrified by the unusual circumstances of a trial, may tend to prevent the proper presentation of the cause, or the ascertainment of the truth in respect thereto." 53 "The impartiality of the judge his avoidance of the appearance of becoming the advocate of either one side or the other of the pending controversy is a fundamental and essential rule of special importance in criminal cases. . . ." 54 "Our courts, while never unmindful of their primary duty to administer justice, without fear or favor, and to dispose of these cases speedily and in as inexpensive a manner as is possible for the court and the parties, should refrain from showing any semblance of one-sided or more or less partial attitude in order not to create any false impression in the minds of the litigants. For obvious reasons, it is the bounden duty of all to strive for the preservation of the people's faith in our courts." 55 "Time and again this Court has declared that due process requires no less than the cold neutrality of an impartial judge. Bolstering this requirement, we have added that the judge must not only be impartial but must also appear to be impartial, to give added assurance to the parties that his decision will be just. The parties are entitled to no less than this, as a minimum guaranty of due process." 56 We are well aware of the fear entertained by some that this decision may set a dangerous precedent in that those guilty of enriching themselves at the expense of the public would be able to escape criminal liability by the mere expedient of invoking "good faith". It must never be forgotten, however, that we render justice on a case to case basis, always in consideration of the evidence that is presented. Thus, where the evidence warrants an acquittal, as in this case, we are mandated not only by the dictates of law but likewise of conscience to grant the same. On the other hand, it does not follow that all those similarly accused will necessarily be acquitted upon reliance on this case as a precedent. For the decision in this case to be a precedent, the peculiar circumstances and the evidence that led to the petitioner's acquittal must also be present in subsequent cases. Furthermore, as between a mere apprehension of a "dangerous precedent" and an actual violation of constitutionally enshrined rights, it is definitely the latter that merits our immediate attention. For the most dangerous precedent arises when we allow ourselves to be carried away by such fears so that it becomes lawful to sacrifice the rights of an accused to calm the fearful. In our eagerness to bring to justice the malefactors of the Marcos regime, we must not succumb to the temptation to commit the greatest injustice of visiting the sins of the wrongdoers upon an innocent. lexlib WHEREFORE, in view of the foregoing, herein petitioners Luis A. Tabuena and Adolfo M. Peralta are hereby ACQUITTED of the crime of malversation as defined and penalized under Article 217 of the Revised Penal Code. The Sandiganbayan Decision of October 12, 1990 and the Resolution dated December 20, 1991 are REVERSED and SET ASIDE.

SO ORDERED. Narvasa, C .J ., Vitug, Kapunan and Mendoza, JJ ., concur. Regalado, Bellosillo and Torres, Jr., JJ., concur pro hac vice. Hermosisima, Jr., J., took no part; signatory to the Sandiganbayan decision. Separate Opinions DAVIDE, JR., J ., dissenting: Last 20 September 1996 in Regala v. Sandiganbayan, 1 this Court erected a barrier to the constitutionally mandated task to recover ill-gotten wealth and in the punishment of those who dirtied their hands with it. This the Court did by impliedly granting immunity from civil suit or liability under an expanded interpretation of the lawyer-client privilege, lawyers who were alleged to have acted as co-conspirators or dummies of certain parties in the acquisition of such wealth. The acquittal decreed by the majority in the cases under consideration places another obstacle to such recovery and punishment by granting immunity from any criminal liability those who were ordered by then President Marcos to disburse government funds for alleged payment of obligations. This is the immediate impression anyone can get from the following sweeping pronouncement in the ponencia. 2 In the case at bench, the order emanated from the office of the President and bears the signature of the President himself, the highest official of the land. It carries with it the presumption that it was regularly issued. And on its face, the memorandum is patently lawful for no law makes the payment of an obligation illegal. This fact, coupled with the urgent tenor for its execution constrains one to act swiftly without question. Obedientia est legis essentia. . . . What this suggests is that no one could disobey then President Marcos, a suggestion made more eloquent with the quotation of the dissenting opinion of Mr. Justice Cruz in Development Bank of the Philippines v. Pundogar. 3 That dissent cannot be used to justify the petitioners' "obedience," otherwise, this Court would thus overturn the majority opinion in the said case and adopt the dissent as the new rule. Henceforth, all those similarly situated as the appellants or those who could simply provide any reason for their compelled obedience to Mr. Marcos can go scot-free. The meaning of EDSA and its message for history would thus be obliterated. The acquittal then perpetuates a sad day for this Court a day of mourning for those who fought against the dictatorship and of triumph and joy for the dictator's collaborators, nominees, associates, and friends. I cannot join the majority in these cases. My analysis of the ponencia indicates that the acquittal is based on the following: 1. The accused-appellants merely acted in obedience to an order by a superior for some lawful purpose; hence, they

incur no criminal liability pursuant to Article 11(6) of the Revised Penal Code. 2. Even granting that the order was not for a lawful purpose, they acted in good faith. 3. Their basic constitutional right to due process was violated by the way the Sandiganbayan actively took part in the questioning of a defense witness and of the accused themselves. I I shall first take up the third. The ponencia admits that the appellants did not raise as an issue the Sandiganbayan's violation of their right to due process; nevertheless, it ruled that such failure is not an impediment to the consideration of the violation "as additional basis for a reversal since the settled doctrine is that an appeal throws the whole case open to review, and it becomes the duty of the appellate court to correct such errors as may be found in the judgment appealed from whether they are made the subject of assignments of error or not." 4 I beg to disagree. First, there is no showing at all that the extensive participation by the Justices of the Sandiganbayan in questioning the appellants and their witness indicated prejudgment of guilt, bias, hatred, or hostility against the said appellants. On the contrary, the quoted portions of the questions propounded by the Justices manifest nothing but a sincere desire to ferret out the facts to arrive at the truth which are crucial in the determination of the innocence or guilt of the appellants. These Justices, as trial magistrates, have only exercised one of the inherent rights of a judge in the exercise of judicial function. What this Court stated eighty-three years ago in United States v. Hudieres 5 needs repeating: It is very clear, however, from a review of the whole proceedings that the only object of the trial judge in propounding these questions was to endeavor as far as possible to get at the truth as to the facts to which the witnesses were testifying. The right of a trial judge to question the witnesses with a view to satisfying his mind upon any material point which presents itself during the trial of a case over which he presides is too well established to need discussion. The trial judges in this jurisdiction are judges of both the law and the facts, and they would be negligent in the performance of their duties if they permitted a miscarriage of justice as a result of a failure to propound a proper question to a witness which might develop some material fact upon which the judgment of the case should turn. So in a case where a trial judge sees that the degree of credit which he is to give the testimony of a given witness may have an important bearing upon the outcome, there can be no question that in the exercise of a sound discretion he may put such questions to the witness as will enable him to formulate a sound opinion as to the ability or willingness of the witness to tell the truth. The questions asked by the trial judge in the case at bar were in our opinion entirely proper, their only purpose being to clarify certain obscure phases of the case; and while we are inclined

to agree with counsel that some of the observations of the trial judge in the course of his examination might well have been omitted, there is no reason whatever to believe that the substantial rights of the defendants were in anywise prejudiced thereby. That the appellants themselves did not find any impropriety in the conduct of the Justices, or that if they did they find nothing therein to prejudice their right to due process is best proven by their failure to assign it as error. Second, even granting arguendo that the conduct of the Justices constituted such a violation, the appellants are forever estopped from raising that issue on ground of waiver. This Court would risk an accusation of undue partiality for the appellants were it to give them premium for their torpor and then reward them with an acquittal. Such waiver is conclusively proven in these cases. From the quoted portions of the testimonies of the witnesses for the appellants, it is clear that their counsel did not object to, or manifest on record his misgivings on, the active participation of the Justices in the examination (or cross-examination) of the witnesses. Nothing could have prevented the counsel for the appellants from doing so. Then, too, as correctly pointed out in the ponencia, they made no assignment of error on the matter. In our jurisdiction, rights may be waived unless the waiver is contrary to law, public order, public policy, morals, or good customs, or is prejudicial to a third person with a right recognized by law. 6 In People v. Donato, 7 this Court made the following statement on what rights may be waived: As to what rights and privileges may be waived, the authority is settled: . . . the doctrine of waiver extends to rights and privileges of any character, and, since the word 'waiver' covers every conceivable right, it is the general rule that a person may waive any matter which affects his property, and any alienable right or privilege of which he is the owner or which belongs to him or to which he is legally entitled, whether secured by contract, conferred with statute, or guaranteed by constitution, provided such rights and privileges rest in the individual, are intended for his sole benefit, do not infringe on the rights of others, and further provided the waiver of the right or privilege is not forbidden by law, and does not contravene public policy; and the principle is recognized that everyone has a right to waive, and agree to waive, the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, if it can be dispensed with and relinquished without infringing on any public right, and without detriment to the community at large. . . . Although the general rule is that any right or privilege conferred by statute or guaranteed by constitution may be waived, a waiver in derogation of a statutory right is not favored, and a waiver will be inoperative and void if it infringes on the rights of others, or would be against public policy or morals and the public interest may be waived.

