IBP Vol.30 - No.2 - 2004

JOURNAL
of the Integr
Integraated Bar of the Philippines
Vol. 30
3rd and 4th Quarters 2004
No. 2
The Bar
Political Law to Legal Ethics

Articles
The Promise of Parliament: Challenging
the Foundations of Constitutional
Government in the Philippines
Meghan G. de Guia and

Gwen G. de Vera
A Critical Analysis of Leading Cases

on the Constitutional Right to
Strike in the Philippines
Josephus B. Jimenez
Defective Contacts in
Philippine Civil Law
Rubn F. Balane
An Overview of the Expanded

Court of Tax Appeals
Mark Anthony A. Gutierrez
Power Industry Reform

in the Philippines
Rocky L. Reyes
Child Sexual Abuse and the Rule of

Examination of a Child Witness
Alberto T. Muyot
Salient Features of the Jury Trial
Raul I. Goco
Legal Ethics and Good Moral Character
Hector L. Hofilea
Notes and Materials

Regulation and Reorganization: Significant
Legal Developments in 2004
Case Digest
Christine V. Lao
Tarcisio Dio
JOURNAL
of the Integrated Bar of the Philippines
Board of Editors
(2003-2005)
Rose Marie M. King
Editor-in Chief
Emerico O. De Guzman
Managing Editor
Rubn F. Balane
Hector M. De Leon, Jr.
Victoria G. Delos Reyes
Tarcisio A. Dio
Jaime G. Hofilea
Saklolo A. Leao
Alberto T. Muyot
Theodore O. Te
Amado D. Valdez
Editors
Reyma Enalisan
Editorial Assistant
The articles published in the JOURNAL reflect the views of the authors and not of the Board of
Editors or the Integrated Bar of the Philippines.
The JOURNAL invites the submission of unsolicited manuscripts. Please include biographical
information and contact details in your transmittal letter. We will not be able to return your
manuscript after consideration unless you enclose a self-addressed envelope with return postage.
Send correspondence to IBP JOURNAL, IBP Building, Doa Julia Vargas Avenue, Pasig City.
Notice to all IBP Members: Please update the record of your contact details (address and telephone
number). Please provide your current contact details to the President of your IBP Chapter.
Copyright 2004 by The Integrated Bar of the Philippines
JOURNAL
CONTENTS
This Issue............................................................................................................i
Articles
The Promise of Parliament: Challenging
the Foundations of Constitutional
Meghan G. de Guia and
Government in the Philippines .............. Gwen G. de Vera ............................. 1
A Critical Analysis of Leading Cases
on the Constitutional Right to
Strike in the Philippines ........................ Josephus B. Jimenez ......................25
Defective Contracts in
Philippine Civil Law.............................. Rubn F. Balane ............................83
An Overview of the Expanded
Court of Tax Appeals ........................... Mark Anthony A. Gutierrez ..........109
Power Industry Reform
in the Philippines .................................. Rocky L. Reyes ............................. 122
Child Sexual Abuse and the Rule of
Examination of a Child Witness ........... Alberto T. Muyot ..........................133
Salient Features of the Jury Trial ............. Raul I. Goco .................................153
Legal Ethics and
Good Moral Character ......................... Hector L. Hofilea .......................158
Notes and Materials
Regulation and Reorganization: Significant
Legal Developments in 2004 ................ Christine V. Lao ...........................181
Case Digest ............................................. Tarcisio Dio ................................189
This
Issue
For aspiring lawyers, September is, as John Updike would put it, a month of
Sundays. Indeed, that month the cramming, the cursing, the anxious preparations
are all about the four days that comprise what is perhaps the most gruelling
experience in the life of any lawyer: the Bar. The lectures one sat through, the case
digests one prepared, all that one had learned (or not learned) in law school will be
tested and tried in four Sundays that cover the entire range of basic law.
In this double issue, people who have not only passed the Bar but have
become some of its more admirable members, have contributed articles in their
respective areas of expertise. Young practitioners Meghan de Guia and Gwen de
Vera revisit the parliamentary-presidential debate on the form of government in our
political law piece. Labor Undersecretary Josephus Jimenez tackles the matter of
illegal strikes. Highly regarded professor and civil law expert Ruben Balane offers an
interesting commentary on defective contracts (one should note his observations on
the Photokina case). Albert Muyots article on child sexual abuse provides a policy
aspect to criminal law. In his commercial law contribution, Rocky Reyes zeroes in
on our latest energy laws and provides an overview of the countrys power industry
regulation. Another overview, this time of the expanded Court of Tax Appeals, is
authored by Anthony Mark Gutierrez, and should be useful to other tax practitioners.
The former Solicitor General Raul Goco provides a short but interesting piece on
the possibilities of jury trial. And to round off our Bar-oriented issue, we have
retired justice and former Ateneo law school dean Hector Hofileas excellent article
on legal ethics.
Tarsi Dios case digest and Christine Laos summary of the latest significant
laws, complete the issue.
The Promise of Parliament: Challenging the Foundations of Constitutional Government in the Philippines
The Promise of Parliament: Challenging the Foundations

of Constitutional Government in the Philippines
Meghan G. de Guia and Gwen G. de Vera*
During the just concluded and bitterly fought Presidential elections, an indefatigable
Gloria Macapagal-Arroyo vigorously asserted the pragmatic desirability of achieving
reform and enhancing development through a number of amendments to the fundamental
law, including a departure from the presidential form of government. Indeed, recent
articulations of the need for constitutional reform1 have displayed an urgent insistence
upon a shift to a parliamentary form of government.
Although the shape that the proposed parliamentary government of the Philippines
is envisioned to take has not been fully articulated by its advocates,2 it is worth noting
that its projected advantages and benefits are based largely on the effects of the structural
changes it entails, such as removal of the procedural requirements for the enactment of
laws. To be sure, efforts to promote the shift to parliament have seen an obvious facelift.
Whereas earlier attempts were seen as purely political in nature,3 renewed efforts of late
The authors are associates of Poblador Bautista & Reyes Law Offices.
Fr. Joaquin Bernas, S.J. had occasion to write in 1999
It is very reassuring to know that there is no shortage of ideas on how to improve the present
[1987] Constitution. The Philippine Constitutional Association, as told to President Ramos, has 97,
and Congressman Sergio Apostol has 137. Or is it 147? Reminds me a bit of a marching piece, 76
Trombones. Some day we may yet succeed in formulating a constitution that will end all debate about
constitutions. Then our only worry will be how to make the constitution works, which really is the
major task even now. (J. Bernas, A LIVING CONSTITUTION: THE RAMOS PRESIDENCY, p. 191).
2
Save perhaps in House Concurrent Resolution No. 16. In the passage of the Resolution, Speaker Jose de Venecia had once indicated
that he had a French-style parliament in mind, in which a President is directly and nationally elected by the people.
De Venecia said he envisions a French-style parliament in which a president is directly and nationally
elected by the people. The prime minister is chosen by parliament members elected from the countrys
different districts. However, he said if the pure parliamentary system the British model is favored,
we will introduce an amendment to elect a president as nominal head of state, since the Philippines,
unlike Great Britain, has no royalty.(Reported in Philippine Star, 10 February 2003), http://
www.philsol.nl/news/03/ChaCha02-mar03.htm
Also noteworthy is the proposed parliamentary form of government under the Draft Constitution for a Federal Republic of
the Philippines (see J. Abueva, Towards a Federal Republic of the Philippines, in IBP Law Journal, Volume. XXVII, 2, at 15-16).
Comments on the proposal embodied in the Draft Constitution merit a separate article.
3
Meaning, really, that most proposals for constitutional amendments (particularly previous and present ones related to lifting term
limits, shifting from unitary and central to federal form of government, replacing the bicameral legislature with a unicameral one) are
1
JOURNAL of the Integrated Bar of the Philippines
indicate a two-pronged presentation to render the proposal palatable: (a) as a reinstitutionalization of a stronger and unified political arm of government, with political
parties as the central organizing mechanism for real, effective and reliable reception of
wide interests and sectoral demands, and (b) as a significant part of an elaborate formula
to provide economic deliverance. The new spin on the old material, however, does not
appear to provide adequate relief from the fundamental distrust that has hounded attempts
to amend or revise the Charter. Indeed, proponents of parliament too eagerly present the
latter as cure for government inefficiency and the pervasive threat of political destabilization.
It is true that the present Constitution, unlike the written and rigid constitutions of
the past, is cast in the mold of modern constitutions, drafted upon a different principle
and have often become, in effect, extensive codes of laws intended to operate directly
upon the people in a manner similar to that of statutory enactments and the function of
constitutional conventions has evolved into one more like that of a legislative body.4
There can be no serious argument against the assertion that, as such, the present
Constitution may indeed be viewed as an instrument which must be fully responsive to
the people, in whom sovereignty resides. For this reason, it is unavoidable to regard the
Constitution as a repository of those measures that should serve to provide and maintain
good governance, meaning responsive, emphatic, efficient and significant policy-making,
law enforcement and implementation under the rule of law. This, in turn, depends on the
strength of the political institutions created and governed by the Charter; hence, the
continuing necessity to weigh and measure such powers and functions as should rightly
be contained in those institutions. The ultimate question therefore that confronts advocates
of the parliamentary form of government is whether the discourse of constitutional reform
impelled by the desire of politicians to perpetuate themselves in power. In a country feature on the Philippines, The Economist noted
that:
Indeed, several of the most ardent advocates of a parliamentary system are politicians who
have tried and failed to get themselves elected president under the current constitution, including
Messrs de Venecia and Cojuangco. They are not the only self-serving proponents of charter change:
Filipinos suspected Fidel Ramos, a former president, of plotting to amend the clause that limits presidents
to a single terms (except when they served out part of predecessors term, as Mrs. Arroyo did). Mr.
Estrada, for his part, was thought to be crafting amendments to favour crony businessmen. http://
www.economist.com
4
See Manila Prince Hotel v. GSIS, 267 SCRA 408, 431 (1997).
genuinely requires a departure from the presidential form of government and whether the
shift proposed will truly re-institutionalize and strengthen the political institutions largely
responsible for the creation of laws and their meaningful implementation.
This article is a modest attempt at contributing to the growing discourse on
parliamentary government as part of the constitutional reform agenda. Its aim is to lay
focus the conceptual changes posed by a departure from the presidential form of
government. The desire is to emphasize that the proposed shift to parliamentary form of
government requires thorough consideration as it challenges principles that have long
been held and cherished as inviolate. This article proceeds by first setting out the basic
characteristics of the presidential and parliamentary forms of government, and then
discussing the impact of a shift to parliament the fundamental doctrines of separation of
powers (and its corollary system of checks and balances), judicial review, and popular
sovereignty as exercised through people power.
I.
The Presidential Form of Government
The presidential form of government was first adopted under the 1935 Constitution
and is rooted mainly in the American tradition. Its principal identifying feature is the
principle of separation of powers. The system is founded on the belief that the segregation
of powers among three co-equal and coordinate branches of government provides for
meaningful integration by coordination. The President, who acts as the single executive,
is Head of both State and government, hence, the nomenclature.5
As a result, however, of the political upheaval arising from former President
Ferdinand E. Marcos failed experiment in constitutional authoritarianism, the present
Constitution was drafted not only to express a renewed faith in republicanism and
5
J. Bernas, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY (2003), p. 52.
democracy, but to also provide mechanisms against the rise of tyranny, by placing
limitations on the powers of the President. Indeed, the present Charter has been described
as pro-life, pro-people, pro-Filipino and anti-dictatorship,6 the latter for the reason
that it strengthens the power of Congress and the Judiciary, while limiting the authority
of the President, in an effort to prevent another consolidation of powers in one person
or in one branch of government.
It is for this reason that the present Constitution, in the tradition of both the 1935
and 1973 Constitutions, demonstrates an adherence to the doctrine of separation of
powers, which inheres, as a fundamental principle, in the presidential form of government:
It obtains not through express provision but by actual division
in our Constitution. Each department of the government has exclusive
cognizance of matters within its jurisdiction, and is supreme within
its own sphere. But it does not follow from the fact that the three
powers are to be kept separate and distinct that the Constitution
intended them to be absolutely unrestrained and independent of each
other. The Constitution has provided for an elaborate system of
checks and balances to secure coordination in the workings of the
various departments of the government.7
Thus, under the form of government ordained under the 1987 Constitution,
executive power is vested in a President, who exercises control over all executive
departments, bureaus and offices and general supervision over local governments, to
ensure that laws are faithfully executed.8 Legislative power is vested in the legislative
branch, or the Congress of the Philippines, a bicameral body composed of the Senate
and the House of Representatives, except to the extent reserved to the people by the
provision on initiative and referendum.9 Judicial power, which includes the duty of the
courts of justice to settle actual controversies involving rights which are legally demandable
M. Feliciano, The Philippine Constitution: Its Development, Structures and Processes, in ASEAN Constitutional/Legal
Systems, p. 18.
7
Angara v. Electoral Commission, 63 Phil. 139, 156 (1936).
8
1987 CONSTITUTION, Article VII, Section 1.
9
1987 CONSTITUTION, Article VI, Section 1.
and enforceable, and to determine whether or not there has been grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality
of government, resides in one Supreme Court and in such lower courts as may be
established by law.10
Among the limits imposed by the Charter upon the political branches of government
is service for a fixed term, with term limits. The President serves for a single term11 of
six years,12 while Senators may serve for two consecutive six-year terms and
Congressmen may serve for three consecutive terms of three years.13 Although the
President serves only for a single term, stability is sought to be secured by providing for
narrow mode of removal by way of impeachment. As a necessary adjunct of the
segregation of powers, the judicial branch of government acts as arbiter of the
constitutionality and legality of political actions by way of judicial review.14
The Parliamentary Form of Government
To comprehend the lure of a parliamentary form of government, it is worthwhile
to go over the summary provided by the Congressional Planning Budget Department in
its Reader on Charter Change:
1. Executive Power is exercised by the Prime Minister with the
assistance of a Cabinet composed of the heads of various
departments or ministries. The National Assembly chooses the Prime
Minister from the elected representatives of the Parliament. Members
of the Cabinet are chosen by the Prime Minister from the National
Assembly.
10
1987 CONSTITUTION, Article VIII, Section 1.

The language of the Constitution is that the President shall not be eligible for re-election.
12
13
1987 CONSTITUTION, Article VI, Sections 4 and 7.
14
11
2. The Prime Minister and members of the Cabinet do not have a

fixed term of office. They can be removed from office any time
should their policies and performance fail to gain the support and
confidence of the National Assembly.
3. In case of deadlock between the executive and the legislature, the
legislature may force the Cabinet to resign in a no-confidence vote.
A new Prime Minister is then elected, and a new Cabinet that enjoys
the confidence of the National Assembly shall be formed by the
new Prime Minister.
4. If the Prime Minister feels he has popular support but is
unjustifiably being opposed by the National Assembly, he may call
on the President to dissolve the National Assembly. A midterm
election will be held wherein the people will decide on whom to give
their support: to the Prime Minister and his Cabinet or to the National
Assembly.15
An examination of certain essential features of the parliamentary form (which are
found in all varieties of the parliamentary form of government) indicate its principal
distinction from the presidential form. These are: (1) the members of the government or
the executive arm are, as a rule, simultaneously members of the legislature; (2) the
government or cabinet, consisting of the political leaders of the majority party or of a
coalition who are also members of the legislature, is in effect a committee of the legislature;
(3) the government or cabinet has a pyramidal structure, at the apex of which is the
Prime Minister or his equivalent; (4) the government or cabinet remains in power only
for as long as it enjoys the support of the majority of the legislature; and (5) both
government and legislature are possessed of control devices with which each can demand
of the other immediate political responsibility. In the hands of the legislature is the vote
of non-confidence (censure) whereby government may be ousted. In the hands of
government is the power to dissolve the legislature and call for new elections.16
15
16
A Reader on Charter Change, prepared by the Congressional Planning and Budget Department (February 2003), at 5-6.
Supra. note 6, p. 52-53.
Given the basic structure of a parliamentary form of government, it is argued to

be more dynamic and responsive to the pressing needs of the people than the present
presidential form of government. First, the union of the executive and legislative branches,
in that members of the Executive and the Cabinet are also the lawmakers, is supposed
to provide the assurance that the laws needed to respond to priority needs are passed
and implemented. The structural fusion is intended to do away with, among others, the
perceived procedural constraints arising from actual separation of powers, leading to
inefficiency in policy development and law making.17 It is also hoped that the fusion of
powers and the united policy direction would enhance people participation by moving
their focus away from personality-based politics to one of parties and platforms.
Second, the complementary removal of the fixed term, principally for the Head of
State, is designed to ensure stability and continuity in governance and prevent military
coups and resort to people power. Former University of the Philippines President
Jose B. Abueva has observed that the single term for the popularly elected President,
who cannot be removed except by the cumbersome process of impeachment, operates
as an invitation for instability. On one hand, the single-termer is tempted to secure charter
change to lift the term limit, while on the other hand, a dissatisfied national constituency
has no recourse but to oust a usurper by way of people power, rendering any sitting
administration vulnerable and unstable.18 Since the accountability mechanism under a
parliamentary form of government is not limited to impeachment, the shift, it is further
argued, enhances the capacity of the people to act meaningfully through their elected
representatives; hence, a change in administration, when called for by legitimate
dissatisfaction, need not be effected through people power.
17
It is noteworthy that the companion reform also being pushed in a switch from a bicameral legislature to a unicameral one, to
complement the enhanced efficiency in lawmaking, by removing necessity of sharing of legislative function between two houses of
Congress.
18
Former University of the Philippine President Jose V. Abueva further asserts that the presidential system is inherently unstable,
given that under a single term, the President is often tempted to seek a second term by way of charter change:
To remove the dictator Marcos, the citizens resorted to the extraordinary, spontaneous means
of people power revolt known as the EDSA Revolution. In its wake, the Aquino government was
threatened by several coup attempts by military rebels. To remove another corrupt president, Joseph
Estrada, the President again resorted to people power known as EDSA II, which has resulted in an
unstable presidency by Gloria Macapagal Arroyo.
J. Abueva, Towards a Federal Republic of the Philippines, IBP Law Journal, Vol. XXVII, p. 14.
II.
It would be severely myopic to take the view that inefficiency in government may
be solved and the threats of political destabilization staved off through cosmetic changes
in the form of administration. Indeed, the lesson of constitutional experimentation in the
over-blending of executive and legislative powers during the dark period of Martial Law
alone, behooves a close scrutiny of both the desirability and the propriety of constitutional
reform to effect a shift to a parliamentary form of government, at the cost of foregoing
those salutary principles which have been engrafted constitutionally to guard against
abuse of power: the doctrine of separation of powers, judicial review and people power.
Separation of Powers
In 1973, in a clear departure from the presidential system of government, a stillborn parliamentary system was established under a revision of the 1935 Constitution.
Under the 1973 Constitution, the merger of executive and legislative powers was
introduced. The chief executive or the Prime Minister was elected by a majority of the
members of the National Assembly from among themselves and could be dismissed by
the election of a successor Prime Minister. The Prime Minister possessed the authority
to advise the President to dissolve the National Assembly and call for a general election.
The President was thus reduced to a symbolic head of state.
The parliamentary government under the 1973 Constitution was never implemented,
however. The transitory provisions of the 1973 Constitution, which provided for a
transition from the old presidential form of government to a parliamentary system,
specifically made the proclamations, decrees, and acts of the incumbent President parts
of the law of the land and at the same time empowered the President to initially convene
the interim National Assembly, however, which was never effected. By amendments to
the 1973 Constitution in October 1976, the powers of the incumbent President were
maintained and augmented. An Interim Batasang Pambansa was also created, having the
8
same powers as a regular legislative body. In a subsequent amendment, the powers of

the President and Prime Minister were merged in the incumbent President, who
immediately became a member of the Interim Batasang Pambansa. While the situation
contemplated was a temporary one, to last only for the transition period or until the
members of the regular legislature shall have been elected, further constitutional revision
in 1981 reverted to a form of government which, although adopting features of
parliamentarism, preserved the essence of the presidential system.19
Although the parliamentary form of government provided for under the 1973
Constitution never saw the light of day, that period gave the Filipino people a stark and
painful taste of the dire consequences a concentration of governmental powers can
bring. The fusion of the executive and legislative branches, as well as the consequential
consolidation of political power in one body during the period of Martial Law, came to
be called constitutional authoritarianism, the drastic effects of which have been aptly
described by Professor Felipe Miranda:
With the help of the military, government was reorganized to
reflect the Chief Executives unchallengeable pre-eminence in the
Philippine political system. Congress was abolished, the judiciary
was deprived of its independent status and all public officials served
with no clear security of tenure. National referenda and plebiscites
substituted for regular elections and were used to provide the formal
trappings of legitimacy to constitutional amendments tailored to serve
an imperial presidency. Up to 1984, no election bore the faintest
sign of credibility as an exercise where the popular will could be
expressed. Political parties were emasculated, with even the
Presidents own party, the Kilusang Bagong Lipunan, or New Society
Movement no more than a personal movement completely dedicated
to his political advancement. The press was brought under the control
of people well known for their support of the President and intermittent
attempts at some independent journalism summarily quashed. Labour
organisation was discouraged (up to 1980, less than 10% of all
19
See supra. note 6, at 55, citing Free Telephone Workers Union v. Minister of Labor and Employment, 108 SCRA 757 [1981]).
workers belonged to unions, most of which were company or

sweetheart unions) and labour strikes forbidden to promote industrial
peace, supposedly a key factor to attract foreign investments into
the country.
Between 1972 and 1981, when Martial Law was formally lifted,
the President succeeded in concentrating effective legislative,
executive and judicial power in the Presidency, facilitating the rise of
a more pliable set of oligarchs, politicizing the military, setting up a
political party completely malleable to his will and a press whose
critical function had been largely dissipated. During the same period,
government intervention in and even take-over of traditional private
enterprises maximized. Monopolies in sugar and coconut were
created. Political banks, owned and controlled by reliable
supporters of the President, at times even classified as quasigovernmental banks, gained in influence.20
Ineluctably, Martial Law and the constitutional authoritarianism it had spawned
hold valuable instruction as far as the necessity of subjecting any proposal to consolidate
governmental powers in one branch or in one individual to thorough examination. This
notwithstanding the opportunity such fusion of powers presents in terms of gaining in
efficiency. It is in this light that the purpose and continuing validity of separation of
powers should be evaluated. Put otherwise, is it truly apt to discredit separation of
powers as the cause of government inefficiency? Were advocates of parliament to be
believed, separation of powers is but a dull tool, without any purpose but to impede
policy-making and meaningful legislative action.
Professor Perfecto Fernandez remarked that certain principles which are inherent
in the social theory upon which political and social institutions have been founded have
survived the vicissitudes of time and change, including the principle of separation of
powers.
20
C. Espiritu, Limiting Civil And Politica Rights To Enhance Economic Rights in the Philippines: A Case Study, in Law And
Human Rights in the Development of Asean (1986), p. 70.
10
These fluctuations, however, though constant and disturbing,

have not touched the heart of the legal system. Its fundamentals
have endured. The living ordinances in our Constitution have had
uninterrupted validity since our earliest organic law. Such basic
postulates of our government as the rule of law, separation of powers,
non-delegation of legislative power, due process and equal protection
of the laws, among others, have been with us since the turn of the
present century.21
To be sure, one of the great advantages of the three separate branches of government
is that it is difficult to corrupt all three at the same time. As Fr. Joaquin Bernas puts it, a
constitution is a covenant that has two sides:
On one face it is a covenant of trust, because we agree
to entrust the major aspects of the running of the nation to
government officials.
xxx
xxx
xxx
On the other face, however, a constitution is a covenant

of distrust. We allocate the tremendous powers of government
among various officials because we have a modicum of trust
in them. But deep down within us we know that we cannot
trust them absolutely. For that reason, we have engrafted into
the Constitution various devices through which we can rein in
government officials when they show signs of betraying our
trust.22
Separation of powers is a major structural device of distrust in the Constitution.
Indeed, the actual separation of powers which the Constitution provides is the very
instrument which has, over time, been the bulwark against consolidation of immense
powers in one person or one department of government.
21
22
P. Fernandez, Sixty Years of Philippines Law, 35 Phil. L.J 1389, at 1393 (1960).
J. Bernas, A LIVING CONSTITUTION: THE RAMOS PRESIDENCY, at 187-188.
11
Simply put, it is a guarantee against an arbitrary exercise of power, to make it

impossible for one person or one department to abuse its powers. Thus, it has a built in
system for self-correction, or a system of checks and balances, under which each
department is vested with powers to forestall or restrain a possible or actual misuse of
powers, and to rectify mistakes or excesses by the other departments. For example, the
law-making power of Congress is subject to the veto power of the President, which, in
turn, may be overridden by the legislature.23 In order to check the appointing power of
the President, the appointments of heads of executive departments, ambassadors, other
public ministers and consuls, officers of the armed forces from the rank of colonel or
naval captain need the concurrence of the Commission on Appointments, which is
composed of the members of Congress.24 Money can be released from the National
Treasury only upon approval of Congress.25 No treaty or international agreement shall
be valid and effective unless approved by the members of the Senate.26 The Senate has
the sole power to try and decide all impeachment cases, which can be initiated solely by
the House of Representatives.27 To assure its independence, the judiciary enjoys fiscal
autonomy.28 In the exercise of its power of judicial review, the Supreme Court can
declare acts of Congress or of the President unconstitutional.
It is argued that separation of powers leads to gridlock and stalemate in policy
making. While it is true that our constitution has allocated the powers of government to
three separate branches of government, it does not call for its rigid application or, in
Justice Frankfurters words,29 its observance with pedantic rigor:
The classical separation of governmental powers, whether
viewed in the light of the political philosophy of Aristotle, Locke, or
Montesquieu, or of the postulations of Mabini, Madison, or Jefferson,
23
1987 CONSTITUTION, Article VI, Section 27.

1987 CONSTITUTION, Article VI, Section 18, Article VII, Section 16.
25
1987 CONSTITUTION, Article VI, Section 29(1).
26
27
1987 CONSTITUTION, Article XI, Section 3.
28
29
Connally v. Scudder, 160 N.E. 655.
24
12
is a relative theory of government. There is more truism and actuality

in interdependence than in independence and separation of powers,
for as observed by Justice Holmes in a case of Philippine origin, we
cannot lay down with mathematical precision and divide the branches
into watertight compartments not only because the great ordinances
of the Constitution do not establish and divide fields of black and
white but also because even the more specific of them are found
to terminate in a penumbra shading gradually from one extreme to
the other.30
According to Justice Laurel, the doctrine of separation of powers is intended to
secure action and at the same time to forestall overaction which necessarily results
from undue concentration of powers, and thereby obtain efficiency and prevent
despotism.31 Thus, the keynote of conduct of the various agencies of government
under the doctrine of separation of powers, as properly understood, is not independence
but interdependence.32 The dissenting opinion of Justice Perfecto in the case of Vera v.
Avelino33 is instructive on the matter:
The vulgar notion of separation of powers appears to be
simple, rudimentary, and clear-cut. As a consequence, the principle
of separation of powers creates in the mind of the ignorant or
uninitiated the images of the different department of government as
individual unit, each one existing independently, all alone by itself,
completely disconnected from the remaining all others. The picture
in their mental panorama offers, in effect, the appearance of each
department as a complete government by itself. Each government
department appears to be a veritable state in the general set up of the
Philippine state, like the autonomous kingdoms and princedoms of
the maharajahs of India. Such undiscerning and rudimentary notion
cannot fit in the pattern framed by the Filipino people through their
representatives in the constitutional convention. The true concept of
the principle of separation of powers may not be obtained but in
30
Planas v.Gil, 67 Phil. 62, 73-74 (1939).

Pangasinan Transportation Co. v. Public Service Commission, 70 Phil. 221, 228 (1940).
32
Pangasinan Transportation Co. v. PSC, supra.
33
77 Phil. 192, 264-265, 266, 269 (1946).
31
13
conjunction with the political structure set up by the Constitution

and only in accordance with the specific provisions thereof.
xxx
xxx
xxx
The framers of the Constitution had never intended to create

or allow the existence of governmental departments as autonomous
states within the republican state of the Philippines. The three
departments mentioned in the Constitution were created, not as
complete independent units, but as limbs and organs of the organic
unit of the government ordained to be established. So each department
is independent and separate from the others in the sense that it is an
organ specifically entrusted with the performance of specific
functions, not only for the sake of efficiency from division of labor,
but to avoid tyranny, despotism and dictatorship which, as experience
and history have taught, result from the concentration of government
powers in one person or in an oligarchical group.
xxx
xxx
xxx
To understand well the true meaning of the principle of

separation of powers, it is necessary to remember and pay special
attention to the fact that the idea of separation refers, not to
departments, organs, or other government agencies, but to powers
exercised. The things separated are not the subject of the powers,
but the functions to be performed. It means division of functions,
but not of officials or organs which will perform them. It is analogous
to the economic principle of division of labor practiced in a factory
where multiple manufacturing processes are performed to produce
a finished article.
As aptly noted by Justice Ricardo Puno in his Separate Opinion in Macalintal v.
COMELEC,34 it is now beyond debate that the principle of separation of powers (1)
allows the blending of some of the executive, legislative or judicial powers in one body;
(2) does not prevent one branch of government from inquiring into the affairs of the
other branches to maintain the balance of power; (3) but ensures that there is no
encroachment on matters within the exclusive jurisdiction of the other branches.
34
405 SCRA 614, 701-702 (2003).
14
To be sure, recent history provides empirical proof that, for purposes of relevant
policy-making, effective coordination between the executive and legislative branches of
government is possible even where separation of powers is firmly in place. President
Fidel V. Ramos, under whose term a number of key national laws had been passed, had
a clear legislative agenda. He had a strategic approach to dealing with Congress. One of
the early laws passed during his term was that creating the Legislative-Executive
Development Advisory Council or LEDAC, which was intended to coordinate the
approaches of the executive and the legislative, to avoid gridlock in decision-making
and to fast-track law-making. LEDAC is a consultative and advisory body which
coordinates executive development planning and congressional budgeting. In the words
of Patricia Anne V. Paez, it is a policy clearinghouse, where the competing legislative
priorities of Congress and the executive branch are threshed out, draft bills on vital
issues are discussed and consensus is reached on which bills should be considered
urgent. 35 To rationalize executive lobby in Congress, President Ramos also reactivated
the Presidential Legislative Liaison Office, which served as a channel for the horsetrading
that pushing legislation required.36
Indeed, separation of powers as the cornerstone of constitutionalism and the rule
of law, should not be lightly set aside. It is an institutional arrangement, an actual and real
situation within government, designed to enhance not impede performance of
governmental functions and rendition of services for the public good.
Separation of powers is not adhered to in Constitutional Law
solely by virtue of its force as doctrine. Surely it is doctrine, but it is
also more. Because it provides the structure for Limited Government,
and the Power interrelationships indispensable to a Free and
35
P. Paez, State-Civil Society Relations in Policy-Making Focus on the Legislative, in Philippine Democracy Agenda, 42-43.
On the other extreme, during the tenure of President Joseph Estrada coordination between the two branches became less structured
and more informal. The LEDAC was under utilized (but he formed the Economic Coordinating Council to fast track the implementation
of priority economic programs, the council excluded Congress leaders).
President Arroyo restored LEDAC consultation and legislative agenda formulation, but legislation was bogged down by the
usual struggle for spoils and the infighting within each House and between the two chambers of the legislature. In addition, the
government was constantly reeling from challenges to its legitimacy.
36
15
Independent Judiciary, it is a basic institutional safeguard of

Democracy and Civil Liberty. It is indeed a cornerstone in the
constitutional edifice. For as put in the French declaration of the
Rights of Man, without the separation of powers, there is no
Constitution. [B]ecause of such socio-legal functions indispensable
to constitutionalism, Separation of Powers goes beyond doctrine;
it is juristic imperative.37
Judicial Review
Furthermore, the proposed shift to a parliamentary form of government may also
constrain the effective exercise of the power of judicial review. Judicial review is essential
for the maintenance and enforcement of the separation of powers and the balancing of
powers among the three great departments of government through the definition and
maintenance of the boundaries of authority and control between them.38 As is evident
from the provisions of our present Constitution, the legislature, like the judiciary, has
been made a guardian of the liberties and welfare of the people, albeit in a slightly
different manner. The responsibility of upholding the constitution rests not on courts
alone, but on the legislature as well. The traditional concept of checks and balances will
thus be considerably eroded in a parliamentary form of government, where, for all intents
and purposes, there is a fusion at the highest levels of the executive and legislative
branches of government.
Among the three branches of government, however, the judiciary, from the nature
of its functions, is the least dangerous in the sense that a court of justice is essentially
passive, acting only when its jurisdiction is invoked and deciding only cases that are
presented to it by the parties-litigant. It has been recognized that judicial review is the
chief, if not only, medium of participation and medium of participation of the judiciary.
37
P. Fernandez, Separation of Powers as Juristic Imperative, delivered in the Sixth University of the Philippines Law Alumni
Association Chair on Jurisprudence Lecture.
38
Francisco v. The House of Representatives, G.R. No. 169261, November 10, 2003.
16
Moreover, the judiciary is not a participant in the formation of government policy but
merely an arbiter of its legality. It is not capable of fashioning its own solutions to the
countrys problems. Its checking power is thus limited to determining the constitutionality
or legality of an act. So vital is judicial review that in Philippine jurisdiction it is enshrined
in the Constitution.
As history has shown, the fusion of executive and legislative powers also affected
the independence and integrity of the judiciary. During the Marcos years, the Supreme
Court was accused of legitimating some of the actions taken by the government,
putting a stamp of legality on otherwise questionable laws.
Addressing Inefficiency in Law-Making
What should also be cause for grave concern is that parliament, as a prescription
for curing government inefficiency, may not even provide effective relief. For instance,
there are a number of reasons for the dramatic decrease in significant legislative output39
that do not stem from the actual operation of separation of powers. The following
salient conditions, among others, have been noted as having contributed to declining
legislative performance.
First, law-making, or the power to create, amend and repeal laws, has been relegated
to a tertiary undertaking by members of Congress. Indeed, the productivity of Congress
has noticeably suffered, as the number of bills filed and those eventually enacted into
law has dipped.40 The reason for this is that legislators tend to devote their time to acting
as patrons. As a result, considerable effort is expended in entertaining visitors,41 attending
39
Primer on Constitutional Reform/FAQ, prepared by the Institute for Popular Democracy, states that the unification of the
executive and legislative branches in a parliamentary system will greatly improve the legislative process. Under the presidential
system, disagreements between the president and even only one of the two houses of Congress will derail the process. Most years,
the Philippine Congress approves only two or three bills of national importance other than the budget.
40
THE RULEMAKERS: HOW THE WEALTHY AND WELL-BORN DOMINATE CONGRESS, Philippine Center for Investigative Journalism, 2004,
120
41
Id., 121.
17
to constituents asking for jobs, getting projects on which to spend their pork barrel
funds,42 and arranging for benefits for constituents.43 This, in turn, arises from the clientelist
basis of politics resulted in members attending more to their role as patron than as
legislator.
Interviews with legislators in 1963, for example showed that on a
typical day, 72.4 percent of Representatives and 38.9 percent of
Senators spent five or more hours attending to people visiting them
in their offices. Only 46.8 percent of Representatives and 61.1 percent
of Senators devoted more than half of their time strictly on legislative
functions. This was manifested in absenteeism, particularly in the
House of Representatives, often resulting in a lack of quorum and
adjournment.44
Second, decline in the passage of bills of national relevance may be attributed to:
(a) the traditionally exclusive membership of Congress and (b) the distortion wrought
by the demands of clientelist politics. The homogeneity of the socioeconomic and political
elite explains the persistent conservatism of Congress in policy-making and its neglect
of basic issues affecting national development.45 In addition, where legislative work is
driven by local constituent interests, lawmaking is distorted to meet only particularistic
demands. As noted by the Philippine Center for Investigative Journalism (PCIJ)
The result is a chain of perverse behaviors: Congressmen use their
powers to bring benefits to their constituents and to amass funds
42
It has been noted that lawmakers tend to go for visible, short-term projects that use up public funds to the detriment of the
needier sectors. This also means more funds are allocated for state colleges rather elementary schools, and for hospitals rather than
for primary healthcare (see THE RULEMAKERS: HOW THE WEALTHY AND WELL-BORN DOMINATE CONGRESS, [Philippine Center for
Investigative Journalism, 2004]).
43
Id., 122.
44
M. Caoili, The Philippine Congress and the Political Order, in Philippine Journal of Public Administration, Vol. XXX, No. 1
(January 1986), at 20. There are no comparable figures for the present-day Congress, but interviews with legislators suggest that the
picture remains the same. While senators can afford to spend more time in legislative work because they are elected nationally and are
not beholden to district votes, most representatives see their roles as primarily that of patrons and brokers for their districts. Most
expend their energies on getting projects, appointments, and other benefits for their constituents. The drafting of laws is relegated to
the side (Not Very Representative, in THE RULEMAKERS: HOW THE WEALTHY AND WELL-BORN DOMINATE CONGRESS, [Philippine Center
for Investigative Journalism, 2004], at 121).
45
M. Caoili, The Philippine Congress and the Political Order, in Philippine Journal of Public Administration, Vol. XXX, No. 1
(January 1986), at 20.
18
that they can use for their reelection. Constituents, in turn, make
continued supplications, knowing that their representatives will use
their office to deliver. Lawmaking is thus distorted to meet
particularistic demands (Hutchcroft 1996). Broader development and
reform goals are forgotten, entrenching a system that mires the people
in poverty and traps legislators in the role of fighting for spoils so
they could deliver the proceeds to demanding voters.46
Third, there is a lack of stable, programmatic parties with a clear legislative agenda.
47
Because of the lack of coherent party organization and visions, there is little direction
in Congress, so legislators use up their time and energies meeting constituent demands,
making dramatic exposes or denunciations, or taking part in the infighting among warring
political factions. Thus, attention and focus is shifted from law-making to fighting for
spoils or grandstanding to get self-serving publicity (largely in aid of re-election).
Fourth, the legislative process has also been affected by the large number of
standing committees, often with overlapping jurisdictions or memberships, and lengthy
hearings. Add to this the limited technical research staff and library facilities. 48
Fifth, the predominance of lawyers among legislators has also predisposed them
to engaging in debates instead of considering basic laws to tackle pressing economic
and social problems.49 This situation is aggravated in the case of Senators, who are
46
Supra., note 42, at 122.