While it has been stated generally that all personal rights conferred by statute and guaranteed by constitution may be waived, it has also been said that constitutional provisions intended to protect property may be waived, and even some of the constitutional rights created to secure personal liberty are subjects of waiver. 8 In Commonwealth vs. Petrillo, 9 it was held: Rights guaranteed to one accused of a crime fall naturally into two classes: (a) those in which the state, as well as the accused, is interested, and (b) those which are personal to the accused, which are in the nature of personal privileges. Those of the first class cannot be waived; those of the second may be. It is "competent for a person to waive a right guaranteed by the Constitution, and to consent to action which would be invalid if taken against his will. 10 This Court has recognized waivers of constitutional rights such as, for example, the right against unreasonable searches and seizures; 11 the right to counsel and to remain silent; 12 and the right to be heard. 13 Even the 1987 Constitution expressly recognizes a waiver of rights guaranteed by its Bill of Rights. Section 12(1) of Article III thereof on the right to remain silent and to have a competent and independent counsel, preferably of his own choice states: . . . These rights cannot be waived except in writing and in the presence of counsel. This provision merely particularizes the form and manner of the waiver; it, nevertheless, clearly suggests that the other rights may be waived in some other form or manner provided such waiver will not offend Article 6 of the Civil Code. We hereby rule that the right to bail is another of the constitutional rights which can be waived. It is a right which is personal to the accused and whose waiver would not be contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law. In the cases below, the perceived violation, if at all it existed, was not of the absolute totality of due process, but more appropriately of the right to an impartial trial, which is but an aspect of the guarantee of due process. 14 I submit that the right to an impartial trial is waivable. II I also disagree with the view of the majority that all the requisites of the sixth justifying circumstance in Article 11 of the Revised Penal Code are present. I submit that the 8 January 1986 Memorandum of President Marcos can by no means be considered a "lawful" order to pay P55 million to the PNCC as alleged partial payment of the MIAA's account to the former. The alleged basis of such Memorandum is the 7 January 1985 Memorandum of Trade and Industry Minister Roberto Ongpin, which even confirms the absence of any factual basis for the order of payment of P55 million:

In this connection, please be informed that Philippine National Construction Corporation (PNCC), formerly CDCP, has accomplishment billings on the MIA Development Project aggregating P98.4 million, inclusive of accomplishments for the aforecited contracts. In accordance with contract provisions, outstanding advances totalling P93.9 million are to be deducted from said billings which will leave a net amount due to PNCC of only P4.5 million, thus: At the same time, PNCC has potential escalation claims amounting to P99 million in the following states of approved/evaluation: Approved by Price Escalation Committee

(PEC) but pending for lack of funds P 1.9 million Endorsed by project consultants and

currently being evaluated by PEC 30.7 million Submitted by PNCC directly to PEC 66.5 million

and currently under evaluation Total P99.1 million =========

There has been no funding allocation for any of the above escalation claims due to budgetary constraints. The MIA Project has been completed and operational as far back as 1982 and yet residual amounts due to PNCC have not been paid, resulting in undue burden to PNCC due to additional cost of money to service its obligations for this contract. To allow PNCC to collect partially its billings, and in consideration of its pending escalation billings, may we request for His Excellency's approval for a deferment of the repayment of PNCC's advances to the extent of P30 million corresponding to about 30% of P99.1 million in escalation claims of PNCC, of which P32.5 million has been officially recognized by MIADP consultants but could not be paid due to lack of fundings. Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Project funds. This amount represents the excess of the gross billings of PNCC of P98.4 million over the undeferred portion of the repayment of advances of P63.9 million. If Ongpin's memorandum is given full faith, it is clear that PNCC's "accomplishment billings" for work accomplished, including accomplishments on the "supplemental contracts" (whose authority therefor was just sought for), aggregated to P98.4 million. Since there were advances given to PNCC in the total amount of P93.9 million, the net amount due the PNCC was only P4.5 million.

However, in view of the approval by then President Marcos of Ongpin's request "for a deferment of the repayment of PNCC's advances to the extent of P30 million," only P63.9 million of PNCC's advances was to be deducted from the accomplishment billings of P98.4 million. The net amount due thus became P34.5 million. Hence, as pointed out by the Sandiganbayan, if any payments were due under Ongpin's Memorandum, they would only be for that amount (P34.5 million). The Order of then President Marcos to withdraw has, therefore, exceeded by P20.5 million. Clearly, the order of payment of P55 million had no factual and legal basis and was therefore unlawful llcd III. Not an iota of good faith was shown in the conduct of the appellants. Being responsible accountable officers of the MIAA, they were presumed to know that, in light of "the undeferred portion of the repayment" of PNCC's advances in the amount of P63.9 million, the MIAA's unpaid balance was only P34.5 million. They also ought to know the procedure to be followed in the payment of contractual obligations. First and foremost there were the submission by the PNCC of its claims with the required supporting documents and the approval of the claims by the appropriate approving authority of MIAA. When then President Marcos ordered immediate payment, he should not have been understood as to order suspension of the accepted budgeting, accounting, and auditing rules on the matter. Parenthetically, it may be stated here that although President Marcos was a dictator, he was reported to be, and even projected himself as, a "faithful" advocate of the rule of law. As a matter of fact, he did not hesitate to issue a decree, letter of instruction, or any presidential issuance in anticipation of any planned actions or activities to give the latter the facade or semblance of legality, wisdom, or propriety. When he made the order to appellant Tabuena, President Marcos must only be understood to order expeditious compliance with the requirements to facilitate immediate release of the money. There was no way for Tabuena to entertain any fear that disobedience to the order because of its unlawfulness or delay in the execution of the order due to compliance with the requirements would cause his head or life. He offered no credible evidence for such fear. This Court should not provide one for him. That Tabuena served Mr. Marcos until the end of the latter's regime and even beyond only proved a loyalty not based on fear but on other considerations. Moreover, the manner the appellant effected the withdrawal was most unusual, irregular, and anomalous. He has not shown any evidence that what he did was the usual practice in his office. What happened in this case showed the appellants' complicity as principals by direct participation in the malversation of the MIAA's funds. The appellants should, therefore, be thankful to the Sandiganbayan for holding them liable therefor only through negligence. I vote then to AFFIRM in toto the assailed decision. ROMERO, J ., dissenting:

Obedience, rightly directed, is a virtue well-worth cultivating obedience of children to their elders; obedience to lawful authority by citizens; obedience to the behests of what is highest and finest in one's self. Misguided, such as indiscriminate obeisance to questionable mandates, no matter if emanating from authoritative figures whose slightest whisper and scribbled orders are law, this can lead man to perdition. In government, a pliant bureaucracy that is disinclined to resist unethical, immoral, even downright illegal directives from "above" is easily corrupted and can only bring disrepute to the entire system. In this context, can subordinate public officials like herein petitioner escape criminal prosecution by the simple expedient of claiming that they were merely following orders from a superior? This disquisition will demonstrate that certain requisites are indispensable before anyone can claim immunity from penal sanctions for seemingly justifiable acts. This dissenting opinion will narrate the facts for the sake of accuracy for the ponencia seems to have overlooked or glossed over vital circumstances which make the conclusion embodied herein irresistible. Petitioners were charged with violation of Article 217 of the Revised Penal Code (the Code) for alleged malversation of a total of P55 million from the public funds of the Manila International Airport Authority (MIAA). The informations filed on three separate dates in 1986 accused them, as accountable officers, of intentionally withdrawing said amount for the ostensible purpose of paying a non-existent obligation of MIAA to the Philippine National Construction Corporation (PNCC), but which they misappropriated and converted for their personal use and benefit. In their defense, petitioners claimed they acted in good faith and in compliance with a verbal and later, a written order from no less than former President Ferdinand E. Marcos. In a Presidential Memorandum (the Marcos Memorandum) dated January 8, 1986, the latter allegedly commanded petitioner Tabuena, in his capacity as General Manager of MIAA, "to pay immediately the Philippine National Construction Corporation, thru this Office (Office of the President), the sum of FIFTY FIVE MILLION (P55,000,000.00) PESOS in cash as partial payment of MIAA's account with said Company mentioned in a Memorandum of (Trade and Industry) Minister Roberto Ongpin to this Office dated January 7, 1985. . . ." 1 (The Ongpin Memorandum). On the assumption that MIAA indeed had a due and demandable debt to PNCC for work done on the airport, Tabuena, with the help of Gerardo G. Dabao and Adolfo M. Peralta, MIAA Assistant General Manager and Financial Services Department Acting Manager, respectively, made three withdrawals from the account of MIAA with the Philippine National Bank first, on January 10, 1986 for P25 million, then on January 16, 1986 for another P25 million and lastly, on January 31, 1986 for P5 million. The three manager's checks covering the withdrawals were all applied for and issued in the name of Tabuena. Curiously, while the checks were issued by the MIA extension office of the PNB, they were encashed at the Villamor Air Base branch. Each time the case was delivered directly to the office of Marcos' private secretary, Fe Roa-Gimenez. The latter issued a

receipt 2 signed by her but only after the last delivery. No PNCC receipt was ever given to petitioners. On October 22, 1990, the Sandiganbayan's First Division rendered a decision finding petitioners guilty. Petitioners raise two issues, namely, that they were charged with intentional malversation (which they labelled as malversation by direct appropriation) but were convicted of malversation by negligence, and that they acted in good faith. As regards the first argument, the variance between the crime charged and that proved by the prosecution is immaterial, as stated by the ponente. As regards the second issue, it is argued that good faith is a valid defense in malversation for it negates criminal intent. Petitioners claim that when they committed the acts complained of, they were merely following then President Marcos' oral and written directives. They rely on Article 11, paragraph 6 of the Code which states, inter alia: "ART. 11. Justifying circumstances. The following do not incur any criminal liability: xxx xxx xxx

approval or authority of the Commission on Audit. 6 Finally, the last two payments were made despite the non-issuance of a receipt for the first. In fact, the receipt given after the delivery of the last installment was not even issued by the PNCC, the legal obligee and avowed recipient of the money. Instead it emanated from the office of Roa-Gimenez, a complete stranger to the alleged contract between MIAA and PNCC, who did not even indicate in what capacity she signed it. To compound the mystery, the money was even delivered to her office, not in Malacaang, but at nearby Aguado Street. The entire process, done with haste and with a total disregard of appropriate auditing requirements was, in the words of petitioners themselves, "an extraordinary transaction," 7 admittedly "out of the ordinary" and "not based on normal procedure." 8 Disbursement of government funds, especially one as gargantuan as the one made by petitioners, is a complex process, unlike the basic over-the-counter transaction that they purportedly made it to appear. Far from being lawful, the payment of the alleged obligation of MIAA to PNCC through the Office of the President may at best be labelled as irregular. "The term 'irregular expenditure' signifies an expenditure incurred without adhering to established rules, regulations, procedural guidelines, policies, principles or practices that have gained recognition in law. Irregular expenditures are incurred without conforming with prescribed usages and rules of discipline. There is no observance of an established pattern, course, mode of action, behavior, or conduct in the incurrence of an irregular expenditure . . ." 9 Specifically, disbursement of public funds must conform with the following principles: "(1) No money shall be paid out of the Treasury except in pursuance of an appropriation made by law. 10 (2) No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, or other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium. 11 (3) All money collected on any tax levied for a special purpose shall be treated as a special fund and paid out for such purpose only. If the purpose for which this special fund was created has been fulfilled or abandoned, the balance, if any, shall be transferred to the general funds of the Government. 12 (4) All resources of the government shall be managed, expended or utilized in accordance with law and regulations and safeguarded against loss or wastage through illegal or improper disposition to ensure efficiency, economy and effectiveness in the operations of government. The responsibility to take care such policy is faithfully adhered to rests directly with the chief or head of the government agency concerned. 13