The sad reality in the Philippines is that families have superseded parties as the main form of political organization. The PCIJ
reports that over sixty percent (60%) of the representatives in the last Congress had relatives in elective office. Worse, congressmen
spend their time in office consolidating these political dynasties, by doling out jobs and favors, using their pork-barrel funds. Indeed,
this permits Presidents to rather easily secure a majority in the House of Representatives overnight, by way of an outright purchase
of loyalty. The arrangement, however, does not provide any real unity in policy direction, since the loyalty purchased is a personal
one and political clans have few goals beyond acting pursuant to the instinct of self-preservation.
An effective parliamentary system requires a robust and genuine multi-party system, based on distinct ideologies. It would
not be amiss to state that such a system is sorely lacking in the Philippines, where party-switching and opportunism are the norm.
Domination of parties lacking identity based on clearly delineated ideology would tend to the creation of parliamentarism driven
purely by personalities. The assessment here indicates that such lends itself to oligarchy because of the fusion of executive and
legislative powers.
48
See also M. Lavides, The Congressional Committee and Philippine Policy-making: The Case of the Anti-Rape Law, in Philippine
Journal of Public Administration, Vol. XLII, Nos. 3 and 4 (July-October 1999).
49
M. Caoili, The Philippine Congress and The Political Order, in Philippine Journal of Public Administration, Vol. XXX, No. 1
(January 1986).
47
19
elected on national level, and thus see themselves as potential presidential aspirants.
Their assembly is thus reduced to a stage on which they enhance their public images.
Privilege speeches and congressional inquiries are standard fare in both Houses, even if
these actually contribute little to the lawmaking process. There are, however,
proportionately more privilege speeches and inquiries in the Senate, considering that it is
a much smaller body that the House of Representatives.
Lastly, chronic absenteeism has contributed considerably to deterioration of
legislative performance
On a regular session day at the House of Representatives, the
hall is two-thirds empty. The congressmen who are present look
bored. Some are busy texting messages on their mobile phones;
others are engaged in small talk with those around them. Many more
have hied off to the lounge to have merienda. The unfortunate
representative who is on floor delivering a speech is largely ignored.
The dirty secret of the House of Representatives is that most
session days, there is hardly anyone there. Most of the time,
congressmen just show up to have their attendance checked and
then tend to other business. Several laws have been voted [on] even
when there was no quorum, and unless someone objects, the vote is
carried. 50
It has yet to be shown that these insidious practices legislators have cultivated
may be abated by the promise of parliament.
People Power
The proposal to shift to a parliamentary form of government not only presents a
challenge to continued faith and reliance in the operative effectiveness of the separation
50
Supra. note 28, p. 121.
20
of powers. It also contests the recognition of popular sovereignty in the form of people
power under the present presidential system of government as an invitation to
destabilization.
What should immediately be stressed in this regard is, while people power has
been utilized to depose two former heads of state without putting a complete stop to the
functioning of government, a shift to parliamentarism may result in government paralysis.
Given that under a parliamentary form of government, a complete change in Cabinet and
a dissolution of the parliament are both easily attainable, recourse to any of these actions
may cause government administration to come to a halt. This is particularly true where,
as a result of a revamp or dissolution, only civil servants, who are non-career personnel
and/or political appointees, will be left to run the government.
Two essential and related questions are also worth considering: (a) should people
power be viewed entirely as a hindrance to effective governance, so as to be rejected as
an instrument of participatory democracy and (b) has people power not evolved into
a real and effective check upon the conduct of government, in general, such that a shift
to a parliamentary government would not necessarily render people power anathema?
People power, which connotes the involvement of the civilian populace in
expressing a stand and pressuring for a resolution on national issues, first found expression
in February, 1986, as an alternative to the regular institutional channels that prove to be
ineffective from the public view. In this sense, people power may be viewed as a
form of realizing citizen participation in the political-administrative system.51 It has been
recognized as having been resorted to precisely because of the ineffectiveness and lack
of comprehensiveness of regular participatory channels for decision-making.
51
V. Bautista, People Power as a Form of Citizen Participation, in Philippine Journal of Public Administration, Volume XXX,
No. 3 (July 1986), p. 269.
21
That parliamentarism will effectively render people power unnecessary should

be viewed critically inasmuch as parliamentarism does not promise that the fused
executive-legislative leadership would be genuinely representative of the interests of the
people it seeks to serve more efficiently. To be sure, if parliament would be packed with
the very same legislators now in the halls of Congress, there is reason to suspect that it
would not embody the necessary representation which should serve to disable people
power as a mechanism for direct participation.
Interestingly enough, it has been found that the typical Filipino legislator is male,
middle aged, and college educated, most likely with a degree in law. [H]e has previously
held a local government post and is a member of a political family, with a sibling, father,
or grandfather who had been voted into public office in the past. There is one chance in
two that he is related to a former legislator.52
[L]egislators elected to the five congresses since the fall of
Ferdinand Marcos, have hardly been representative of those they
represent. In that sense, they have not been different from the past,
when members of Congress were drawn from a narrow elite in terms
of property, education (since 1898, they have been trained mainly in
law) and social standing.53
xxx
xxx
xxx
Such mobility, however, is still limited to a narrow range of

Philippine society. For sure, the more occupationally diverse
membership from the modern sectors of business, the mass media,
and civil society means a wider range of perspectives and interests
than at any time in the past. The trend toward increasing diversification
that was noted in the 1960s continues today. Moreover, the entry of
party-list representatives in the 11th and 12th Congress enlarged that
range, as it gave representatives of marginalized social sectors seats
52
Not Very Representative in THE RULEMAKERS: HOW

Investigative Journalism, 2004), p. 4.
53
Ibid.
22
THE
WEALTHY
AND
WELL-BORN DOMINATE CONGRESS (Philippine Center for
in the legislature. Despite this, however, Congress remains a

fortress of privilege, its gates open to the new and aspiring
rich, but closed except for some narrow openings to the
poor and powerless.
The social and demographic composition of the presentday Congress helps explain why it remains a conservative
institution, resistant to reform and more inclined to preserve
the privileges of the few.54
More importantly, people power when understood as one mode of
extraconstitutional action vested in the sovereign people and available where the
government has lost its moral and legal authority to govern, is recognized as valid under
jurisprudence.55 It is also implicit in the 1987 Constitution in the very first substantive
provision, after the preamble and delineation of national territory:
The Philippines is a democratic and republican State. Sovereignty
resides in the people and all government authority emanates from
them.56
As pointed out by constitutionalist Fr. Joaquin Bernas, S.J.:
The one rare instance of successful extraconstitutional action
taken by the people was the Edsa event, which won worldwide
recognition of people power. But it was a popular action whose
overall legitimacy could not be confirmed through the counting of
votes. Was it truly popular action or was it merely middle-classmilitary action? Hence, the legitimacy of the Provisional Constitution
it gave birth to as well as of the government of President Aquino
remained precarious until a new Constitution could be formulated
and overwhelmingly ratified.
54
Id., p. 5.
See Tolentino v. COMELEC, 41 SCRA 702.
56
1987 CONSTITUTION, Article II, Section 1.
55
23
The Edsa event and its exaltation of people power influenced

the drafters of the new Constitution to call the Philippines not just a
republican state but also a democratic state. By so doing,
however, the Constitution highlighted as aspect of constitutionalism
that hitherto had been merely implicit, namely that the people may
take direct action extraconstitutionally.57
The justifications for a shift to parliamentary form of government are certainly not
lacking. In 1998, former President Joseph E. Estrada declared his wish to secure such a
change, ostensibly as part of a package of constitutional reforms meant to address the
countrys economic situation. Then it was argued that adopting a parliamentary form of
government will allow the Philippines to compete with its ASEAN neighbors,58 and, as
a bonus, save it from the exorbitant cost of presidential elections. Writing in 1998, now
Justice Antonio T. Carpio had cautioned: [t]here is more to this proposed shift to a
parliamentary government than meets the eye.59 Indeed, the proposal calls for
circumspection. It must be borne in mind that, beneath the obvious changes it will bring
in the form of government, the promise of parliament directly assails, if not assaults, the
bedrock of constitutional government under the 1987 Constitution.
______
______
57
J. Bernas, People Power: To What Extent? in TODAY, July 28, 1996.

This implies that other ASEAN nations have parliamentary form of government. This is error, as Indonesia has a presidential form
of government (there is also Taiwan and South Korea, as examples of thriving economies under a presidential form of government).
59
A. Carpio, Rewriting the 1987 Constitution, in Crosscurrents, TODAY. He observed then that in a parliamentary system
[A] politician with a few billion pesos can easily buy his way to the Prime Ministership. He will simply
contribute 10 million pesos each to the 200 most likely winners in the parliamentary elections. This will
cost him only two billion pesos. Even if only 60 percent of his candidates win, he will still gain the
support of a majority of the members of parliament. This is much cheaper, and a lot easier, than
mounting a presidential campaign.
58
24
Constitutional Right to Strike
A Critical Analysis of Leading Cases on

the Constitutional Right to Strike in the Philippines
Josephus B. Jimenez*
Introduction
The law and jurisprudence on the workers right to strike in this jurisdiction have
not been fully understood by both employees and employers, so much so that the kind
of legal issues being raised to the Supreme Court even today appear to be borne out of
lack of basic appreciation of both the letter and the spirit of the laws. Empiridical evidence
indicate that both labor and capital have not fully comprehended the legal philosophy
behind the constitutional and statutory provisions on strike.
The Right to Strike is Not Absolute
Just because it has been enshrined as a constitutional right,1 it should not be
understood to mean that the right to strike is absolute. On the contrary, the fundamental
law itself is quick to explicitly stress that the exercise of this right is subject to two (2)
stringent conditions, e.g. that its exercise should be both peaceful and that it should be
done in accordance with law. The Labor Code2 further specifies that the exercise of this
right should be consistent with national interests.
The author has almost 30 years of experience in the practice of Labor Law, as a former Labor Arbiter, Med-Arbiter, Labor Regulation
Officer and Voluntary Arbitrator, and years of experience as a human resources management and labor relations corporate executive in
various companies. He has taught labor law in the University of Santo Tomas, University of the East and other universities. He is
an undersecretary of the Department of Labor and Employment. The author wishes to note that the views expressed here are entirely
those of the writer and do not necessarily reflect the position of the Government or of the Department of Labor and Employment.
1
Article XIII, Sec. 3, 1987 Constitution
2
Article 264, RD 442, 01 May 2004
25
To paraphrase the well-written opening line of Mr. Justice Artemio V. Panganiban,

in UST Faculty Union vs. Bitonio,3 there is indeed a right way to do the right thing at the
right time, by the right party for the right reason. Although the UST case aforecited did
not involve the right to strike, that apt reminder, coming from the highest court of the
land, deserves much more than a symbolic adherence. Illegal strikers and those who are
inclined to commit illegal and prohibited acts in the course of the strike should have
been so forewarned.
Reckless Strikes, Condemned
However, events subsequent thereto indicated that, either the workers have not
fully understood the right and its limitations, or they are simply reckless and suicidal in
the exercise thereof. In any case, the consequences of illegal strikes proved to be disastrous
to the strikers and detrimental to the nation. Hundreds, if not thousands of employees
have lost their employment status. Even their usual defense of good faith is unavailing
when strikes are declared illegal due to their commission of prohibited acts. This is
because, under controlling law and jurisprudence, in mala prohibita, good faith is not
admitted as a valid defense.4
Inter alia, the recent cases of SAN JUAN DE DIOS5 and of SAN MIGUEL6
have underscored once again the compelling need to stress the far-reaching consequences
of taking lightly the strict guidelines for strikes and the full gravity of the penalty for
deviating from the limitations imposed by both the Constitution and the law.
3
4
5
GR 121335, 16 November 1999

Union of Filipro Employees vs. Nestle, GR 88710-13, 19 December 1990
San Juan de Dios Educational Foundation Employees Union AFW vs. San Juan de Dios Education Foundation, GR 143341,
28 May 2004
San Miguel Corp. vs. NLRC, GR 119293, 10 June 2003
26
Refusal to Return to Work: A Malum Prohibitum

In the SAN JUAN DE DIOS case,7 the High Tribunal, speaking through Mr.
Justice ROMEO J. CALLEJO, SR., declared in no uncertain terms that:
Despite the receipt of an order from the SOLE (Secretary of Labor
and Employment) to return to their respective jobs, the union officers and
members refused to do so and defied the same. Consequently, then, the
strike staged by the union is a prohibited activity under article 264 of the
labor code. Hence, the dismissal of its officers is in order.8 The respondent
foundation was, thus, justified in terminating the employment of the petitioner
unions officers.
Strike While Conciliation is On-going: Illegal
In the SAN MIGUEL CASE,9 the Supreme Court, through the ponencia of Mr.
Justice ADOLFO S. ASCUNA, held unequivocably, inter alia, that:
We cannot sanction the respondent-unions brazen disregard of
legal requirements imposed purposely to carry out the State policy of
promoting voluntary modes of settling disputes. The States commitment
to enforce mutual compliance therewith to foster industrial peace is affirmed
by no less than our Constitution.10 Trade unionism and strikes are legitimate
weapons of labor granted by our statutes. But misuse of these instruments
can be the subject of judicial intervention to forestall grave injury to a
business enterprise.11
See Footnote no. 5, above

Citing the case of Grand Boulevard Hotel v. Genuine Labor Organization of Workers in Hotel Restaurant and Allied Industrial
(GLOWHRAIN); Grand Boulevard Hotel v. Edna B. Dacanay, G.R. Nos. 153664-65, July 18, 2003.
9
See Footnote no. 6, above
10
See Article XIII, Sec. 3, 1987 Constitution, Footnote no. 01, above
11
Citing the case of Bulletin Publishing Corp. vs. ASS Sanchez, 144 SCRA 698, 1986
8
27
Illegal Strike Damages the Economy

The rampant misuse of the right to strike has, in fact, resulted in tremendous
damage to the Philippine economy and put a constant strain and irritation on the
relationship between labor and capital. It has been reported that various multinational
companies have closed their Philippine operation and transferred to China, Thailand or
Vietnam due to the unusual turbulence in labor relations in the mid eighties and early
nineties. While the DOLE has no empirical data to buttress such a conclusion, it is the
general perception among investors in the country. Today, there is relative serenity in the
labor front but the decision coming out from the Highest Court are rulings on strikes that
took place during those unstable years.
In the SAN MIGUEL case,12 the Highest Court of the land had to remind the
workers that:
A strike is considered as the most effective weapon in protecting
the rights of the employees to improve the terms and conditions of their
employment. However, to be valid, a strike must be pursued within legal
bounds.13 One of the procedural requisites that Article 263 of the Labor
Code and its Implementing Rules prescribe is the filing of a valid notice of
strike with the NCMB. Imposed for the purpose of encouraging the
voluntary settlement of disputes,14 this requirement has been held to be
mandatory, the lack of which shall render a strike illegal.15
Rationale for Constitutional Provision
The above reminder should also serve as a final warning to those who are prone
to undermine the clear import of the law. Above all, they need to revisit the rationale of
the constitutional provision as well as the statutes and jurisprudence on strikes.
12
13
14
15
See Footnote nos. 6 and 9

Citing the case of Association of Independent Unions of the Phil. vs. NLRC, 305 SCRA 219, 1999
Citing the case of NFSW v. Overjera, et. al., 114 SCRA 354 (1982).
Citing the case of NFL et. al., v. NLRC, et. al., 114 SCRA 354 (1997), First City Interlink Transportation Co. v. Confessor,
272 SCRA 124 (1997), Lapanday Workers Union v. NLRC, 248 SCRA 95 (1995).
28
Parties to the relationship of employers and employees have to be reminded that

when the Constitutional Commission of 1986 decided to elevate the right into a
constitutional one, it was premised on a well-grounded fear, that another dictator might
emerge again in the course of history, who would suspend or otherwise totally obliterate
this all important weapon of labor to undertake peaceful concerted actions in order to
seek redress for legitimate grievances, including the staging of strikes in accordance
with law. The present Charters specific provision16 on the right to strike was brought
about more by the fear of the past unfortunate experience under Martial Rule than by a
strategic vision of a future for just and reasonable relations between labor and capital in
this country.
Misreading the Philippine Constitution
Thus, the 1986 Charter succeeded, albeit unwittingly, in creating a wrong
impression that, by constitutional fiat, the floodgates were opened to an absolute freedom
to paralyze company operations, to stage mass actions nationwide as a means to create
meaningful changes in the relation between labor and capital. That wrong impression
brought about chaos in Philippine labor relations in 1987 and 1988 during the stewardship
of DOLE by then Secretary Augusto S. Sanchez.
The labor jurisprudence that unfolded thereafter, however, proved to be an
unfortunate scenario for the workers who had been misled to commit illegal and prohibited
acts in the course of exercising the right to strike. Such acts caused their loss of jobs
and allegedly also brought about certain bankruptcies and ultimate closures of many
business firms. It also left a negative mark on the country as a preferred investment area
in Asia and the Pacific.
16
See Footnotes nos. 1,
29
We Need to Clarify the Law

This brief dissertation therefore aims at clarifying once more the rules of engagement
in the exercise of this important right. It is not our intention to condemn the right itself
for it, indisputably, is essential as a vital component of the total legal framework to
afford full protection to labor. This thesis merely serves as a caveat, a regulating reminder
to all concerned that they should use the right to strike in a manner that does not do
violence to the rights of others, consistent with the time-honored maxim of SIC UTIRE
TUO UT ALIENUM NON LAEDAS.
Is it the right thing to do in the first place?
(The Test of Propriety of the Act Itself)
The right to strike is intended for specific workers and aimed at achieving specific
purposes. Thus, the first crucial test is the test of propriety of the use of the right to
strike.
The staging of a strike is NOT the right thing to do insofar as government employees
are concerned. This was enunciated by the Supreme Court, through Justice Irene Cortez
in the case of SSS EMPLOYEES ASSOCIATION vs. C.A.,16A Thus:
The 1987 Constitution, in the Article on Social Justice and Human
Right, provides that the State shall guarantee the rights of all workers to
self-organization, collective bargaining and negotiations, and peaceful
concerted activities, including the right to strike in accordance with law
[Art. XIII, Sec. 3].
By itself, this provision would seem to recognize the right of all
workers and employees, including those in the public sector, to strike. But
the Constitution itself fails to expressly confirm this impression, for in the
16A
30
GR 85279, 28 July 1989, 175 SCRA 686.
Sub-Article on the Civil Service Commission, it provides, after defining

the scope of the civil service as all branches, subdivisions, instrumentalities,
and agencies of the Government, including government-owned or controlled
corporations with original charters, that [t]he right to self-organization
shall not be denied to government employees [Art. IX (B), Sec. 2 (1) and
(50)]. Parenthetically, the Bill of Rights also provides that [t]he right of the
people, including those employed in the public and private sectors, to
form unions, associations, or societies for purposes not contrary to law
shall not abridged [Art. III, Sec. 8]. Thus, while there is no question that
the Constitution recognizes the right of government employees to organize,
it is silent as to whether such recognition also includes the right to strike.
The Legislative Intent
Reference is made to the legislative intent and the legal philosophy of the provision
allowing government employees to exercise the right to self-organization. The question
is whether or not such right includes the right to strike. The High Court, in the aforecited
SSS case noted that:
Resort to the intent of the framers of the organic law becomes
helpful in understanding the meaning of these provisions. A reading of the
proceedings of the Constitutional Commission that drafted the 1987
Constitution would show that in recognizing the right of government
employees to organize, the commissioners intended to limit the right to the
formation of unions or associations only, without including the right to
strike.
Constitutional Commissioner Lerum explained that:
MR. LERUM. I think that what I will try to say will not take that
long. When we proposed this amendment providing for self-organization
of government employees, it does not mean that because they have the
right to organize, they also have the right to strike. That is a different matter.
We are only talking about organizing, uniting as a union. With regard to the
right to strike, everyone will remember that in the Bill of Rights, there is a
provision that the right to form associations or societies whose purpose is
31
not contrary to law shall not be abridged. Now then, if the purpose of the
state is to prohibit the strikes coming from employees exercising government
functions, that could be done because the moment that is prohibited, then
the union which will go on strike will be an illegal union. And that provision
is carried in Republic Act 875. In Republic Act 875, workers, including
those from the government-owned and controlled corporation, are allowed
to organize but they are prohibited from striking. So, the fear of our honorable
Vice President is unfounded. It does not mean that because we approve
this resolution, it carries with it the right to strike. That is a different matter.
As a matter of fact, that subject is now being discussed in the Committee
on Social Justice because we are trying to find a solution to this problem.
We know that this problem exists; that the moment we allow anybody in
the government to strike, then what will happen if the members of the
Armed Forces will go on strike? What will happen to those people trying
to protect us? So that is a matter of discussion in the Committee on Social
Justice. But, I repeat, the right to form an organization does not carry with
it the right to strike. [Record of the Constitutional Commission, vol. I, p.
569].
Government Employees, Not Allowed to Strike
The Supreme Court held that, under the present laws, government employees can
not legally strike. Thus:
But are employees of the SSS covered by the prohibition against
strikes?
The Court is of the considered view that they are. Considering that
under the 1987 Constitution [t]he civil service embraces all branches,
subdivisions, instrumentalities, and agencies of the Government, including
government-owned or controlled corporations with original charters [Art.
IX (B), Sec. 2 (1); see also Sec. 1 of E.O. No. 180 where the employees in
the civil service are denominated as government employees] and that the
SSS is one such government-controlled corporation with an original charter,
having been created under R.A. No. 1161, its employees are part of the
civil services [NASECO v. NLRC, G.R. Nos. 69870 & 70925, November
24, 1988] and are covered by the Civil Service Commissions memorandum
32
prohibiting strikes. This being the case, the strike staged by the employees
of the SSS was illegal.
Different Norm for Private Sector:
A Valid Classification Germane to the Purpose of Law
Government employees can not demand equal treatment vis--vis private firms
employees, because, as explained by the Court in the SSS case, as follows:
The statement of the Court in Alliance of Government Workers v.
Minister of Labor and Employment [G.R. No. 60403, August 3, 1983, 124
SCRA 1] is relevant as it furnishes the rationale for distinguishing between
workers in the private sector and government employees with regard to the
right to strike:
The general rule in the past and up to the present is that the terms
and conditions of employment in the Government, including any political
subdivision or instrumentality thereof are governed by law (Section 11,
the Industrial Peace Act, R.A. No. 875, as amended and Article 277, the
Labor Code, P.D. No. 442, as amended). Since the terms and conditions
of government employment are fixed by law, government workers cannot
use the same weapons employed by workers in the private sector to secure
concessions form their employers. The principle behind labor unionism in
private industry is that industrial peace cannot be secure through compulsion
by law. Relations between private employers and their employees rest on
essentially voluntary basis. Subject to the minimum requirements of wage
laws and other labor and welfare legislation, the terms and conditions of
employment in the unionized private sector are settled through the process
of collective bargaining. In government employment, however, it is the
legislature and, where properly given delegated power, the administrative
heads of government which fix the terms and conditions of employment.
And this is effected through statues or administrative circulars, rules, and
regulations, not through collective bargaining agreements [at p. 13; italics
supplied].
33
Conflict of Interest
The Courts conclusion was thus inevitable:
It is the stand, therefore, of this Commission that by reason of the
nature of the public employer and the peculiar character of the public service,
it must necessarily regard the right to strike given to unions in private industry
as not applying to public employees and civil service employees. It has
been stated that the Government, in contrast to the private employer, protects
the interest of all people in the public service, and that accordingly, such
conflicting interests as are present in private labor relations could not exist
in the relations between government and those whom they employ. [At pp.
16-17; also quoted in National Housing Corporation v. Juco, G.R. No.
64313, January 17, 1985, 134 SCRA 172, 178-179].
Is it undertaken for the right reason?
(The Test of Propriety of Purpose)
The second question to ask when workers are confronted with the issues of TO
STRIKE OR NOT TO STRIKE would be to determine the propriety of such a concerted
action relative to the nature of the labor dispute sought to be remedied. For, while the
staging of a strike is admittedly an effective weapon granted to the workers, the availment
thereof is limited to only two kinds of labor disputes,17 which are DEADLOCK IN
COLLECTIVE BARGAINING (economic strikes) and UNFAIR LABOR PRACTICES
(political strikes). Thus, it is beyond debate that the right to strike is not a panacea for all
forms of labor and industrial disputes.
In the 2004 case of SAN JUAN DE DIOS,18 the Court, in effect, pointed out that
when the Secretary of Labor issued the Assumption Order and Return-to-Work Order,
the remedy of staging a strike should yield to compulsory arbitration. Therefore, when
17
18
Article 263 par. (g), Labor Code of the Philippines

See Footnotes no. 5 and 7, above
34
the strikers defied such orders, it was not merely the employer that the workers disobeyed.
They willfully disobeyed the will of the State, in the lawful exercise of police power,
through the Secretary of Labor. From the moment the orders were served upon the
striking union, and upon the expiration of the prescribed period, the staging of a strike
effectively ceased as an appropriate remedy. This was also the precedent established in
PAL vs. Secretary of Labor.19
The Right Means for the Right End
In SAN MIGUEL,20 the Court also pointed out, in effect, that when a notice of
strike is transformed into a preventive mediation case, the proper remedy is changed
from STRIKE to MEDIATION. For workers to insist on striking would be to pursue
what perhaps may be a right end using the wrong means. This is not allowed by law. In
said case, that was not allowed by the Supreme Court. For the end does not justify the
means.
Thus, the High Court lamented:
In the present case, NCMB converted IBMs notices into preventive
mediation as it found that the real issues raised are non-strikeable. Such
order is in pursuance of the NCMBs duty to exert all efforts at mediation
and conciliation to enable the parties to settle the dispute amicably,21 and
in line with the State policy of favoring voluntary modes of settling labor
disputes.22 In accordance with the Implementing Rules of the Labor Code,
the said conversion had the effect of dismissing the notices of strike filed
by respondent.23 A case in point is PAL v. Drilon,24 where we declared a
19
20
21
22
23
GR 88201, 23 January 1991

See Footnotes nos. 6 and 9
Rules to Implement the Labor Code, Book V, Rule XXII, Sec. 6.
LABOR CODE, art. 211 (a).
Rules to Implement the Labor Code, Book V, Rule XXII,
Sec. 1. Grounds for strike and lockout. A strike or lockout may be declared in cases of bargaining deadlocks and unfair labor
practice. Violations of collective bargaining agreements, except flagrant and/or malicious refusal to comply with its economic
provisions, shall not be considered unfair labor practice and shall not be strikeable. Not strike or lockout may be declared on
grounds involving inter-union and intra-union disputes or on issues brought to voluntary or compulsory arbitration.
35
strike illegal for lack of a valid notice of strike, in view of the NCMBs
conversion of the notice therein into a preventive mediation case. We
ruled, thus:
The NCMB had declared the notice of strike as appropriate for
preventive mediation. The effect of that declaration (which PALEA did not
ask to be reconsidered or set aside) was to drop the case from the docket
of notice of strikes, as provided in Rule 41 of the NCMB Rules, as if there
was no notice of strike. During the pendency of preventive mediation
proceedings no strike could be legally declared The strike which the
union mounted, while preventive mediation proceedings were ongoing, was
aptly described by the petitioner as an ambush. (Emphasis supplied)
Prohibited Grounds for Strikes
It should also be pointed out in this paper that unions may not strike based on
other grounds like wage distortion. In the case of IBM vs. NLRC25 the High Court held
that a wage distortion dispute is neither a case of unfair labor practice nor of a deadlock
in collective bargaining. In fact, it was pointed out in that case that the law26 explicitly
prohibits a strike based on wage distortion.
In another case,27 the Supreme Court held that a union-recognition strike is not
allowed by law. More so when it is staged prior to the freedom period. Both the end
and the means are wrong. A Union recognition strike, as the name implies, is calculated
to compel the employer to recognize ones union and not the other contending group, as
the employees bargaining representative to work out a CBA (Collective Bargaining
Agreement) despite the unions doubtful majority status to merit voluntary recognition
and lack of formal certification as the exclusive representative in the bargaining unit. In
24
25
26
27
Sec. 3 Notice of Strike or lockout xxx any notice which does not conform with the requirements of this and the foregoing
sections shall be deemed as not having been filed and the party concerned shall be so informed by the regional branch of the
Board. (193 SCRA 223, 1991.)
GR 91980, 27 June 1991
RA 6727, Section 13 and 16, amending Articles 123 and 124, Labor Code.
PASVIL/PASCUAL LINER vs. NLRC, GR 124823, 28 July 1999.
36
this case, it was clarified that strike was not the right thing to do and union-recognition
was not the right reason therefore either.
Strike Based on Inter- and Intra-Union Disputes - Prohibited
This explicit provision of the law was stressed again by the Court in the case of
ASOCATION OF INDEPENDENT UNIONS IN THE PHILIPPINES vs. NLRC.28
The Court also much earlier decided along the line of the legal principle enunciated in
Article 263 par. b that no labor union may strike based on grounds invoking interunion and intra-union disputes. Witness the following cases in the past:
1. Luzon Marine Department Union vs. Arsenio Roldan et. al.29
2. United Seamens Union of the Philippines vs. Davao Shippers Association30
3. United Restaurant Employees vs. Torres31
4. Caltex Filipino Managers and Supervisors Association vs. CIR32
Illusory Grounds, Prohibited
In SMC vs. NLRC,33 the Court held:
In the case under consideration, the grounds relied upon by the
private respondent union are non-strikeable. The issues which may lend
substance to the notice of strike filed by the private respondent union are:
collective bargaining deadlock and petitioners alleged violation of the
collective bargaining agreement. These grounds, however, appear more
illusory than real.
28
29
30
31
32
33
GR 120505, 25 March 1999, 305 SCRA 219

86 Phil. 507, GR L-2660, 30 May 1950
GR L-18778, 31 August 967
26 SCRA 441
44 SCRA 351
GR 99266, 2 March 1999, 304 SCRA 1
37
In this case of SMC, the Court held that the disputes are proper for the grievance
machinery and not for the strike area.
In NUWHRAIN vs. NLRC,34 the Court speaking through Justice Florenz Regalado
held that a wild cat strike is not the right thing to do to remedy an illegal dismissal case.
Is it the right way to do the right thing?
(The Test of Propriety of Methods)
Under the law35, the union should first file a NOTICE OF STRIKE36, it has to
observe the COOLING-OFF PERIOD, which is 15 days for unfair labor practice and
30 days for deadlock in collective bargaining. The union must conduct a STRIKE
VOTE by secret ballot37. The strike vote results have to be submitted to the Department
of Labor at least seven (7) days before the intended strike38. Any single deviation from
these procedures shall render the strike illegal.
Power of the NCMB to Transform Strike Notices
In the SAN MIGUEL case39, the High Tribunal held that the National Conciliation
and Mediation Board (NCMB) has the power to declare a strike notice proper for
preventive mediation. Such declaration has the effect of holding that there is no more
notice of strike. It would thus be illegal to proceed with the strike without such notice.
Said the High Court in SAN MIGUEL,
Clearly, therefore, applying the aforecited ruling to the case at bar,
when the NCMB ordered the preventive mediation on May 2, 1994,
34
35
36
37
38
39
GR 125561, 6 March 1998, 287 SCRA 192-203

Article 263, Labor Code of the Philippines
Ibid, par. c
Article 263 par. f
Ibid
See Footnotes numbers 6, 9 and 20
38
respondent had thereupon lost the notices of strike. In the case of