6. Any person who acts in obedience to an order issued by a superior for some lawful purpose." For an act to be justified under the abovequoted provision, therefore, three requisites must concur: (a) an order must have been issued by a superior; (b) the order must be for a lawful purpose; and (c) the means used by the subordinate in carrying out such order must itself be lawful. 3 In the case at bar, Tabuena was allegedly ordered by President Marcos to pay the PNCC from MIAA's fund, thus ostensibly meeting the first requirement but not the others. For there is a qualification which significantly changes the picture. The payment was to be in cash and immediately made through the Office of the President. It is to be pointed out that it is one thing to be ordered to pay a due and demandable obligation; it is another to make such payment to someone other than the lawful obligee and worse, when the subordinate is forced to breach official channels to comply with the order. It must be stressed that Tabuena and his co-accused, Peralta and Dabao, disregarded standard operating procedures in following the President's order. As observed by the Sandiganbayan, "there were no vouchers to authorize the disbursements in question. There were no bills to support the disbursement. There were no certifications as to the availability of funds for an unquestionably staggering sum of P55 Million." Disbursement vouchers are specifically required under Sec. 4 (5) of Presidential Decree No. 1445 (P.D. No. 1445), while the certificate of availability of funds is needed to comply with Sec. 47, Title I-B, Bk. V of the Administrative Code of 1987. 4 and Sec. 344 of the Local Government Code of 1991. 5 To compound the duplicity, the checks, issued by one branch of PNB were encashed in another all made in cash instead of by crossed check payable to PNCC! Conspicuously, such cash outlay was made without prior

(5) Disbursement or disposition of government funds or property shall invariably bear the approval of the proper officials. 14 (6) Claims against government funds shall be supported with complete documentation. 15 (7) All laws and regulations applicable to financial transactions shall be faithfully adhered. 16 (8) Generally accepted principles and practices of accounting as well as of sound management and fiscal administration shall be observed, provided that they do not contravene existing laws and regulations." 17 Assuming arguendo that petitioners acted in good faith in following the President's order, undeniably, they were negligent as found by the trial court. The instructions in the President's order should have sufficed to put any accountable head of an office, Tabuena included, on guard. Why was he being required to pay MIAA's obligation to the PNCC, if indeed there were any, and not directly to the latter but through the Office of the President? Why was the entire transaction not coursed through proper channels, viz., the accounting office? Why was such a huge disbursement to be made in cash, instead of by crossed check, which is not only safer, faster, and more convenient, but in accord with auditing requirements? Obedience to a superior's order does not connote blind obedience. Being the general manager of such a mammoth organization like the MIAA, he should, at the very least, have exercised ordinary prudence by verifying with the proper official under him whether the agency had indeed an outstanding indebtedness to the PNCC before ordering any payment to be made through official channels. Such routine measures were cavalierly disregarded. The whole process seemed no different from a petty, personal transaction. As evidence later revealed, PNCC's receivables from MIAA amounted to P102,475,392.35, the bulk of which comprised escalation charges. From that time until Corazon C. Aquino assumed the Presidency, a total of P44.4 million was paid, but only P2 million of this in cash; the rest was set off or compensated against other debts, or assigned to other creditors. The financial records did not show that PNCC received any sums of money from MIAA during the period January to June, 1986 when the block payments were being made in quarter millions. Only on September 25, 1986, long after President Marcos had gone, was an assignment of P23 million actually made by MIAA in favor of PNCC. 18 Even the Ongpin Memorandum, which is the basis of the Marcos Memorandum, failed to show where the amount of P55 million cropped up. The former contained, inter alia, the following matters: (a) it requested the President's approval of Minister Ongpin's recommendations "for eight (8) supplemental contracts pertaining to the MIA Development Project (MIADP) between the Bureau of Air Transport (BAT) and Philippine National Construction Corporation (PNCC), formerly CDCP, . . .";19 (b) it informed the President that PNCC had collectibles from MIAA only in the amount of P4.5 million, which is the difference between the accomplishment

billings on the MIADP totalling P98.4 million and PNCC's advances of P93.9; and (c) it informed the President that the PNCC had potential escalation claims against MIAA in the amount of P99 million, "potential" because they have yet to be approved by the Price Escalation Committee (PEC). The only remaining piece of evidence which would show that MIAA owed PNCC anything as of the date of the Marcos Memorandum is MIAA's balance sheet, 20 which indicates its liability to PNCC as of December 31, 1985 to be P27,931,000.00. 21 How can petitioners claim to have acted in good faith when they withdrew the P55 million from MIAA's funds knowing fully well that amount due PNCC was only a little over half that amount, as shown by their own evidence? The ponencia states that ". . . . the good faith of Tabuena . . . . . was not at all affected even if it later turned out that PNCC never received the money." It is precisely our thesis that Tabuena did not act in good faith in complying with the President's orders because of the reasons aforestated, summarized as follows: (a) The President's order was "out of the ordinary" and "not based on normal procedure," which would have entailed making an "extraordinary transaction," as admitted by petitioners themselves. This proves that they were, at the time they received the order, aware that paying MIAA's supposed P55 million obligation to PNCC through the Office of the President in cash was questionable. (b) As the head of MIAA, Tabuena should have been more cautious in disbursing the funds. He did not even stop to think about the legality of the entire process even when he did not receive any kind of receipt for the first two deliveries of money worth P50 million. When he did get a receipt, it was not an official receipt from PNCC, the legal creditor, but from the President's private secretary. It must also be noted that the cash was all delivered to Gimenez' office at Aguado St., not to her office at Malacaang. cdasia (c) Tabuena breached official channels to procure the money. There were no vouchers nor bills to authorize or support the disbursements. There was also no certificate of availability of funds. The payment was made in cash without COA's approval, at a time when the ceiling for cash payments was merely P5,000.00. As stated earlier, no official receipt from PNCC supported the payment. The entire process was "done with haste and with a total disregard of appropriate auditing requirements." As regards the payments to Roa-Gimenez, these were absolutely unwarranted because whatever "authority" she claimed to have emanated, not from the creditor PNCC but from the President. Petitioners were required by law to settle their indebtedness with PNCC directly, the party in whose favor the obligation was constituted. 22 The only instance when such questionable payment could have been valid was if it had redounded to PNCC's benefit, which was not proved at all in this case. 23 As creditor, the PNCC was not even bound to accept payment, if any, from the President's private secretary, the latter being a third person who had no interest whatsoever in the discharge of MIAA's obligation. 24

The ponencia states that the Marcos Memorandum was "patently lawful for no law makes the payment of an obligation illegal." This statement is premised on the existence of an established creditor-debtor relationship between the payor and the payee. In this, case, however, the obligor was being made to pay to a party other than the legal obligee when no novation of the obligation has taken place. How can such an arrangement be possibly in accord with law? The preceding established facts clearly show that petitioners were remiss in discharging their duties as accountable officers. As correctly observed by the court a quo: ". . . (T)he Ongpin Memorandum could not justify Pres. Marcos' memorandum of January 8, 1986; this in turn could not justify Luis Tabuena's payment of P55 million to Fe Roa Gimenez. . . . (T)he amount which could be payable by Tabuena in his capacity as head of the MIAA in January of 1986 could not be in excess of P27.931 million until other claims had been duly approved. This approval, on the other hand, could not come from the President but from the Price Escalation Committee (PEC) before which, according to the Ongpin Memorandum itself, these claims for escalation had been submitted for approval. The PEC was not shown to have approved these amounts as of the time Tabuena made any of the withdrawals for P55 million. xxx xxx xxx

proper use of the term, injects a sense of responsibility for the disposition of funds for which one is answerable. So when one asks if Tabuena has accounted for the P55 million belonging to the MIAA, the question really is whether accused Tabuena disposed of the sum in a responsible manner consistent with his duty. The answer must be in the negative. Payments must be delivered to payees. Payments intended for the PNCC must be delivered to the PNCC or to someone authorized by the PNCC to accept payments for it. Neither Pres. Marcos nor Fe Roa Gimenez are shown to have been authorized to accept money for the PNCC nor to deliver money to the PNCC (or to any creditor of the MIAA, for that matter). In fact, though Pres. Marcos may have been the Supreme Magistrate of the land and the chief enforcer of the law, the law neither authorized him to pay for the MIAA nor to accept money for the PNCC. Accused Tabuena's statement, therefore, that he had presented overwhelming evidence of the delivery of the P55 million to Pres. Marcos' private secretary does not prove that he has accounted for that money, that is, that he has properly disposed of that sum according to law. On the contrary, what the evidence shows is that accused Tabuena delivered the P55 million to people who were not entitled thereto, either as representatives of MIAA or of the PNCC. It proves that Tabuena had deliberately consented or permitted through negligence or abandonment, some other person to take such public funds. Having done so, Tabuena, by his own narration, has categorically demonstrated that he is guilty of the misappropriation or malversation of P55 million of public funds." 25 Time and again, this Court has deferred to the findings of fact of the trial court, owing to its enviable position of having seen the physical evidence and observed the witnesses as they testified. We see no reason to depart now from this policy. Tabuena was also personally accountable for the funds in his custody, being the head of a government agency such as MIAA and discharging fiscal functions as such. In this regard, the Manual on Certificate of Settlement and Balances (Rev. 1993) (The Manual) states, inter alia: "TITLE IV. ACCOUNTABILITY, RESPONSIBILITY AND LIABILITY FOR GOVERNMENT FUNDS AND PROPERTY Government officials and employees, in the discharge of fiscal functions, shall ensure that all government resources are managed, expended and utilized in accordance with law, rules and regulations and safeguarded against loss or wastage thru illegal or improper disposition. In the implementation of the above functions, they shall be guided by the following provisions: SEC. 26.ACCOUNTABILITY FUNDS AND PROPERTY FOR GOVERNMENT

Tabuena says he had properly accounted for the P55 million he had withdrawn from the MIAA's funds. By this Tabuena means he gave the money to Fe Roa Gimenez, presumably in representation of Pres. Ferdinand Marcos. Neither Pres. Marcos, however, nor Fe Roa Gimenez was entitled to receive or issue acquittance for a debt in favor of the PNCC. Tabuena's claim, therefore, that he delivered the P55 million to her is not properly accounting for P55 million. In fact, when we come right down to it, nobody has issued an acquittance in behalf of the PNCC for the P55 million paid by Luis Tabuena. Since Tabuena says he was paying P55 million to the PNCC, it was incumbent upon him to show a receipt from or in behalf of the PNCC. Tabuena has shown no receipt. Tabuena was not authorized to part with government money without receipt. When Tabuena gave P55 million intended for the PNCC to Fe Roa Gimenez or to Pres. Marcos, Tabuena was paying government funds to persons not entitled to receive those funds. He was, therefore, guilty of malversation of those funds. xxx xxx xxx

Tabuena says he has accounted for the money because he has told us where the money went. But to account, in the more

26.1. Every officer of any government agency whose duties permit or require the possession or custody of government funds or property shall be accountable therefor and for the safekeeping thereof in conformity with law. 26.2. Every accountable officer shall be properly bonded in accordance with law. SEC. 27.RESPONSIBILITY FOR GOVERNMENT FUNDS AND PROPERTY The head of any agency of the government is immediately and primarily responsible for all government funds and property pertaining to his agency. Persons entrusted with the possession or custody of the funds or property under the agency head shall be immediately responsible to him without prejudice to the liability of either party to the government. SEC. 28.SUPERVISION OFFICERS OVER ACCOUNTABLE

30.1.2 Every expenditure or obligation authorized or incurred in violation of law or of the annual budgetary measure shall be void. Every payment made in violation thereof shall be illegal and every official or employee authorizing or making such payment, or taking part therein, and every person receiving such payment shall be jointly and severally liable for the full amount so paid or received." (Emphasis supplied) The ponente points out that our reference to the Manual supports the view that Tabuena was only civilly liable. This is a misappreciation of the entire sense of the dissent. It must be borne in mind that said reference was made after the conclusion was reached that Tabuena was indeed criminally liable for his acts. It is hornbook knowledge that criminal liability carries with it the civil, specially when, as in this case, the latter arose from the former. Hence, the statement: "Tabuena was also personally accountable for the funds in his custody, . . .." Sections 29. 2 and 29.5 of the Manual, which the ponente uses to illustrate his point, actually includes exceptions to the grant of immunity from civil liability of a public officer for acts done in the performance of his official duties: (a) The preceding statement itself says that the acts must be done "in the performance of his official duties;" (b) Sec. 2 9. 2 exempts him from civil liability, "unless there is a clear showing of bad faith, malice or gross negligence;"and (c) Sec. 29.5 states that "he shall be liable for willful or negligent acts done by him which are contrary to law, morals, public policy and good customs even if he acted under order or instructions of his superiors." The quoted provisions have been once more underscored herein. The ponencia further states that "(t)here is no showing that Tabuena has anything to do whatsoever with the execution of the MARCOS Memorandum." But very clearly, the admitted facts show that it was precisely Tabuena who implemented or executed the said Memorandum. The ponencia cites Acebedo where the accused was acquitted after it was shown that it was actually the latter's secretary who collected and converted the money. Tabuena's case is starkly different, for here it was Tabuena himself who personally turned over the money to the President's secretary. It was done with his full knowledge and consent, the obvious irregularity thereof notwithstanding. In petitioner Peralta's case, we again yield to the factual findings of the trial court. It said: ". . . . The question is whether or not Peralta properly signed the third application for the issuance of a Manager's Check drawn against the MIAA's savings account with the Villamor Office of the Philippine National Bank. At the time that accused Peralta signed the request for the issuance of a Manager's Check, he was the Acting Financial Services Manager of the MIAA and all withdrawals of funds required is (sic) co-signature.

The head of any agency or instrumentality of the national government or any government-owned or controlled corporation and any other self-governing board or commission of the government shall exercise the diligence of a good father of a family in supervising the accountable officers under his control to prevent the incurrence of loss of government funds or property, otherwise he shall be jointly and severally liable with the person primarily accountable therefore. . . . SEC. 29.LIABILITY OF ACCOUNTABLE, SUPERIOR AND SUBORDINATE OFFICERS FOR GOVERNMENT FUNDS 29.1. Every officer accountable for government funds shall be liable for all losses resulting from the unlawful deposit, use, or application thereof and for all losses attributable to negligence in the keeping of the funds. 29.2. Liability of Superior Officers. a public officer shall not be civilly liable for acts done in the performance of his official duties, unless there is a clear showing of bad faith, malice or gross negligence. xxx xxx xxx

29.5. Liability of Subordinate Officers. No subordinate officer or employee shall be civilly liable for acts done by him in good faith in the performance of his duties. However, he shall be liable for willful or negligent acts done by him which are contrary to law, morals, public policy and good customs even if he acted under order or instructions of his superiors. SEC. 30.LIABILITY FOR UNLAWFUL/ILLEGAL EXPENDITURES OR USES OF GOVERNMENT FUNDS 30.1.1 Expenditures of government funds or uses of government property in violation of law or regulations shall be a personal liability of the official or employee found to be directly responsible therefor.

The reason for the designation of more than one co-signatory is not merely useless ceremony; it is to serve as a counter check for the propriety of the disbursement. While, indeed, accused Luis Tabuena was the highest official in the MIAA and had authority to disburse its funds, this authority was not absolute. It had to be for properly subsisting obligations and the disbursement had to be against funds existing for that purpose. This is one reason for the need for supporting documentation before disbursements of funds are authorized. And this is the special need for finance officers such as Adolfo Peralta, as Financial Services Manager, to be co-signatories (sic): to ascertain the validity of the obligation and, in this particular instance, the existence of the balance to be covered by the manager's check the application for which had been presented for his co-signature. In this case, Adolfo Peralta speaks of the existence of (the) P27.9 million liability in favor of the PNCC as justification for his acts herein. True enough, for that amount was the liability as of December 31, 1985. As finance officer, however, he could not claim ignorance of the fact that as of January 29, 1986, the date of the application for a manager's check which he signed, two previous manager's checks worth P25 million each had already been applied for and the total amount of P50 million had already been withdrawn . . . . It was only two weeks after these two withdrawals when Peralta, as Finance Services Manager, participated in the authorization for the disbursement of another P5 million. This last withdrawal brought up the total of withdrawals to P55 million for the payment of a P27.9 million obligation. Thus while it is true, as Adolfo Peralta claims, that there was a liability in favor of the PNCC, there was no way Peralta could disclaim responsibility for the excessive withdrawals to the extent of P5 million thereof allegedly to pay that liability. There was no way Peralta could justify his co-signing the application for a manager's check for P5 million on January 29, 1986." The ponente cites a dissenting opinion of Justice Isagani A. Cruz in Development Bank of the Philippines v. Pandogar to uphold his ponencia. Need we remind our respected colleague that the corroborative value of a dissenting opinion is minimal? Precisely, it supports a position contrary to, and obviously unacceptable to the majority. Petitioners were found guilty of malversation by negligence, which is possible even if the charge was for intentional malversation. This does not negate, however, their criminal liability; it merely declares that negligence takes the place of malice. Article 3 of the Code provides the rationale when it explicitly states that "felonies are committed not only by means of deceit but also by means of fault." The Sandiganbayan's finding that petitioners converted and misappropriated the P55 million cannot simply be brushed aside upon petitioners' claim that the money was delivered in good faith to the Office of the President under the mistaken assumption that the President was entitled to receive the same. They rely on the case of People v. Fabian, 26 which declared that "(g)ood faith in the payment of public funds relieves a

public officer from the crime of malversation." But the very same decision also cites Article 217 to the effect that malversation may be committed by an accountable public officer by negligence if he permits any other person to take the public funds or property in his custody. It is immaterial if petitioners actually converted or misappropriated MIAA's funds for their own benefit, for by their very negligence, they allowed another person to appropriate the same. The fact that no conspiracy was established between petitioners and the true embezzlers of the P55 million is likewise of no moment. The crime of malversation, as defined under Article 217 of the Code, 27 was consummated the moment petitioners deliberately turned over and allowed the President's private secretary to take custody of public funds intended as payment of MIAA's obligations to the PNCC, if obligation there was at all. That petitioner Tabuena who was then General Manager of MIAA personally and knowingly participated in the misfeasance compounds the maleficence of it all. Rank may have its privileges but certainly a blatant disregard of law and administrative rules is not one of them. It must be etched in the minds of public officials that the underside of privileges is responsibilities. As accountable officers, petitioners clearly transgressed administrative and legal bounds. Even on the pretext of obeying a superior's seemingly legitimate orders, their actuations can hardly be justified. To rule otherwise would set an alarming precedent where all that public officials who have unlawfully enriched themselves at the people's expense and those accused of graft and corruption would have to do to exculpate themselves from any wrongdoing would be to invoke Article 11, paragraph 6 of the Code, thus gaining instant immunity from criminal prosecution. Government officials, particularly heads of their agencies who, by virtue of their exalted positions exude power and authority but pay blind obeisance to orders of those higher up in the bureaucratic hierarchy regardless of the illegality, impropriety or immorality of such orders, would do well to internalize this prayer for national leaders delivered by former Senate President Jovito R. Salonga in Malacaang on November 24, 1996: xxx xxx xxx

When they begin to think of how much power they possess, help them to know the many things that are beyond their power the change of seasons, sun and rain, moonlight and starlight and all the wonders of Your Creation; When they are led to believe that they are exempt from public accountability, help them to know that they are ultimately accountable to You, the God of truth and justice and mercy; xxx xxx xxx

The ponencia makes the final observation that the limitations on the right of judges to ask questions during the trial were not observed by respondent court; that the three Justices who heard the testimonies asked 37 questions of witness Francis Monera, 67 of Tabuena, and 41 of Peralta more than what the prosecutors and defense counsels propounded.