NUWHRAIN v. NLRC40, where the petitioner-union therein similarly defied
a prohibition by the NCMB, we said:
Petitioners should have complied with the prohibition to strike
ordered by the NCMB when the latter dismissed the notices of strike after
finding that the alleged acts of discrimination of the hotel were not ULP,
hence not strikeable. The refusal of the petitioners to heed said proscription
of the NCMB is reflective of bad faith.
Such disregard of the mediation proceedings was a blatant violation
of the Implementing Rules, which explicitly oblige the parties to bargain
collectively in good faith and prohibit them from impeding or disrupting
the proceedings41.
Illegal Means Make the Strike Illegal
In the case of ASSOCIATION OF INDEPENDENT UNIONS IN THE
PHILIPPINES42, Mr. Justice Fidel Purisima made it very clear, thus:
xxx A strike though valid may be declared invalid where the means
employed are illegal. Even if the strike is valid because its objective or
purpose is lawful, the strike may still be declared invalid where the means
employed are illegal. For instance, the strike was considered illegal as the
strikers formed a human cordon along the side of the Sta. Ana wharf and
blocked all the ways and approaches to the launches and vessels of
Petitioners.
It was a case of the wrong way to do the right thing. Consequently, everything
was declared wrong in the end.
40
41
42
287 SCRA 192, 1998

Rules to Implement the Labor Code, Book V, Rule XXII, Section 6
305 SCRA 219-233, GR 120505, 25 March 1999
39
Failure to Follow the Proper Step Taints the Strike

In the case of FILIPINO PIPE AND FOUNDRY CORP. vs. NLRC43, the Court,
also through Justice Fidel Purisima held:
xxx The failure of the union to serve the company a copy of the
notice of strike is a clear violation of Section 3, Rule XXII, Book V of the
Rules Implementing the Labor Code the constitutional precepts of due
process mandate that the other party be notified of the adverse action of
the opposing party. Then too, the failure of the union to serve petitioner
company a copy of the notice of strike is a clear violation of Section 3 of
the aforestated Rules. The constitutional precepts of due process mandate
that the other party be notified of the adverse action of the opposing party.
So also, the same Section provides for a mandatory thirty (30) day coolingoff period which the union ignored when it struck on March 3, 1986, before
the 30th day from the time the notice of strike was filed on February 10,
1986.
Other Failures Make the Strike Illegal
In the case of RELIANCE SURETY AND INSURANCE CO. vs. NLRC44, the
Supreme Court declared the strike illegal on three counts, to wit:
1. the union did not observe the 15-day COOLING OFF PERIOD for ULP
strike,
2. the union did not prove that the strike was supported by a 2/3 vote (now a
simple majority), and
3. there was no observance of a 7-day suspension of the right prior to the actual
strike.
43
44
GR 115180, 16 November 1999, 318 SCRA 68-79

GR 86917-18, 25 January 1991
40
Failure to Observe Legal Requirements

In the case of UNION OF FILIPRO EMPLOYEES vs. NESTLE45, the Court
likewise declared the strike illegal because:
1. there was no observance of the mandatory COOLING-OFF PERIOD, and
2. the 7-day period after submission of the strike vote results was not observed.
The Court explained the importance of complying with the 7-day waiting period
in the case of NATIONAL FEDERATION OF SUGAR WORKERS vs. OVEJERA.
Thus:
The 7-day strike vote report is not without a purpose. Many
disastrous strikes have been staged in the past based merely on the insistence
of minority groups within the union. The submission of the report gives
assurance that a strike vote has been taken and that, if the report concerning
it is false, the majority of the members can take appropriate remedy before
it is too late. If the purposes of the required strike notice and strike vote
report are to be achieved, the periods prescribed for their attainment must
be deemed mandatory.
Legal Philosophy of 7-Day Waiting Period
The purpose of the 7-day waiting period was explained by the High Tribunal in
the case of LAPANDAY WORKERS UNION vs. NLRC46, as follows:
The seven (7) day waiting period is intended to give the Department
of Labor and Employment an opportunity to verify whether the projected
strike really carries the imprimatur of the majority of the union members.
The need for assurance that majority of the union members support the
strike cannot be gainsaid. Strike is usually the last weapon of labor to
compel capital to concede to its bargaining demands or to defend itself
45
46
GR 88710-13, 19 December 1990

GR Nos. 954, 94-97, 07 September 1995
41
against unfair labor practices of management. It is a weapon that can either

breathe life to or destroy the union and its members in their struggle with
management for a more equitable due of their labors. The decision to wield
the weapon of strike must, therefore, rest on a rational basis, free from
emotionalism, unswayed by the tempers and tantrums of a few hotheads,
and firmly focused no the legitimate interest of the union which should not,
however, be antithetical to the public welfare. Thus, our laws require the
decision to strike to be the consensus of the majority for while the majority
is not infallible, still, it is the best hedge against haste and error. In addition,
a majority vote assures the union it will go to war against management with
the strength derived from unity and hence, with better chance to succeed.
xxx
Strict Observance of 7-Day Period
The Court has been very strict in the observance of the 7-day waiting period. In
COCA COLA BOTTLERS PHIL. INC. POSTMIX WORKERS UNION vs. NLRC47
and CCBPI vs. NLRC48, it was strongly held that substantial compliance does not
suffice. Thus:
In another attempt to sway this Court to accept the view that the
union substantially complied with the strike requirements, the union theorized
that since the strike vote was conducted on April 14, 1987, between 7:30
a.m. to 8:45 a.m., the strike held on April 20, 1987, at 8:30 a.m. should be
considered as held exactly on the seventh day from the balloting, in
accordance with the seven-day strike ban, as the counting of the seven
days should be reckoned from April 14, 1987, at 8:45 a.m.
However, the last paragraph of Article 13 of the Civil Code provides
for the correct manner of computing a period, to wit: Art. 13 xxx. In
computing a period, the first day shall be excluded and the last day included.
Accordingly, since the strike vote was conducted and submitted to
the DOLE on April 14, 987, the seventh day fell on April 21, 1987. Since
47
48
GR 114521, 27 November 1998

GR 123491, 27 November 1998, 299 SCRA 410
42
there is no dispute that the union struck on April 20, 1987, only the sixth
day since the submission of the strike vote, the strike was patently illegal.
Effects of Force and Violence, etc.
A strike conducted with FORCE, THREATS, COERCION, INTIMIDATION,
PHYSICAL VIOLENCE, SABOTAGE and similar acts certainly make the same illegal:
In the case of GREAT PACIFIC LIFE EMPLOYEES UNION, ET. AL. vs.
GREPALIFE49, Mr. Justice Belbosillo, spoke with authority for the Court in holding the
illegality of the strike, viz:
The right to strike, while constitutionally recognized, is not without
legal constrictions50. The Labor Code is emphatic against the use of
violence, coercion and intimidation during a strike and to this end prohibits
the obstruction of free passage to and from the employers premises for
lawful purposes. The sanction provided in par. (a) of Art. 264 thereof is so
severe that any worker or union officer who knowingly participates in the
commission of illegal acts during a strike may be declared to have lost his
employment status.
Violence Stigmatizes a Strike
There is a long string of cases where violence, threats, coercions and intimidations
were held to taint the exercise of the right to strike with the stigma of illegality. The
following are some of them:
1. ADFLO vs. Laguesma51
2. Midas Touch Food Corp. vs. NLRC52
3. Samahang Manggagawa sa Moldex vs. NLRC53
49
50
51
52
53
GR 126717, 11 February 1999, 303 SCRA 113-127

See Art. 264, par. 3, Labor Code
254 SCRA 565
259 SCRA
GR 119467, 01 February 2000
43
No other strike can perhaps surpass the antagonism generated in the NESTLE
case54. It was a long drawn labor dispute starting from the stewardship of Secretary Blas
F. Ople in the DOLE, subsisting throughout the time of Secretary Augusto S. Sanchez,
and even extending up to the time of then Secretary (now Senate President) Franklin M.
Drilon. The battle was long and highly adversarial, resulting in tremendous loss of
properties and allegedly, even lives of both executives and rank-and-file employees. At
the end, scores of union leaders and members lost their jobs. Everyone was a loser. The Company, the employees and the country as a whole.
Penal Sanctions for Illegal Strikes
Today, the erring strikers may have to be reminded that our penal law55 imposes
the penalty of arresto mayor and a fine not exceeding 300 pesos upon any person who,
for the purpose of organizing, maintaining or preventing coalitions of capital or labor,
strike of laborers or lockout of employers, shall employ violence or threat in such a
degree as to compel or force the laborers or employers in the free and legal exercise of
their industry or work, if the act shall not constitute a more serious offense in accordance
with the provisions thereof.
The Labor Code56 itself provides that:
no person engaged in picketing shall commit any act of violence,
coercion or intimidation or obstruct the free ingress to or egress from the
employers premises for lawful purposes, or obstruct public thoroughfares.
Strike Notice, a Sine Qua Non
Again, it bears emphasis that the filing of a STRIKE NOTICE is a sine qua non
to the staging of a legal strike, absence of which necessarily makes the strike illegal.
54
55
56
Union of Filipro Employees vs. Nestle, GR 88710-13, 19 December 1990

Revised Penal Code, Art. 289
Article 264 par. (e) as amended by BP 227, 01 June 1982
44
Thus, it was clarified in the case of NATIONAL FEDERATION OF LABOR vs. NLRC57
that:
While, it is true that Philippine Metal58 held that a strike cannot be
declared as illegal for lack of notice, however, it is important to note that
said case was decided in 1979. At this juncture, it must be stressed that
with the enactment of Republic Act No. 6715 which took effect on March
21, 1989, the rule now is that such requirements as the filing of a notice of
strike, strike vote, and notice given to the Department of Labor are mandatory
in nature. Thus, even if the union acted in good faith in the belief that the
company was committing an unfair labor practice, if no notice of strike
and a strike vote were conducted, the said strike is illegal.
The NFL decision, aforequoted has also abrogated the ruling in PEOPLES
INDUSTRIAL AND COMMERCIAL CORP.59.
Summary of Requirements
In FIRST CITY INTERLINK TRANSPORTATION CO. INC. vs.
CONFESOR60, the High Court summarized all the requirements as follows:
xxx Pursuant to Art. 263 (c)(f) of the Labor Code, the requisites
for a valid strike are as follows:
(1) a notice of strike filed with the Department of Labor at least 30
days before the intended dated thereof or 15 days in case of unfair labor
practice;
(2) strike vote approved by a majority of the total union membership
in the bargaining unit concerned, obtained by secret ballot in a meeting
called for that purpose;
57
58
59
60
GR 113466, 15 December 1997, 283 SCRA 275-290

90 SCRA 135, 1979
112 SCRA 440, 1982
GR 106316, 05 May 1997, 272 SCRA 124-141
45
(3) notice given to the Department of Labor and Employment of the

results of the voting at least 7 days before the intended strike.
These requirements are mandatory.61
These requirements are not complete. This paper provides the totality of the
positive and negative requirements as outlined by law and further explained by
jurisprudence.
Is it the right time to do the right thing?
(The Test of Propriety of Timing)
A strike can be staged legally only after the lapse of the cooling-off period as well
as the 7-day waiting period subsequent to the submission to DOLE of the strike vote
result, and after the parties shall have exhausted the available non-confrontational remedies,
including the grievance procedures the conciliation and mediation process, and the
voluntary arbitration mechanism, which are the preferred modes of dispute-settlement in
this jurisdiction.
Exhaustion of Internal Remedies
In the SAN MIGUEL case62, the High Tribunal declared that unions should resort
to strikes only after exhausting the internal remedies provided in the collective bargaining
agreement. Thus:
Also noteworthy is public respondents disregard of petitioners
argument pointing out the unions failure to observe the CBA provisions
on grievance and arbitration. In the case of San Miguel Corp. v. NLRC63,
61
62
63
Citing the cases of Lapanday Workers Union v. NLRC, 248 SCRA 95 (1995); National Federation of Sugar Workers (NFSW) v.
Ovejera, 114 SCRA 354 (1982).
See Footnotes nos. 6, 9, 20 and 40
304 SCRA 1, 1999
46
we ruled that the union therein violated the mandatory provisions of the
CBA when it filed a notice of strike without availing of the remedies
prescribed therein. Thus we held:
xxx For failing to exhaust all steps in the grievance machinery and
arbitration proceedings provided in the Collective Bargaining Agreement,
the notice of strike should have been dismissed by the NLRC and private
respondent union ordered to proceed with the grievance and arbitration
proceeding. In the case of Liberal Labor Union v. Phil. Can Co., the Court
declared as illegal the strike staged by the union for not complying with the
grievance procedure provided in the collective bargaining agreement64.
Adherence to Arbitration Clause
In SAN MIGUEL, aforecited, the Court unequivocably admonished:
As in the abovecited case, petitioner herein evinced its willingness
to negotiate with the union by seeking for an order from the NLRC to
compel observance of the grievance and arbitration proceedings.
Respondent however resorted to force without exhausting all available means
within its reach. Such infringement of the aforecited CBA provisions
constitutes further justification for the issuance of an injunction against the
strike. As we said long ago: Strikes held in violation of the terms contained
in a collective bargaining agreement are illegal especially when they provide
for constructive arbitration clauses. These agreements must be strictly
adhered to and respected if their ends have to be achieved.65
Exhaustion of Grievance Procedures
There is likewise an array of cases in this jurisdiction where the Court has
consistently declared as illegal those strikes which were conducted without first exhausting
64
65
Citations, omitted
Citing the case of Insurefco Paper Pulp & Project Workers Union v. Insular Sugar Refining Corp., 95 Phil. 761 (1954)
47
all the steps in the grievance procedures as contained in the existing CBA (Collective
Bargaining Agreement), including the following, among others:
1.
2.
3.
4.
United Seamens Union vs. Davao Shippers Association,66

Arica vs. Minister of Labor,67
Union of Filipro Employees vs. Nestle,68
San Miguel Corporation vs. NLRC,69
The leading case was LIBERAL LABOR UNION vs. PHILIPPINE CAN CO.70
Strike Vote: a Condition Precedent
In FIRST CITY INTERLINK vs. CONFESOR71 it was held that it is illegal to
strike without first having conducted a STRIKE VOTE - - and without first having
observed the required seven-day strike ban from the date the strike vote has been reported
to the DOLE. It was not the right time to do the right thing. In CCBPI Postmix72 and
CCBPI73, it was stressed that strict adherence to the proper procedure and proper
timing is required. Substantial compliance is not enough. The same is true in NFL vs.
NLRC74 and in Reliance Surety vs. NLRC75.
Collective Bargaining Should First Be Done
The Labor Code76 requires that in the case of economic strikes, those based on
deadlock, the effort to first bargain collectively is a SINE QUA NON to the conduct
66
20 SCRA 1226
137 SCRA 137, SCRA 267
68
GR 88710-13, 19 December 1990
69
GR99266, 2 March 1999
70
91 Phil. 72
71
See Footnote no. 62
72
See Footnote no. 49
73
See Footnote no. 50
74
283 SCRA 627
75
193 SCRA 365
76
Article 264 (a) in relation to Article 252 and 253
67
48
of a strike. In this connection, in the case of INSUREFCO PAPER PULP AND PROJECT
WORKERS UNION vs. INSULAR SUGAR REFINING CORP.77, the Court held:
xxx the walkout was PREMATURE as it was declared without
giving to the General Manager or the Board of Directors of the Company,
reasonable time within which to consider and act on the demands submitted
by the union. xxx
Pendency of Conciliation Prevents the Holding of Strikes
It is NOT the right timing to stage a strike when there are pending conciliation
proceedings involving the dispute. The Court, in FILIPINO PIPE AND FOUNDRY
CORP. vs. NLRC78, citing Sec. 6 of Rule XXII, Book V of the Labor Codes
Implementing Rules, viz:
During the proceedings, the parties shall not do any act which may
disrupt or impede the early settlement of the dispute. They are obliged as
part of the duty to bargain collectively in good faith, to participate fully and
promptly in the conciliation meetings called by the regional branch of the
board. The regional branch of the Board shall have the power to issue
subpoenas requiring the attendance of the parties to the meetings. xxx
Disrupting the Conciliation is Taboo
In condemning the strike as illegal, the Court held in the FILIPINO PIPE79 case
that:
What is more, the same strike blatantly disregarded the prohibition
on the doing of any act which may impede or disrupt the conciliation
proceedings, when the union staged the strike in the early morning of March
3, 1986, the very same day the conciliation conference was schedule by the
former Ministry of Labor.
77
78
79
GR 115180, 16 November 1999, 38 SCRA 68Ibid

299 SCRA 423
49
In light of the foregoing, it is beyond cavil that subject strike staged

by the union was illegal.
Mandatory Periods and Conditions
All the above periods and conditions are mandatory. In CCBPI80,
As we stated in Gold City Integrated Port Services, Inc. vs. National
Labor Relations Commission81, citing the case of National Federation of
Sugar Workers vs. Ovejera82, the language of law leaves no room for doubt
that the cooling-off period and the seven-day strike ban after the strikevote report were intended to be mandatory filing of the Notice of Strike,
before the lapse of which, the union may not strike.83
The Labor Code has established definite time limits which should be strictly followed.
Those who deride, do so at their own risk.
Is it staged in a peaceful manner?
(The Test of Peacefulness of Strikes)
The Supreme Court condemned as illegal the strike in the case of FIRST CITY
INTERLINK84 due to the following reasons, inter alia,:
Contrary to respondent Secretarys finding, the strike declared by
the Union was attended by pervasive and widespread violence. The acts of
violence committed were not mere isolated incidents which could normally
occure during any strike. The hijacking of Fil-Transit Bus No. 148 at the
intersection of EDSA and Quezon Avenue on Sunday, July 27, 1986, three
days before the scheduled conciliation conference, reveals that it was staged
in pursuance of a preconceived plan. This was followed by the barricading
80
81
82
83
84
245 SCRA 636-637

114 SCRA 365
underscoring, ours
Articles 263 and 264
See Footnotes 62 and 73
50
of the terminal in Alabang by means of five buses which had also been
hijacked. In the days that followed, the strikers persisted in their violent
acts, (1) the hijacking of 26 more buses which resulted in injuries to some
employee and panic to the commuters; (2) the puncturing of tires; (3) the
cutting of electric wirings, water hoses and fan belts; and (4) the alleged
theft of expensive equipment such as fuel injections worth P30,000 each.
The commission of these illegal acts was neither isolated nor accidental but
deliberately employed to intimidate and harass the employer and the public.
The strikers even resorted to the use of molotov bombs which were thrown
into the petitioners compound.
Violence and Force Taint a Strike
In ASSOCIATION OF INDEPENDENT UNIONS85, the Court emphasized the
statutory limits of the workers right to strike, viz:
A strike is a legitimate weapon in the universal struggle for existence.
It is considered as the most effective weapon in protecting the rights of the
employees to improve the terms and conditions of their employment. But
to be valid, a strike must be pursued within legal bounds. The right to strike
as a means for the attainment of social justice is never meant to oppress or
destroy the employer. The law provides limits for its exercise. Among such
limits are the prohibited activities under Article 264 of the Labor Code,
particularly paragraph (e), which states that no person engaged in picketing
shall: a) commit any act of violence, coercion, or intimidation or b) obstruct
the free ingress to or egress from the employers premises for lawful
purposes or c) obstruct public thoroughfares.
Loss of Employment Status
In the case of GREPALIFE86, the High Tribunal warned:
xxx The sanction provided in par. (a) of Art. 264 thereof is so
sever that any worker or union officer who knowingly participates in the
85
86
See Footnote no. 43

See Footnote no. 51
51
employment status.
Mutual Guilt
When the parties are in PARI DELICTO, the law will leave them where it finds
them. In the case of MALAYANG SAMAHAN NG MGA MANGGAGAWA SA M.
GREENFIELD, ET. AL. vs. RAMOS87, the High Court declared:
On the allegation of violence committed in the course of the strike,
it must be remembered that the Labor Arbiter and the Commission found
that the parties are agreed that there were violent incidents x x x resulting
to injuries to both sides, the union and management. The evidence on
record show that the violence cannot be attributed to the striking employees
alone for the company itself employed hired men to pacify the strikers.
With violence committed on both sides, the management and the employees,
such violence cannot be a ground for declaring the strike as illegal.
It can thus be concluded that the law is very strict when it comes to violence,
threats and intimidations conducted during the strike. It is likewise strict against employers
who commit acts that exacerbate the labor dispute.
Is it in compliance with contractual stipulation?
(The Test of Contractual Compliance)
One major issue to tackle is the question of NO STRIKE NO LOCKOUT
CLAUSE. Is this binding? Can there be a valid total waiver of the constitutional right to
strike? The string of jurisprudence in this jurisdiction has provided a clear answer to
these questions.
87
GR 113907, 28 February 2000, 326 SCRA 428-473
52
In the SAN MIGUEL case88, the Supreme Court succinctly held:

As to petitioners allegation of violation of the non-strike provision
in the CBA, jurisprudence has enunciated that such clauses only bar strikes
which are economic in nature, but not strikes grounded on unfair labor
practices89. The notices filed in the case at bar alleged unfair labor practices,
the initial determination of which would entail fact-finding that is best left
for the labor arbiters. Nevertheless, our finding herein of the invalidity of
the notices of strike dispenses with the need to discuss this issue.
No Strike, No Lockout, When Valid
The Court, through Justice Melo, explained this in the case of MASTER IRON
LABOR UNION vs. NLRC90,
In holding that strike was illegal, the NLRC relied solely on the nostrike no-lockout provision of the CBA aforequoted. As this Court has
held in Philippine Metal Foundries, Inc. vs. CIR (90 SCRA 135 [1997]), a
no-strike clause in a CBA is applicable only to economic strikes. Corollarily,
if the strike is founded on an unfair labor practice of the employer, a strike
declared by the union cannot be considered a violation of the no-strike
clause.
An economic strike is defined as one which is to force wage or
other concessions from the employer which he is not required by law to
grant (Consolidated Labor Association of the Philippines vs. Marsman &
Co., Inc. 11 SCRA 589 [1964]). In this case, petitioners enumerated in
their notice of strike the following grounds; violatin of CBA or the
Corporations practice of subcontracting workers; discrimination; coercion
of employees; unreasonable suspension of union officials, and unreasonable
refusal to entertain grievance.
88
89
90
See Footnotes nos. 6, 9, 20, 40 and 64

MSMG-UWP v. Ramos, et. al., 326 SCRA 429 (2000), citing Master Iron Labor Union, et. al., vs. NLRC, et. al., 219 SCRA 47
(1993).
GR 92009, 17 February 1993, 219 SCRA 47-61
53
Economic Strikes are Waivable

In economic strikes, there is a possibility of its exercise being declared illegal if it
violates the NO-STRIKE clause. Thus, in PAL vs. SECRETARY OF LABOR91, it was
held:
A strike which violates the no-strike provision of the Collective
Bargaining Agreement (CBA) is illegal as it was prematurely staged. There
was an existing CBA which still had nine (9) months to run. Neither party
to the agreement shall terminate nor modify such agreement during its lifetime.
While either party serve a written notice to terminate or modify the agreement
at least sixty (60) days prior to the expiration date (freedom period), it shall
be the duty of both parties to keep the status quo and to continue in full
force and effect the terms and conditions of the existing agreement during
the freedom period until a new agreement is reached by them92.
Validity of Waiver
The Court thus concluded that a NO-STRIKE CLAUSE is a collective bargaining
agreement is a valid stipulation, provided they are made applicable only to economic
strike93.
In ULP strikes, no waiver can hold since an act of unfair labor practice is deemed
as an unlawful aggression and the strike is deemed a reasonable means to repel the
aggression. In a sense, strike is basically a weapon of self-defense provided there is
lack of sufficient provocation on the part of the union.
91
92
93
GR 88201, 23 January 1991

Also see : IBM vs. NLRC, GR 91980, 27 June 1999
Samahan ng mga Manggagawa sa M. Greenfield (MSMG-UWP), et. al. vs. Ramos, et. al., G.R. NO. 113907, February 28, 2000;
Panay Electric Company, Inc. vs. NLRC, et. al., 248 SCRA 688; Peoples Industrial and Commercial Employees and Workers
Organization (FFW) vs. Peoples Industrial and Commercial Corporation, 112 SCRA 440; Consolidated Labor Association of
the Philippines vs. Marsman and Co., Inc., 11 SCRA 589; Master Iron Labor Union vs. NLRC, et. al., 219 SCRA 47; Philippine
Metal Foundries, Inc. vs. CIR, 90 SCRA 135.)
54
Is it done in a manner that is consistent with national interest?

(The Test of Consistency with National Interest)
Consistency with national interest means that whenever a dispute is assumed by
the Secretary, precisely because it involves industries indispensable to national interest,
the strike being staged based on said dispute must stop. To continue striking is not
consistent with the imperatives of national interest.
Violation of Restraining Order
In ASSOCIATION OF INDEPENDENT UNIONS94 one of the causes of the
strikes illegality was the violation of the TRO. Thus:
From the gamut of evidence on hand, it can be gathered that the
strike staged by the petitioner union was illegal for the reasons, that:
1) The strikers committed illegal acts in the course of the strike.
They formed human barricades to block the road, prevented the passage
of the respondent companys truck, padlocked the companys gate, and
prevented co-workers from entering the company premises.
2) And violated the Temporary Restraining Order (TRO) enjoining
the union and/or its members from obstructing the company premises, and
ordering the removal therefrom of all the barricades.
Defiance of Return-to-Work Order
In the SAN JUAN DE DIOS case95, it was noted by the Court:
The Commission held that the strike staged by the Union from
August 26, 1994 to August 31, 1994 was, at its inception, legal and peaceful.
94
95
305 SCRA 229

Footnotes nos. 5, 7, 18.
55
However, the striking employees defiance of the August 26, 1994 RTWO
of the SOLE rendered the strike illegal. Consequently, under Article 264 (a)
paragraph 2 of the Labor Code, the officers and members of the Union
who refused to return to work after the issuance of the certification/RTWO
were deemed to have lost their employment status. It was also held that
considering that the Union members did not know the consequences of
their refusal to return to work, only the ranking officers of the Union, i.e.,
the president, vice-president, secretary, treasurer and PROs, should be
deemed to have lost their employment status.
Defiance is a Prohibited Act
It was further held in SAN JUAN DE DIOS, supra, that:
Despite the receipt of an order from then SOLE to return to their
respective jobs, the Union officers and members refused to do so and
defied the same. Consequently, then, the strike staged by the Union is a
prohibited activity under Article 264 of the Labor Code. Hence, the dismissal
of its officers is in order.96 The respondent Foundation was, thus, justified
in terminating the employment of the petitioner Unions officers.
Return to Work Order, Valid Part of Assumption Order
In MARCOPPER vs. BRILLANTES97, it was postulated that:
The return-to-work order is valid statutory part and parcel of the
assumption and certification orders given the predictable prejudice the strike
could cause not only to the parties but more especially to the national
interest. Stated otherwise, the assumption of jurisdiction or the certification
to the National Labor Relations Commission (NLRC) has the effect of
automatically enjoining the strike or lockout, whether actual or intended,
even if the same has not been categorically stated or does not appear in the
assumption or certification order. It is not a matter of option or voluntariness
96
97
Citing the case of Grand Boulevard Hotel v. Genuine Labor Organization of Workers in Hotel Restaurant and Allied Industrial
(GLOWHRAIN); Grand Boulevard Hotel v. Edna B. Dacanay, G.R. Nos. 153664-65, July 18, 2003.
GR 119381, 11 March 1996, 254 SCRA 595
56
but of obligation. It must be discharged as a duty even against the workers

will. The worker must return to his job together with his co-workers so
that the operation of the company can be resumed and it can continue
serving the public and promoting its interest. It is executory in character
and shall be strictly complied with by the parties even during the pendency
of any petition questioning its validity precisely to maintain the status quo
while the determination is being made.
Defiance Means Loss of Employment
In MARCOPPER, aforecited and in many other cases98, the High Court warned:
xxx The sanction for failure to comply with obligation, under the
law, is loss of employment status. Case law likewise provides that by staging
a strike after the assumption of jurisdiction or certification for arbitration,
workers forfeited their right to be readmitted to work, having abandoned
their employment and so could be validly replaced.
In CAPITOL WIRELESS99, it was clarified that:
Unless there are cogent reasons, the Supreme Court will not alter,
modify or reverse the factual findings of the Secretary of Labor and
Employment in arriving at the decision to issue return-to-work order, because
by reason of her official position, she is considered to have acquired
expertise as her jurisdiction is confined to specific matters.
Sense of Urgency of RTW Order
The Supreme likewise underscored the sense of urgency attendant to the issuance
of an ASSUMPTION ORDER. In the case of TELEFUNKEN100
98
Some of which are St. Scholasticas College vs. Torres, 210 SCRA 565 [1992]; Federation of Free Workers vs. Inciong, 208 SCRA
157 [1992]; Union of Filipro Employees vs. Nestle Philippines, 192 SCRA 396 [1990]; Sarmiento vs. Tuico, 162 SCRA 676
[1988].
99
GR 117174, 13 November 1996, 264 SCRA 68
100
GR 143013-14, 18 December 2000
57
It is clear from the foregoing legal provision that the moment the
Secretary of Labor assumes jurisdiction over a labor dispute in an industry
indispensable to national interest, such assumption shall have the effect of
automatically enjoining the intended or impending strike. It was not even
necessary for the Secretary of Labor to issue another order directing them
to return to work. The mere issuance of an assumption order by the Secretary
of Labor automatically carries with it a return-to-work order, even if the
directive to return to work is not expressly stated in the assumption order.101
Contemptuous to Defy
To continue striking while an ASSUMPTION ORDER has already been issued is
contemptuous. Thus Article 264 of the Code was quoted, as follows:
Article 264. Prohibited Activities.
(a) xxx
No strike or lock out shall be declared after the assumption of
jurisdiction by the President or the Secretary or after certification or
submission of the dispute to compulsory or voluntary arbitration or during
the pendency of cases involving the same grounds for the strike or lockout.
x x x. Any union officer who knowingly participates in illegal strike
and any worker or union officer who knowingly participates in the
employment status: Provided, that mere participation of a worker in a lawful
strike shall not constitute sufficient ground for termination of his employment
even if a replacement had been hired by the employer during such lawful
strike. (Emphasis Ours)
The rationale and explanation was amply elucidated on in TELEFUNKEN,
The rationale of this prohibition is that once jurisdiction over the
labor dispute has been properly acquired by the competent authority, that
101
58
Citing the case of Union of Filipro Employees v. Nestle Philippines, Inc., 192 SCRA 396, 411 [1990].
jurisdiction should not be interfered with by the application of the coercive

processes of a strike.102 We have held in a number of cases that defiance to
the assumption and return-to-work orders of the Secretary of Labor after
he has assumed jurisdiction is a valid ground for loss of the employment
status of any striking union officer or member.103
All the above only means that strikers should strictly adhere to the provisions
of law.104
What are the legal consequences of an illegal strike?
(Focus on the Implications)
In ASSOCIATION OF INDEPENDENT UNIONS IN THE PHILIPPINES105,
the High Court stressed :
xxx Decisive on the matter is the pertinent provision is (a) of the
Labor Code that: xx any worker xx who knowingly participates in the
employment status. xx It can be gleaned unerringly from the aforecited
provision of law in point, however, that an ordinary striking employee can
not be terminated for mere participation in an illegal strike. There must be
proof that he committed illegal acts during the strike and the striker who
participated in the commission of illegal act must be identified. But proof
beyond reasonable doubt is not required. Substantial evidence available
under the attendant circumstances, which may justify the imposition of the
penalty of dismissal, may suffice.
Much is Given, Much is Expected
It is clear that the responsibility of union officers is much greater compared to
that of the ordinary union members. Thus, in the aforesaid case, it was held:
102
Zamboanga Wood Products, Inc. v. NLRC, 178 SCRA 482, 491 [1998].
Allied Banking Corporation v. NLRC, 258 SCRA 724 [1996]; Marcopper Mining Corporation v. Brillantes, 254 SCRA 595 [1996];
St. Scholasticas College v. Torres, 210 SCRA 565 [1992]; Federation of Free Workers v. Inciong, 208 SCRA 157 [1992]; Union
of Filipro Employees v. Nestle Philippines, Inc., supra; Asian Transmission Corp. v. NLRC, 179 SCRA 582 [1989]; and
Sarmiento v. Tuico, 162 SCRA 676 [1988].
104
Art. 263, Labor Code, etc.
103
59
Union officers are duty bound to guide their members to respect

the law. If instead of doing so, the officers urge the members to violate the
law and defy the duly constituted authorities, their dismissal from the service
is a just penalty or sanction for their unlawful acts. The officers
responsibility is greater than that of the members.106
Accordingly, to whom much is given, much is expected by law. Hence:
It follows therefore that the dismissal of the officers of the striking
union was justified and valid. Their dismissal as a consequence of the
illegality of the strike staged by them finds support in Article 264 (a) of the
Labor Code, pertinent portion of which provides: x x Any union officer
who knowingly participates in an illegal strike and any x x union officer
who knowingly participates in the commission of illegal acts during a strike
may be declared to have lost his employment status. x x107
More Tolerance for Ordinary Members
Anent the ordinary member, the law is more tolerant, on the premise that they
might have been misled by their leaders or simply because they acted without much
discernment. Thus:
x x It can be gleaned unerringly from the aforecited provision of
law in point, however, that an ordinary striking employee can not be
terminated for mere participation in an illegal strike. There must be proof
that he committed illegal acts during the strike and the strikers who
participated in the commission of illegal act must be identified.
Instigators Get the Brunt
While mere members may be reinstated, the law looks with contempt at the union
leaders who could have instigated the illegal strike. Thus, a union official may be singled
105
106
107
60
See Footnote no. 43, 87

Ibid
Ibid
out by denying him reinstatement while all the rest are ordered reinstated. In
GREPALIFE108, the ruling was succinct:
xxx. A union office has larger and heavier responsibilities than a
union member. Union officers are duty bound to respect the law and to
exhort and guide their members to do the same; their position mandates
them to lead by example. By committing prohibited activities during the
strike, de la Rosa as Vice President of petitioner UNION demonstrated a
high degree of imprudence and irresponsibility. Verily, this justifies his
dismissal from employment. Since the objective of the Labor Code is to
ensure a stable but dynamic and just industrial peace, the dismissal of
undesirable labor leaders should be upheld.
Wildcat Strikes, Beware
The legal consequence of a WILD CAT strike is loss of employment. In
NUWHRAIN vs. NLRC109, the Court said:
xxx We accordingly uphold the dismissal from employment of the
15 officers of the Junta who knowingly participated in the strike. An employer
may lawfully discharge employees for participating in an unjustifiable wildcat
strike and especially so in this case, because said wild cat strike was an
attempt to undermine the Unions position as the exclusive bargaining
representative and was, therefore, an unprotected activity. The cessation
from employment of the 15 Junta officers as a result of their participation
in the illegal strike is a consequence of their defiant and capricious decision
to participate therein.
Defiance, Tantamount to Waiver
In FIRST CITY INTERLINK110, it was specified by the Court:
108
109
110
See Footnote no. 51