While such numbers unduly disturbed the ponente, it cannot be gainsaid that such action by the members of the First Division of respondent Sandiganbayan was, under the circumstances, not only necessary and called for, but likewise legally acceptable. In the first place, even the ponente makes the observation that petitioners did not raise this matter as error. In other words, they did not feel prejudiced by the respondent court's actuations; nor did they construe the series of questions asked of them by the Justices as indicative of any unfairness or partiality violative of their right to due process. Then, too, it must be noted that there is a difference in the right of a judge in a non-jury system, like that obtaining in the Philippines, to question witnesses or parties themselves, and that of a judge in a jury trial. The bulk of jurisprudence used in the ponencia was decided in the United States, where the jury system is extensively utilized in civil as well as in criminal trials. In this regard, "(i)t has been noted that the opinion of the judge, on account of his position and the respect and confidence reposed in him and in his learning and assumed impartiality, is likely to have great weight with the jury, and such fact of necessity requires impartial conduct on his part. The judge is a figure of overpowering influence, whose every change in facial expression is noted, and whose every word is received attentively and acted upon with alacrity and without question." 28 Thus, while a trial judge is expected to be circumspect in his choice of words lest they be construed as signs of partiality, he "is not, however, required to remain silent and passive throughout a jury trial;" 29 he should, instead, "conduct a trial in an orderly way with a view to eliciting the truth and to attaining justice between the parties." 30 Inasmuch as it is the jury which has the burden of meting out justice, it is acceptable for a judge in a jury trial to "ask any question which would be proper for the prosecutor or defense counsel to ask so long as he does not depart from a standard of fairness and impartiality." 31 "Questions designed to clarify points and to elicit additional relevant evidence, particularly in a non-jury trial, are not improper ." 32 The numerous questions asked by the court a quo should have been scrutinized for any possible influence it may have had in arriving at the assailed decision. The true test for the appropriateness or inappropriateness of court queries is not their quantity but their quality, that is, whether the defendant was prejudiced by such questioning. 33 To repeat, petitioners did not feel prejudiced by the trial court's actions; otherwise, they would have raised this issue in the instant petition. The ponencia states that he is "well aware of the fear entertained by some that this decision may set a dangerous precedent in that those guilty of enriching themselves at the expense of the public would be able to escape criminal liability by the mere expedient of invoking "good faith." Our position has been either misinterpreted or misread for we do not merely speak of "good faith." In fact, our main thrust is that such a breed of people who enriched themselves at the expense of the public might handily use as an excuse or a justifying circumstance to escape liability their having obeyed

the "lawful orders" of their superior under Article 11, paragraph 6 of the Revised Penal Code. The ponente makes a plea towards the close of his decision, that we should not act impulsively in the instant case. "In our eagerness to bring to justice the malefactors of the Marcos regime, we must not succumb to the temptation to commit the greatest injustice of visiting the sins of the wrongdoers upon an innocent." In our opinion, precisely, Tabuena and Peralta are wrongdoers, guilty of acts punishable by law. Needless to say, under our system of laws, they must be meted out the corresponding penalty. We draw attention to the fact that nowhere in this dissent do we single out the so-called "malefactors of the Marcos regime" alone. We addressed ourselves to all who commit venalities at the expense of the people, as defined and punished by law but who try to justify their actions by invoking the very law which they violated. For the reasons stated above, I vote to affirm petitioners' conviction by respondent court. PUNO, J ., dissenting: I join the Dissenting Opinion of Madam Justice Flerida Ruth Romero where I find both right and righteousness happily intersecting each other. I am, however, constrained to write this brief dissent in view of the impact of the majority decision to our criminal justice system which many perceive leaves much to be desired. I It should be immediately stressed that petitioners were convicted of the crime of malversation by negligence. The felony was committed by petitioners not by means of deceit (dolo) but by fault (culpa). According to Article 3 of the Revised Penal Code, there is fault when the wrongful act results from imprudence, negligence, lack of foresight, or lack of skill. Justice J.B.L. Reyes explains the difference between a felony committed by deceit and that committed by fault in this wise: ". . . In intentional crimes, the act itself is punished; in negligence or imprudence, what is principally penalized is the mental attitude or condition behind the act, the dangerous recklessness, lack of care or foresight, the imprudencia punishable." 1 In light of this well-carved distinction, the long discourse of the majority decision hailing petitioners' good faith or lack of intent to commit malversation is off-line. To justify the acquittal of petitioners, the majority should strive to show that petitioners did not commit any imprudence, negligence, lack of foresight or lack of skill in obeying the order of former President Marcos. This is nothing less than a mission impossible for the totality of the evidence proves the utter carelessness of petitioners in the discharge of their duty as public officials. The evidence and their interstices are adequately examined in the dissent of Madame Justice Romero and they need not be belabored. For the same reason, the majority cannot rely on the doctrine of mistake of fact as ground to acquit petitioners. It found as a

fact that". . . Tabuena acted under the honest belief that the P55 million was a due and demandable debt . . . ." This Court has never applied the doctrine of mistake of fact when negligence can be imputed to the accused. In the old, familiar case of People vs. Ah Chong, 2 Mr. Justice Carson explained that ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient to negative a particular intent which under the law is a necessary ingredient of the offense charge (e.g., in larceny animus fruendi, in murder, malice, etc.), cancels the presumption of intent and works an acquittal, except in those cases where the circumstances demand a conviction under the penal provisions touching criminal negligence. Hence, Ah Chong was acquitted when he mistook his houseboy as a robber and the evidence showed that his mistake of fact was not due to negligence. In the case at bar, the negligence of the petitioners screams from page to page of the records of the case. Petitioners themselves admitted that the payments they made were "out of the ordinary" and "not based on normal procedure." As aforestated, the cornerstone of the majority decision is its finding of good faith on the part of the petitioners. Viewed from a more critical lens, however, the evidence cannot justify a finding of good faith. The violations of auditing rules are too many yet the majority merely winks at them by ruling that petitioner Tabuena ". . . did not have the luxury of time to observe all auditing procedures of disbursement considering the fact that the Marcos Memorandum enjoined 'immediate compliance' with the directive that he forward to the President's Office the P55 million in cash." With due respect, I am disquieted by the mischiefs that will be mothered by this ruling. To begin with, the country was no longer under martial rule in 1986 and petitioners were under no compulsion to violate our laws. It also ought to be obvious that the order for immediate compliance even if made by the former President cannot be interpreted as a green signal by a subordinate official to disregard our laws. Indeed, no person, not even the President can order the violation of our laws under any excuse whatsoever. The first and foremost duty of the President is to uphold the sanctity of our laws. Thus, the Constitution requires the President to take an oath or affirmation where he makes the solemn pledge to the people: "I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as President of the Philippines, preserve and defend its Constitution, execute its laws, do justice to every man, and consecrate myself to the service of the Nation. . . . 3 To be sure, the need for petitioners to make an immediate payment is really not that immediate. The facts show that former President Marcos first called petitioner Tabuena by telephone and asked him to make the payment. One week after or on January 8, 1986, the former President issued a written memorandum reiterating the order to pay. Payments were made in three tranches the first on January 10, 1986, the second on January 16, 1986 and the third on January 31, 1986. Clearly then, it took petitioner one month to comply with the Order. Given the personnel of petitioner Tabuena in his office, one month provides enough time to comply with the rules. In any event, petitioners did not request former President Marcos for additional time to comply with the rules if they felt in good faith that they needed more time. Petitioners short-circuited the rules by themselves. Nothing in the Marcos Memorandum compelled them to disregard the rules. The Memorandum

merely stated "Your immediate compliance is appreciated" The language of the Memorandum was as polite as it could be. I fail to discern any duress in the request as the majority did. II The determination of the degree of participation that should be allowed to a judge in the questioning of a witness is a slippery slope in constitutional law. To a certain extent, I agree with the majority that some of the questions propounded by the justices of the respondent Court crossed the limits of propriety. Be that as it may, I am not prepared to conclude with certainty that the text and tone of the questions denied petitioners the right to an impartial trial. Bias is a state of mind which easily eludes evidence. On the basis of the evidence before us, we cannot hold that we have plumbed the depth of prejudice of the justices and have unearthed their partiality. The more telling evidence against the petitioners are documentary in nature. They are not derived from the answers elicited by questions from the justices which the majority, sua sponte, examined and condemned as improper. LexLib III Finally, I can not but view with concern the probability that the majority decision will chill complaints against graft pending before the respondent Court. From the majority decision, it is crystalline that petitioners blindly obeyed the Marcos Memorandum despite its fatal and facial flaws. The majority even quotes these inculpatory admissions of petitioner Tabuena, viz: 4 xxx "AJ del Rosario xxx xxx xxx xxx xxx

"Q . If it was for the payment of such obligation why was there no voucher to cover such payment? In other words, why was the delivery of the money not covered by any voucher? "A. The instruction to me was to give it to the Office of the President, your Honor. PJ Garchitorena "Q . Be that as it may, why was there no voucher to cover this particular disbursement? "A. I was just told to bring it to the Office of the President, your Honor. AJ del Rosario "Q . Was that normal procedure for you to pay in cash to the Office of the President for obligations of the MIAA in payment of its obligation to another entity? "A. No, you Honor, I was just following the Order to me of the President. PJ Garchitorena

"Q . "A.