GR 125561, 06 March 1998
GR 106316, 05 May 1997, 272 SCRA 124-141
61
In Jackbilt Concrete Block Co., Inc. v. Norton & Harrison Co.,111

the unjustified refusal of the striking employees to return to work and comply
with the employers requirement to undergo a medical examination was
considered a waiver of their right to reinstatement.
Liberal to Mere Followers
Again, in the abovecited case, the ordinary union members are held to be deserving
of a more liberal attitude. Thus:
Nevertheless, we are constrained to uphold the respondent
Secretarys ruling that responsibility for these illegal acts must be on an
individual and not collective basis. Therefore, although the strike was illegal
because of the commission of the illegal acts, only the union officers and
strikers who engaged in violent, illegal and criminal acts against the employer
are deemed to have lost their employment status. Union members who
were merely instigated to participate in the illegal strike should be treated
differently.
Slowdowns are Illegal
In PHILTHREAD WORKERS UNION vs. CONFESOR112, it was held that the
legal implication of slowdowns is ultimately to be considered an illegal strike. Thus:
xxx It had been determined by the Labor Arbiter in NLRC-NCR
Case No. 00-05-04156-94 that the work slowdowns conducted by the
petitioner amounted to illegal strikes. It was shown that every time the
respondent company failed to accede to the petitioners demands,
production always declined. This resulted to the significant drops in the
figures of tires made, cured, and warehoused. However, when the demand
of the petitioner union for the restoration of overtime work was allowed,
production improved. The work slowdowns, which were in effect, strikes
111
112
71 SCRA 44, 1976

GR 117169, 12 March 1997, 269 SCRA 393-401
62
on installment basis, were apparently a pattern of manipulating production

depending on whether the petitioner unions demands were met. These
strikes, however, had greatly affected the respondent company that on
November 11, 1994, it had indefinitely ceased operations because of
tremendous financial losses. xxx
Knowing Participation in Illegal Strikes
Mr. Justice Leo Quisumbing, a former Secretary of Labor, held for the Court in
the case of CCBPI POSTMIX WORKERS UNION vs. NLRC,113 that:
Although far from easy application in the field of labor management
relations, well-settled is the rule that a union officer who knowingly participates
in an illegal strike, or in the commission of illegal acts during a strike, may
be terminated from his employment. An ordinary striking worker, however,
may not be dismissed from his job for mere participation in an illegal strike.
There must be proof that he committed illegal accts during an illegal strike.
Thus, absent any clear, substantial and convincing proof of illegal acts
omitted during an illegal strike, an ordinary striking worker or employee
may not be terminated from work.
Anent the liability of union officers, the ponente specifies that:
It must be emphasized that the penalty of dismissal could be imposed
only on union officers serving and acting as such, during the illegal strike114
held on April 20, 1987. As a necessary implication, if employees acted as
union officers after said strike, they may not be held liable and therefore,
could not be terminated.115
113
114
115
GR 114521, 27 November 198_, 299 SCRA 410-432

Citing the case of Lapanday Workers Unino vs. NLRC, 248 SCRA 95
CCBPI Postmix Workers Union vs. NLRC, 299 SCRA 429
63
The Evidence of Participation Must Be Specific

There is a need to produce evidence specifically linking union members to illegal
acts committed during the strike. In the abovecited CCBPI Post Mix Workers Union
case116, the Court held:
An examination of the evidence on record fails to disclose any
active participation in or the commission of illegal acts of the cited employees
during the illegal strike. Such being the case, they incur no liability for the
said strike. They cannot even be held responsible for an illegal strike solely
on the basis of union membership117. And since there is absolutely no
showing, much less clear proof, that said employees actually participated
in the commission of illegal acts during the said strike involved in this
petition, there is no adequate basis for us to hold that these employees
should be deemed to be among those who have lost their employment
status, in consequence of a declaration of illegality of the strike. The
terminated employees should therefore be entitled to reinstatement with
backwages.
Wholesale Dismissal, Taboo
A wholesale dismissal not allowed by law. IN BACUS vs. OPLE118; it was
stressed:
A mere finding of the illegality of a strike should not be automatically
followed by wholesale dismissal of the strikers from their employment.
Selective Admission, Permissible
The selective admission of returning strikers may be justified by the facts. In
GREPALIFE119
116
117
118
119
Ibid
Arica vs. Minister of Labor, 137 SCRA 267, 277
132 SCRA 690
Grepalife Employees union vs. Grepalife, 303 SCRA 126
64
That respondent company opted to reinstate all the strikers except

Domingo and de la Rosa is an option taken in good faith for the just and
lawful protection and advancement of its interest. Readmitting the union
members to the exclusion of Domingo and de la Rosa was nothing less
than a sound exercise of management prerogative, an act of self-preservation
in fact, designed to insure the maintenance of peace and order in the
company premises.120 The dismissal of de la Rosa who had shown his
capacity for unmitigated mischief was intended to avoid a recurrence of
the violence that attended the fateful strike in November.
Illegal Strikers to Pay for Damages
Damages may be slapped upon the erring strikers.121
However, the strike dragged on for nearly 50 days, paralyzing
respondents operations; thus, there is no room for doubt that some species
of injury was caused to private respondent. In the absence of competent
proof on the actual damage suffered, private respondent is entitled to nominal
damages which, as the law says, is adjudicated in order that a right of the
plaintiff, which has been violated or invaded by the defendant, may be
vindicated and recognized, and not for the purpose of indemnifying the
plaintiff for any loss suffered. We consider the amount of P300,000.00 just
and reasonable under the circumstances.
The union should thus be held responsible for exceeding the bounds of law and
for violating the rights of the employer and/or innocent third parties.
120
121
Pinagkaisa vs. ANG TIBAY, 20 SCRA 45

NFL vs. NLRC, 283 SCRA 290
65
The Role of the State re: Strikes

(Regulator and Reconciler)
The law vests upon the Secretary of Labor and Employment with the plenary
power to regulate the relations between labor and capital122. This regulation should not
be deemed an infringement of the workers right to strike. Thus, in PHILTHREAD
WORKERS UNION vs. CONFESOR123
xxx Article 263 (g) of the Labor Code does not violate the workers
constitutional right to strike. The section provides in part, viz: When in his
opinion, there exists a labor dispute causing or likely to cause a strike or
lockout in an industry indispensable to the national interest, the Secretary
of Labor and Employment may assume jurisdiction over the dispute and
decide it or certify the same to the Commission for compulsory arbitration
. . . The foregoing article clearly does not interfere with the workers right
to strike but merely regulates it, when in the exercise of such right, national
interests will be affected. The rights granted by the Constitution are not
absolute. They are still subject to control and limitation to ensure that they
are not exercised arbitrarily. The interests of both the employers and
employees are intended to be protected and not one of them is given undue
preference.
Police Power of the State
This power of the Secretary of Labor partakes of the nature of POLICE POWER.
It includes the determination of which industry is indispensable to national interest.
Thus, in PHILTHREAD, the High Tribunal held:
The Labor Code vests upon the Secretary of Labor the discretion
to determine what industries are indispensable to national interest. Thus,
upon the determination of the Secretary of Labor that such industry is
122
123
Article XIII, Section 3, 1987 Constitution

GR 117169, 12 March 1997, 269 SCRA 393-401
66
indispensable to the national interest, it will assume jurisdiction over the

labor dispute of said industry. The assumption of jurisdiction is in the
nature of police power measure. This is done for the promotion of the
common good considering that a prolonged strike or lockout can be inimical
to the national economy. The Secretary of Labor acts to maintain industrial
peace. Thus, his certification for compulsory arbitration is not intended to
impede the workers right to strike but to obtain a speedy settlement of the
dispute.
No Grave Abuse of Discretion
There is no grave abuse of discretion when the Secretary of Labor assume
jurisdiction over a labor dispute based on clear consideration. Thus, in PHILTHREAD,
it was stressed:
The intervention of the Secretary of Labor was therefore necessary
to settle the labor dispute which had lingered and which had affected both
respondent company and petitioner union. Had it not been so, the deadlock
will remain and the situation will remain uncertain. Thus, it cannot be deemed
that the Secretary of Labor had acted with grave abuse of discretion in
issuing the assailed order as she had a well-founded basis in issuing the
assailed order. x x x
Constitutional Basis of Assumption
The power of assumption is anchored on solid constitutional and legal basis. Thus,
in PHILTHREAD, it was specified that:
At any rate, it must be noted that Articles 263 (g) and 264 of the
Labor Code have been enacted pursuant to the police power of the State,
which has been defined as the power inherent in a government to enact
laws, within constitutional limits, to promote the order, safety, health, morals
and general welfare of society (People vs. Vera Reyes, 67 Phil. 190). The
police power, together with the power of eminent domain and the power of
taxation, is an inherent power of government and does not need to be
67
expressly conferred by the Constitution. Thus, it is submitted that the

argument of petitioners that Articles 263 (g) and 264 of the Labor Code do
not have any constitutional foundation is legally inconsequential.
Assumption Does Not Violate the Right to Strike
The Court held in PHILTHREAD:
Article 263 (g) of the Labor Code does not violate the workers
constitutional right to strike. The section provides in part, viz:
When in his opinion, there exists a labor dispute causing or likely
to cause a strike or lockout in an industry indispensable to the national
interest, the Secretary of Labor and Employment may assume jurisdiction
over the dispute and decide it or certify the same to the Commission for
compulsory arbitration.
The foregoing article clearly does not interfere with the workers
right to strike but merely regulates it, when in the exercise of such right,
national interests will be affected. The rights granted by the Constitution
are not absolute. They are still subject to control and limitation to ensure
that they are still subject to control and limitation to ensure that they are not
exercised arbitrarily. The interests of both the employers and employees
are intended to be protected and not one of them is given undue preference.
Assumption is All-Embracing
It is settled in jurisprudence that the Labor Secretarys power of assumption
embraces all issues arising from the dispute causing the strike. In the case of
INTERNATIONAL PHARMACEUTICAL INC. vs. SECRETARY OF LABOR124, Mr.
Justice Florenz Regalado held for the High Court that:
124
68
GR 92981-83, 09 January 1992,
The issue before us is whether or not the Secretary of xxx Labor

xxx has the power to assume jurisdiction over a labor dispute and its
incidental controversies, including ULP cases, causing or likely to cause a
strike xxx in an industry indispensable to the national interest.
xxx
xxx
xxx
In the present case, the Secretary was explicitly granted by Article

263 (g) of the Labor Code the authority to assume jurisdiction over a labor
dispute causing or likely to cause a strike xxx in an industry indispensable
to the national interest, and decide the same accordingly. Necessarily, this
authority to assume jurisdiction over the said labor dispute must include
and extend to all questions and controversies arising therefrom, including
cases over which the Labor Arbiter has exclusive jurisdiction.
Scope of Assumption
To amplify, the Secretary can even take cognizance of causes of action belonging
to the exclusive and original jurisdiction of the Labor Arbiter (under Article 217, Labor
Code), provided that the parties have raised the issues for resolution and/or the same are
intertwined with the principal cause of action. This includes even the issue of legality of
strikes. Thus:
Moreover, Article 217 of the Labor Code is not without, but
contemplates exceptions thereto. This is evident from the opening proviso
therein reading: (e) except as otherwise provided under this Code. Plainly,
Art. 263 (g) of the Labor Code was meant to make both the Secretary (or
the various regional directors) and the Labor Arbiters share jurisdiction,
subject to certain conditions. Otherwise, the Secretary would not be able
to effectively and efficiently dispose of the primary dispute. To hold the
contrary may even lead to the absurd and undesirable result wherein the
Secretary and the Labor Arbiter concerned may have diametrically opposed
ruling. xxx125
125
Ibid
69
Issues Not Submitted Should Not Be Included

However, if the incidental issues were not submitted by the parties for resolution,
the Secretary of Labor has no power to rule on them. In PAL vs. DRILON126, Madam
Justice Carolina Grio-Aquino put the Secretary of Labor to task for ruling on the issues
of legality of strike, which was not at all raised. Thus:
a) Under Art. 263 of the Labor Code, the Labor Secretarys
authority to resolve a labor dispute xxx encompasses only the issues in the
dispute, NOT THE LEGALITY OR THE ILLEGALITY OF ANY STRIKE
that may have been resorted to in the meantime (Binamira vs. Ogan-Oceana
(148 SCRA 677, 1987). xxx
b) The legality or illegality of the strike was not submitted to the
Secretary of Labor for resolution.
c) The jurisdiction to decide the legality of strikes xxx is vested in
Labor Arbiters, not in the Secretary of Labor (Art. 217 par. (a) sub par 5 of
the Labor Code.
d) In ruling on the legality of the PALEA strike, the Secretary of
Labor acted without or in excess of his jurisdiction.
The Employer Cannot Be Stripped of Disciplinary Prerogative
In PAL, the Labor Secretary was held without authority to prohibit an employer
from exercising its management prerogative to discipline employees. The Court held:
a) The Labor Secretary exceeded his jurisdiction when he
restrained PAL from taking disciplinary action against its guilty employees,
for, under Art. 263 of the Labor Code, all that the Secretary may enjoin is
the holding of the strike, but not the companys right to take action against
126
70
GR 88210, 23 January 1991
union officers who participated in the illegal strike and committed illegal
acts.
b) The prohibition which the Secretary issued to PAL constitute an
unlawful deprivation of property and denial of due-process for it prevents
PAL from seeking redress for the huge property losses that it suffered as a
result of the unions illegal mass action.
Delay in Assumption is Reversible Error
In the same PAL case, the Labor Secretary was blamed for failing to exercise his
powers under Article 263 (g), over the disputes causing a strike which caused tremendous
damage to the Company and great inconvenience to the riding public. The Court was
direct to the point, viz:
a) xxx The Secretary xxx failed to act, for a period of seven (7)
days on PALs petition for him to assume jurisdiction over the labor dispute.
xxx
xxx
xxx
b) xxx The Secretary may have a realized that he was partly to

blame for PALs damages because of HIS FAILURE TO ACT PROMTLY
and use his authority to avert the illegal strike under Art. 263 (g) of the
Labor Code.
Mala Prohibita Can Be Restrained
Injunctions and restraining orders may be issued against strikers who commit
prohibited acts under Article 264 of the Code. In the SAN MIGUEL case127, it was held:
Article 254 of the Labor Code provides that no temporary or
permanent injunction or restraining order in any case involving or growing
127
See Footnotes nos. 6, 9, 20, 40 and 64
71
out of labor disputes shall be issued by any court or other entity except as
otherwise provided in Article 218 and 264 of the Labor Code. Under the
first exception, Article 218 (e) of the Labor Code expressly confers upon
the NLRC the power to enjoin or restrain actual and threatened commission
of any or all prohibited or unlawful acts, or to require the performance of a
particular act in any labor dispute which, if not restrained or performed
forthwith, may cause grave or irreparable damage to any party or render
ineffectual any decision in favor of such party x x x. The second exception,
on the other hand, is when the labor organization or the employer engages
in any of the prohibited activities enumerated in Article 264.
Injunction, Proper to Preempt an Illegal Strike
When there is a threat of an imminent illegal strike, the employer has the right to
ask for an injunction and the NLRC is duty-bound to issue it. This was clarified by the
Court in the aforecited SAN MIGUEL case.128
Accordingly, it was stated:
Public respondent, in its decision, moreover ruled that there was a
lack of factual basis in issuing the injunction. Contrary to the NLRCs
finding, we find that the time the injunction was being sought, there existed
a threat to revive the unlawful strike as evidence by the flyers then being
circulated by the IBM-NCR Council which led the union. These flyers
categorically declared: Ipaalala nyo sa management na hindi iniaatras ang
ating Notice of Strike (NOS) at anumang oras ay pwede nating muling itirik
and picket line, and were dated June 19, 1994, just a day after the unions
manifestation with the NLRC that there existed no threat of commission of
prohibited activities.
128
72
Ibid
Illegal Strikes Can Be Stopped

A strike that is about to be staged or is already being staged without a valid notice
of strike can be stopped by the issuance of an injunction. In SAN MIGUEL, this has
been stated:
Moreover, it bears stressing that Article 264 (a) of the Labor Code
explicitly states that a declaration of strike without first having filed the
required notice is a prohibited activity, which may be prevented through an
injunction in accordance with Article 254. Clearly, public respondent should
have granted the injunctive relief to prevent the grave damage brought about
by the unlawful strike.
The Right of Innocent By Standers
An innocent by stander may ask for injunction if it is shown that a strike has
unduly violated his right. In MSF TIRE vs. CA.129
Second. Petitioner asserts that its status as an innocent bystander
with respect to the labor dispute between Philtread and the Union entitles it
to a writ of injunction from the civil courts and that the appellate court
erred in not upholding its corporate personality as independent of Philtreads.
In Philippine Association of Free Labor Unions (PAFLU) v.
Cloribel130, this Court, through Justice J.B.L. Reyes, stated the innocent
bystander rule as follows:
The right to picket as a means of communicating the facts of a
labor dispute is a phase of the freedom o speech guaranteed by the
constitution. If peacefully carried out, it can not be curtailed even in the
absence of employer-employee relationship.
129
130
GR 128632, 05 August 1999, 311 SCRA 785-794

27 SCRA 465, 1969
73
Limits to the By Standers Rights

The Supreme Court hastened to add that:
The right is, however, not an absolute one. While peaceful picketing
is entitled to protection as an exercise of free speech, we believe the courts
are not without power to confine or localize the sphere of communication
or the demonstration to the parties to the labor dispute, including those
with related interest, and to insulate establishments or persons with no
industrial connection or having interest totally foreign to the context of the
dispute. Thus the right may be regulated at the instance of third parties or
innocent bystanders if it appears that the inevitable result of its exercise
is to create an impression that a labor dispute with which they have no
connection or interest exists between them and the picketing union or
constitute an invasion of their rights. In one case decided by this Court, we
upheld a trial courts injunction prohibiting the union from blocking the
entrance to a feed mill located within the compound of a flour mill with
which the union had a dispute. Although sustained on a different ground,
no connection was found between the two mills owned by two different
corporations other than their being situated in the same premises. It is to be
noted that in the instances cited, peaceful picketing has not been totally
banned but merely regulated. And in one American case, a picket by a
labor union in front of a motion picture theater with which the union had a
labor dispute was enjoined by the court from being extended in front of the
main entrance of the building housing the theater wherein other stores
operated by third persons were located. (Emphasis added)
Exclusivity of this Right
Not just anybody, however, can seek refuge under this rule. The Court clarified in
MSG that:
Thus, an innocent bystander, who seeks to enjoin a labor strike,
must satisfy the court that aside from the grounds specified in Rule 58 of
the Rules of Court, it is entirely different from, without any connection
whatsoever to, either party to the dispute and, therefore, its interests re
74
totally foreign to the context thereof. For instance, in PAFLU v. Cloribel,

supra, this Court held that Wellington and Galang were entirely separate
entities, different from, and without any connection whatsoever to, the
Metropolitan Bank and Trust Company, against whom the strike was
directed, other than the incidental fact that they are the banks landlord and
co-lessee house in the same building, respectively. Similarly, in Liwayway
Publications, Inc. vs. Permanent Concrete Workers Union131, this Court
ruled that Liwayway was an innocent bystander and thus entitled to enjoin
the unions strike because Liwayways only connection with the employer
company was the fact that both were situated in the same premises.
In the case at bar, petitioner cannot be said not to have such
connection to the dispute. As correctly observed by the appellate court.
Civil Courts Can Stop Strikes in Government
Insofar as strikes in the government sector are concerned, it is well-settled that the
civil courts have jurisdiction to issue injunction. In the SSS case132, it was explicitly
declared that:
The strike staged by the employees of the SSS belonging to petitioner
union being prohibited by law, an injunction may be issued to restrain it.
It is futile for the petitioner to assert that the subject labor dispute
falls within the exclusive jurisdiction of the NLRC and, hence, the Regional
Trial Court has no jurisdiction to issue a writ of injunction enjoining the
continuance of the strike. The Labor Code itself provides that terms and
conditions of employment of government employees shall be governed by
the Civil Service Law, rules and regulations [Art. 276]. More importantly,
E.O. No. 180 vests the Public Sector Labor-Management Council with
jurisdiction over unresolved labor disputes involving government employees
[Sec. 16]. Clearly, the NLRC has no jurisdiction over the dispute.
131
132
108 SCRA 161

GR 85279, 28 July 1989, 175 SCRA 686-701
75
This being the case, the Regional Trial Court was not precluded,
the exercise of its general jurisdiction under B.P. Blg. 129, as amended,
from assume jurisdiction over the SSSs complaint for damages and issuing
the injunctive writ prayed for therein. Unlike the NLRC, the Public Sector
Labor-Management Council ha snot been granted by law authority to issue
writs of injunction in labor disputes within its jurisdiction. Thus, since it is
the Council, and not the NLRC, that has jurisdiction over the instant labor
dispute, resort to the general courts of law for the issuance of a writ of
injunction to enjoin the strike is appropriate.
Limitations on Injunctions
Going back to the private sector, in the case of BISIG NG MANGGAGAWA SA
CONCRETE AGGREGATES vs. NLRC133, it would appear that the 1986 Constitution
intends to limit the issuance of injunctions against the exercise of the right to strike. Mr.
Justice R. Puno, speaking for the Court, declared, quoting Fr. Joaquin G. Bernas, S.J., a
Commissioner in the 1986 Constitutional Commission, that:
xxx THE CONSTITUTIONAL RECOGNITION OF THE RIGHT
TO STRIKE DOES SERVE AS A REMINDER THAT INJUNCTIONS
SHOULD BE REDUCED TO THE BAREST MINIMUM (Emphasis,
ours).
Requirements Prior to Injunctions
Having stated the foregoing premise, the Supreme Court declared in BISIG NG
MANGGAGAWA, supra, that the public respondent NLRC, failed to comply with the
letter and spirit of Article 218 (e), (4) and (5) of the Labor Code. The powers of the
NLRC under Article 218 is subject to certain conditions, as follows:
In the case at bar, the records will show that the respondent NLRC
failed to comply with the letter and spirit of Article 218 (e), (4) and (5) of
133
76
GR 105090, 16 September 1993, 226 SCRA 499-521
the Labor Code in issuing its Order of May 5, 1992. Article 218 (e) of the
Labor Code provides both the procedural and substantive requirements
which must strictly be complied with before a temporary or permanent
injunction can issue in a labor dispute, viz:
Art. 218. Powers of the Commission. The Commission shall
have the power and authority:
xxx
xxx
xxx
(e) To enjoin or restrain any actual or threatened commission of any

or all prohibited or unlawful acts or to require the performance of a particular
act in any labor dispute which, if not restrained or performed forthwith,
may cause grave or irreparable damage to any party or render ineffectual
any decision in favor of such party: Provided, that no temporary or
permanent injunction in any case involving or growing out of a labor dispute
as defined in this Code shall be issues except after hearing the testimony of
witnesses, with opportunity for cross-examination, in support of the
allegations of a complaint made under oath, and testimony in opposition
thereto, if offered, and only after a finding of fact by the commission, to
the effect:
(1) That prohibited or unlawful acts have been threatened and will
be committed and will be continued unless restrained but no injunction or
temporary restraining order shall be issued on account of any threat,
prohibited or unlawful act, except against the person or persons, association
or organization making the threat or committing the prohibited or unlawful
act or actually authorizing or ratifying the same after actual knowledge
thereof;
(2) That substantial and irreparable injury to complainants property
will follow;
(3) That as to each item of relief to be granted, greater injury will be
inflicted upon complainant by the denial of relief than will be inflicted upon
defendants by the granting of relief;
(4) That complainant has no adequate remedy at law; and
77
(5) That the public officers charged with the duty to protect
complainants property are unable or unwilling to furnish adequate
protection.
Executive and other public officials of the province or city within
which the unlawful have been threatened or committed charged with the
duty to protect complainants property: x x x (Italics ours)
Ex-Parte Injunctions, Condemned
The Supreme Court also condemned the issuance of ex-parte injunctions. Said
the Court:
To be sure, the issuance of an ex-parte temporary restraining order
in a labor dispute is not per se prohibited. Its issuance, however, should be
characterized by care and caution for the law requires that it be clearly
justified by considerations of extreme necessity, i.e., when the commission
of unlawful acts is causing substantial and irreparable injury to company
properties and the company is, for the moment, bereft of an adequate
remedy at law. This is as it ought to be, for imprudently issued temporary
restraining orders can break the back of employees engaged n a legal strike.
Often times, they unduly tilt the balance of a labor warfare in favor of
capital. When that happens, the deleterious effects of a wrongfully issued,
ex parte temporary restraining order on the rights of striking employees
can no longer be repaired for they simple monetization. Moreover,
experience shows that ex parte applications for restraining orders are often
based on fabricated facts and concealed truths. A more becoming sense of
fairness, therefore, demands that such ex parte applications should be more
minutely examined by hearing officers, lest, our constitutional policy of
protecting labor against the issuance of indiscriminate injunctions. Stated
otherwise, it behooves hearing officers receiving evidence in support of ex
parte injunctions against employees in strike to take a more active stance in
seeing to tit that their right to social justice is in no way violated despite
their absence. This equalizing stance was not taken in the case at bar by the
public respondents.
78
Conclusion: The Trends in Jurisprudence on Strikes in the Philippines

Mr. Justice Puno, in BISIG134 underscored the critical importance of the right to
strike in less developed countries like the Philippines. Thus, said the Court through
Justice Puno:
Strike has been considered the most effective weapon of labor in
protecting the rights of employees to improve the terms and conditions of
their employment. It may be that in highly developed countries, the
significance of strike as a coercive weapon has shrunk in view of the
preference for more peaceful modes of settling labor disputes. In
underdeveloped countries, however, where the economic crunch continues
to enfeeble the already marginalized working class, the importance of the
right to strike remains undiminished as indeed it has proved many a time as
the only coercive weapon that can correct abuses against labor. It remains
as the great equalizer.
The Court then underscored the critical importance of the right to strike in the
Philippines, viz:
In the Philippine milieu where social justice remains more as a rhetoric
than a reality, labor has vigilantly fought to safeguard the sanctity of the
right to strike. Its struggle to gain the right to strike has not been easy and
effortless. Labors early exercise of the right to strike collided with the
laws on rebellion and sedition and sent its leaders languishing in prisons.
The spectre of incarceration did not spur its leaders to sloth; on the contrary
it spiked labor to work for its legitimization. This effort was enhanced by
the flowering of liberal ideas in the United States which inevitably crossed
our shores. It was enormously boosted by the American occupation of our
country. Hence, on July 17, 1953, Congress gave statutory recognition to
the right to strike when it enacted RA 875, otherwise known as the Industrial
Peace Act. For nearly two (2) decades, labor enjoyed the right to strike
until it was prohibited on September 12, 1972 upon the declaration of
134
See Footnote no. 134.
79
martial law in the country. The 14-year battle to end martial rule produced many
martyrs and foremost among them were the radicals of the labor movement.
It was then pointed out by Justice Puno, in BISIG, that:
It was not a mere happenstance, therefore, that after the final battle
against martial rule was fought at EDSA in 1986, the new government treated
labor with a favored eye. Among those chosen by then President Corazon
C. Aquino to draft the 1987 Constitution were recognized labor leaders like
Eulogio Lerum, Jose D. Calderon, Blas D. Ople and Jaime S.L. Tadeo.
These delegates helped craft into the 1987 Constitution its Article XIII
entitled Social Justice and Human Rights.
Constitutional Protection to Labor
The States protection to labor, as enshrined in our Constitution, was explained
by the High Tribunal, as follows:
For the first time in our constitutional history, the fundamental law
of our land mandated the State to . . . guarantee the rights of all workers to
self-organization, collective bargaining and negotiations, and peaceful
concerted activities, including the right to strike in accordance with law.
This constitutional imprimatur given to the right to strike constitutes signal
victory for labor. Our Constitutions of 1935 and 1973 did not accord
constitutional level. With a constitutional matrix, enactment of a law
implementing the right to strike was an inevitability. RA 6715 came into
being on March 21, 1989, an intentional replication of RA 875. In light of
the genesis of the right to strike, it ought to be obvious that the right should
be read with a libertarian latitude in favor of labor. In the wise words of
Father Joaquin G. Bernas, S.J., a distinguished commissioner of the 1987
Constitutional Commission x x x the constitutional recognition of the
right to strike does serve as a reminder that injunctions, should be reduced
to the barest minimum.
In addition to the above, this author wishes to add his own thoughts on the issue
of strikes:
80
It could have been the great American President, John F. Kennedy, who once
postulated that THOSE WHO MAKE OPPOSITIONS IMPOSSIBLE, DO MAKE
REVOLUTIONS INEVITABLE. Because President Ferdinand E. Marcos imposed
repression upon the Filipinos by, among others, prohibiting strikes, demos, and small
expressions of dissent, from 1972 to 1986, the big uprising in EDS in 1986 became
inevitable. Thus, any proposal to outlaw strike today will only serve to build up the
anger, the repulsion and the revolutionary fervor of the people.
In the context of Philippine labor laws, strikes are mere temporary stoppage of
work by the concerted action of employees as a result of an industrial or labor dispute.
A Strike therefore becomes a corollary right designed to support such other rights as the
right to self-organization, collective bargaining, living wage, human conditions of work,
security of tenure and other basic rights.
Without the right to strike, the workers will find it very hard to obtain concession
through collective bargaining. Without this right, even the right to self-organization will
be easily repressed by the employers. The right to strike becomes a shield against unfair
labor practices and other abuses. It is also a weapon to advance the economic interests
of the workers. However, it is a weapon that can also inflict wounds upon the hands of
the workers themselves.
Like any right, the right to strike can be abused. It can be misused by those who
propagate foreign ideologies in order to gain political mileage. It can even be abetted by
business rivals in order to inflict economic sabotage on a competition in a very competitive
market situation.
Although the right to strike has been elevated into a Constitutional right, there are
conditions that must be complied within its exercise. First, the strike must be peaceful.
Second, it must be done in accordance with law. The Labor Code also requires that the
exercise of the right must be consistent with national interests.
81
The procedural requirements prior to the exercise of the right are mandatory.
They have to be followed. Any strike staged without any of the requirements being
complied with may be declared illegal. Also, the Code enumerates certain prohibited
acts, the commission of any of which may result to the declaration of the strikes nullity.
The consequences of illegal strikes are far-reaching. They may result to loss of
employment.
Also, once the President or the Secretary of Labor shall have assumed jurisdiction
or has certified the dispute to compulsory arbitration, any strike should stop and the
strikers should return to work. The Company should accept all strikers under the same
terms and conditions prior to the strike, and the parties should proceed to the arbitration
process. Any further concerted action shall be deemed illegal for being inconsistent to
national interest.
With all the above clarification, it is hoped that all parties concerned should be
guided accordingly. While employers and the State itself are expected to respect the
workers right to strike, the strikers should be aware of the limits of such a right and be
conscious of the serious implications of deviating therefrom.
In the context of a third world country like the Philippines, the right to strike
should not be used as an obstacle to the nations goal to protect its competitiveness in a
global economy. However, it should also be made clear and explicit that economic
development should not be pursued at the expense of the basic rights of labor and of the
dignity of the worker as a human person. The governments role is to make sure that the
socio-economic balance should be maintained in order to preserve the equilibrium between
labor, capital and the State.
______
82
______
Defective Contracts
Defective Contracts In Philippine Civil Law

Rubn F. Balane*
Introduction
The word contract literally means a drawing together (cum-trahere). In our
Civil Code a contract is defined as a meeting of minds between two persons whereby
one binds himself, with respect to the other, to give something or to render some
service (Art. 1305, Civil Code).
In our civil law it is elementary that all contracts have three common requisites:
consent, subject-matter, and cause.
Article 1318 accordingly provides:
Art. 1318. There is no contract unless the following requisites
concur:
(1) Consent of the contracting parties;
(2) Object certain which is the subject matter of the contract;
(3) Cause of the obligation which is established.
A lack or vitiation of any of these three results in some kind of defect in the
contract. In addition, there is a special group of contracts which, though possessed of
all the essential requisites, cause a particular kind of economic damage and are, for that
reason, treated by law as defective. In the civil law tradition, the concept of defective
contracts goes back very far. It was already known in the ancient Roman law. Contracts
in the Roman law could be set aside for total want of capacity (as in the case of children
below seven), or if entered into through force or fear (vis or metus) or fraud (dolus), or
mistake (error), or for an illegal object or purpose, and so forth.
The Civil Code of Spain our law until 1950 likewise already regulated defective
contracts. Thus, contracts could be rescinded in certain cases (Art. 1291, Spanish
The author is a professor of law at the Ateneo de Manila University and the University of the Philippines. He has been the holder
of the Justice J.B.L. Reyes Professorial Chair in Civil Law at the U.P., since 1977, and of the Ramon Avancea Chair in Civil Law at
the Ateneo, since 1999. He was the examiner in Civil Law for the 1986 Bar. He is a partner at Balane Tamase Alampay Law Office.
83
Defective Contracts
Code), and certain contracts defective for want of any of the three essential requisites
were invalid. There was some ambiguity in the old code, however, between contratos
that were referred to as nulos and those referred to as anulables.
One distinct improvement introduced by our own code was the more
systematic classification of these defective contracts.
The Defective Contracts
Under our Civil Code, there are four defective contracts, in ascending order of
defectiveness: the rescissible, the voidable, the unenforceable, and the void.
The present Civil Code has taken great pains to classify these defective contracts.
It is thus important to keep the distinctions among these four very clearly in mind. Each
of them is different in nature as well as in consequences.
A rescissible contract is one, which, though possessing all the essential requisites
of contracts, has caused a particular economic damage either to one of the contracting
parties or to a third person.
A voidable contract is one in which the consent of one party is defective, either
because of want of capacity, or because consent is vitiated.
An unenforceable contract is one that, for lack of authority or of the required
writing, or for incompetence of both parties, cannot be given effect unless properly
ratified.
A void contract is one which suffers from absence of object or cause and is
therefore an absolute nullity and produces no effect.
Rescissible Contracts
A rescissible contract has all the requisites required by law for valid contracts
(Art. 1380). What makes it rescissible is economic damage, not just any economic
damage, but those kinds of economic damage enumerated under Articles 1381 and
1382.
For a contract to be rescissible, four requisites are required:
84
Defective Contracts
1.
It must fall under either Article 1381 or 1382 (Causapin v. CA, 233 SCRA
615 [1994]);
2.
the party seeking rescission must have no other legal means to obtain
reparation for damages suffered by him;
3.
the party seeking rescission must be able to return whatever he may have
obtained by reason of the contract; and
4.
the things object of the contract must not have passed legally to a third
person in good faith.
(Vide Tolentino, Civil Code of the Philippines, Vol. IV, 1991 ed., pp. 572-573)
Let us now take the requisites one by one.
The contract must be one of those enumerated under Articles 1381 or 1382.
Art.1381. The following contracts are rescissible:
(1) Those which are entered into by guardians whenever the
wards whom they represent suffer lesion by more than one-fourth of the
value of the things which are the object thereof;
(2) Those agreed upon in representation of absentees, if the latter
suffer the lesion stated in the preceding number;
(3) Those undertaken in fraud of creditors when the latter cannot
in any other manner collect the claims due them;
(4) Those which refer to things under litigation if they have been
entered into by the defendant without the knowledge and approval of the
litigants or of competent judicial authority;
(5) All other contracts specially declared by law to be subject to
rescission.
Art. 1382. Payments made in a state of insolvency for obligations
to whose fulfillment the debtor could not be compelled at the time they
were effected, are also rescissible.
85
Defective Contracts
a)
The first two contracts enumerated in Article 1381 are entered into by
representatives (guardians on behalf of wards, and administrators representing absentees)
where the ward or absentee suffers lesion exceeding 25 % of the value of the property
which he parts with.
Lesion has been defined as the injury which one of the parties suffers by virtue
of a contract which is disadvantageous to him (IV Tolentino 574, citing 3 Camus 205206). For the contract to be rescissible, the lesion must exceed 25% of the value of the
thing owned by the ward or absentee, such as, for instance, harvest worth P100,000 is
sold for P70,000.
The theory of lesion is simple enough but its application has been strongly
criticized. Foremost among the critics is Justice JBL Reyes, the revered civilist, who, in
his comments on the Civil Code, observed: Modern doctrine does not regard favorably
the rule of economic prejudice (lesion) being a ground of rescission, considering that
goods do not have a fixed true value because value is always variable and fluctuating,
being a function of supply and demand. The modern codes tend to view lesion of
certain proportions (1/4, etc.) as merely raising a presumption of undue influence, that
vitiates consent and renders the contract voidable . . . whenever the lesion is coupled
with exploitation of one party by the other. (cf. German Civ. C., Article 138; Mexico,
Art. 17).
This provision on lesion had been hotly debated by the framers of the French
Code, the reason for its final inclusion being the personal intervention of Napoleon
Bonaparte. Manresa criticizes its adoption in the Spanish Code in no uncertain terms.
He calls lesion un absurdo econmico evidente (a patent economic absurdity).
It must be noted that, as a rule, dispositions by guardians or administrators of real
property of wards or absentees require court approval (Rules 95, 96, and 107), and
without such approval, the contract would be unenforceable (Article 1403 [1]), and not
rescissible. On the other hand, if prior court approval is obtained, the contract would be
valid, regardless of the presence of lesion (Art. 1386)
Art. 1386. Rescission referred to in Nos. 1 and 2 of article 1381
shall not take place with respect to contracts approved by the courts.
The only instance, it seems, in which these paragraphs will apply is when no court
approval is required for the contract, as in dispositions amounting to mere acts of
administration.
86
Defective Contracts
b)
The third paragraph (Article 1381) contracts in fraud of creditors refers
to the ancient remedy of actio pauliana. (Articles 1177 and 1313 provide for the same
thing.)
The requisites for actio pauliana are given in Siguan v. Lim (318 SCRA 725
[1999]):
1.
the plaintiff asking for rescission has a credit prior to the
alienation, although demandable later;
2.
the debtor has made a subsequent contract conveying a
patrimonial benefit to a third person;
3.
the creditor has no other legal remedy to satisfy his claim;
4.
the act being impugned is fraudulent; and
5.
the third person who received the property conveyed, if it is
by onerous title, has been an accomplice in the fraud (citing Panlilio v.
Victoria, 35 Phil. 706 [1916]; Solis v. Chua Pua Hnos., 50 Phil. 636 [1927]).
c)
The fourth paragraph has essentially the same purpose as the third, i.e., to
prevent injury to a third person (in this case the party who has lodged a claim over the
property).
d)
Some specially declared rescissible contracts are found in the Title on
Sales, viz: Articles 1526, 1534, 1538, 1539, 1542, 1556, 1560, 1567.
e)
On rescissible contracts under Article 1382, the insolvency there
contemplated is factual insolvency, not necessarily involving an insolvency proceeding.
The party seeking rescission must have no other
legal means to obtain reparation for damages suffered by him.
The remedy of rescission is subsidiary. This is clear from Article 1383:
Art. 1383. The action for rescission is subsidiary; it cannot be
instituted except when the party suffering damage has no other legal means
to obtain reparation for the same.
87
Defective Contracts
In this connection, a careful distinction must be made between rescission of a

properly rescissible contract and rescission under Article 1191.
Art. 1191. The power to rescind obligations is implied in reciprocal
ones, in case one of the obligors should not comply with what is incumbent
upon him.
The injured party may choose between the fulfillment and the
rescission of the obligation, with the payment of damages, in either case.
He may also seek rescission, even after he has chosen fulfillment, if the
latter should become impossible.
The court shall decree the rescission claimed, unless there be just
cause authorizing the fixing of a period.
This is understood to be without prejudice to the rights of third
persons who have acquired the thing, in accordance with articles 1385
and 1388 and the Mortgage Law.
The rescission under Article 1191, properly called resolution, is essentially different
from rescission under Article 1383. It is unfortunate that the distinction in terminology,
so scrupulously observed in the Spanish Code (resolver (Art. 1124) versus rescindir
(Art. 1290)) was so carelessly discarded in our Code, leading to confusion, even on the
part of people who should know better.
Again, JBL Reyes steps in to clear the mess in his concurring opinion in UFC v.
CA (33 SCRA 1 [1970]).
This writers comments on this point, made in a previous lecture, are here
reproduced:
. . . the argument of petitioner, that the rescission demanded by
the respondent-appellee . . . should be denied because under Article 1383
of the Civil Code of the Philippines rescission can not be demanded except
when the party suffering damage has no other legal means to obtain
reparation, is predicated on a failure to distinguish between a rescission for
breach of contract under Article 1191 of the Civil Code and a rescission by
reason of lesin or economic prejudice, Article 1381, et. seq. The rescission
on account of breach of stipulation is not predicated on injury to economic
88
Defective Contracts
interests of the party plaintiff but on the breach of faith by the defendant,
that violates the reciprocity between the parties. It is not a subsidiary
action, and Article 1191 may be scanned without disclosing anywhere that
the action for rescission thereunder is subordinated to anything other than
the culpable breach of his obligations by the defendant. This rescission is a
principal action retaliatory in character, it being unjust that a party be held
bound to fulfill his promises when the other violates his. As expressed in
the old Latin aphorism: Non servanti fidem, non est fides servanda.
Hence, the reparation of damages for the breach is purely secondary.
On the contrary, in the rescission by reason of lesion or economic
prejudice, the cause of action is subordinated to the existence of that
prejudice, because it is the raison d tre as well as the measure of the right
to rescind. Hence, where the defendant makes good the damages caused,
the action cannot be maintained or continued, as expressly provided in
Articles 1383 and 1384. But the operation of these two articles is limited to
the cases of rescission for lesion enumerated in Article 1381 of the Civil
Code of the Philippines, and does not apply to cases under Article 1191.
It is probable (JBL concludes) that the petitioners
confusion arose from the defective technique of the new Code
that terms both instances as rescission without distinctions
between them; unlike the previous Spanish Civil Code of 1889,
that differentiated resolution for breach of stipulation from
rescission by reason of lesion or damage. But the
terminological vagueness does not justify confusing one case
with the other, considering the patent difference in causes and
results of either action.
The last comment parenthetically is apropos, and codifiers will
do well to avoid, as far as possible, the same identical terms for different
concepts. Such terms as rescission, fraud, collation, ratification, etc. all
used in the Code in varying or equivocal senses can only ensnare students,
students, professors, practitioners, and courts. (A Harvest of Eighteen
Years, Part II, 57 PLJ at pp. 486-487).
In a nutshell, the essential distinctions between rescission under Articles 1380
1389 and rescission (resolution) under Article 1191 are two:
89
Defective Contracts
1.
breach.
Rescission is predicated on economic injury; resolution, on
2.
Rescission is a subsidiary action; resolution, a principal one
retaliatory in character.
This is important diferentiation was reiterated in Ong v. CA (310 SCRA [1999]),
penned by Mme. Justice Ynares-Santiago.
The party seeking rescission must be able to return whatever
he may have obtained by reason of the contract.
This is required by Article 1385, Par. 1.
Art. 1385. Rescission creates the obligation in return the things
which were the object of the contract, together with their fruits, and the
price with its interest; consequently, it can be carried out only when he
who demands rescission can return whatever he may be obliged to restore.
Rescission cancels the contract; consequently, the parties must be returned to the
status quo ante. Hence, the need for mutual restitution.
The things object of the contract must not have passed
legally to a third person in good faith.
The basis for this requirement is found in Art. 1385, Paragraphs 2 and 3:
Art. 1385.
xxx
xxx
xxx
Neither shall rescission take place when the things which are the
object of the contract are legally in the possession of third persons who
did not act in bad faith.
In this case, indemnity for damages may be demanded from the
person causing the loss.
90
Defective Contracts
Voidable Contracts
Voidable contracts are governed by Articles 1390 to 1402. As noted earlier, consent
is one of the three essential elements of contracts. If the consent of one of the parties is
defective or vitiated, the contract is voidable. Defect or vitiation of consent is caused by
either internal or external factors. These factors are laid down in Articles 1327 to 1344.
Consent, as an element of contracts, must be intelligent and free. If either attribute
is impeded or impaired, then consent is said to be vitiated, and the contract voidable.
a)
The factors that impair intelligence are:
1.
minority (Art. 1327, par. 1)
The age of emancipation, previously 21 under both the Civil Code and the Family
Code, has been reduced by R.A. 6089 to 18.
2.
insanity, deaf-mutism coupled with illiteracy, intoxication, and hypnotic

spell (Arts. 1327, par. 2 and 1328).
3.
mistake (Arts. 1331 and 1334)
To vitiate consent, the mistake or error must relate to:

i)
the substance of the thing;
ii)
the principal conditions of the contract;
iii)
the identity or qualifications of one of the parties when such constituted the
principal cause of the contract; or
iv)
the legal effect of the agreement, if the error is mutual and results in the
frustration of the parties purpose.
The mistake must be caused by facts of which the party demanding annulment
did not know. As held in Alcasid v. CA (237 SCRA 419 [1994]):
To invalidate consent, the error must be real and not one that could
have been avoided by the party alleging it. The error must arise from facts
91
Defective Contracts
unknown to him. He cannot allege an error which refers to a fact known to

him or which he should have known by ordinary diligent examination of the
facts. An error so patent and obvious that nobody could have made it, or
one which could have been avoided by ordinary prudence, cannot be
invoked by the one who made it in order to annul his contract (Tolentino,
supra at pp. 486-487). (Alcasid vs. Court of Appeals, 237 SCRA 419 at
p.423)
4.
fraud (Art. 1338)
Fraud, as a vitiating factor of consent, is equivalent to and synonymous with

deceit, and is not to be confused with fraud under Article 1170, which consists in the
deliberate and intentional evasion of the normal fulfillment of obligation (Legaspi Oil v.
CA, 224 SCRA 213 [1993]). That other fraud is synonymous with malice or bad faith.
More, fraud as deceit is antecedent to or at least simultaneous with the birth of the
contract and for that reason vitiates consent, which must exist when the contract is
entered into. On the other hand, fraud as malice occurs subsequent to the constitution
of the obligation and results, not in the annulment of the obligation, but in liability for
damages (Art. 1170).
Fraud as deceit, in order to vitiate consent, must be serious (Art. 1344, par. 1), or
as commentators call it, dolo causante, to be distinguished from dolo incidente, incidental
fraud. Dolo causante vitiates consent; dolo incidente only gives rise to a liability for
damages (Art. 1344, par. 2).
In Samson v. CA (238 SCRA 397 [1994]), the Court explained:
In contracts, the kind of fraud that will vitiate consent is one
where, through insidious words or machinations of one of the contracting
parties, the other is induced to enter into a contract which, without them,
he would not have agreed to. This is known as dolo causante or causal
fraud which is basically a deception employed by one party prior to or
simultaneous to the contract in order to secure the consent of the other.
(Samson v. Court of Appeals, 238 SCRA 397 at p. 404)
Dolo causante has the following requisites:
1.
92
it must be serious (Art. 1344);
Defective Contracts
2.
it must have been employed by one party upon the other (Arts. 1342 and
1344);
3.
it must have had the effect of inducing one of the parties to enter into the
contract (Art. 1338); and
4.
it must have resulted in damage or injury. (Alcasid v. CA, 237 SCRA 419
[1994]).
b)
The factors that impair freedom of consent are violence, intimidation, and
undue influence (collectively called duress).
1.
violence (Art. 1335, par. 1)
The elements of violence as a vitiating factor are:
2.
i)
it must be irresistible or serious;
ii)
it must be causal, i.e. it must be the operative cause of the giving of

consent.
intimidation (Art. 1335, par. 2)
The elements of intimidation are enumerated in De Leon v. CA (186 SCRA 345

[1990]):
In order that intimidation may vitiate consent and render the contract
invalid, the following requisites must concur: (1) that the intimidation must
be the determining cause of the contract, or must have caused the consent
to be given; (2) that the threatened act be unjust or unlawful; (3) that the
threat be real and serious, there being an evident disproportion between the
evil and the resistance which all men can offer, leading to the choice of the
contract as the lesser evil; and (4) that it produces a reasonable and wellgrounded fear from the fact that the person from whom it comes has the
necessary means or ability to inflict the threatened injury.. (De Leon v.
Court of Appeals, 186 SCRA 345 at p. 358)
3.
undue influence (Art. 1337)

93
Defective Contracts
According to Alcasid v. CA, (237 SCRA 419 [1994]):

Undue influence, therefore, is any means employed upon a party
which, under the circumstances, he could not well resist and which controlled
his volition and induced him to give his consent to the contract, which
otherwise he would not have entered into. It must in some measure destroy
the free agency of a party and interfere with the exercise of that independent
discretion which is necessary for determining the advantages or
disadvantages of a proposed contract (Tolentino, supra at p. 501). (Alcasid
v. Court of Appeals, 237 SCRA 419 at pp. 423-424)
c)
characteristics of voidable contracts
A voidable contract, as the term implies, is susceptible to annulment; it is not ipso

facto inoperative.
Some points to bear in mind regarding these contracts are:
1.
they are binding unless and until set aside (Art. 1390);
2.
they may be assailed only by a proper action in court; Art. 1390), brought
within the specified prescriptive periods (Arts. 1391);
3.
they are capable of confirmation (Arts. 1392-1396).

Confirmation (or, as somewhat inaccurately called by the Civil Code,
ratification) can be done either expressly or tacitly, but, in either case, only
by the party whose consent was vitiated, and only after he has acquired
capacity or after the cessation of the vitiating cause.
94
4.
the action for annulment can be maintained only by or on behalf of the

incapacitated party, never by the other party (Art. 1397);
5.
similarly to cases of rescission under Article 1385, and resolution under

Article 1191, the general rule in annulment of voidable contracts is mutual
restitution, i.e. the parties should be returned to their original situation.
Defective Contracts
Unenforceable Contracts
Third in the classification of defective contracts are the unenforceable, which are
just a notch higher than the void. As such, they cannot be given effect and cannot be the
basis of an action for specific performance. Their defect, however, is not irremediable;
it can be cured in a process called ratification.
a)
The first of the unenforceable contracts is that referred to in Article 1403,
par. 1:
(1) Those entered into in the name of another person by one who
has been given no authority or legal representation, or who has acted beyond
his powers.
To the same effect are the provisions of Article 1317.
Art. 1317. No one may contract in the name of another without
being authorized by the latter, or unless he has by law a right to represent
him.
A contract entered into in the name of another by one who has no
authority or legal representation, or who has acted beyond his powers,
shall be unenforceable, unless it is ratified, expressly or impliedly, by the
person on whose behalf it has been executed, before it is revoked by the
other contracting party.
Thus also provides Article 1910, par. 2.
As for any obligation wherein the agent has exceeded his power,
the principal is not bound except when the ratifies it expressly or tacitly.
b)
The second kind of unenforceable contracts is found in Article 1403, par. 3:
Those where both parties are incapable of giving consent to a

contract.
The confirmation by one of the incapacitated parties does not convalidate the
contract; it merely raises the contract one rung higher to the level of a voidable contract.
95
Defective Contracts
c)
The third and best-known kind of the unenforceable contracts includes
those enumerated by Article 1403, par. 2 the provision that is commonly known as the
Statute of Frauds.
Rationale of Statute of Frauds
The rationale of the requirement in the Statute of Frauds that the contracts therein
enumerated must be in writing is that the frailty of human memory, or, more frequently
perhaps, the mischief of fraud, can impede the honest and accurate enforcement of a
contract entered into merely orally. The Statute of Frauds is a cautious qualification to
the general rule that contracts, no matter in what form they are entered into, are valid and
enforceable. (Vide Arts. 1315 and 1356).
Thus Article 1403, par. 2 provides:
Art. 1403. The following contracts are unenforceable, unless they
are ratified:
xxx
xxx
xxx
(2) Those that do not comply with the Statute of Frauds as set
forth in this number. In the following cases an agreement hereafter made
shall be unenforceable by action, unless the same, or some note or
memorandum thereof, be in writing, and subscribed by the party charged,
or by his agent; evidence, therefore, of the agreement cannot be received
without the writing, or a secondary evidence of its contents:
(a)
An agreement that by its terms is not to be performed within a
year from the making thereof;
(b) A special promise to answer for the debt, default, or
miscarriage of another;
(c) An agreement made in consideration of marriage, other than a
mutual promise to marry;
(d) An agreement for the sale of goods, chattels or things in action,
at a price not less than five hundred pesos, unless the buyer accept and
receive part of such goods and chattels, or the evidences, or some of
96
Defective Contracts
them, of such things in action, or pay at the time some part of the purchase
money; but when a sale is made by auction and entry is made by the
auctioneer in his sales book, at the time of the sale, of the amount and kind
of property sold, terms of sale, price, names of the purchasers and person
on whose account the sale is made, it is a sufficient memorandum;
(e)
An agreement for the leasing for a longer period than one
year, or for the sale of real property or of an interest therein;
(f)
A representation as to the credit of a third person.
Purpose of Statute of Frauds

Since the purpose of the Statute of Frauds is, quite obviously, to prevent, and not
to promote fraud (PNB v. Philippine Vegetable Oil Co., 49 Phil. 857 [1927]; Shoemaker
v. La Tondea, 68 Phil. 24 [1939]; Carbonel v. Poncio, 103 Phil. 655 [1958], Mactan
Cebu International Airport Authority v. CA, 263 SCRA 736 [1996]), the application of
the statute has been limited to contracts which are wholly unperformed on both sides,
i.e. to executory contracts, not to those executed in whole or in part or either side.
Otherwise stated, if there has been so much as partial execution on either side, the
contract is taken out of the scope of the Statute of Frauds and oral evidence is admissible
to prove it. (Vide Sps. Camara v. Sps. Malabao, GR 154650, 31 July 2003). The reason
for this rule is clearly explained in an extended discussion in Carbonel v. Poncio (103
Phil. 655 [1958]), which deserves to be quoted at length:
x x x. It is well settled in this jurisdiction that the Statute of Frauds
is applicable only to executory contracts (Facturan vs. Sabanal, 81 Phil.,
512), not to contracts that are totally or partially performed (Almirol, et al.,
vs. monserrat, 48 Phil., 67, 70; Robles v. Lizarraga Hermanos, 50 Phil.,
387; Diana vs. Macalibo, 74 Phil., 70).
Subject to a rule to the contrary followed in a few
jurisdictions, it is the accepted view that part performance of
a parol contract for the sale of the real estate has the effect,
subject to certain conditions concerning the nature and extent
of the acts constituting performance and the right to equitable
relief generally, of taking such contract from the operation of
the statute of frauds, so that chancery may decree its specific
performance or grant other equitable relief. It is well settled in
97
Defective Contracts
Great Britain and in this country, with the exception of a few

states, that a sufficient part performance by the purchaser
under a parol contract for the sale of real estate removes the
contract from the operation of the statute of frauds. (49 Am.
Jur. 722-723.)
In the words of former Chief Justice Morn: The reason is simple.
In executory contracts there is a wide field for fraud because unless they
be in writing there is no palpable evidence of the intention of the contracting
parties. The statute has precisely been enacted to prevent fraud. (Comments
on the Rules of Court, by Morn, Vol. III [1957 ed.], p. 178.) However, if
a contract has been totally or partially performed, the exclusion of parol
evidence would promote fraud or bad faith, for it would enable the
defendant to keep the benefits already derived by him from the transaction
in litigation, and, at the same time, evade the obligations, responsibilities or
liabilities assumed or contracted by him thereby.
For obvious reasons, it is not enough for a party to allege partial
performance in order to hold that there has been such performance and to
render a decision declaring that the Statute of Frauds is inapplicable. But
neither is such party required to establish such partial performance by
documentary proof before he could have the opportunity to introduce oral
testimony on the transaction. Indeed, such oral testimony would usually
be unnecessary if there were documents proving partial performance. Thus,
the rejection of any and all testimonial evidence on partial performance,
would nullify the rule that the Statute of Frauds is inapplicable to contracts
which have been partly executed, and lead to the very evils that the statute
seeks to prevent.
The true basis of the doctrine of part performance
according to the overwhelming weight of authority, is that it
would be a fraud upon the plaintiff if the defendant were
permitted to escape performance of his part of the oral
agreement after he has permitted the plaintiff to perform in
reliance upon the agreement. The oral contract is enforced in
harmony with the principle that courts of equity will not allow
the statute of frauds to be used as an instrument of fraud. In
other words, the doctrine of part performance was established
98
Defective Contracts
for the same purpose for which the statute of frauds itself was
enacted, namely, for the prevention of fraud, and arose from
the necessity of preventing the statute from becoming an agent
of fraud for it could not have been the intention of the statute
to enable any party to commit a fraud with impunity. (49 Am.
Jur., 725-726; italics supplied.)
When the party concerned has pleaded partial performance, such
party is entitled to a reasonable chance to establish by parol evidence the
truth of this allegation, as well as the contract itself. The recognition of
the exceptional effect of part performance in taking an oral contract out of
the statute of frauds involves the principle that oral evidence is admissible
in such cases to prove both the contract and the part performance of the
contract. (49 Am. Jur., 927). (Carbonel v. Poncio, et al., 103 Phil. Reports
655 at pp. 658-660)
Contracts Falling Under the Statute of Frauds
Now, then, let us look at the contracts falling under the Statute of Frauds:
1.
Art. 1403
(2) x x x
xxx
xxx
(a)
An agreement that by its terms is not to be
performed within a year from the making thereof;
This paragraph has, in various cases, been interpreted to refer to contracts which,
by their terms, cannot be fully performed within a year (Vide Babao v. Perez, 102 Phil.
756 [1957]; PNB v. Philippine Vegetable Oil Co., 79 Phil. 857 [1927]; Shoemaker v. La
Tondea, 68 Phil. 24 [1939]). There are those, however, who doubt the correctness of
this interpretation. They propose instead that the provision should be understood as
referring to contracts whose performance cannot be commenced within one year. If
interpreted thus, an inconsistency between this provision and the rule on partial
performance will be avoided.
99
Defective Contracts
2.
Art. 1403(2) (b)

(2) x x x
xxx
xxx
(b) A special promise to answer for the debt, default or

miscarriage of another;
This contract is a guaranty (Vide Art. 2047). Thus, all guaranties, whether simple
or solidary, must be in writing to be enforceable.
3.
Art. 1403(2) (c)

(2) x x x
xxx
xxx
(c) An agreement made in consideration of marriage,

other than a mutual promise to marry.
The law has very wisely, and very compassionately, excluded from the rule of
writing a mutual promise to marry, because the universal experience of mankind attests
that mutual promises to marry are made in circumstances where neither the promissor
nor the promissee is in a position, or a mood, to write. Of course, we are all aware that
a mutual promise to marry whether oral or in writing is not enforceable by specific
performance, since that would be involuntary servitude in its cruellest form. Damages,
however, may, in certain cases, be recoverable.
Nevertheless, agreements in consideration of marriage, other than a mutual promise
to marry, may give rise to a cause of action, but to be enforceable, such must be in
writing (Cabague v. Auxilio, 92 Phil. 294).
4.
Art. 1403(2) (d)

(2) x x x
xxx
xxx
(d) An agreement for the sale of goods, chattels or things in

action, at a price not less than five hundred pesos, unless the buyer
accept and receive part of such goods and chattels, or the evidences,
or some of them, of such things in action, or pay at the time some
part of the purchase money; but when a sale is made by auction
100 JOURNAL
Defective Contracts
and entry is made by the auctioneer in his sales book, at the time of
the sale, of the amount and kind of property sold, terms of sale,
price, names of the purchasers and person on whose account the
sale is made, it is a sufficient memorandum;
The minimum amount of five hundred pesos for the requirement of writing in
sales of personalty, is probably too small at present. In 1949, when the Code was
drafted, that amount could probably purchase a good Rolex watch. Now, what can it
buy - - - a keychain?
5.
Art. 1403(2) (e)

2.
xxx
xxx
xxx
(e) An agreement for the leasing for a longer period than

one year, or for the sale of real property or of an interest therein;
The amount involved in the sale of the realty is immaterial for the transaction to
fall under the Statute of Frauds.
The writing that is required for the sale of the real property, so that the requirement
of the Statute of Frauds is fulfilled, is, ordinarily, the written contract of sale itself. But
the sense of the statute is broad enough to include some note or memorandum of the
agreement. Thus, in City of Cebu v. Heirs of Rubi (306 SCRA 408[1999]), the requirement
of writing was deemed met by the fact that, although no deed of sale was ever formalized,
there was an exchange of correspondence between the parties in which the object and
the price had been agreed upon.
Not all agreements affecting realty fall under the Statute of Frauds. The statute
refers only to sales of real property or of an interest therein. Thus, in Hernandez v.
CA (160 SCRA 821 [1988]), the Court held:
x x x. Under the Statute of Frauds, Article 1403(2) (e) of the Civil
Code, such formality is only required of contracts involving leases for
longer than one year, or for the sale of real property or of an interest
therein. Hernandezs testimony is thus admissible to establish his agreement
with Fr. Garcia as to the boundary of their estates. (Hernandez v. CA, 160
SCRA 821 at p. 826)
101
Defective Contracts
Similarly, the Statute of Frauds was held inapplicable to an agreement of partition

among co-owners of parcels of land (Espina v. Abaya, 196 SCRA 312 [1991]) or to
one creating an easement of right of way (Western Mindanao Lumber v. Medalle, 79
SCRA 703 [1977]). More recently, it has been held that a right of first refusal relating to
the purchase of a house-and-lot need not be written to be enforceable (Rosencor v.
Inquing, 354 SCRA 119 [2001]).
6.
Art. 1403(2) (f)

2
xxx
(f)
xxx
xxx
A representation as to the credit of a third person.
This paragraph is misplaced here the act referred to is not a contract. The
representation, if made the basis of liability, is quasi-delictual in nature.
Instead of par. (f), Art. 1443 should have been included in the enumeration:
Art. 1443. No express trusts concerning an immovable or any
interest therein may be proved by parol evidence.
Void Contracts
Fourth in the enumeration of defective contracts are the void or inexistent contracts,
the most seriously defective of all:
Art. 1409. The following contracts are inexistent and void from
the beginning:
(1) Those whose cause, object or purpose is a contrary to law,
morals, good customs, public order or public policy;
(2) Those which are absolutely simulated or fictitious;
(3) Those whose cause or object did not exist at the time of the
transaction;
(4) Those whose object is outside the commerce of men;
(5) Those which contemplate an impossible service;
(6) Those where the intention of the parties relative to the principal
object of the contract cannot be ascertained;
(7) Those expressly prohibited or declared void by law.
102 JOURNAL
Defective Contracts
These contracts cannot be ratified. Neither can the right to set up

the defense of illegality be waived.
Characteristics of Void Contracts
The following rules regarding void contracts may be mentioned:
1.
They produce no effect whatsoever either against or in favor of anyone
(quod nullum est nullum producit effectum).
2.
No action for annulment is necessary. Their nullity exists eo ipso and
therefore any judgment of nullity is merely declaratory.
3.
They can neither be confirmed nor ratified. (Art. 1409).
4.
If performance is made, restoration of what has been delivered is required,
except when the pari delicto rule is applicable.
5.
The right to set up the defense of nullity cannot be waived. (Art. 1409).
6.
The action or defense of nullity does not prescribe (Art. 1410).
7.
The defense of nullity may be invoked by anyone against whom the effects
of the contract are asserted (Art. 1421; Tongoy v. CA, 123 SCRA 99 [1983]).
The Pari Delicto Rule
A word on the pari delicto rule. The old maxim says: In pari delicto non oritur
actio. Or In pari delicto potior est condicio defendentis. Basically the pari delicto rule
mandates that in a void contract, if both parties are at fault, neither can maintain an
action for performance nor recover what he has delivered. The law, in short, will leave
the parties exactly where they are.
Thus provide Articles 1411, par. 1 and the first two paragraphs of 1412:
Art. 1411. When the nullity proceeds from the illegality of the
cause or object of the contract, and the act constitutes a criminal offense,
both parties being in pari delicto, they shall have no action against each
103
Defective Contracts
other, and both shall be prosecuted. Moreover, the provisions of the Penal
Code relative to the disposal of effects or instruments of a crime shall be
applicable to the things or the price of the contract.
xxx
xxx
xxx
Art 1412. If the act in which the unlawful or forbidden cause

consists does not constitute a criminal offense, the following rules shall
be observed:
(1) When the fault is on the part of both contracting parties,
neither may recover what he has given by virtue of the contract, or demand
the performance of the others undertaking;
xxx
xxx
x x x
In Yu Bun Guan v. Ong (367 SCRA 559 [2001]), the Supreme Court reiterated the
settled doctrine that the pari delicto rule applies to cases where the nullity of the contract
arises from the illegality of the object or cause (Vide Modina v. CA, 317 SCRA 696
[1999]; Castro v. Escutin, 90 SCRA 349 [1979]). The statement in these cases that the
pari delicto rule does not apply to void or inexistent contracts is, to put it kindly, less
than accurate. There are some void contracts to which it applies and others to which it
does not. The correct formulation of the rule is contained in Vasquez v. Porta (98 Phil.
490 [1956]):
the maxim applies only in case of existing contracts with illegal
consideration, and is not applicable to simulated or fictitious contracts nor
to those that are inexistent for lack of an essential requisite. (Vasquez v.
Porta, 98 Phil. 490 at p. 495)
Importance Of Classification
Thus are defective contracts classified in our Code. We should be reminded that
the categories are well-defined and mutually exclusive. It is necessary to bear this in
mind because the nature, effects, and consequences of these defective contracts are
essentially different and distinct. For example, a contract cannot be both voidable and
void, since a voidable contract can be cured of its defect while a void contract is
irremediable. Jurisprudence has often, but not always, been helpful. Some cases can be
104 JOURNAL
Defective Contracts
somewhat perplexing. The case of Comelec v. Padilla (the Photokina case) (GR 151992,
18 September 2002) is well-known. The issue there was clearly stated by the Court:
May a successful bidder compel a government agency (i.e., COMELEC) to formalize
a contract with it notwithstanding that its bid exceeds the amount appropriated by Congress
for the project?
Photokinas winning bid far exceeded the amount of funds appropriated for the
purpose. COMELEC had issued a resolution approving the Notice of Award to Photokina,
which in turn accepted the same. As things turned out, the transaction did not carry
through, owing to objections raised by the Chairman of the COMELEC. In refusing to
grant Photokinas petition, the Decision variously characterizes the contract as void
(p. 18, Decision), and as unenforceable (ibid.). At the same time, the Decision in
effect states that there was as yet no perfected contract (We cannot accede to
PHOTOKINAs contention that there is already a perfected contract. [p. 20, Decision]).
Then the Decision reiterates that the contract is inexistent and void ab initio. (p. 25,
Decision). Then it goes back to the concept of unenforceable contracts (otherwise
stated, the proposed contract is unenforceable as to the Government. [p. 26, Decision]).
To round things out, the Decision closes with the statement. In fine, we rule that the
proposed contract is not binding upon the COMELEC and is considered void. (p. 26,
Decision).
Right Of First Refusal
For our final point, I would like to take a brief look at a concept that, of late, has
been the subject-matter of some attention by the Supreme Court, and also the object of
a bit of controversy among some of the Courts members. I refer to the right of first
refusal. The matter has relevance to the concept of rescissible contracts. Referred to in
Ang Yu Asuncion v. CA (238 SCRA 602 [1994]) as an innovative juridical relation in the
law on sales, the court (per Justice Vitug) in that case stated that in a right of first
refusal, while the object might be made determinate, the exercise of the right, however,
would be dependent not only on the grantors eventual intention to enter into a binding
juridical relation with another but also on terms, including the price that obviously are yet
to be later firmed up. (at p. 615)
It differs from an option in that in an option (either to buy or to sell) both the
object and the price are fixed.
105
Defective Contracts
Not, however, until the 1996 case of Equatorial Realty vs. Carmelo and Bauermann
(264 SCRA 483 [1996]) did the right of first refusal come into its own. In Equatorial, the
Court held the right of first refusal to be a proper and valid legal basis for enforcement,
if breached by the grantor of the right. Hence the sale by the owner of the property
object of the right to a third person was rescissible for being (as the Court saw it) in
fraud of creditors, the creditor defrauded being the grantee of the right of first refusal.
To summarize the rules so far laid down by the recent decisions on the right of
first refusal:
1.
It is a contract enforceable at law.
2.
If the property is sold to a third party, the sale can be rescinded and the
grantee of the right can acquire it by paying the price at which it had been sold.
(Vide Equatorial; Paraaque Kings Enterprises v. CA (268 SCRA 727 [1997])];
Litonjua v. L&R Corp. (320 SCRA 405 [1999]; PUP v. CA (368 SCRA 691 [2001]).
As to the necessity of supporting consideration for the right, the Court, after an
apparent uncertainty in Equatorial (note: on page 505, Vol. 264 SCRA, the decision
reads in two closely juxtaposed paragraphs: the requirement of a separate
consideration . . .has no applicability in the instant case. and The consideration is
built into the reciprocal obligations of the parties.), seems to have gained surer footing
in the later cases where the consideration was held to be built into the principal contract
of loan-mortgage (Litonjua) or of lease (PUP).
These holdings on the right of first refusal have provoked vigorous dissents from
Mr. Justice Vitug, a recognized authority on civil law (Equatorial, Litonjua)
Justice Vitug asserts that a right of first refusal is not a contract since there is no
cause or consideration that is specified (cause being an essential element of contract).
Violation of the right gives rise merely to damages under Article 19 (under the Title on
Human Relations). For this reason, according to him, Art. 1381 (par. 3), on rescission
of contracts in fraud of creditors, is misapplied in this instance.
The concept of a right of first refusal as a simple juridical relation,
and so governed (basically) by the Civil Codes title on Human Relations,
is not altered by the fact alone that it might be among the stipulated items in
a separate document or even in another contract. A breach of the right of
106 JOURNAL
Defective Contracts
first refusal can only give rise to an action for damages primarily under
Article 19 of the Civil Code, as well as its related provisions, but not to an
action for specific performance set out under Book IV of the Code on
Obligations and Contracts. That right, standing by itself, is far distant
from being the obligation referred to in Article 1159 of the Code which
would have the force of law sufficient to compel compliance per se or to
establish a creditor-debtor or obligee-obligor relation between the parties.
If, as it is rightly so, a right of first refusal cannot even be properly classed
as an offer or as an option, certainly, and with much greater reason, it
cannot be the equivalent of, nor be given the same legal effect as, a duly
perfected contract. It is not possible to cross out, such as we have said in
Ang Yu Asuncion vs. Court of Appeals (238 SCRA 602), the indispensable
element of consensuality in the perfection of contracts. It is basic that
without mutual consent on the object and on the cause, a contract cannot
exist. (Art. 1305, Civil Code); corollary to it, no one can be forced, least of
all perhaps by a court, into a contract against his will or compelled to
perform thereunder. (Dissenting Opinion, Equatorial Realty v. Mayfair
Theater, Inc., 264 SCRA 483, at pp 528-529).
Mme. Justice Romero, another distinguished member of the Court and professor
of civil law, likewise expressed disagreement with the holdings. She pointed out, in her
concurring-and-dissenting opinion in Equatorial, that in case of dishonor by the grantor
of the right of first refusal, only damages are recoverable, unlike options, which can give
rise to contracts of sale.
An option is a privilege granted to buy a determinate thing at a price
certain within a specified time and is usually supported by a consideration
which is why, it may be regarded as a contract in itself. The option results
in a perfected contract of sale once the person to whom it is granted decides
to exercise it. The right of first refusal is unlike an option which requires a
certainty as to the object and consideration of the anticipated contract.
When the right of first refusal is exercised, there is no perfected contract of
sale because the other terms of the sale have yet to be determined. Hence,
in case the offeror reneges on his promise to negotiate with offeree, the
latter may only recover damages in the belief that a contract could have
been perfected under Article 19 of the New Civil Code. (Concurring and
Dissenting Opinion, at p. 526).
107
Defective Contracts
Justice Romero likewise considers Art. 1381, par. 3 inapplicable to this case
because the grantee of the right is not a creditor within the purview of that article.
The last has not been said of this matter. Whether the rulings cited above will
become established doctrine or be modified or even reversed is for the future stream of
jurisprudence to determine.
______
______
108 JOURNAL
An Overview of the Expanded Court of Tax Appeals

Anthony Mark A. Gutierrez*
Introduction
Republic Act (R.A.) No. 9282, which took effect on April 23, 2004, amended
several key provisions of R.A. No. 1125 (the law creating the Court of Tax Appeals or
CTA). It expanded the CTAs jurisdiction to include, among others, tax collection
cases, local and real property taxes, and criminal cases involving violations of tax and
customs cases. The law also upgraded the CTAs rank to that of the Court of Appeals
and increased the number of magistrates.
The primary objective of Congress in expanding the CTAs jurisdiction is to curb
delays in the disposition of cases for the collection of internal revenue, local and real
property taxes, which have remained unattended in the regular courts in view of their
clogged dockets. Vesting the CTA with jurisdiction over both the civil and criminal
aspects of tax cases not only could improve the efficiency of the system, but also
enhance and maximize the development of judicial precedence on tax matters. Some
policy makers and experts see this as vital to effective tax administration. Furthermore,
the expansion of the CTAs jurisdiction is recognition of that courts expertise in the
field of taxation.
Upgrading the CTAs rank to one equal to that of the Court of Appeals, on the
other hand, is expected to lessen divisive rulings on tax matters because the appeal may
now be made only to the CTA en banc instead of the Court of Appeals with its several
divisions. Decisions of the CTA en banc may now be appealed directly to the Supreme
Court on questions of law.
The increase in the number of magistrates is intended to complement the anticipated
increase in caseload.
The amendments as a whole are also aimed at addressing problems of tax evasion
and smuggling because a single tax court can be expected to more properly coordinate
with revenue collection agencies in their efforts to curb these problems.1
The author is an associate of SyCip Salazar Hernandez & Gatmaitan.