So the Order was out of the ordinary? Yes, your Honor.

AJ del Rosario "Q . Did you file any written protest with the manner with which such payment was being ordered? "A. "Q . No, your Honor. Why not?

to justify genocide against the Jews and their other crimes against humanity by alleging they were merely following the orders of Adolf Hitler, their adored fuerher. However, the International Military Tribunal at Nuremberg in its Judgment dated October 1, 1946, 1 forcefully debunked this Nazi argument and clearly ruled that "(t)he true test . . . is not the existence of the order but whether moral choice was in fact possible." In 1947, the United Nations General Assembly adopted a Resolution firmly entrenching the principle of moral choice, inter alia, as follows: 2 "The fact that a person acted pursuant to an order of his government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him." In the Nuremberg trials, the defendants were military officers of the Third Reich who were duty-bound to obey direct orders on pain of court martial and death at a time when their country was at war. Nonetheless, they were meted out death sentences by hanging or long-term imprisonments. In the present case, the accused are civilian officials purportedly complying with a memorandum of the Chief Executive when martial law had already been lifted and the nation was in fact just about to vote in the "snap" presidential election in 1986. The Sandiganbayan did not impose death but only imprisonment ranging from seventeen years and one day to twenty years. Certainly a moral choice was not only possible. It was in fact available to the accused. They could have opted to defy the illegal order, with no risk of court martial or death. Or they could have resigned. They knew or should have known that the P55 million was to be paid for a debt that was dubious 3 and in a manner that was irregular. That the money was to be remitted in cold cash and delivered to the private secretary of the President, and not by the normal crossed check to the alleged creditor, gave them a moral choice to refuse. That they opted to cooperate compounded their guilt to a blatant conspiracy to defraud the public treasury. (2) Resurrecting this internationally discredited Nazi defense will, I respectfully submit, set a dangerous precedent in this country. Allowing the petitioners to walk deprives this Court of the moral authority to convict any subaltern of the martial law dictator who was merely "following orders." This ludicrous defense can be invoked in all criminal cases pending not only before this Court but more so before inferior courts, which will have no legal option but to follow this Court's doctrine. 4 (3) Mercy and compassion are virtues which are cherished in every civilized society. But before they can be invoked, there must first be justice. The Supreme Court's duty is to render justice. The power to dispense pardon lies elsewhere. Verily, the Constitution ordains a final conviction by the courts before the President can exercise his power to wipe away penalty. 5 Such is the legal and natural precedence and order of things: justice first before mercy. And only he who sincerely repents his sin, restitutes for it, and reforms his life deserves forgiveness and mercy.

"A. Because with that instruction of the President to me, I followed your Honor. AJ Hermosisima "Q . Why were you not made to pay directly to the PNCC considering that you are the manager of MIA at that time and the PNCC is a separate corporation, not an adjunct of Malacaang? "A. I was just basing it from the Order of the Malacaang to pay PNCC through the Office of the President, your Honor. xxx xxx xxx

"Q . You agreed to the order of the President notwithstanding the fact that this was not the regular course or Malacaang was not the creditor? "A. I saw nothing wrong with that because that is coming from the President, your Honor. In effect, petitioners' shocking submission is that the President is always right, a frightening echo of the antedeluvian idea that the King can do no wrong. By allowing the petitioners to walk, the majority has validated petitioners' belief that the President should always be obeyed as if the President is above and beyond the law. I cannot accept this dangerous ruling even if I look at it through the eyes of faith. One of the gospels in constitutional law is that the President is powerful but is not more paramount than the law. And in criminal law, our catechism teaches us that it is loyalty to the law that saves, not loyalty to any man. Let us not bid goodbye to these sacrosanct principles. PANGANIBAN, J ., dissenting: In the main, the majority ruled that Petitioners Luis Tabuena and Adolfo Peralta should be acquitted because they were merely obeying the order of then President Ferdinand E. Marcos to deliver "thru this Office, the sum of FIFTY FIVE MILLION P55,000,000.00) PESOS in cash as partial payment of MIAA's account" with the Philippine National Construction Company. In their Dissenting Opinions, Justices Romero, Davide and Puno have shown how weak and unpersuasive this ruling is under applicable Philippine laws and jurisprudence. I will not repeat their illuminative discussions. Let me just stress three more points: (1) The defense of "obedience to a superior's order" is already obsolete. Fifty years ago, the Nazi war criminals tried

I therefore vote to AFFIRM the assailed Sandiganbayan Decision convicting the petitioners of malversation. Padilla, Panganiban, JJ., joins Davide, Romero and Puno, JJ., in their Dissenting Opinions. Footnotes 1. Taken under Section 7 of P.D. 1606, as amended (the Sandiganbayan Law), Section 1, Rule XIX of the Revised Rules of the Sandiganbayan and Rule 45 of the Rules of Court. The petitions were ordered consolidated by the Court in an En Banc Resolution dated October 1, 1992. 2. Promulgated on October 22, 1990; Rendered by the First Division then composed of Justices Garchitorena (ponente), Hermosisima (now Associate Justice of this Court) and Del Rosario. 3. 4. 5. 6. "A. Erred and committed reviewable error in ruling that petitioner's withdrawal of the P55 Million was not for a lawful purpose or for a lawful debt. In the process, the Sandiganbayan clearly ignored several pieces of evidence submitted by petitioner, and instead misapprehended the full import of the Ongpin Memorandum (Exh. "2", as attachment of Annex "I"), to which the Marcos order to pay referred (Exh. "1", attachment to Annex "I"). In so concluding, the Sandiganbayan laid its conclusions open to review as its judgment is in effect based on misapprehension of facts (Cruz vs. Sosing, L-4875, November 27, 1953); and in ignoring several material pieces of evidence abused its discretion (Buyco vs. People, 51 OG 7927). B. Erred and committed reviewable error in ruling that the Ongpin Memorandum (Exh. "2" and "2-A", See Annex "I"), and the Marcos approval thereof (Exh. "1", id.) did not support the withdrawal and payment of monies by petitioner. In so concluding, the Sandiganbayan again clearly misapprehended the Ongpin and Marcos Memoranda, and the ledger of PNCC. C. Erred and committed reviewable error in ruling that petitioner was in bad faith when he complied with the presidential order to pay; in thus concluding the Sandiganbayan indulged in speculations and conjectures (Joaquin vs. Navarro, 93 Phil. 257), or otherwise went beyond the issues (Evangelista vs. Alco, L-11139, April 23, 1958); the Sandiganbayan also erred in not ruling that petitioner is entitled to justifying circumstance under Par. 6, Art. 11, and/or Promulgated on January 10, 1992. Records, Vol. I, p. 26. Records, Vol. I, pp. 119-120. Tabuena avers that the Sandiganbayan:

the exempting circumstance provided under Pars. 5 and 6 of Art. 12 of the Revised Penal Code. D. Erred and committed reviewable error in ruling that petitioner was unable to account for the money. In so doing, the Sandiganbayan contradicted the ruling in U.S. vs. Catolico. 18 Phil. 504. It also erred in holding petitioner accountable for acts not charged in the amended informations, and in so doing convicted him without jurisdiction. E. Erred and committed reviewable error in ruling that petitioner was not entitled to immunity as provided by Sec. 17, Article VII of the 1973 Constitution. The Sandiganbayan therefore had no jurisdiction to try the cases. F. Erred and committed reviewable error in ruling that proof beyond reasonable doubt of petitioner's guilt was submitted by the prosecution. In so doing, the Sandiganbayan wrongly shifted the burden of proof and denied petitioner the benefits of the presumption of innocence, of Secs. 1 and 2, Rule 131, and the absence of demand under the last paragraph of Art. 217 of the Revised Penal Code." 6a. Peralta for his part claim that:

"1. Respondent court grossly and seriously erred in convicting herein accused despite the absence of proof that he allegedly converted the funds withdrawn to his own personal benefit as charged in the information in glaring violation of his basic constitutional right to be presumed innocent. "2. Respondent court likewise grossly and seriously erred in convicting herein accused for a crime not charged in the information again in violation of another constitutional right, that is the right to be informed of the accusation or right to due process. "3. Respondent court also grossly erred in convicting herein accused on the basis of mere assumptions, conjectures and inferences devoid of factual basis in another serious and glaring violation of his right to be presumed innocent until his guilt is established by proof beyond reasonable doubt. "4. Respondent court finally erred in refusing to recognize the applicability of the immunity provision embodied in the Constitution and of the justifying circumstance of obedience to a lawful order as valid defenses in this case." 7. Citing PNB v. Tugab, 66 Phil. 583 and People v. Pascua, 71 O.G. 2474. 8. 9. Citing Tubb v. People, 101 Phil. 114. 197 SCRA 94.

10. 11. 12.

18 Phil. 504. 24 Phil. 230. 47 Phil. 48.

28.

Sandiganbayan Decision, p. 50.

29. People v. Fabian, No. 10790-CR, March 12, 1973. 69 O.G. 12150, No. 53. 30. 18 Phil. 428. 197 SCRA 262. Supra, p. 431. Supra, p. 273.

13. Lewis v. People, 99 Colo. 102, 60 Pac. [2d] 1089; Lawyer v. State, 221 Ind. 101, 46 N.E. [2d] 592; State v. Schmidt, 72 N. Dak. 719, 10 N.W. [2d] 868. Underhill's Criminal Evidence, 5th Ed., Book 3, p. 1421. 14. Federal Lindgren v. United States, 260 Fed. 772. Underhill, ibid. 15. Section 8, Article VII of the 1973 Constitution provides: "The President shall have control of all ministries." 16. 17. 18. 19. 20. 21. 412. No. 6. Article II, Revised Penal Code. Sandiganbayan Decision, pp. 37-38. Sandiganbayan Decision, p. 41. TSN, March 17, 1989, p. 7; Vol. III, Records, p. 409. TSN, March 17, 1989, p. 8; Vol. III, Records, p. 410. TSN, March 17, 1989, p. 10; Vol. III, Records, p.