See Sen. Franklin Drilons sponsorship speech on December 1, 2003 at the Second Reading of Senate Bill No. 2712 Expanding the
Jurisdiction of the CTA.
109
This is not the first time that Congress has attempted to expand the CTAs
jurisdiction. The Eleventh Congress passed a measure similar to R.A. No. 9282 which
was vetoed by the President not because of lack of merit but because the Supreme
Courts concurrence was not secured pursuant to the 1987 Constitution, Article VI,
section 30.2
Legislative History
Prior to the CTAs creation, a Board of Tax Appeals (BTA) was created pursuant
to E.O. No. 401-A. The BTA was tasked with hearing and deciding appeals from decisions
of the Collector of Internal Revenue in cases arising from internal revenue, customs and
assessment laws. However, the BTAs power to hear and decide such cases was nullified
by the Supreme Court on the ground that regular courts cannot be deprived of their
jurisdiction by mere executive fiat without authority from Congress.3
The CTA was established in 1954 pursuant to R.A. No. 1125 for the main purpose
of creating a court having exclusive appellate jurisdiction over disputed tax assessments
and transferring to its jurisdiction all cases involving assessments previously cognizable
by courts of first instance.4
When it was created, the CTA originally exercised appellate jurisdiction over the
following cases: (i) decisions of the Commissioner of Internal Revenue (CIR) in cases
involving disputed assessments, refunds of internal taxes, fees or other charges, penalties
imposed in relation thereto, or other matters arising under the National Internal Revenue
Code (the Tax Code) or other law or part of law administered by the Bureau of
Internal Revenue (BIR); (ii) decisions of the Commissioner of Customs in cases
involving liability for customs duties, fees or other money charges; seizure, detention or
release of property affected; fines, forfeitures or other penalties imposed in relation
thereto; or other matters arising under the Customs Law of other law or part of law
administered by the Bureau of Customs (BOC); and (iii) decisions of provincial or
city Boards of Assessment Appeals (BAA) in cases involving the assessment and
taxation of real property or other matters arising under the Assessment Law, including all
rules and regulations relative thereto.5
See Deliberations of the Senate Committee on Ways and Means, October 15, 2003 re Elevation of CTA to a Collegiate Court at page
2.
3
See University of Santo Tomas v. Board of Tax Appeals 93 Phil 376 [1953].
4
See Republic of the Philippines v. Abella, 102 SCRA 743 [1981].
5
See R.A. No. 1125, section 7 before its amendment.
110
The CTAs jurisdiction over decisions of provincial or city BAAs was subsequently
transferred to the Central Board of Assessment Appeals (CBAA) pursuant to the Real
Property Tax Code, and had continued to remain with the CBAA with the passage of the
Local Government Code of 1991.6
The Safeguard Measures Act of 2000 expanded the CTAs appellate jurisdiction
to include decisions of the Secretary of Trade and Industry (in the case of non-agricultural
products, commodities, or articles) and the Secretary of Agriculture (in the case of
agricultural products, commodities, or articles) involving dumping and countervailing
duties under section 301 and 302 of the Tariff and Customs Code and safeguard
measures.7
The CTA and its Justices
The CTA originally consisted of a Presiding Judge and two Associate Judges.
The Presiding Judge had the same qualifications, rank, category and privileges as the
Presiding Judge of the Court of Industrial Relations (the predecessor of the National
Labor Relations Commission), while the Associate Judges had the same qualifications,
rank, category and privileges as members of the Court of Industrial Relations.8
With the passage of R.A. No. 9282, the CTA is now of the same level as the
Court of Appeals and now consists of a Presiding Justice and five Associate Justices.9
The incumbent Presiding Judge and Associate Judges will continue in office and
bear the new titles of Presiding Justice and Associate Justice. The Presiding Justice and
the most Senior Associate Justice will serve as chairman of two Divisions.10 These
provisions are necessary so as not to undermine the security of tenure enjoyed by the
incumbent Presiding Judge and Associate Judges.11
The President will appoint the additional three Justices and succeeding members
of the CTA, upon nomination by the Judicial and Bar Council. The Presiding Justice will
be so designated on his appointment and the Associate Justices will have precedence
according to the date of their respective appointments, or, when the appointments of
See P.D. No. 464, section 36 and R.A. No. 7160, section 230.
See R.A. No. 8800, section 29.
8
9
See R.A. No. 1125, section 1 as amended.
10
11
See 1987 Constitution, Article VII, section 2 on reorganization of the judiciary.
7
111
two or more of them bears the same date, according to the order in which the appointments
were issued by the President.12
The Justices will have the same qualification, rank, category, salary, emoluments
and other privileges, be subject to the same inhibitions and disqualifications, and enjoy
the same retirements and other benefits as those provided for under existing laws for the
Presiding Justice and Associate of the Court of Appeals.13
The Justices are disqualified from intervening, directly or indirectly, in the
management or control of any private enterprise, which in any way may be affected by
the functions of the CTA. They are likewise disqualified from sitting in any case on the
same grounds provided under Rule 137 of the Rules of Court (the Rules) for the
disqualification of judicial officers.14
The Justices will hold office during good behavior, until they reach the age of 70,
or become incapacitated to discharge the duties of their office, unless sooner removed
for the same causes and in the same manner provided by law for members of the
judiciary of equivalent rank.15 They are disqualified to act as counsel before the CTA for
a period of one year from his retirement or resignation.16
The CTA en banc and its Divisions
Four Justices will constitute a quorum for sessions en banc. The affirmative
votes of the same number of Justices will be necessary for the rendition of a decision or
resolution.
Two Justices will constitute a quorum for sessions of a Division. The affirmative
votes of the same number of Justices shall be necessary for the rendition of a decision
or resolution. However, when the required quorum in a Division cannot be constituted
due to any vacancy, disqualification inhibition, disability, or any other lawful cause, the
Presiding Justice can designate any Justice of other Division of the Court to sit temporarily
therein.
12

14
15
16
13
112
Expanded Jurisdiction of the CTA

National Internal Revenue Cases The CTA has maintained its appellate
jurisdiction to review by appeal decisions of the CIR in cases involving disputed
assessments, refunds of internal revenue taxes, fees, other charges, penalties thereto, or
other matters arising under the Tax Code or other laws administered by the BIR.17
However, the CIRs inaction in cases involving disputed assessments, refunds of
internal revenue taxes, fees or other charges, penalties in relations thereto, or other
matters arising under the Tax Code or other laws administered by the BIR, where the
Tax Code provides a specific period of action, is now expressly deemed as a denial
which may be appealed to the CTA.18 This amendment will put in issue the continued
applicability of the ruling in Lascona v. CIR (CTA Case No. 5777, January 4, 2000) that,
in cases of inaction, Section 228 of the Tax Code grants the taxpayer an option either to:
(i) appeal to the CTA within 30 days from the lapse of the 180 day period provided for
under the said section; or (ii) wait until the CIR decides on the protest before elevating
the case to the CTA without rendering the assessment final and executory.
The appeal from the CIRs decision or inaction is made by filing a petition for
review under a procedure analogous to that provided for under Rule 42 within 30 days
from receipt of the decision or ruling or, in case of inaction, from the expiration of the
period prescribed by law to act thereon. The appeal shall be heard by a division of the
CTA.19
Local Tax Cases The CTA now has exclusive appellate jurisdiction over
decisions, orders or resolutions of RTCs in local tax cases, whether decided or resolved
by them in the exercise of their original or appellate jurisdiction.20
If the decision, order or resolution was decided or resolved by the RTC in the
exercise of its original jurisdiction, the appeal shall be taken by filing a petition for review
under a procedure analogous to the provisions of Rule 42 within 30 days from receipt of
the decision or ruling. The appeal shall be heard by a CTA division.21
17
See R.A. No. 1125, section 7[1] as amended.

19
20
21
18
113
On the other hand, if the decision, order or resolution was decided or resolved by
the RTC in the exercise of its appellate jurisdiction, the appeal shall be taken by filing a
petition for review under a procedure analogous to the provisions of Rule 43 within 30
days from receipt of the decision or ruling. The appeal shall be heard en banc.22
It must be noted that the modes and periods of appeal to the CTA for local tax
cases are different from those applicable to ordinary civil actions. An appeal to the
Court of Appeals from a decision of the RTC in the exercise of its original jurisdiction is
taken by filing a notice of appeal within 15 days from notice of the judgment or final
order appealed from,23 while an appeal from a decision of the RTC in the exercise of its
appellate jurisdiction is taken by filing a petition for review within 15 days from notice of
the decision sought to be reviewed or of the denial of petitioners motion for new trial or
reconsideration filed in due time after judgment.24
Customs Cases The CTA continues to exercise its appellate jurisdiction to
review by appeal decisions of the Commissioner of Customs in cases involving liability
for customs duties, fees or other money charges, seizure, detention or release of property
affected, fines, forfeitures or other penalties in relation thereto, or other matters arising
under customs laws or other laws administered by the BOC.25
However, decisions of the Secretary of Finance on customs cases elevated to
him automatically for review from decisions of the Commissioner of Customs adverse
to the government under Section 2315 of the Tariff and Customs Code may now also be
appealed to the CTA.26
The appeal, either from a decision of the Commissioner of Customs or the
Secretary of Finance, should be made by filing a petition for review under a procedure
analogous to that provided for under Rule 42 within 30 days from receipt of the decision
or ruling. The appeal will be heard by a division of the CTA.27
Real Property Assessments The CTA now has exclusive appellate jurisdiction
over decisions of the CBAAs in the exercise of its appellate jurisdiction over cases
22

See Rule 41, sections 2 and 3.
24
See Rule 42, section 1.
25
26
27
23
114
involving assessment and taxation of real property decided originally by provincial or

city BAAs.28
Appeals from decisions of the CBAA may be taken by filing a petition for review
under a procedure analogous to the provisions of Rule 43 within 30 days from receipt of
the decision. The case shall be heard en banc.29
Decisions of the CBAA were previously appealed to the Court of Appeals by
way of a petition for review under Rule 43 within 15 days from notice of the award,
judgment, final order or resolution, or of the denial of petitioners motion for
reconsideration.30
Dumping and Countervailing Cases The CTA continues to exercise its
exclusive appellate jurisdiction over decisions of the Secretary of Trade and Industry (in
the case of non-agricultural products, commodities, or articles) and the Secretary of
Agriculture (in the case of agricultural products, commodities, or articles) involving
dumping and countervailing duties under section 301 and 302 of the Tariff and Customs
Code and safeguard measures under R.A. No. 8800.31
However, the appeal shall now be taken by filling a petition for review under a
procedure analogous to Rule 42 within 30 days from receipt of the decision, instead of
a petition for review under Rule 43. The appeal shall be heard by a division of the
CTA.32
Under R.A. No. 8800, the filing of the petition for review shall not in any way
stop, suspend or otherwise toll the imposition or collection of the appropriate tariff
duties or the adoption of other appropriate safeguards measures, as the case may be.33
Criminal Cases - Original Jurisdiction The CTA now has exclusive original
jurisdiction over all criminal offenses arising from violations of the Tax Code, Tariff and
Customs Code and other laws administered by the BIR and BOC where (i) the principal
amount of taxes and fees, exclusive of charges and penalties, claimed is at least
P1,000,000.00; or (ii) there is no specified amount claimed.34
28

30
See section 1.
31
See R.A. No. 1125, section 7[7] as amended; see also R.A. No. 8800, section 29.
32
See R.A. No. 1125, section 11 as amended and R.A. No. 8800, section 29.
33
See section 29.
34
See R. A. No. 1125, section 7[b][1] as amended.
29
115
The Government may directly file the criminal case with the CTA.35 However, the
criminal action and the corresponding civil action for the recovery of civil liability for
taxes and penalties shall at all times be simultaneously instituted with, and jointly
determined in the same proceeding by, the CTA. The filing of the criminal action is
deemed to necessarily carry with it the filing of the civil action, and no right to reserve
the filing of such civil action separately from the criminal action shall be recognized
similar to criminal actions for violation of the Bouncing Checks Law,36 and offenses
committed by public officers in relation to the duties.37 This is a departure from the
general rule in criminal procedure granting the offended party a right to institute separately
the civil action for the recovery of civil liability of the offense charged.38
Granting the CTA original jurisdiction over criminal offenses without regard to the
place of commission is another express departure from the general rule on criminal
procedure relating to venue over criminal cases cognizable by regular courts similar to
criminal offenses cognizable by the Sandiganbayan. Criminal actions are generally
instituted and tried in the court of the municipality or territory where the offense was
committed or where any of its essential ingredients occurred primarily to prevent the
accused from being compelled to stand trial in a court outside the province where the
offense was committed and avoid expenses and inconvenience in presenting his defense.39
On all other matters relating to prosecution of criminal offenses, the general rule
applicable in regular courts shall likewise apply in the CTA.40
Criminal Cases - RTC/MTC Original Jurisdiction Regular courts will have
jurisdiction over criminal offenses arising from violations of the Tax Code, Tariff and
Customs Code and other laws administered by the BIR and BOC where (i) the principal
amount or taxes and fees, exclusive of charges and penalties, claimed is less
thanP1,000,000.00; or (ii) there is no specified amount claimed.41
Under the present set up of regular courts, jurisdiction over criminal offenses is
generally determined on the basis of the imposable penalty expressed in numbers of
years. Metropolitan Trial Courts, Municipal Trial Court and Municipal Circuit Trial Courts
(MTC) have jurisdiction over criminal cases involving offenses punishable with
35

See Rule 111, section 1[b].
37
See P.D. No. 1606 as amended by P.D. No. 1861.
38
See Rule 111, section 1[a].
39
See Rule 110, section 15[a].
40
41
See R.A. No. 9282, section 7[b][1] as amended.
36
116
imprisonment not exceeding six years irrespective of the amount of fine, and regardless
of other imposable accessory or other penalties, including the civil liability arising from
such offenses or predicated thereon, irrespective of kind, nature, value or amount thereof.42
On the other hand, criminal cases involving offenses punishable with imprisonment
exceeding six years fall within the jurisdiction of a RTC.43 For offenses where the only
penalty provided by law is a fine, jurisdiction is determined on the basis of the amount
of imposable fine. If the amount of fine exceeds P4,000.00, the RTC shall have jurisdiction
over the case; if it does not exceed such amount, the MTC shall have jurisdiction.44
Criminal Cases - Appellate Jurisdiction The CTA now has exclusive appellate
jurisdiction over judgments, resolutions, or orders of the RTC in criminal offenses
involving tax cases, whether decided or resolved by them in the exercise of their original
or appellate jurisdiction.45
The appeal may be taken by filing a petition for review under a procedure analogous
to Rule 42 if the decision, order or resolution was decided or resolved by the RTC in the
exercise of its original jurisdiction, while the appeal shall be taken by filing a petition for
review under a procedure analogous to Rule 43 if the decision, order or resolution was
decided or resolved by the RTC in the exercise of its appellate jurisdiction. The appeal
should, nonetheless, be filed within 30 days from receipt of the decision in both cases.46
It must be noted that the modes and periods of appeal to the CTA for criminal
cases are different from those applicable to ordinary criminal cases. An appeal to the
Court of Appeals from a decision of the RTC in the exercise of its original jurisdiction
are taken by filing a notice of appeal within 15 days from promulgation of the judgment
or notice of the final order appealed from,47 while an appeal from a decision of the RTC
in the exercise of its appellate jurisdiction are taken by filing a petition for review under
Rule 42 within 15 days from notice of the decision sought to be reviewed or of the
denial of petitioners motion for new trial or reconsideration filed in due time after
judgment.48
42
See BP 129, section 32[2] as amended by R.A. No. 7691.

See BP 129, section 20 as amended by R.A. No. 7691.
44
See B.P. Blg 129, section 32 as amended by R.A. No. 7691.
45
See R.A. No. 1125, sections 7[b][2][a] and 7[b][2][b] as amended.
46
47
See Rule 122, sections 3[a] and 6).
48
See Rule 122, section 3[b].
43
117
On all other matters relating to appeal of criminal offenses, the general rule applicable
in regular courts will likewise apply in the CTA.49
Tax Collection Cases - Original Cases The CTA now has exclusive original
jurisdiction over tax collection cases involving final and executory assessments for taxes,
fees, charges and penalties, except tax collection cases where the principal amount of
taxes and fees, exclusive of charges and penalties claimed is at least One Million Pesos
(P1,000,000.00).50 The Government is allowed to directly file the tax collection case
with the CTA.51
Tax Collection Cases RTC/MTC Original Jurisdiction Regular courts shall
have exclusive original jurisdiction over tax collection cases involving final and executory
assessments for taxes, fees, charges and penalties where the principal amount of taxes
and fees, exclusive of charges and penalties claimed is less than One Million Pesos
(P1,000,000.00).52
Under the present set up of regular courts, jurisdiction over collection cases is
generally determined on the basis of the amount sought to be collected as well as the
place where the courts sit. MTCs have jurisdiction over collection cases where the
amount sought to be collected does not exceed P400,000.00 if within Metro Manila, and
P300,000.00 if outside Metro Manila.53 On the other hand, RTCs have jurisdiction over
collection cases where the amount sought to be collected exceeds P400,000.00 if within
Metro Manila, and P300,000.00 if outside Metro Manila.54
Tax Collection Cases -Appealed Cases The CTA now has exclusive appellate
jurisdiction over judgments, resolutions, or orders of the RTC in criminal offenses
involving tax cases, whether decided or resolved by them in the exercise of their original
or appellate jurisdiction.55
The appeal shall be taken by filing a petition for review under a procedure analogous
to Rule 42 if the decision, order or resolution was decided or resolved by the RTC in the
exercise of its original jurisdiction, while the appeal shall be taken by filing a petition for
review under a procedure analogous to Rule 43 if the decision, order or resolution was
49

See R.A. No. 1125, section 7[c] as amended.
51
52
See R.A. No. 1125, section 7[c] as amended.
53
See B.P. Blg. 129, section 33[1] as amended by R.A. No. 7691.
54
See B.P. Blg. 129, sections 31[8] as amended by R.A. No. 7691.
55
See R.A. No. 1125, sections 7[c][2][a] and 7[c][2][b] as amended.
50
118
decided or resolved by the RTC in the exercise of its appellate jurisdiction. The appeal
should, nonetheless, be filed within 30 days from receipt of the decision in both cases.56
It must be noted that the modes and periods of appeal to the CTA for tax collection
cases are different from those applicable to ordinary collection cases before regular
courts. An appeal to the Court of Appeals from a decision of the RTC in the exercise of
its original jurisdiction is taken by filing a notice of appeal within 15 days from notice of
the judgment or final order subject to the appeal,57 while an appeal from a decision of the
RTC in the exercise of its appellate jurisdiction is taken by filing a petition for review
within 15 days from notice of the decision sought to be reviewed or of the denial of
petitioners motion for new trial or reconsideration filed in due time after judgment.58
Injunctive Relief
As a rule, no appeal taken to the CTA from the decision of the CIR, the
Commissioner of Customs, the RTC, provincial city or municipal treasurer, the Secretary
of Finance, the Secretary of Trade and Industry and Secretary of Agriculture, as the
case may be, shall suspend the payment, levy, distraint, and /or sale of any property of
the taxpayer for the satisfaction of his tax liability as provided by existing law. However,
when in the opinion of the CTA the collection by the aforementioned government agencies
may jeopardize the interest of the Government and/or the taxpayer, the CTA may, at any
stage of the proceeding, suspend the collection and require the taxpayer either to deposit
the amount claimed or to file a surety bond for not more than double the amount with the
CTA.59
Decisions and Maximum Period for Termination of Cases
Cases brought before the CTA shall be decided in accordance with 1987
Constitution, Article VIII (Judicial Department), section 15[1] which provides that all
cases or matters filed with collegiate courts after the 1987 Constitution must be decided
or resolved within 12 months from the date the case or matter is submitted for decision
or resolution.60
56

See Rule 41, sections 2 and 3.
58
See Rule 42, section 1.
59
60
57
119
Decisions of the CTA are mandated to be in writing, stating clearly and distinctly
the facts and the law on which they are based, and signed by the concurring Justices.
The CTA shall provide for the publication of its decisions in the Official Gazette in such
form and manner as may best be adopted for public information and use.61
Distraint of Personal Property and/or Levy on Real Property
Upon the issuance of any ruling, order or decision by the CTA favorable to the
national government, the CTA shall issue an order authorizing the BIR, through the CIR,
to seize and distraint any goods, chattels, or effects, and the personal property, including
stocks and other securities, debts, credits, bank accounts, and interest in and rights to
personal property and/or levy the real property of such person in sufficient quantity to
satisfy the tax or charge together with any increment thereto incident to delinquency.
This remedy shall not be exclusive and shall not preclude the CTA from availing of other
means under the Rules.62
Motion for Reconsideration and appeal to the CTA en banc
A party adversely affected by a ruling, order or decisions of a Division of the
CTA may file a motion for reconsideration or new trial before the same Division of the
CTA within 15 days from notice thereof.63
A party adversely affected by a resolution of a CTA Division on a motion for
reconsideration or new trial may file a petition for review with the CTA en banc. The
period for filing an appeal from a resolution of CTA Division to the CTA en banc is not
however expressly provided under the law.64
Prior to the passage of R.A. No. 9282, decisions of the CTA could be elevated to the
Court of Appeals via petitions for review under Rule 43 within 15 days from receipt of
the decision of the CTA or of the denial of petitioners motion for new trial or
reconsideration.65
61

See R.A. No. 9282, section 13.
63
64
65
See Administrative Circular No. 1-95 and Rule 43, section 1.
62
120 JOURNAL
Appeal to the Supreme Court

A party adversely affected by a decision of the CTA en banc may file with the
Supreme Court a petition for review on certiorari pursuant to Rule 45 within 15 days
from notice of the judgment or final order or resolution appealed from, or of the denial
of petitioners motion for new trial or reconsideration filed in due time after notice of the
judgment.66 This is similar to the appellate procedure established upon the creation of
the CTA (but before Administrative appellate jurisdiction over decisions of the CTA was
transferred to the Court of Appeals) where the party adversely affected may appeal any
ruling, order or decision of the CTA directly to the Supreme Court by filing a notice of
appeal with the CTA and a petition for review with the Supreme Court within 30 days
from receipt of the decision.67
______
______
66
67
See R.A. No. 1125, section 19 as amended in relation to Rule 45, section 2.
121
Power Industry Reform in the Philippines

Rocky L. Reyes*
Introduction
Delayed privatization, increasing electric power rates, and predicted power
shortages these are the concerns that continue to plague the countrys electric power
industry.
More than three years ago, the Philippines, spurred by a combination of factors,
including mounting financial difficulties and a policy by the Government to privatize
government corporations, embarked on the privatization of the National Power
Corporation (NPC) and a restructuring of the Philippine electric power industry. Various
bills (each proposing a different approach to privatization) were filed in both houses of
Congress, ultimately leading to the passage of the Electric Power Industry Reform Act
of 2001 (Republic Act No. 9136, hereinafter the Power Reform Law) on June 8, 2001.
The Power Reform Law became effective on June 26, 2001.
As was expected at the time of its enactment, the Power Reform Law clearly is
only the first step in what is proving to be a long and complicated process of restructuring
the Philippine power industry.
Regulatory Framework Prior to the Power Reform Law
Since 1972, the responsibility for setting up the transmission line grids and the
construction of associated generation facilities throughout the country rested solely with
NPC, a chartered corporation wholly-owned by the Philippine Government. While it
previously shared power generation activities with various electric utilities (such as the
Manila Electric Company), NPC virtually became the sole owner and operator of all
electric generating facilities from the early seventies. It was only in 1987 when the private
sector was again allowed to construct and operate electric generating facilities. Even
then, the operation and maintenance of the countrys power grids remained the exclusive
jurisdiction of NPC.
The author is a partner of SyCip Salazar Hernandez and Gatmaitan specializing in power, project finance, construction and
infrastructure projects, among others. He has read papers and delivered lectures on these practice areas. He acted as legal adviser
in connection with the drafting of the implementing rules for the BOT law.
122 JOURNAL
Prior to the Power Reform Law, the Philippine electric power industry may be
described as having consisted of the power generators (of which NPC was the dominant
player), the transmission grids (operated and maintained by NPC) and the distribution
companies (consisting both of private companies and independent non-profit electric
cooperatives).
While private companies (usually referred to as independent power producers or
IPPs) were allowed to generate electricity through various contractual arrangements
(such as build-operate-transfer, build-own-operate and rehabilitate-operate-maintain
schemes), NPC remained not only the single biggest generation company but also the
principal offtaker or purchaser of electricity from the generation companies.
Distribution, on the other hand, was primarily undertaken by private companies
who held franchises from the Philippine Government, and by non-profit electric
cooperatives.
The electricity rates were set by the various players in the markets subject to
review by the Energy Regulatory Board.
Structure Under the Power Reform Law
Under the Power Reform Law, the principal groups that constituted the power
industry (generation, transmission and distribution) remain. However, NPCs dominant
role has been reduced to generating and selling electricity from facilities that are yet to be
disposed of pursuant to the privatization of its assets, and to continuing its missionary
electrification function (i.e., generation and delivery of power in areas of the Philippines
not connected to the grids).
The Power Reform Law divides the power industry into four sectors, namely:
a.
b.
c.
d.
the Generation Sector,

the Transmission Sector,
the Distribution Sector, and
the Supply Sector.
Generation Sector The Power Reform Law expressly provides that power
generation is not a public utility operation. While this has been the position taken by the
administrative agencies and, in fact, was already being implemented by the previous
regulatory regime, this is the first time that this principle has been expressed in a statute.
123
Consequently, it is now clear that the nationality and franchise requirements that are
applicable to the operation of public utilities have no application to the business of
generating electric power. The Power Reform Law, however, requires generation
companies to secure certificates of compliance with the requirements of the Power
Reform Law from the Energy Regulatory Commission (the ERC). The ERC is an
independent, quasi-judicial regulatory body that succeeded the now abolished Energy
Regulatory Board.
Another pre-Power Reform Law issue was the treatment for value-added tax
purposes of the sales of electricity by the generation companies. The Power Reform
Law has resolved this issue by expressly providing that such sales will be zero-rated for
value-added tax purposes.
Finally, as the main thrust of the Power Reform Law is to move towards retail
competition for and open access to sales of electricity, the rates to be charged by the
generation companies will not be subject to regulation by the ERC upon implementation
of such open access.
Transmission Sector Transmission of electric power (i.e., the conveyance of
electricity from the generation companies to the distributors through the high voltage
backbone system) is still a regulated common electricity carrier business subject to the
rate making power of the ERC. Pursuant to its mandate under the Power Reform Law,
the ERC established the guidelines to distinguish between transmission and
subtransmission assets, based on the following technical and functional criteria:
(i) Directly Connected Generators lines, power transformers and other
assets held by TRANSCO (as defined below) or its buyer or concessionaire
which allow the transmission of electricity to a grid from one or more directly
connected generators are classified as transmission assets.
(ii) Directly Connected End-Users radial lines, power transformers,
related protection equipment, control systems and other assets held by
TRANSCO or its buyer or concessionaire which directly connect an enduser or group of end-users to a grid and are exclusively dedicated to the
service of that end-user or group of end-users are classified as
subtransmission assets.
(iii) Directly Connected Load-End Substations radial lines, power
transformers, related protection equipment, control systems and other assets
124 JOURNAL
held by TRANSCO or its buyer or concessionaire which directly connect a

load-end substation of one or more distribution utilities to a grid, are classified
as subtransmission assets. (ERC Guidelines to the Sale and Transfer of
TRANSCOs Subtransmission Assets and Franchising of Qualified
Consortiums, art. III, sec. 2.)
Subtransmission assets will ultimately be transferred to qualified distribution utilities.
As part of the NPC privatization process, two government corporations were
created, namely: TRANSCO and PSALM Corp.
TRANSCO The transmission function of NPC will be assumed by the National
Transmission Corporation (TRANSCO), a government corporation created for this
purpose. All transmission and subtransmission assets of NPC will be transferred to
TRANSCO.
In addition, TRANSCO is mandated to do the following:
a.
Act as the system operator of the nationwide electrical
transmission and subtransmission system to be transferred to it by NPC;
b.
Provide all electricity users open and non-discriminatory
access to its transmission system;
c.
Ensure and maintain the reliability, adequacy, security, stability
and integrity of the nationwide electrical grid in accordance with the
performance standards for the operation and maintenance of the grid, as
set forth in a Grid Code that was promulgated by the ERC and which took
effect on March 2, 2002;
d.
Improve and expand its transmission facilities, consistent with
the Grid Code and the Transmission Development Plan (TDP) pursuant
to the Power Reform Law, to adequately serve generation companies,
distribution utilities and suppliers requiring transmission service and ancillary
services through the transmission system; provided, that any plan for
expansion or improvement of its facilities shall be submitted by TRANSCO
for approval by the ERC;
125
e.
Subject to technical constraints, provide central dispatch of
all generation facilities connected directly or indirectly, to the transmission
system in accordance with the dispatch schedules submitted by the market
operator, taking into account outstanding bilateral contracts; and
f.
Undertake the preparation of the TDP. (Power Reform Law, sec. 9.)
PSALM Corp. On the other hand, all the transmission and subtransmission
related liabilities of NPC will be transferred to and assumed by the Power Sector Assets
and Liabilities Management Corporation (PSALM Corp.). PSALM Corp. is the
government corporation created under the Power Reform Law that will take ownership
of all NPC generation assets, liabilities, IPP contracts, real estate and other disposable
assets. Under the Power Reform Law, the principal function of PSALM Corp. is to
manage the orderly sale, disposition and privatization of NPCs assets for the purpose
of liquidating all of NPCs financial obligations and stranded contract costs (the excess
of the contracted cost of electricity under eligible contracts over the actual selling price
of the contracted energy output of such contracts in the market).
Consistent with the privatization objective and pursuant to its mandate under the
Power Reform Law, PSALM Corp. promulgated a plan (which was endorsed by the
Joint Power Commission, a congressional commission consisting of members of the
Philippine Congress, and approved by the President of the Philippines) on the privatization
of NPC (including existing IPP contracts) and the transmission facilities of TRANSCO
(the Privatization Plan) through an open and competitive public bidding on the basis
of an outright sale or a concession contract to operate and maintain such facilities. In
any case, Section 21 of the Power Reform Law provides that the awardee must be
financially and technically capable, with proven domestic and/or international experience
and expertise as a leading transmission system operators. Moreover, such experience
must be with a transmission system of comparable capacity and coverage as the
Philippines.
In this regard, it is interesting to note that the Power Reform Law only refers to
the modes by which the assets of TRANSCO are to be privatized. No mention is made
with respect to the privatization of TRANSCO itself (i.e., through the sale of TRANSCO
shares). While the Power Reform Law does appear to have intended that the Government
retain ownership of TRANSCO, the privatization of TRANSCOs assets (whether through
sale or concession) may not be the only mode of achieving the same objective.
126 JOURNAL
Moreover, the fact that the transmission of electricity is a regulated common