31. 32. 33.

34. Development Bank of the Philippines v. Pundogar, 218 SCRA 118,163. 35. People v. Exala, Dissenting Opinion, 221 SCRA 494,503 36. People v. Olfindo, 47 Phil. 1, citing U.S. v. Abijan, 1 Phil. 83; People v. Borbano, 76 Phil. 703; Perez v Court of Appeals, 127 SCRA 636. 37. See TSN of March 17, 1989, Records, Vol. III, pp. 408-423. 38. See pp. 1-27 TSN of May 2, 1990, Records, Vol. III, pp. 439-465. 39. See pp. 32-53 of TSN, of May 2, 1990, Records, Vol. III, pp. 470-490. 40. Confrontation. Confrontation consists of confronting the witness with damaging facts which he cannot deny and which are inconsistent with his evidence. It is a destructive technique, but when it fails to destroy it may still succeed in weakening. Probing. Probing consists of inquiring thoroughly into the details of the story to discover the flaws. Insinuation. Insinuation consists of leading or forcing the witness by adding facts at one point and modifying details at another, to give a version of his evidence which is more favorable to the other side. The Technique of Advocacy, by John H. Munkman, pp. 66-67; p. 75: pp. 91-92. 41. TSN, March 17, 1989, pp. 11-21; Records, Vol. III, pp. 413-423. 42. TSN, May 2, 1990, pp. 11-27; Records, Vol. III, pp. 449-465. 43. TSN, May 2, 1990, pp. 35-53; Records, Vol. III, pp. 473-490. 44. US v. Hudieres, 27 Phil. 45; Us v. Lim Kui, 35 Phil. 504; US v. Binayao, 35 Phil. 23. 45. 46. People v. Opida, 142 SCRA 295. York v. US, 299 Fed. 778.

22. Gregorio, Fundamentals of Criminal Law, 1988 8th Ed., p. 59. 23. 78 Phil. 67.

24. Padilla, Revised Penal Code, Book One, Vol. I, 7th Ed. 1974., p. 248. See also: Aquino, The Revised Penal Code, Vol. I, 1987 Ed., p. 207. In the very words of the Court in the "Nassif" case: "El mero acto de escribir un empleado de la categoria del recurrente, en el Exhibit B, la palabra "sold," por orden de su principal que le paga el sueldo, sin prueba alguna de dolo o malicia de su parte, no crea por si solo ninguna responsabilidad. Si antes de insertar dicha palabra en el referido documento, o al tiempo de hacerlo, el recurrente hubiese sabido o sospechado de alguna manera que era para justificar un acto impropio de su principal, cosa que, por cierto, no se ha probado, ni puede desprenderse de la decision impugnada, indudablemente podria hacersele responsable a dicho recurrente, de la falsificacion cometida, si no como coautor, por lo menos como complice. Todo esto y la circumstancia justificativa invocada por el recurrente, eximen a este de toda responsabilidad." 25. 26. 27. Decision, p. 45. 145 SCRA 435. Supra .

47. TSN, May 2, 1990, pp. 35-53; Records, Vol. III, pp. 473-490.

48. 49. 50.

People v. Opida, supra. Murphy v. State, 13 Ga. App. 431, 79 S.E. 228. People v. Bernstein, 250 Ill. 63, 95 N.E. 50.

1. 2.

Exh. "1," Rollo, p. 231. Ex. "3," ibid., p. 234.

3. Reyes, The Revised Penal Code, I, 1993, pp. 203204; Kapunan and Faylona, Criminal Law, 1993, p. 82. 4. Code. Sec. 607, Chapter 26, Title VII, The Administrative

51. Dreyer v. Ershowsky, 156 App. Div. 27, 140 N.Y. Supp. 819 52. 53. 54. Dunn v. People, 172 Ill. 582, 50 N.E. 137 Com. v. Myma, 278 Pa. 505,123 Atl. 786. Adler v. US, 104 C.C.A. 608, 108 Fed. 464.

5. A new provision which was not in Batas Pambansa Blg. 337 (The Local Government Code of 1983). 6. COA Circular No. 91-350 dated March 4, 1991, increased the ceiling for cash payments from P5,000.00 to P10,000.00. The Basic Guidelines for Internal Control, issued by the COA on January 31, 1977, set the ceiling even lower at P1,000.00. 7. 8. 9. TSN, May 2, 1990, p. 53. Ibid., p. 17. COA Circular No. 85-55-a, September 8, 1985.

55. Campaner v. Alano, CA-G.R. No. 2558-R, December 15, 1948. 56. People v. Opida, supra.

DAVIDE, JR., J., dissenting: 1. 2. 3. G.R. No. 105938. Page 26. 218 SCRA 118, 163 [1993].

10. Sec. 29 (1), Art. VI, 1987 Constitution (Sec. 18 [1], Art. VIII, 1973 Constitution). 11. 12. Section 29 (2), Ibid. (Section 18 [2], Ibid.). Section 29 (3), Ibid., (new provision).

4. Citing People v. Olfindo, 47 Phil. 1 [1924], citing U.S. vs. Abijan, 1 Phil. 83 [1902]; People v. Borbano, 76 Phil. 703, [1946]; Perez v. Court of Appeals, 127 SCRA 636 [1984]. 5. 6. 7. 27 Phil. 45, 47-48 [1914]. Article 6, Civil Code. 198 SCRA 130, 154-155 [1991].

13. Section 1, Chapter I, Title I-B, Bk. V, The Administrative Code of 1987 (new). 14. Section 4 (5), P.D. 1445; Section 344, 1991 Local Government Code (new). 15. Section 4 (6) and Section 55 (4), Ibid.; COA Circular 78-84, August 1, 1978; COA Circular 81-155. 16. 17. 18. 19. 20. 21. Section 4 (7) and Section 55 (2), Ibid. Section 4 (8), Ibid. TSN, March 17, 1989, pp. 7-20. Exhibit "2," Rollo, p. 232. Exhibit "4," Ibid., p. 235. Exhibit "4-a," Id. Art. 1240, Civil Code of the Philippines. Art. 1241, par. 2, Ibid. Art. 1246, par. 1, Id. Rollo, pp. 385-387. Supra.

8. Citing 92 C.J.S., 1066-1068 (Italics supplied for emphasis). 9. Citing 16 A. 2d 50, 57, 340 Pa. 33, cited in note 71 C.J.S., 1068. 10. Citing ARTURO M. TOLENTINO, Civil Code of the Philippines, vol. 1, 1985 ed., 31-32, citing Waxman v. United States, 12 Fed. 2nd, 775. 11. Citing People v. Malasugui, 63 Phil. 221 [1936]; de Garcia v. Locsin, 65 Phil. 689 [1938]. 12. Citing People v. Royo, 114 SCRA 304 [1982]; Morales v. Enrile, 121 SCRA 538 [1983]; People v. Colana, 126 SCRA 23 [1983]; People v. Sanchez, 132 SCRA 103 [1984]; People v. Galit, 135 SCRA 465 [1985]; People v. Quizon, 142 SCRA 362 [1986]. 13. Citing Abriol v. Homeres, 84 Phil. 525 [1949]; People v. Dichoso, 96 SCRA 957 [1980]. 14. JOAQUIN G. BERNAS, The Constitution of the Republic of the Philippines, vol. 1 [1987], 387. ROMERO, J., dissenting:

22. 23. 24. 25. 26.

27. ART. 217. Malversation of public funds or property. Presumption of malversation. Any public officer who, by reason of the duties of his office, is

accountable for public funds or property, shall appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or negligence, shall permit any other person to take such public funds or property, wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property, . . . . (Emphasis supplied) 28. 75 Am Jur 2d, Trial, Sec. 272, citing U.S. v. Candelaria-Gonzalez (CA5 Tex) 547 F2d 291. 29. Ibid.

Chun Suy vs. Court of Appeals, 229 SCRA 151, 163, January 7, 1994. 5. In People vs. Salle, Jr., 250 SCRA 581, December 4, 1995 this Court expressly held that Section 19, Article VII of the present Constitution prohibits the presidential grant of pardon unless there is "conviction by final judgment" of the accused.

30. Id., citing U.S. v. Slone (CA6 Ky) 833 F2d 595, 24 Fed Rules Evid Serv 339. 31. 2d 7. Id., citing Johnston v. Birmingham (Ala App) 338 So

32. Id., citing Egret v. Mosler Safe Co. (Colo App) 730 P2d 895; Law Offices of Lawrence J Stockler, PC v. Rose, 174 Mich App 14, 436 NW2d 70, app den 434 Mich 862, reconsideration den (Mich) 1990 Mich LEXIS 962, and reconsideration den (Mich) 1990 Mich LEXIS 963. 33. Id., citing U.S. v. Kelly (CA3 NJ) 329 F2d 314; Woodring v. U.S. (CA8 Mo) 311 F2d 417, cert den 373 US 913, 10 L Ed 2d 414, 83 S Ct 1304. PUNO, J., dissenting: 1. p. 60 . 2. 3. 4. Aquino, The Revised Penal Code, Vol. I, 1976 ed., 15 Phil. 488, 493. Section 5, Article VII of the Constitution. See pp. 41-4 5 of majority decision.

PANGANIBAN, J., dissenting: 1. AJIL 172, 221 (1947).