carrier business would mean that the operator of the transmission assets should have a
franchise from the Government and should comply with the nationality requirements
applicable to public utility operation (i.e., at least 60% of the capital of the operator, if a
corporation, should be owned by Filipinos). While the Power Reform Law is silent in
this regard, the Privatization Plan provides that the privatization structure should be
attractive to qualified transmission operators while recognizing the restrictions on foreign
operation of a public utility. Presently, however, the Privatization Plan indicates that
TRANSCO will have a nation-wide franchise for the operation of the transmission system
and grid, and no other entity is allowed to transmit electricity at high voltage (except for
generators connecting to the grid).
Distribution Sector The Power Reform Law did not introduce any radical
changes with respect to this sector. In fact, it generally affirms the existing legal framework
applicable to the distribution business.
One of the changes, however, is the requirement for distribution companies to
submit to the ERC a statement of their compliance with the technical specifications
prescribed in the Distribution Code (which will provide the rules and regulations for the
operation and maintenance of distribution systems) and the performance standards that
are prescribed in the Implementing Rules and Regulations of the Power Reform Law
(IRR), which took effect on March 22, 2002.
Supply Sector A new sector created under the Power Reform Law, the Supply
Sector refers to those engaged in the business of selling electricity (other than a generator
or a distributor in its franchised area). A supplier is required to obtain a license from the
ERC in accordance with the rules and regulations to be promulgated by the latter. The
Power Reform Law also provides that the supply of electricity will not be considered a
public utility operation and will not require a national franchise.
Wholesale Electricity Spot Market The establishment of a wholesale electricity
spot market is perhaps the centerpiece of the Power Reform Law. Under the law, this
spot market must be established by the Department of Energy (the DOE) within one
year from the effectivity of the law. Presently, however, the establishment of the spot
market is still in its early stages. The rules for the spot market, which was formulated by
the DOE and which took effect on July 21, 2002, provides for procedures relating to the
following:
127
a.
Establishing the merit order dispatch instructions for each time period;
b.
Determining the market-clearing price for each time period;
c.
Administering the market, including criteria for admission and termination
from the market which includes security or performance bond requirements, voting
rights of the participants, surveillance and assurance of compliance of the participants
with the rules and the formation of the wholesale electricity spot market governing body;
d.
Prescribing guidelines for the market operation in systems emergencies; and
e.
Amending the rules. (Power Reform Law, sec. 30.)
While the market operator will initially consist of the DOE together with
representatives from the electric power industry, it is intended that, not later than one
year after the implementation of the wholesale spot market, an independent entity will be
formed to take over the functions of the market operator.
The Power Reform Law also provides that the generation companies, distribution
utilities, suppliers, bulk consumers, end-users and other similar entities authorized by
the ERC will be eligible for membership in the wholesale electricity spot market.
As opposed to the existing framework of bilateral power purchase agreements
between NPC (or other customers) and power generators, the wholesale electricity spot
market appears to provide for a more competitive framework for the purchase of power.
Competition, however, cannot be assured without clear safeguards to prevent
combinations in restraint of trade or unfair competition in the wholesale electricity spot
market.
In this connection, it should be noted that the Philippines does not have a
comprehensive system of anti-trust laws. Unlike the United States, the Philippines does
not have a special law which addresses anti-trust and anti-competitive behavior in detail.
The source of anti-trust legislation in the Philippines can be found in Section 19, Article
XII of the Constitution, which provides that:
The State shall regulate or prohibit monopolies when the public interest so requires.
No combinations in restraint of trade or unfair competition shall be allowed.
128 JOURNAL
This Constitutional provision is implemented in various legislation, including the

following:
(i)
Article 186 of the Revised Penal Code, which penalizes the
following acts:
1.
Any person who shall enter into any contract or
agreement or shall take part in any conspiracy or combination
in the form of a trust or otherwise, in restraint of trade or
commerce or to prevent by artificial means free competition
in the market.
2.
Any person who shall monopolize any
merchandise or object of trade or commerce, or shall combine
with any other person or persons to monopolize said
merchandise or object in order to alter the price thereof by
spreading false rumors or making use of any other artifice to
restrain free competition in the market.
3.
Any person who, being a manufacturer,
producer, or processor of any merchandise or object of
commerce or an importer of any merchandise or object of
commerce from any foreign country, either as principal or
agent, wholesaler or retailer, shall combine, conspire, or agree
in any manner with any person likewise engaged in the
manufacture, production, processing, assembling or
importation of such merchandise or object of commerce or
with any other persons not so similarly engaged for the purpose
of making transactions prejudicial to lawful commerce, or of
increasing the market price in any part of the Philippines, of
any such merchandise or object of commerce manufactured,
produced, processed, assembled in or imported into the
Philippines, or of any article in the manufacture of which
such manufactured, produced, processed or imported
merchandise or object of commerce is used.
(ii)
Article 28 of the Civil Code which provides that unfair
competition in agricultural, commercial, or industrial enterprises or in labor
through the use of force, intimidation, deceit, machination or any unjust,
129
oppressive or high-handed method shall give rise to a right of action by the

person who thereby suffers damage.
(iii)
Section 87 of the Intellectual Property Code (Republic Act
No. 8293 (1997)), which prohibits the inclusion of certain arrangements in
technology transfer arrangements, which in general have anti-competitive
effects.
(iv)
Section 5 of the Price Act (Republic Act No. 7581 (1992))
which provides that it shall be unlawful for any person habitually engaged
in the production, manufacture, importation, storage, transport, distribution,
sale or other methods of disposition of goods to engage in the certain acts
of price manipulation of the price of any basic necessity or prime
commodity.
(v) Section 11 of the Downstream Oil Deregulation Act of 1998 (Republic
Act No. 8479 (1998)), which penalizes:
1. Cartelization (i.e., any agreement or combination or
concerted action by refiners, importers or dealers, or their
representatives, to fix prices, restrict outputs or divide markets,
either by products or by areas or allocate markets, either by
products or by areas, in restraint of trade or free competition,
including any contractual stipulation which prescribe pricing
levels and profit margins); and
2. Predatory pricing (i.e., selling or offering to sell any oil
product at a price below the sellers or offerors average
variable cost for the purpose of destroying competition,
eliminating a competitor or discouraging a potential competitor
from entering the market).
As the electric power industry is a highly technical industry, perhaps the IRR may
be amended to consider the inclusion of specific provisions that will provide clear
guidance on what constitutes anti-competitive behavior. While Section 45 of the Power
Reform Law does provide for certain acts constituting anti-competitive behavior such
as cross-subsidization, price or market manipulation, certain general concepts (such
as unfair trade practices detrimental to the encouragement and protection of contestable
markets) still have to be fleshed out. Perhaps, the examples set out in other legislation
130 JOURNAL
may be used to further develop specific anti-competitive acts that are applicable to the
power industry.
Retail Competition Subject to the following conditions, retail competition and
open access on distribution wires are required to be implemented not later than three
years from the effectivity of the law:
a.
Establishment of the wholesale electricity spot market;
b.
Approval of unbundled transmission and distribution wheeling charges;
c.
Initial implementation of the cross subsidy removal schemes;
d. Privatization of at least seventy (70%) percent of the total capacity of

generating assets of NPC in Luzon and Visayas; and
e. Transfer of the management and control of at least seventy (70%)
percent of the total energy output of power plants under contract with
NPC to the IPP Administrators. (Power Reform Law, sec. 31.)
To date, the provisions of the Power Reform Law relating to retail competition
and open access on distribution wires have not been implemented.
The Power Reform Law also provides that:
Upon the initial implementation of open access, the ERC shall allow all electricity
end-users with a monthly average peek demand of at least one megawatt (1MW) for the
preceding twelve (12) months to be the contestable market shall be reduced to seven
hundred fifty kilowatts (750 KW). At this level, aggregators shall be allowed to supply
electricity to end-users whose aggregate demand within a contiguous area is at least
seven hundred fifty kilowatts (750 KW). Subsequently and every year thereafter, the
ERC shall evaluate the performance of the market. On the basis of such evaluation, it
shall gradually reduce the threshold level until it reaches the household demand level. In
the case of electric cooperatives, retail competition and open access shall be implemented
not earlier than five (5) years upon the effectivity of this Act. (Power Reform Law, sec.
31.)
131
Privatization of NPC The privatization of NPC (or, strictly speaking, the

privatization of its assets) is perhaps the most important aspect of the Power Reform
Law, and it is primarily for this purpose that PSALM Corp. promulgated the Privatization
Plan.
At present, only a few minor generating facilities of NPC have been sold to
private investors, although there are other generating facilities that are in the process of
being sold.
Outlook
One of the biggest problems that the Philippines must overcome is how to attract
substantial foreign investment into the power industry. Without a positive foreign
investment climate, the Philippines may not achieve the reforms that the Power Reform
Law seeks to put in place. Recent legal, political and economic developments here and
abroad, however, seem to present major difficulties in this regard. Hopefully, we are able
to surmount such difficulties before the predicted power shortages become reality.
______
132 JOURNAL
______
Child Sexual Abuse
Child Sexual Abuse and the Rule

On Examination of a Child Witness
Alberto T. Muyot
General Data on Child Sexual Abuse

For the year 2003, the Philippine National Police reported 7,316 cases of crimes
committed against children. Of this number, 3,107 were cases of rape, 290 of incestuous
rape, 293 of attempted rape and 1090 of acts of lasciviousness.1 In Metro Manila,
around 51% of the victims of rape are 14 years of age or younger and 86% are 19 years
of age or younger.2 Children below 10 years of age have a higher risk of being raped
compared to those who are 20 years of age and older.3 The 2003 PNP report showed
that there were 3 children raped for every female adult raped.4 More than 90% of the
perpetrators of rape are persons who are familiar to the victim.5 These include friends,
neighbors and acquaintances (47%) and relatives (39%) and employers (6%).6
Thus, the Philippine Government, in its country report submitted to the U.N.
Committee on the Rights of the Child, reported increasing numbers of sexual abuse
cases over a fiver-year period.7
Philippine Jurisprudence on Child Sexual Abuse
A study, entitled An Interdisciplinary Analysis of Philippine Jurisprudence on
Child Sexual Abuse was done by the Adhikain Para sa Karapatang Pambata (AKAP)
of the Ateneo Human Rights Center. The study looks at the child sexual abuse cases
decided by the Supreme Court between 1901-1998 through an interdisciplinary approach.
Project Officer-Juvenile Justice, United Nations Childrens Fund (UNICEF-Manila); Associate Professor (on secondment), College
of Law, University of the Philippines; former Director, Institute of Human Rights, U.P. Law Center.
1
PNP-Directorate for Investigation and Detective Management, Women and Children Concerns Division, Recapitulation of Crimes
Against Children for the Year 2003.
2
Tan, Analysis of Rape Cases Committed Against Children and Women in the National Capital Region, Philippines, p. 15 (2002)
3
Tan, ibid., p. 16.
4
PNP, ibid.
5
Tan, ibid., p. 20.
6
Tan, ibid., p. 17.
7
Republic of the Philippines, Council for the Welfare of Children, SECOND COUNTRY REPORT ON THE IMPLEMENTATION
OF THE CONVENTION ON THE RIGHT OF THE CHILD (1995-2000), pp. 137-138.
8
AKAP, ANALYSIS OF PHILIPPINE JURISPRUDENCE ON CHILD SEXUAL ABUSE, pp. 1-2. The study was published
by the United Nations Childrens Fund (UNICEF-Manila) in 2003.
9
AKAP, ibid., pp. 15-18.
133
Child Sexual Abuse
A total of 489 cases of rape, abduction, seduction and acts of lasciviousness were
analyzed.8
The key findings of the study are shown in the following matrices:9
Table 1. Disposition of cases
Disposition
Conviction
Acquittal
Crime
Rape
374
45
Abduction
44
12
Seduction
21
4
Acts of Lasciviousness
3
2
Table 2. Type of accused

Accused
Accused known
Legal or
common law
relative
Abduction
28
Crime
Seduction
28
135
27
21
211
27
1
2
7
1
Rape
346
Neighbor/
acquaintance
Unknown
Not indicated
Not indicated
Not indicated
Not indicated
Table 3. Age of victim

Child Victim
Rape
112
231
68
Ages 0-11
Ages 12-17
18 and Above
Abduction
2
39
4
Crime
Seduction
2
16
4
0
1
1
Table 4. When cases reported

When were
cases reported
Within 6 mos. C
A
Within 1 year C
A
Within 2 years C
A
2 years and
C
and above
A
134 JOURNAL
Rape
295
25
32
4
6
Crime
Abduction
Seduction
14
2
4
1
5
1
3
2
6
2
16
1
4
1
Not indicated
Not indicated
Not indicated
Not indicated
Child Sexual Abuse
Table 5. Basis of conviction

Conviction
largely based on
Testimony of the child
(credibility)
Other evidence found
necessary for conviction
Conviction
decision based on:
Overt/Dastardly
Act of the Accused
Effect of Crime on
Parents/Family Rts.
Effects of Crime
on Child
Rape
283
Abduction
Not indicated
Crime
Seduction
Not indicated
Not indicated
176
Not indicated
Not indicated
Not indicated
Rape
189
Table 6. Basis of conviction

Crime
Abduction
Seduction
Not indicated
Not indicated
Not indicated
75
Not indicated
Not indicated
Not indicated
131
Not indicated
Not indicated
Not indicated
Table 7. Sensitivity during trial or proceedings

Cases showing
trial or
proceedings
Rape
Court exhibited
85
sensitivity
Prosecutor
10
exhibited sensitivity
Opposing counsel
4
exhibited sensitivity
No indication
134
of sensitivity
Abduction
Not indicated
Crime
Seduction
Not indicated
Not indicated
Not indicated
Not indicated
Not indicated
Not indicated
Not indicated
Not indicated
Not indicated
Not indicated
Not indicated
135
Child Sexual Abuse
The study found that child-rape cases have an 89% rate of conviction while
abduction has 78%, seduction 84% and acts of lasciviousness has 60%. It concluded
that there is no problem proving rape and other offenses in cases involving children;
and that the courts have generally found their testimony sufficient for conviction.10
Only 38% of the cases had to rely on additional evidence, like the medical certificates
and other witnesses, if any, to render a judgment of conviction. It concluded that these
data readily show that Philippine courts have no problem according credibility to children
and that their testimony are given great weight even in the face of so grave an accusation
such as rape.11
The study further found that 92% of the accused are known to the victims and
that 39% of the accused in rape cases are legal or common law relatives. It also found
that victims were generally between the ages of 12 to 17 years and that most of the
sexual abuse incidents were reported within a period of six months.12
A review of case records resulted in the following findings that show lack of
gender-sensitivity in our courts:
1. Trials often focus on proving the character, credibility and sexual innocence
of the victim rather than on the character of the perpetrator. The victims lack of sexual
experience is given central focus and importance in arguing for conviction.13
2. The focus on proving the innocence of the accused is also intertwined with
proving the sexual innocence/purity of the girl-child.14
Sexually Abused Children as Witnesses
But something that the AKAP study tried to look into was the testimony of sexually
abused children.15 It said that:
In the final analysis, the child witness is treated no differently from
any other witness. The basis in believing the childs testimony still hinged
10
AKAP, ibid., p. 19.

Id.
12
Id.
13
AKAP, ibid., p. 26.
14
AKAP, ibid., p. 27.
15
11
136 JOURNAL
Child Sexual Abuse
upon common evidentiary principles such as manner and demeanor in

testifying, lack of motive, and character of the witness.
In most child sexual abuse cases, the child is believed as a witness
not because she is a child per se but because of the impossibility that she
can concoct such a story due to her tender age. Moreover, it has been
emphasized in the long line of cases that innocence and naivet are very
much taken into consideration in measuring a childs credibility.
There is always the tug-of-war in trying to balance the constitutional
rights of the accused on the one hand, and the best interests of the child,
on the other. While no one should be convicted of any crime except on
the quantum of proof that is beyond reasonable doubt, nonetheless, a
child should not be expected to conduct herself like any regular adult
witness who can remember all the dates and details of the horrendous
event in her life. Moreover, the question of character or morality should
not be a primary concern for the courts when the victim is a child.16
While the AKAP study said that there should be child-sensitive rules of procedure,
it did not look into the issue further as it was limited by the parameters of the study.
Dr. Louis Sas, Director of the Child Witness Project in Canada, writes:
In general, the courts expectation of children who testify as
complainants is often based on unrealistic assumptions about their
understanding of the adversarial system. It does not take into account
childrens level of social comprehension, cognitive abilities, or emotional
immaturity. As well, despite the best intentions of the prosecutors, few
cases are expedited. Cases can be adjourned for months. Sometimes they
drag on for years before there is any resolution: such delays force children
onto an emotional roller-coaster ride.17
Children are expected to testify in a solemn and formal place filled with adult
strangers. They must respond to two-rounds of questions (direct examination and cross-
16

Sas, Louis, Sexually Abused Children as Witnesses, in Wolfe, McMahon and Peters (eds.), CHILD ABUSE: NEW DIRECTIONS
IN PREVENTION AND TREATMENT ACROSS THE LIFESPAN, p. 253. Sage Publications (1997).
17
137
Child Sexual Abuse
examination) in a controlled and articulate manner. The language used in court is highly
technical and hard for children to understand. They must remember every detail of their
victimization, even if months or years have passed before they testify. And more harrowing,
they have to testify in front of the accused.18 It is no wonder, then, that children have
great difficulty in testifying in court.
In a research in Canada, child witnesses identified five ways to make it easier for
children for children who have to testify: (1) not having to see the accused; (2) receiving
preparation before the court hearing; (3) excluding the public from the courtroom; (4)
having support persons in the courtroom; and (5) having judges and lawyers use easier
language.19 The same recommendations may very well be applicable to the Philippine
setting.
The Rule on Examination of a Child Witness
As a response to the oft-repeated observation that the court system was not
child-sensitive (nor gender-sensitive), new rules of procedure were crafted. The Rule on
Examination of a Child Witness (A.M. No. 004-07-SC) was approved by the Supreme
Court en banc on 21 November 2000, and took effect on 15 December 2000 following
its publication in two newspapers of general circulation.
The Rule governs the examination of child witnesses who are victims of crime,
accused of crime, and witnesses to crime. It shall apply in all criminal proceedings and
non-criminal proceedings involving child witnesses.20 A child witness is defined as any
person who at the time of giving testimony is below the age of 18 years. In child abuse
cases, a child includes one over 18 years but is found by the court as unable to fully take
care of himself or protect himself from abuse, neglect, cruelty, exploitation, or
discrimination because of a physical or mental disability or condition.21 Child abuse
means physical, psychological, or sexual abuse, and criminal neglect as defined in Rep.
Act. No. 7610 and other related laws.22
18
19
Id., pp. 254-255.

Id., p. 265.
20
Sec. 1.
Sec. 4(a), derived from sec. 3(a) of Rep. Act No. 7610.
22
Sec. 4(b). Under sec. 3(b) of Rep. Act No. 7610, child abuse refers to the maltreatment, whether habitual or not, of the child which
includes any of the following:
1. Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional maltreatment;
2. Any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being;
3. Unreasonable deprivation of his basic needs for survival such as food and shelter; or
21
138 JOURNAL
Child Sexual Abuse
The objectives of the Rule are to create and maintain an environment that will
allow children to give reliable and complete evidence, minimize trauma to children,
encourage children to testify in legal proceedings, and facilitate the ascertainment of
truth.23
It can be said that the Rule is in furtherance of the protection of children mandated
in the Constitution, which states that the State shall defend the right of children to
special protection from all forms of neglect, abuse, cruelty, exploitation, and other
conditions prejudicial to their development.24
The Rule as a Response to the Gaps
The clandestine nature of child abuse and general absence of physical signs or
injury mean that the external corroboration of childrens reports is rare. This lack of
corroboration has had direct forensic implications. In most cases of child abuse,
conviction is only possible if a child can testify in court in front of the accused and in a
manner that is not only credible but also leaves no room for doubt.25 This results in the
secondary victimization of the child who, after being abused, is compelled to testify in
court and suffer further trauma.
To minimize trauma to children and encourage them to testify in legal proceedings,
the Rule introduced several innovation. These innovations are particularly significant
since it not unusual for sexual abuse victims to suffer from post-traumatic stress disorder
(PTSD).26
Departing from established practice, under the Rule every child is presumed
qualified to be a witness, although the court may order a competency examination of a
child when it finds that substantial doubt exists regarding the ability of the child to
4.
Failure to immediately give medical treatment to an injured child resulting in serious impairment of his growth and development
or in his permanent incapacity or death.
23
Sec. 2.
1987 CONST., Art. XV, sec. 3(2). This policy is reiterated in Section 2 of Rep. Act No. 7610.
25
Sas, ibid., at pp. 248-249.
26
The criteria for PTSD include: (a) exposure to an event involving threat or death or serious injury to self or others, and a reaction
of fear and helplessness or, in children, agitation or disorganized behavior; (b) re-experiencing of the traumatic event, in the form of
recurrent and intrusive distressing recollections of the event or, in young children, expression of the same through play, or recurrent
and distressing dreams about the event, or reactivity to the event that resembles or symbolizes the event; (c) persistent avoidance of
stimuli associated with the trauma and numbing of general responsiveness; and (d) persistent symptoms of increased arousal,
including some or all of difficulty falling or staying asleep, irritability or outburst of anger, difficulty concentrating, hypervigilance,
and exaggerated startle response. See Sudermann, Marlies and Peter Jaffe, Children and Youth who witness Violence, in Wolfe, pp.
58-59.
24
139
Child Sexual Abuse
perceive, remember, communicate, distinguish truth from falsehood, or appreciate the

duty to tell the truth in court.27
The Rule encourages courts to provide a waiting room for children that is separate
from waiting areas used by other persons. The waiting area for children should be
furnished so as to make a child comfortable.28
The Rule also provides for persons who are to assist the child during the course
of a judicial proceeding, namely: the guardian ad litem,29 the interpreter,30 the facilitator,31
and the support persons.32
27
Sec. 6. It is also provided in section 6 that:

(a) Proof of necessity. A party seeking a competency examination must present proof of necessity of competency
examination. The age of the child itself is not a sufficient basis for a competency examination.
(b) Burden of proof. To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party
challenging his competence.
(c) Persons allowed at competency examination. Only the following are allowed to attend a competency examination:
(1) The judge and necessary court personnel;
(2) The counsel for the parties;
(3) The guardian ad litem;
(4) One or more support persons for the child; and
(5) The defendant, unless the court determines that competence can be fully evaluated in his absence.
(d) Conduct of examination. Examination of a child as to his competence shall be conducted only by the judge. Counsel
for the parties, however, can submit questions to the judge that he may, in his discretion, ask the child.
(e) Developmentally appropriate questions. The questions asked at the competency examination shall be appropriate to
the age and developmental level of the child; shall not be related to the issues at trial; and shall focus on the ability of
the child to remember, communicate, distinguish between truth and falsehood, and appreciate the duty to testify
truthfully.
(f) Continuing duty to assess competence. The court has the duty of continuously assessing the competence of the child
throughout his testimony.
28
Sec. 12.
29
Sec. 5. The Court may make appoint a guardian ad litem for a child who is a victim of, accused of, or a witness to a crime to promote
the best interests of the child. In making the appointment, the court shall consider the background of the guardian ad litem and his
familiarity with the judicial process, social services programs, and child development, giving preference to the parents of the child, if
qualified. The guardian ad litem may be a member of the Philippine Bar. A person who is a witness in any proceeding involving the
child cannot be appointed as guardian ad litem.
The guardian ad litem:
(1) shall attend all interviews, depositions, hearings, and trial proceedings in which a child participates;
(2) shall make recommendations to the court concerning the welfare of the child;
(3) shall have access to all reports, evaluations, and records necessary to effectively advocate for the child,
except privileged communications;
(4) shall marshal and coordinate the delivery of resources and special services to the child;
(5) shall explain, in language understandable to the child, all legal proceedings, including police investigations, in
which the child is involved;
(6) shall assist the child and his family in coping with the emotional effects of crime and subsequent criminal or
non-criminal proceedings in which the child is involved;
(7) may remain with the child while the child waits to testify;
(8) may interview witnesses; and
(9) may request additional examinations by medical or mental health professionals if there is a compelling need
therefore.
The guardian ad litem shall be notified of all proceedings but shall not participate in the trial. However, he may file motions.
If the guardian ad litem is a lawyer, he may object during trial that questions asked of the child are not appropriate to his developmental
level.
The guardian ad litem may communicate concerns regarding the child to the court through an officer of the court designated
for that purpose.
140 JOURNAL
Child Sexual Abuse
To create a more comfortable environment for the child, the court may, in its
discretion, direct and supervise the location, movement and deportment of all persons
in the courtroom including the parties, their counsel, child, witnesses, support persons,
guardian ad litem, facilitator, and court personnel. The child may be allowed to testify
from a place other than the witness chair. The witness chair or other place form which
the child testifies may be turned to facilitate his testimony but the opposing party and his
counsel must have a frontal or profile view of the child during the testimony of the child.
The witness chair or other place from which the child testifies may be rearranged to
allow the child to see the opposing party and his counsel, if he chooses to look at them,
without turning his body or leaving the witness stand. The judge need not wear his
judicial robe. The accommodations for the child need not be supported by a finding of
trauma of the child.33
The court may order that the testimony of the child should be taken during a time
or day when the child is well-rested.34 A recess during the testimony of the child is
encouraged. The child may be allowed reasonable periods of relief while undergoing
The guardian ad litem shall not testify in any proceeding concerning any information, statement, or opinion received from
the child in the course of serving as a guardian ad litem, unless the court finds it necessary to promote the best interests of the child.
The guardian ad litem shall be presumed to have acted in good faith in compliance with his duties.
30
Sec. 9. When a child does not understand the English or Filipino language or in unable to communicate in said languages due to his
developmental level, fear, shyness, disability, or other similar reason, an interpreter whom the child can understand and who
understands the child may be appointed by the court, motu proprio or upon motion, to interpret for the child. If a witness or member
of the family of the child is the only person who can serve as interpreter for the child, he shall not be disqualified and may serve as
the interpreter of the child. The interpreter, however, who is also a witness, shall testify ahead of the child. An interpreter shall take
an oath or affirmation to make a true and accurate interpretation.
31
Sec. 10. The court may, motu proprio or upon motion, appoint a facilitator if it determines that the child is unable to understand
or respond to questions asked. The facilitator may be a child psychologist, psychiatrist, social worker, guidance counselor, teacher,
religious leader, parent, or relative. If the court appoints a facilitator, the respective counsels for the parties shall pose questions to
the child only through the facilitator. The questions shall either be in the words used by counsel or, if the child is not likely to
understand the same, in words that are comprehensible to the child and which convey the meaning intended by counsel. The facilitator
shall take an oath or affirmation to pose questions to the child according to the meaning intended by counsel.
32
Sec. 11. A child testifying at a judicial proceeding or making a deposition shall have the right to be accompanied by one or two
persons of his own choosing to provide him emotional support. Both support persons shall remain within the view of the child during
his testimony. One of the support persons may accompany the child to the witness stand, provided the support person does not
completely obscure the child from the view of the opposing party, judge or hearing officer. The court may allow the support person
to hold the hand of the child or take other appropriate steps to provide emotional support to the child in the course of the proceedings.
The court shall instruct the support persons not to prompt, sway, or influence the child during the testimony.
If the support person chosen by the child is also a witness, the court may disapprove the choice if it is sufficiently
established that the attendance of the support person during the testimony of the child would pose a substantial risk of influencing
or affecting the content of the testimony of the child. If the support person who is also a witness is allowed by the court, his
testimony shall be presented ahead of the testimony of the child.
33
Sec. 13.
34
Sec. 14.
141
Child Sexual Abuse
direct, cross, re-direct, and re-cross examinations as often as necessary depending on

his developmental level.35 While testifying, a child shall be allowed to have an emotional
security item, such as a blanket, toy, or doll.36
The Rule protects the child from undue public exposure. When a child testifies,
the court may order the exclusion from the courtroom of all persons, including members
of the press, who do not have a direct interest in the case.37
To prevent the child from being distracted, the court may order that persons
attending the trial shall not enter or leave the courtroom during the testimony of the
child.38
The Rule provides for flexibility and liberality when a child testifies. The court
shall exercise control over the questioning of children so as to (1) facilitate the
ascertainment of the truth, (2) ensure that questions are stated in a form appropriate to
the developmental level of the child, (3) protect children from harassment or undue
embarrassment, and (4) avoid waste of time. The court may allow the child to testify in
a narrative form.39 The court may allow leading questions in all stages of examination of
a child if the same will further the interests of justice.40 The court shall permit a child to
use testimonial aids, such as dolls, anatomically-correct dolls, puppets, drawings,
mannequins, or any other appropriate demonstrative device to assist him in his testimony.41
Corroboration shall not be required of a testimony of a child. His testimony, if credible
35
Sec. 15.
Sec. 17.
37
Sec. 23. Such an order may be made to protect the right to privacy of the child or if the court determines on the record that requiring
the child to testify in open court would cause psychological harm to him, hinder the ascertainment of truth, or result in his inability
to effectively communicate due to embarrassment, fear or timidity. In making its order, the court shall consider the developmental
level of the child, the nature of the crime, the nature of his testimony regarding the crime, his relationship to the accused and persons
attending the trial, his desires, and the interests of his parents of legal guardian. The court may, motu proprio, exclude the public from
the courtroom if the evidence to be produced during trial is of such character as to be offensive to decency or public morals. The court
may also, on motion of the accused, exclude the public from trial, except court person and the counsel for the parties.
38
Sec. 24.
39
Sec. 19.
40
Sec. 20.
41
Sec. 16.
36
142 JOURNAL
Child Sexual Abuse
by itself, shall be sufficient to support a finding of fact, conclusion, or judgment subject

to the standards of proof required in criminal and non-criminal cases.42
The court may prohibit a counsel from approaching a child if it appears that the
child is fearful of or intimidated by the counsel.43 Objections to questions should be
couched in a manner so as not to mislead, confuse, frighten, or intimidate the child.44
The Rule allows the child victim or child witness in criminal cases to testify
through live-link television.45 This system is followed in other countries.46 The U.S.
42
Sec. 22.
Sec. 18.
44
Sec. 21.
45
Sec. 25. (a) The prosecutor, counsel or the guardian ad litem may apply for an order that the testimony of the child be taken in a
room outside the courtroom and be televised to the courtroom by live-link television.
Before the guardian ad litem applies for an order under this section, he shall consult the prosecutor or counsel and
shall defer to the judgment of the prosecutor or counsel regarding the necessity of applying for an order. In case the guardian ad litem
is convinced that the decision of the prosecutor or counsel not to apply will cause the child serious emotional trauma, he himself may
apply for the order.
The person seeking such an order shall apply at least five (5) days before the trial date, unless the court finds on
the record that the need for such an order was not reasonably foreseeable.
(b) The court may motu proprio hear and determine, with notice to the parties, the need for taking testimony of the child
through live-link television.
(c) The judge may question the child in chambers, or in some comfortable place other than the courtroom, in the presence of the
support person, guardian ad litem, prosecutor, and counsel for the parties. The questions of the judge shall not be related to the issues
at trial but to the feelings of the child about testifying in the courtroom.
(d) The judge may exclude any person, including the accused, whose presence or conduct causes fear to the child.
(e) The court shall issue an order granting or denying the use of live-link television and stating the reasons therefore. It shall consider
the following factors:
(1) The age and level of development of the child;
(2) His physical and mental health, including any mental or physical disability;
(3) Any physical, emotional, or psychological injury experienced by him;
(4) The nature of the alleged abuse;
(5) Any threats against the child;
(6) His relationship with the accused or adverse party;
(7) His reaction to any prior encounters with the accused in court or elsewhere;
(8) His reaction prior to trial when the topic of testifying was discussed with him by parents or professionals;
(9) Specific symptoms of stress exhibited by the child in the days prior to testifying;
(10) Testimony of expert or lay witnesses;
(11) The custodial situation of the child and the attitude of the members of his family regarding the events about which he
will testify; and
(12) Other relevant factors, such a s court atmosphere and formalities of court procedure.
(f) the court may order that the testimony of the child be taken by live-link television if there is substantial likelihood that the child
would suffer trauma from testifying in the presence of the accused, his counsel of the prosecutor as the case may be. The trauma must
be of a kind which would impair the completeness of truthfulness of the testimony of the child.
(g) If the court orders the taking of testimony by live-link television:
(1) The child shall testify in a room separate from the courtroom in the presence of the guardian ad litem; one or both of his
support persons; the facilitator and interpreter, if any; a court officer appointed by the court; persons necessary to operate the
closed-circuit television equipment; and other persons whose presence are determined by the court to be necessary to the welfare and
well-being of the child.
(2) The judge, prosecutor, accused, and counsel for the parties shall be in the courtroom. The testimony of the child shall
be transmitted by the live-link television into the courtroom for viewing and hearing by the judge, prosecutor, counsel for the parties,
accused, victim, and the public unless excluded.
(3) If it is necessary for the child to identify the accused at trial, the court may allow the child to enter the courtroom for
the limited purpose of identifying the accused by observing the image of the latter on a television monitor.
43
143
Child Sexual Abuse
Supreme Court has upheld the use of video-conferencing, saying that it is not necessarily
repugnant to the right of the accused to confront the witnesses against him.47 Explaining
why the Philippine Judicial Academy proposed the adoption of video-conferencing in
trials of cased involving the testimony of children, Justice Ameurfina Melencio Herrera,
said:
x x x. Of special concern was to make the average
courtroom less intimidating to child witnesses; to conceive of a
method of eliciting the testimony of a girl-child in the trials of
criminal cases that could spare her the ordeal of testifying in open
court in the presence of her assailant, often a parent or a close
relative.48
The United Nations Childrens Fund49 has supported the installation of live-link
television systems in eight Family Courts.50 Under this set-up the child witness testifies
from the judges chambers, which is linked to the courtroom through video cameras and
television monitors. But the use of this technology depends on a complex interplay of
factors, namely: (1) the geographic location of the courtroom, as courts in many farflung provinces do not have access to the facility; (2) the skills of the prosecutor and the
defense counsel; (3) the availability of an expert witness, such a clinical psychologist, to
(4) The court may set other conditions and limitations on the taking of the testimony that it finds just and appropriate,
taking into consideration the best interests of the child.
(h) the testimony of the child shall be preserved on videotape, digital disc, or other similar devices which shall be made part of the
court record and shall be subject to a protective order.
46
These include Canada, United States, Australia, England and Wales. See Sas, ibid., at p. 251.
47
Maryland v. Craig, 497 U.S. 836, 111 L.Ed. 2d 666 (1990).
48
Opening Remarks delivered at the Workshop on Video-Conferencing in Trial of Cases Involving the Testimony of Children, 28
September 1999, in II PHILJA Judicial Journal No. 6, pp. 25-26 (2000). For more on the Philippine Judicial Academys Proposal, see
Fr. Ranhilio Aquinos workshop paper, Proposed Amendments to the Rules of Court: Child-Witnesses and Video-conferencing,
Deposition and the Examination of Witnesses.
49
With funding support from the Royal Netherlands Embassy in Manila.
50
These courts are Regional Trial Courts designated as Family Courts in: Cebu City, Branch 22; La Trinidad, Benguet, Branch 9;
Manila, Branch 48; Malolos, Bulacan, Branch 13; Iloilo City, Branch 17; Pasig City, Branch 162; Quezon City, Branch 107; and Davao
City, Branch 12.
144 JOURNAL
Child Sexual Abuse
explain the phenomenon of child sexual abuse and the effect of the abuse on the child
witness; and (4) the sensitivity of the judge to the special needs of the child witness.51
Considering that a live-link television system is quite expensive and is not available
in all Family Courts, the Rule also allows the use of screens, one-way mirrors, and other
devices to shield the child from the accused.52
51
Sas, ibid, p. 251.