2. For the full text of the Resolution, please see Salonga and Yap, Public International Law, Third Edition, p. 235-236. 3. Submitted before the Sandiganbayan was a Memorandum of then Minister of Trade Roberto Ongpin dated January 7, 1985, stating that the MIAA had a total account of P98.4 million due the PNCC. Subtracting however the "outstanding advances totalling P93.9 . . . will leave a net amount due to PNCC of only P4.5 million," explained Mr. Ongpin. Even if the P30 million advances which Pres. Marcos is claimed to have authorized PNCC to retain, is added to this "net amount due": of P4.5 million, the total would run up to only P34.5 million still P20.5 million shy of the P55 million actually disbursed. 4. In Ty vs. Trampe, 250 SCRA 500, 521, December 1, 1995, judges were admonished to follow "established laws, doctrines and precedents." Hence, "once a case has been decided one way, then another case involving exactly the same point at issue should be decided in the same manner." Tay

"(1) [G.R. No. 115147. January 4, 1995.] GEORGE I. RIVERA, petitioner, vs. CIVIL SERVICE COMMISSION and LAND BANK OF THE PHILIPPINES, respondents. Soo, Gutierrez and Lee for petitioner. SYLLABUS REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; DENIAL OF DUE PROCESS; CASE WHERE REVIEWING OFFICER REVIEWS HIS OWN DECISION. Petitioner was denied due process when Hon. Thelma P. Gaminde, who earlier participated in her capacity as the Board Chairman of the MSPB when the latter had taken action on LBP's motion for reconsideration, also took part, this time as a CSC Commissioner, in the resolution of petitioner's motion for reconsideration with the CSC. In Zambales Chromite Mining Company vs. Court of Appeals, (94 SCRA 261) the decision of the Secretary of Agriculture and Natural Resources was set aside by this Court after it had been established that the case concerned an appeal from the Secretary's own previous decision he handed down while he was yet the incumbent Director of Mines. Calling the act of the Secretary a "mockery of administrative justice," the Court said: "In order that the review of the decision of a subordinate officer might not turn out to be a farce, the reviewing officer must perforce be other than the officer whose decision is under review; otherwise, there could be no different view or there would be no real review of the case. The decision of the reviewing officer would be a biased view; inevitably, it would be the same view since being human, he would not admit that he was mistaken in his first view of the case." Here it should have behooved Commissioner Gaminde to inhibit herself totally from any participation in resolving Rivera's appeal to CSC if we are to give full meaning and consequence to a fundamental aspect of due process. The argument that Commissioner Gaminde did not participate in MSPB's decision of 29 August 1990 is unacceptable. It is not denied that she did participate, indeed has concurred, in MSPB's resolution of 03 March 1994, denying the motion for reconsideration of MSPB's decision of 29 August 1990. RESOLUTION VITUG, J p: This petition for certiorari assails the resolution, dated 25 March 1993, of respondent Civil Service Commission ("CSC") relative to an administrative case, entitled "Land Bank of the Philippines vs. George I. Rivera," as well as its resolution, dated 03 March 1994, denying the motion for reconsideration. cdphil Petitioner George I. Rivera was the Manager of Corporate Banking Unit I of the Land Bank of the Philippines ("LBP"). On the basis of the affidavits of William Lao and Jesus C. Perez, petitioner was charged, on 01 February 1988, by the LBP President with having committed the following offenses:

Dishonesty;

"(2) Receiving for personal use of fee, gift or other valuable thing, in the course of official duties or in connection therewith when such fee, gift, or other valuable thing is given by any person in the hope or expectation of receiving a favor or better treatment than that accorded other persons; "(3) laws; Committing acts punishable under the Anti-Graft

"(4) Pursuit of private business vocation or profession without the permission required by Civil Service Rules and regulations; "(5) Violation of Memorandum Circular No. 1025, Office of the President, dated November 25, 1977; and "(6) Violation of Res. 87-A, R.A. No. 337; resulting to misconduct and conduct prejudicial to the best interest of the service." 1 Rivera allegedly told Perez, the Marketing Manager of Wynner which had a pending loan application with LBP, that he could facilitate the processing, approval and release of the loan if he would be given a ten percent (10%) commission. Rivera was said to have subsequently received a P200,000.00 commission out of the P3,000,000.00 loan proceeds from the LBP. From Lao, who had substantial investments in Wynner, Rivera supposedly likewise received the amount of approximately P20,000.00 pocket money for his trip to the United States, as well as additional funds for his plane ticket, hotel accommodations and pocket money for still another trip to Hongkong. LLjur Rivera was further charged with, among other things, having served and acted, without prior authority required by Civil Service Rules and Memorandum Circular No. 1025 of the Office of the President of the Philippines, as the personal consultant of Lao and as consultant in various companies where Lao had investments. He drew and received salaries and allowances approximately P20,000.00 a month evidenced by vouchers of Edge Apparel, Inc., J & M Clothing Corporation, and JME Trading Corporation. Once the charges were filed, Rivera was placed under preventive suspension (effective 19 February 1988). After a formal investigation, the LBP held Rivera guilty of grave misconduct and acts prejudicial to the best interest of the service in accepting employment from a client of the bank and in thereby receiving salaries and allowances in violation of Section 12, Rule XVIII, of the Revised Civil Service Rules. He was also found to have transgressed the prohibition in Section 3, paragraph (d), of the Anti-Graft and Corrupt Practices Act (Republic Act No. 3019, as amended). The penalty of forced resignation, without separation benefits and gratuities, was thereupon imposed on Rivera. Cdpr On appeal, the decision was modified by the Merit Systems Protection Board ("MSPB") which held. 2 "In view of the foregoing, the decision appealed from is hereby modified that respondent-appellant George I. Rivera is

considered guilty only of committing acts prejudicial to the best interest of the service. Considering that this is his first offense on record, the penalty of Forced Resignation without separation benefits and gratuities to which he may be otherwise be entitled under the laws is reduced to one (1) year suspension." 3 The LBP filed a motion for the reconsideration of MSPB's decision. In its resolution, 4 promulgated on 08 June 1992, the MSPB denied the motion. Rivera and the LBP both appealed to the CSC. In its Resolution No. 93-1189, 5 the CSC resolved only the appeal of Rivera (rejecting that of the LBP pursuant to the rule laid down by his Court in Magpale vs. Civil Service Commission [215 SCRA 398]). The resolution, in part, read: "The Commission is inclined to sustain the original decision of the Land Bank of the Philippines. Committing an act punishable under the Anti-Graft and Corrupt Practices Act (RA 3019) is considered a Grave Misconduct. It is a wanton and/or blatant violation of law. As an officer of the Bank, respondent Rivera should know better that it was illegal and improper for him to accept regular monthly allowances from a private firm which is a client of his Bank. More so, that such act is prohibited and punishable under Sec. 3(d) of RA 3019. "WHEREFORE, foregoing premises considered, the Commission resolves to dismiss the appeal of Respondent George Rivera. Moreover, the Commission finds him guilty of Grave Misconduct for which he is meted out the penalty of dismissal from the service. Accordingly, the MSPB decision is hereby set aside." 6 Rivera filed a motion for reconsideration, which the CSC denied in its Resolution No. 94-1276. 7 Hence, the instant petition. cdll Petitioner averred that the CSC committed grave abuse of discretion in imposing the capital penalty of dismissal on the basis of unsubstantiated findings and conclusions. On 26 May 1994, this Court resolved to dismiss the petition for petitioner's failure to sufficiently show that CSC acted with grave abuse of discretion in issuing its questioned resolution. Rivera filed a motion for the reconsideration of the Court's dismissal of the petition, now strongly asserting that he was denied due process when Hon. Thelma P. Gaminde, who earlier participated in her capacity as the Board Chairman of the MSPB when the latter had taken action on LBP's motion for reconsideration, also took part, this time as a CSC Commissioner, in the resolution of petitioner's motion for reconsideration with the CSC. The Court, in its resolution of 05 July 1994, resolved to grant the motion, to reinstate the petition and to require respondents to comment thereon. The Office of the Solicitor General, in its comment, dated 15 September 1994, sided with petitioner and suggested that the CSC be given an opportunity to submit its own comment. CSC did in due time.

This is not the first time that the Court has been confronted with this kind of prejudicial issue. In Zambales Chromite Mining Company vs. Court of Appeals, 8 the decision of the Secretary of Agriculture and Natural Resources was set aside by this court after it had been established that the case concerned an appeal from the Secretary's own previous decision he handed down while he was yet the incumbent Director of Mines. Calling the act of the Secretary a "mockery of administrative justice," the Court said: "In order that the review of the decision of a subordinate officer might not turn out to be a farce, then reviewing officer must perforce be other than the officer whose decision is under review; otherwise, there could be no different view or there would be no real review of the case. The decision of the reviewing officer would be a biased view; inevitably, it would be the same view since being human, he would not admit that he was mistaken in his first view of the case." The Court similarly struck down a decision of Presidential Executive Assistant Jacobo Clave over a resolution of the Civil Service Commission, in which he, then concurrently its chairman, had earlier "concurred." 9 Given the circumstances in the case at bench, it should have behooved Commissioner Gaminde to inhibit herself totally from any participation in resolving Rivera's appeal to CSC if we are to give full meaning and consequence to a fundamental aspect of due process. The argument that Commissioner Gaminde did not participate in MSPB's decision of 29 August 1990 is unacceptable. It is not denied that she did participate, indeed has concurred, in MSPB's resolution of 03 March 1994, denying the motion for reconsideration of MSPB's decision of 29 August 1990. cdrep WHEREFORE, CSC Resolution No. 94-1276 is SET ASIDE, and the case is REMANDED to respondent Civil Service Commission for the resolution, sans the participation of Commissioner Thelma P. Gaminde, of herein petitioner's motion for reconsideration of CSC Resolution No. 93-1189. No costs. cdll SO ORDERED. Narvasa, C.J., Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno and Mendoza, JJ., concur. Feliciano, J., is on leave. Kapunan, J., took no part. Footnotes 1. Rollo, p. 33.

2. Signed by Acting MSPB Chairman Alfredo B. Deza and Board Members Bella A. Amilhasan and Vicente P. Ramos. 3. Rollo, p. 119.

4. Signed by MSPB Board Chairman Thelma P. Gaminde and Board Members Jesse J. Caberoy and Angelito G. Grande. 5. Signed by CSC Chairman Patricia A. Sto. Tomas and Commissioner Ramon P. Ereneta, Jr. 6. Rollo, p. 36.

7. Signed by CSC Chairman Patricia A. Sto. Tomas and Commissioners Ramon P. Ereneta, Jr. and Thelma P. Gaminde. 8. 9. 94 SCRA 261. Anzaldo vs. Clave, 119 SCRA 353.