Sec. 26. The prosecutor or guardian ad litem may apply for an order that the chair of the child or that a screen or other device be
placed in the courtroom in such a manner that the child cannot see the accused while testifying. Before the guardian ad litem applies
for an order, he shall consult with the prosecutor or counsel. The court shall issue an order stating the reasons and describing the
approved courtroom arrangement. If the court grants an application to shield the child from the accused while testifying in the
courtroom, the courtroom shall be arranged to enable the accused to view the child.
53
Sec. 29. The court may admit videotape and audiotape in-depth investigative or disclosure interviews as evidence under the
following conditions:
(a) The child witness is unable to testify in court
(b) The interview of the child was conducted by duly trained members of a multidisciplinary team or representatives of law
enforcement or child protective services in situations where child abuse is suspected so as to determine whether child
abuse occurred.
(c) The party offering the videotape or audiotape must prove that:
(1) the videotape or audiotape discloses the identity of all individuals present and at all times includes their
images and voices;
(2) the statement was not made in response to questioning calculated to lead the child to make a particular
statement or is clearly shown to be the statement of the child and not the product of improper suggestion;
(3) the videotape and audiotape machine or device was capable of recording testimony;
(4) the person operating the device was competent to operate it;
(5) the videotape or audiotape is authentic and correct; and
(6) it has been duly preserved.
The individual conducting the interview of the child shall be available at trial for examination by any party. Before the
videotape or audiotape is offered in evidence, all parties shall be afforded an opportunity to view or listen to it and shall be furnished
a copy of a written transcript of the proceedings.
The fact that an investigative interview is not videotaped or audiotaped shall not by itself constitute a basis to exclude from
evidence out-of-court statements of testimony of the child. It may, however, be considered in determining the reliability of the
statements of the child describing abuse.
54
Sec. 27. (a) The prosecutor, counsel, or guardian ad litem may apply for an order that a deposition be taken of the testimony of the
child and that it be recorded and preserved on videotape. Before the guardian ad litem applies for an order, he shall consult with the
prosecutor or counsel.
(b) If the court finds that the child will not be able to testify in open court at trial, it shall issue an order that the deposition
of the child be taken and preserved by videotape.
(c) The judge shall preside at the videotaped deposition of a child. Objections to deposition testimony or evidence, or
parts thereof, and the grounds for the objection shall be stated and shall be ruled upon at the time of the taking of the
deposition. The other persons who may be permitted to be present at the proceedings are:
(1) the prosecutor;
(2) the defense counsel;
(3) the guardian ad litem;
(4) the accused;
(5) other persons whose presence is determined by the court to be necessary to the welfare and well-being of the
child;
(6) one or both of his support persons, the facilitator and interpreter, if any;
(7) the court stenographer; and
(8) persons necessary to operate the videotape equipment.
(d) The rights of the accused during trial, especially the right to counsel and to confront and cross-examine the child, shall
not be violated during the deposition.
52
145
Child Sexual Abuse
The Rule allows the presentation of the videotaped testimony of the child as
evidence. This may be in the form of a videotaped disclosure interview before the case
is filed in court,53 or a videotaped deposition after the case is filed in court.54 The U.N.
Guidelines for Action on Children in the Criminal Justice System encourages States to
allow the videotaping of the childs testimony and its presentation in court as official
evidence. The Guidelines also provide that direct contact should be avoided between
the child victim and the offender during the process of investigation and prosecution as
well as during trial hearings as much as possible.55
Several advantages of having a videotaped record of the childs statement
have been identified by Byrne:
1. the use of videotape allows the childs evidence to be
preserved whilst recollection of the events in question is
still fresh;
2. it would spare the child witness the ordeal of having to
recount the facts on a number of occasions;
3. the videotape recording will, in many cases, convince
an accused person of the fact that the child has made a
complaint and encourage an admission of guilt and the
consequent avoidance of distress for all those concerned
in the trial process;
4. from the point of view of the accused person, the
videotape recording can be used to check whether the
childs version of events was unfairly prompted by
improper questioning; and
(e) If the order of the court is based on evidence that the child is unable to testify in the physical presence of the accused,
the court may direct the latter to be excluded from the room in which the deposition is conducted. In case of exclusion
of the accused, the court shall order that the testimony of the child be taken by live-link television. If the accused is
excluded from the deposition, it is not necessary that the child be able to view an image of the accused.
(f) The Videotaped deposition shall be preserved and stenographically recorded. The videotape and the stenographic
notes shall be transmitted to the clerk of the court where the case is pending for safekeeping and shall be made a part
of the record.
(g) The court may set other conditions on the taking of the deposition that it finds just and appropriate, taking into
consideration the best interests of the child, the constitutional rights of the accused, and other relevant factors.
(h) The videotaped deposition and stenographic notes shall be subject to a protective order.
(i) If, at any time of the trial, the court finds that the child is unable to testify, or in unavailable, the court may admit into
evidence the videotaped deposition of the child in lieu of his testimony at the trial. The court shall issue an order stating
the reasons therefore.
(j) After the original videotaping but before or during trail, any party may file any motion for additional videotaping on the
ground of newly discovered evidence. The court may order an additional videotaped deposition to receive the newly
discovered evidence.
55
Annex to ECOSOC Resolution 1997/30.
146 JOURNAL
Child Sexual Abuse
5. if the interview is conducted by a properly trained

examiner, a complete record of relevant material in a
form which may be acceptable for use in court
proceedings could be obtained.56
It may also be added that, in the Philippine context, the videotaping of the childvictims statement will prevent the dismissal of a case because of the subsequent execution
of an affidavit of desistance by the child.
The United Nations Childrens Fund57 has provided support for the establishment
of 14 investigation studios where the investigative or disclosure interviews of child abuse
victims may be videotaped.58 A protocol has been developed for the conduct of these
interviews to make sure that they comply with the requirements of the Rule.59
Explaining the rationale for the use of video technology in courts where children
are witnesses, Chief Magistrate Roy Cahill of Australia has written:
The proposal for the use of video technology in court is two
pronged. Firstly, the initial interview or complaint by a child to a police
officer is to be fully videotaped. Secondly, the childs evidence in court is
given via a video link up whereby the child giving evidence in a separate
56
Byrne, Paul, Children as Witnesses Legal Aspects, in CHILDREN AS WITNESSES, p. 9.

With funding support from the Royal Netherlands Embassy in Manila.
58
These studios are located at:
1. PNP Womens Crisis and Child Protection Center, Cam Crame Quezon City
2. PNP Regional Office-V, Camp Simeon Ola, Legaspi City, Albay
3. PNP Davao City Police Office, Davao City
4. NBI Violence Against Women and Children Division, Manila
5. NBI Regional Office, Baguio City
6. NBI Regional Office, Tuguegarao, Cagayan
7. NBI Regional Office, Iloilo City
8. NBI Regional Office, Cagayan de Oro City
9. DSWD Marillac Hills, Muntinglupa City
10. DSWD Regional Office-V, Cebu City
11. PGH-Child Protection Unit, Manila
12. Davao Medical Center, Davao City
13. Vicente Sotto Memorial Medical Center, Cebu City
14. Zamboanga Medical Center, Zamboanga City
59
Protocol for Investigative Interviews in Child-Friendly Investigation Studios. This was developed by a multi-disciplinary team of
Filipino experts who trained in the Institute for Criminal Investigation and Crime Science in Zutphen, the Netherlands. The protocol
uses the scenario model and prescribes a forensic interview algorithm.
57
147
Child Sexual Abuse
room can be seen by all the parties in the courtroom, with the child seeing
only the respective legal representatives and the judge or magistrate.
The videotape of the original interview is presented to the child
under oath in the proceedings and adopted as true. The child is them
cross-examined via the video-link with total communication, both sound
and picture. x x x.
x x x. It is submitted that the video technology option is justified as
the best available option given that there are great difficulties in ever getting
viable evidence from a child in a normal courtroom context.
By video recording the crucial initial interview, a permanent record
is made of the events and relevant facts whilst they remain fresh in the
childs memory. Of course, care needs to be taken to ensure that the video
recording is capable of presentation in court. In this regard, appropriately
trained personnel are essential, again highlighting the need for a multidisciplinary approach to such matters so as to maximize the evidential
weight of the video recording free from suggestive influences, whilst
minimizing the trauma of the child.
Care needs to be taken that the interview in full be presented (subject
to admissibility arguments) and that precautions are taken as a safeguard
against any suggestion of coaching young witnesses. The option of using
a child interpreter should be given active consideration at this stage of the
process as well as during any subsequent court proceedings. The people
involved in the interview team need to have experience in investigation,
criminal law and evidence as well as qualities gained from dealing with
matters of this type.
148 JOURNAL
Child Sexual Abuse
The most important aspect of the video recording of the interview,

is the preservation of the childs statement so that the child is not required
to repeat the process for the various people who need to be informed of
the facts. The recording may be accessed at any time thus affording the
defence legal team the opportunity of assessing the evidence against it. As
a result the incidence of guilty pleas would be increased, reducing the need
for the child to give evidence at all in some cases. However, should it be
necessary for the child to give evidence the video recording may, subject
to the discretion of the court, be adopted by the child as its evidence in
chief. As previously indicated the proposed system obviates the need for
the child to perform in giving evidence in chief whilst through the use of
video-link for example, the rights of the accused are recognized and
preserved. x x x.60
Hearsay evidence is allowed by the Rule in child abuse cases. Such evidence
may be most crucial when the child is unavailable to testify but it has, of course,
to be corroborated by other evidence.61
60
Cahill, Roy and Mark ONeill, T.V. or not T.V. The Question of the Use of Technology in Courts where Children are Witnesses,
in CHILDREN AS WITNESSES, pp. 103-104, Australian Institute of Criminology (1991).
61
Sec. 28. A statement made by a child describing any act or attempted act of child abuse, not otherwise admissible under the hearsay
rule, may be admitted in evidence in any criminal or non-criminal proceeding subject to the following rules:
(a) Before such hearsay statement may be admitted, its proponent shall make known to the adverse party the intention to
offer such statement and its particulars to provide him a fair opportunity to object. If the child is available, the court
shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay statement for
cross-examination by the adverse party. When the child is unavailable, the fact of such circumstance must be proved
by the proponent.
(b) In ruling on the admissibility of such hearsay statement, the court shall consider the time, content and circumstances
thereof which provide sufficient indicia of reliability. It shall consider the following factors:
(1) whether there is a motive to lie;
(2) the general character of the declarant child;
(3) whether more than one person heard the statement;
(4) whether the statement was spontaneous;
(5) the timing of the statement and the relationship between the declarant child and witness;
(6) cross-examination could not show the lack of knowledge of the declarant child;
(7) the possibility of faulty recollection of the declarant child is remote; and
(8) the circumstances surrounding the statement are such that there is no reason to suppose the declarant child
misrepresented the involvement of the accused.
(c) The child witness shall be considered unavailable under the following situations:
(1) is deceased, suffers from physical infirmity, lack of memory, mental illness, or will be exposed to severe psychological
injury; or
(2) is absent from the hearing and the proponent of his statement has been unable to procure his attendance by
process or other reasonable means.
(d) When the child witness is unavailable, his hearsay testimony shall be admitted only if corroborated by other admissible
evidence.
149
Child Sexual Abuse
To address the practice of tying up the conviction or acquittal of the accused with
the reputation of the victim, a sexual abuse shield rule was included in the Rule. It
provides that the following evidence is not admissible in any criminal proceedings involving
alleged child sexual abuse: (1) evidence offered to prove that the alleged victim engaged
in other sexual behavior; and (2) evidence offered to prove the sexual predisposition of
the alleged victim. But the Rule also provides that evidence of specific instances of
sexual behavior by the alleged victim to prove that a person other than the accused was
the source of semen, injury, or other physical evidence shall be admissible. A party
intending to offer such evidence must:
(i)
file a written motion at least 15 days before trial, specifically describing

the evidence and stating the purpose for which it is offered, unless the
court, for good cause, requires a different time for filing or permits
filing during trial; and
(ii) serve the motion on all parties and the guardian ad litem at least three
days before the hearing of the motion.
Before admitting such evidence, the court must conduct a hearing in chambers
and afford the child, her guardian ad litem, the parties, and their counsel a right to attend
and be heard. The motion and the record of the hearing must be sealed and remain under
the seal and protected by a protective order set forth in section 31(b) of the Rule. The
child shall not be required to testify at the hearing in chambers except with his consent.62
A similar provision is found in the Rape Victim Assistance and Protection Act of
1998, which provides that in prosecutions for rape, evidence of complainants past
sexual conduct, opinion thereof or his/her reputation shall not be admitted unless, and
only to the extent that the court finds, that the evidence is material and relevant to the
case.63
62
63
Sec. 30.
Sec. 6, Rep. Act No. 8505.
150 JOURNAL
Child Sexual Abuse
Finally, the Rule provides protection of the privacy and safety of the child witness
through confidentiality of records,64 the issuance of protective orders,65 prohibition of
the publication of the identity of the child,66 the right of the child not to testify regarding
personal information,67 and destruction of videotapes and audiotapes.68 The Rule also
provides for protection of the privacy of youthful offenders.69
64
Sec. 31 (a) and (b). Any record regarding a child shall be confidential and kept under seal. Except upon written request and order
of the court, a record shall only be released to the following:
(1) members of the court staff for administrative use;
(2) the prosecuting attorney;
(3) defense counsel;
(4) the guardian ad litem;
(5) agents of investigation law enforcement agencies; and
(6) other persons as determined by the court.
65
Any videotape or audiotape of a child that is part of the court record shall be under a protective order that provides as follows:
(1) Tapes may be viewed only by the parties, their counsel, their expert witness, and the guardian ad litem.
(2) No tape, or any portion thereof, shall be divulged by any person mentioned in section 31(a) to any other
person, except as necessary for the trial.
(3) No person shall be granted access to the tape, its transcription or any part thereof unless he signs a written
affirmation that he has received and read a copy of the protective order; that he submits to the jurisdiction of
the court with respect to the protective order; and that in case of violation thereof, he will be subject to the
contempt power of the court.
(4) Each tape of the cassettes and transcripts thereof made available to the parties, their counsel, and respective
agents shall bear the following cautionary note:
This object or document and the contents thereof are subject to a protective order issued by the court in (case
title), (case number). They shall not be examined, inspected, read, viewed, or copied by any person, or disclosed
to any person, except as provided in the protective order. No additional copies of the tape or any of its portions
shall be made, given, sold, or shown to any person without prior court order. Any person violating such
protective order is subject to the contempt power of the court and other penalties prescribed by law.
(5) No tape shall be given, loaned, sold or shown to any person except as ordered by the court.
(6) Within thirty (30) days from receipt, all copies of the tape and any transcripts thereof shall be returned to the
clerk of court for safekeeping unless the period is extended by the court on motion of a party.
(7) The protective order shall remain in full force and effect until further order of the court.
The court may, motu proprio or on motion of any party, the child, his parents, legal guardian, or the guardian ad litem, issue
additional orders to protect the privacy of the child.
66
Sec. 31 (d). Whoever published or causes to publish in any format the name, address, telephone number, school, or other identifying
information of a child who is or is alleged to be a victim or accused of a crime or a witness thereof, or an immediate family of the child
shall be liable to the contempt power of the court.
67
Sec, 31 (e). A child has a right at any court proceeding not to testify regarding person identifying information, including his name,
address, telephone number, school, and other information that could endanger his physical safety or his family. The court may,
however, require the child to testify regarding personal identifying information in the interest of justice.
68
Sec. 31(f). Any videotape or audiotape of a child produced under the provisions of this Rule or otherwise made part of the court
record shall be destroyed after five (5) years have elapsed from the date of entry of judgment.
69
Sec. 31(g). Where a youth offender has been charged before any city or provincial prosecutor or before any municipal judge and the
charges have been ordered dropped, all the records of the case shall be considered as privileged and may not be disclosed directly or
indirectly to anyone for any purpose whatsoever.
Where a youthful offender has been charged and the court acquits him, or dismisses the case or commits him to an institution
and subsequently releases him pursuant to Chapter 3 of P.D. No. 603, all the records of his case shall also be considered as privileged
and may not be disclosed directly or indirectly to anyone except to determine of a defendant may have his sentence suspended under
Article 192 of P.D. No. 603 or if he may be granted probation under the provisions of P.D. No. 968 or to enforce his civil liability, if
said liability has been imposed in the criminal action. The youthful offender concerned shall not be held under any provision of law
to be guilty of perjury or of concealment or misrepresentation by reason of his failure to acknowledge the case or recite any fact related
thereto in response to any inquiry made to him for any purpose.
Records shall include those which may be in the filed of the National Bureau of Investigation and with any police
department or government agency which may have been involved in the case.
151
Child Sexual Abuse
Conclusion
The Rule on Examination of a Child Witness is not perfect and there are many
issues relating to the appreciation of the testimony of a child sexual abuse victim that
cannot be addressed by the Rule.70 Nevertheless, it is a ground-breaking step in making
the system of justice more sensitive to the needs of children. The Supreme Court should
be congratulated in making this bold and enlightened move. Now the challenge is to
ensure that the Rule is applied.
______
70
______
This could very well include the gender sensitivity of judges, especially male judges, which could manifest itself in the way the judge
allows the asking of questions that degrade the female victim. But it is noteworthy that more and more male judges are becoming
gender-sensitive. In the recently concluded Gender Justice Awards, seven out of the nine judges who were awarded were male. But
on the other hand, this could just be a reflection of the ratio of male judges vis--vis female judges.
152 JOURNAL

Raul I. Goco*
The Right to Jury Trial

The right to jury trial is fundamental in the American system of justice. Under
Article III of the U.S. Constitution, it is stated that the trial of all crimes, except in cases
of impeachment, shall be by jury x x. The right to jury trial was extended under the
Sixth Amendment to the state and district where the crime has been committed. In a
1968 ruling of the U.S. Supreme Court, the reason for a jury trial was explained through
the following pronouncement
Those who wrote our Constitution knew from history and experience that
it was necessary to protect against unfounded criminal charges brought to
eliminate enemies and against judges too responsive to the voice of higher
authority x x. Providing an accused with the right to be tried by a jury of his
peers gave him an inestimable safeguard against the corrupt or overzealous
prosecutor and against the biased or eccentric judge. If defendant preferred
the common-sense judgment of a jury to the more tutored but perhaps less
sympathetic reaction of the single judge, he was to have it (Duncan v.
Louisiana, 391 US 145, 80 S. Ct. 1444, 20 L. Ed. 2d. 49 [19681]).
It is noted that the phrase common-sense judgment is precisely what is to be
expected from a jury of ordinary people. Unlike a judge-made decision replete with
citations of authorities and references to proven and undisputed facts, the jury disposes
of the case without even putting in writing the bases of its verdict. How they do it, in
arriving at a verdict of guilt or innocence, is something they are not required to explain.
We are nurtured and trained under our system, where the making of a decision is entrusted
to the cold neutrality of a judge who under express language in our Constitution is
mandated to make findings of facts and the law (Art. VIII, Sec. 14).
According to the Duncan case, the essential feature of a jury lies in the interposition between the accused and his accuser of the common sense judgment of a
The author is the former Solicitor-General and is the Philippine Envoy to Canada.
153
group of laymen and in the community participation and shared responsibility that results
from the groups determination of guilt or innocence.
Of course, the weakness of a jury system that has been cited is that juries are
incapable of adequately understanding the evidence or determining factual issues. It is
sometimes said that juries are unpredictable, quixotic, and decide matters on basis little
better that a roll of dice. But an exhaustive study on the matter has concluded that, in
criminal cases, juries do understand the evidence and come to sound conclusions in
most of the cases.
Opening and closing arguments
The opening statements in a jury trial mark the stage where the jurors are told for
the first time of the nature of the case, through elaborate presentations by both the
prosecution and the defense. Here, the jury is given a preview of the prosecutions case,
as well as a thesis of innocence by the defense. The closing arguments take place after
the conclusion of the presentation of evidence with both sides summarizing the evidences
that strongly support their contradicting positions.
Jury instructions
Upon completion of the presentation of evidence by both prosecution and defense,
the jury is given the so-called instructions by the judge. It must be pointed out that in a
jury trial, the jurors are the judges of the facts while the Court is the judge of the law. In
the course of the trial, the evidence is presented which may be testimonial or documentary.
Its admissibility will be ruled upon by the Court. While the jurors are required to confine
themselves to the appreciation of the facts as they evolve, proven otherwise, the court
attends to the proper conduct of the trial including ruling on the admissibility or relevancy
of the evidence.
Thus, when the trial is concluded, the court instructs the jury on what he has ruled
on the evidence, what the jury should consider as supportable facts, the law allegedly
violated, and the offense allegedly committed and on which the indictment was based.
Counsels for both sides take careful note of the instructions as it is by said
instructions that the jurors may be misled. It is also on the basis of the instructions that
an appeal by the defense or the losing party in a civil case may be lodged.
154 JOURNAL
In a 1978 case, the U.S. Supreme Court reversed a ruling that upheld the trial
courts refusal to grant the request of a defendant that the jury be instructed that the law
presumes a defendant to be innocent and the indictment would not be considered as
evidence against him. The trial judge felt it was not necessary to instruct on the
presumption of innocence as said matter is implied in his instruction on the necessity of
proof beyond reasonable doubt. The Supreme Court, however, held that although the
burden of proof beyond reasonable doubt and the presumption of innocence are logically
similar, yet the ordinary citizen sitting as juror may well draw significant additional
guidance from instruction of the presumption of innocence (Taylor v. Kentucky, 426 US
478).
Size of the jury
In Williams v. Florida (339 US, 78,90 S. Ct. 1893,26 L. Ed. 2d. 446, 1970), the
question of whether the guarantee of a trial by jury necessarily requires trial by exactly 12
persons rather than some lesser number, was put at issue. It was held that the 12-man
panel is not a necessary ingredient of trial by jury. It turned out that a Florida State
Law allows only a jury panel of not more than six. In the Williams case, the Supreme
Court referred to its earlier 1968 ruling in the Duncan case that although history revealed
a long tradition attaching great importance to a body of ones peers to determine guilt or
innocence, the same history affords little insight into consideration that gradually led the
size of that body to be generally fixed at 12. In short the size of the jury of 12 may have
been a historical accident unrelated to the purpose which gave rise to a jury. In the
Williams case, it was observed that while a 12-man jury gives a defendant more chances
of finding a juror who will insist on acquittal, the advantage might just easily belong to
the State which also needs one juror out of 12 insisting on guilt to prevent acquittal.
Unanimous vote
Regarding the question of unanimity of the jury, the U.S. Supreme Court had
occasion to make a ruling. In Apodaca vs. Oregon (406 US, 404,92 S. Ct. 1628, 32 L.
Ed. 184), the two accused were convicted on a vote of 11-1 while the third accused was
convicted on a vote of 10-2, the minimum requisite voted under Oregon law for sustaining
conviction. Appeal of the conviction was sustained by the Supreme Court of Oregon,
and all three sought review before the U.S. Supreme Court upon a claim that conviction
by a vote that is not unanimous violates their constitutional rights to trial by jury. It was
also claimed that a unanimous jury is necessary to give substance to the reasonabledoubt standard mandated under the due process clause of the Constitution. It was
155
argued that unanimity is a necessary pre-condition for effective application of the crosssection requirement because less than a unanimous verdict will make it possible for
convictions without the acquiescence of minority elements within the community.
These arguments were not accepted by the Court. It held that the reasonabledoubt standard developed separately from both the jury trial concept and the unanimous
verdict doctrine. On the cross-section argument, the Court ruled that said argument
assumes that every distinct voice in the community has a right to be represented on
every jury and a right to prevent conviction in any case. It is noted that in the Apocada
case, a state law requiring less than unanimity was under question. It likewise involved
an offense committed within the states jurisdiction.
But three justices (Douglas, Brennan and Marshall) registered their dissent in the
Apodaca ruling. Mr. Douglas said the diminution of verdict reliability flows from the
fact that nonunanimous juries need not debate and deliberate as fully as most unanimous
juries. As soon as the requisite majority is attained further consideration is not required
xxx even though the dissident jurors might, if given the chance, be able to convince the
majority x x x. In roughly one case in ten, the minority eventually succeeds reversing an
initial majority. Concluding, he said It is my belief that a unanimous jury is necessary if
the great barricade known as proof beyond reasonable doubt is to be maintained and
that in criminal cases we would err on the side of letting the guilty go free rather than
sending the innocent to jail.
Deadlocked jury
Many people have probably seen a movie, first shown years ago, depicting the
travails of jurors in arriving at a verdict. That movie reminds us of the dissenting view of
Justice Douglas who espoused the principle of unanimity. In the movie, a lone dissenter
or dissident juror was able to convince his co-jurors to side with him. Also years ago, in
a TV series entitled Concealed Enemies, the prosecution and conviction of Mr. Alger
Hiss at the height of the infamous witch-hunting was retold. The jurors in the Hiss
case failed to muster the necessary votes to reach a verdict. Consequently, the jury was
discharged and a new set of jurors was arrayed. The case was tried anew and the
prosecution presented a new witness, a former maid of the Hiss family, whose testimony
was damaging enough to bring about a verdict of guilt.
A deadlocked or hung jury therefore is one where the jurors have failed to reach a
unanimous decision either for acquittal or conviction. Accordingly, a deadlocked jury
156 JOURNAL
does not bar, as does double jeopardy, retrial for the same offense (Dreyer vs. Illinois,
187 US, 71,23 S. Ct. 28, 47 L. Ed 79).
Is jury system suited here?
There is now interest in determining the feasibility of adopting the jury trial system
in the Philippines. It has been observed that when a judge handles a case involving a
heinous offense, there will be pressure on him to try the case either way. If the judge
acquits the accused, he will face the eternal ire of the public. On the other hand, if he
convicts the accused, he will be perceived to have succumbed to pressure. Either way,
it appears that there will always be hushed innuendos about a judges integrity.
On the other hand, there is the observation that our culture will never permit a jury
system. In the Philippine milieu anyone can always claim to be a relative of another. The
compadre system is also very strong.
Of course, to change to a jury system would constitute a revision of our
Constitution, for the Constitution does not speak of a jury trial, unlike the U.S.
Constitution. In fact, in Section 14, Article VIII of the Constitution, it is said that no
decision shall be rendered by any court without expressing therein clearly and distinctly
the facts and the law on which it is based. This clearly states that it is the judge who must
render the decision. In a jury system the jurors are the trier of the facts and the judge is
left with no other duty than to apply the law and preside over the proceeding.
______
______
157

Hector L. Hofilena*
Legal Ethics
Legal Ethics has been defined as the embodiment of all principles of morality
and refinement that should govern the conduct of every member of the Bar (Justice
Manuel V. Moran, Foreword to Malcolms LEGAL AND JUDICIAL ETHICS, s. 1949).
In the same text, Malcolm himself refers to Legal Ethics as that branch of moral science
which treats of the duties that an attorney owes to the court, to his clients, to his colleagues
in the profession and to the public. Both definitions are significant in that they refer to
morality as the essential element of Legal Ethics.
Why Legal Ethics? It is not intended to be the opposite of Illegal Ethics, for there
is none. It is rather a code of conduct, derived from statutes and jurisprudence, particularly
applicable to the legal profession. The need for such code is derived from the importance
of the legal profession itself. The practice of law is said to be a privilege impressed with
public interest. Its basic ideal is to render public service and take part in the administration
of justice. In this jurisdiction, the need for a lawyer is recognized in the Constitution and
the laws. In criminal cases, the Constitution provides that any person under investigation
for the commission of an offense shall have the right to be informed of his right to
remain silent and have competent and independent counsel preferably of his choice
(Sec. 20, Art. IV, Constitution). In civil cases, as a general rule, only lawyers may appear
in behalf of the parties before the courts. Apparently, the participation of a lawyer in
judicial proceedings is considered as part of due process of law. A resolution of the
Court of Appeals dismissing an appeal due to failure to file an appellants brief, was set
aside by the Supreme Court upon a finding that the lawyer who represented the
appellant in the former court was a fake one (Telan v.Court of Appeals, 202 SCRA 534).
The author is a former dean of the Ateneo de Manila University School of Law and a retired Court of Appeals Justice. He is a wellknown authority on legal ethics.
158 JOURNAL
Only lawyers in good standing are allowed to engage in the practice of law in the
Philippines. The practice of law is not limited to appearance in courts (Philippine Lawyers
Association v. Agrava, 105 Phil. 173). People also depend on lawyers for advice and
services outside the courtroom, in such matters as drawing up contracts and other
instruments involving legal relations, including last wills and testaments. The lawyers
advice and service are sought, precisely so that litigation may be avoided. A correct
diagnosis is often more important than a successful surgery.
The practice of law is geared towards public service, for which reason it is
considered a profession and not a mere trade or business. In the words of the Supreme
Court
It has been repeatedly stressed that the practice of law is not a
business. It is a profession in which duty to public service, not money, is
the primary consideration. Lawyering is not primarily meant to be a moneymaking venture, and law advocacy is not capital that necessarily yields
profits. The gaining of a livelihood should be a secondary consideration.
The duty to public service should be the primary consideration of lawyers,
who must subordinate their personal interests or what they owe to
themselves. (Atty.Ismael G. Khan, Jr. v. Atty. Rizalino T. Simbillo, A.C.
No. 5299, August 10, 2002)
It is from the public service aspect of the legal profession, and the preeminent
role of the lawyer in society, that the need for Legal Ethics arises. Put in another way,
the practice of law is so intimately affected with public interest that it is both a right and
duty of the sate to control and regulate it in order to promote the public welfare (In re
Integration of the Philippine Bar, 49 SCRA 22).
In this jurisdiction, the power to regulate the legal profession is vested in the
Supreme Court, both by virtue of constitutional provision (Sec. 5 [5], Art. VIII, 1987
Constitution), and the essentially judicial nature of the function (In re Cunanan, 94 Phil.
554). Whether the Congress may enact laws regulating the practice of law in the exercise
of the police power, is an unresolved question. In Cunanan, the Supreme Court struck
159
down a law admitting bar flunkers into the practice of law. But that was a matter of
admitting persons into the legal profession, not a matter of fixing qualifications for
admission to be applied prospectively. There are commentators who believe that Congress
still retains such power. On the other hand, the Supreme Court has had occasion to state
under Section 5 (5), Article VIII of the 1987 Constitution
The rule making power of this Court was expanded. This Court,
for the first time was given the power to promulgate rule concerning the
protection and enforcement of constitutional rights, The Court was also
granted, for the first time the power to disapprove rules of procedure of
special courts and quasi-judicial bodies, But most importantly, the
1987Constitution took away the power of Congress to repeal, alter or
supplement rules concerning pleading, practice and procedure. In fine,
the power to promulgate rules of pleading, practice and procedure is no
longer shred by this Court with congress, more so with the Executive. If
the manifest intent of the 1987 Constitution is to strengthen the independence
of the judiciary, it is inutile to urge, a public respondents do, that this Court
has no jurisdiction to control the process of execution of its decisions, a
power conceded to it which it has exercised since time immemorial.
(Echegaray v. Secretary of Justice, 310 SCRA 96)
Code of Professional Responsibility; importance of good moral character
It is undoubtedly by this power of regulation of the legal profession that the
Supreme Court adopted the Code of Professional Responsibility on June 21, 1988. A
scrutiny of its canons and implementing rules shows that good moral character is its
cornerstone. To start with, Rule 7.02 provides that a lawyer shall not support the
application for admission to the bar of any person known by him to be unqualified in
respect to character, education or other relevant attribute. This is a supplement to the
provision in Section 2, Rule 138 of the Rules of Court that every applicant for admission
as a member of the bar must be of good moral character. In addition, Rule 1.01 provides
that a lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct,
and Rule 7.03 provides that a lawyer shall not engage in conduct that adversely reflects
on his fitness to practice law, nor shall he whether in public or private life, behave in a
scandalous manner to the discredit of the legal profession. This, again, is a reflection of
160 JOURNAL
the provision in the Rules of Court that a member of the bar may be disbarred or
suspended for any deceit, malpractice, or other gross misconduct in such office, gross
immoral conduct, or by reason of his conviction of a crime involving moral turpitude, or
for any violation of the oath which he is required to take before admission to practice, or
for corruptly or willfully appearing as an attorney for any party to a case without sufficient
authority to do so (Sec. 27, Rule 138).
In brief, and the Supreme Court has reiterated it time and again, good moral
character is not only a requisite to admission to the practice of law, but it is also a
continuing condition for remaining a member of the legal profession. In a 2003 case, the
Supreme Court pointed out that
The loss of moral character of a lawyer for any reason whatsoever
shall warrant her suspension or disbarment, because it is important that
members of the legal brotherhood must conform to the highest standards
of morality. Any wrongdoing which indicates moral unfitness for the
profession, whether it be professional or non-professional, justifies
disciplinary action (Emilio Grande v. Atty. Evangeline de Silva, A.C. No.
4838, July 29, 2003)
Concept of good moral character
What is meant by good moral character? No exact definition has been given,
perhaps, rightly so. Such a concept cannot and should not be placed in a strait-jacket of
words, but should be allowed to develop as facts and circumstances arise. The Supreme
Court has, however, portrayed some of its basic outlines. In one case, the Supreme
Court pointed out that moral character is not to be equated with good reputation, and
that good moral character includes at least common honesty.
Ones own approximation of himself is not a gauge to his moral
character. Moral character is not a subjective term, but one which
corresponds to objective reality. Moral character is what a person really is,
and not what he or other people think he is. As former Chief Justice Moran
observed: An applicant for license to practice law is required to show
good moral character, or what he really is, as distinguished from good
161
reputation, or from the opinion generally entertained of him, the estimate in

which he is held by the public in the place where he is known. As has been
said, ante, the standard of personal and professional integrity which should
be applied to persons permitted to practice law is not satisfied by such
conduct as merely entitles them to escape the penalties of criminal law.
Good moral character includes at least common honesty (Royong
vs. Oblena, 7 SCRA 859, 871, emphasis mine).
In the more recent case of Cordon v. Balicanta, A.C. No. 2797, October 4,
2002, the Supreme Court emphasized the importance and primacy of good moral
character in the practice of law, and the reason why.
The Code of Professional Responsibility mandates upon each
lawyer, as his duty to society, to obey the laws of the land and promote
respect for law and legal processes. Specifically, he is forbidden to engage
in unlawful, dishonest, immoral or deceitful conduct. If the practice of law
is to remain an honorable profession and obtain its basic ideal, those
enrolled in its ranks should not only master its tenets and principles but
should also, in their lives, accord continuing fidelity to them. Thus, the
requirement of good moral character is of much greater import, as far as
the general public is concerned, than the possession of legal learning.
Lawyers are expected to abide by the tenets of morality, not only upon
admission to the Bar but also throughout their legal career, in order to
maintain ones good standing in that exclusive and honored fraternity. Good
moral character is more than just the absence of bad character. Such
character expresses itself in the will to do the unpleasant thing if it is right,
and the resolve not to do the pleasant thing if it is wrong. This must be so
because vast interests are committed to his care; he is the recipient of
unbounded trust and confidence; he deals with his clients property,
reputation, his life, his all.
Good moral character has been described in the negative sense, as the absence of
bad character, or the opposite of immoral conduct. Immoral conduct has been
defined as the following:
Immoral conduct is that conduct which is so willful, flagrant or
shameless as to show indifference to the opinion of good and respectable
162 JOURNAL
members of the community (Narag v. Narag, 291 SCRA 451). But for
such conduct to warrant disciplinary action, the same must be so corrupt
and false as to constitute a criminal act or so unprincipled as to be
reprehensible in a high degree. (Ui vs. Bonifacio, 333 SCRA 38)
In the same case, the Supreme Court pointed out that the opinion of the community
may change; still, it does not excuse lawyers from exhibiting a higher degree of
responsibility.
Perhaps morality in our liberal society is a far cry from what it used
to be before. This permissiveness notwithstanding, lawyers, as keepers of
the public faith, are burdened with a higher degree of social responsibility
and thus must handle their personal affairs with greater caution. (Ui vs.
Bonifacio, supra)
In a recent case, the Supreme Court noted that the requirement of good moral
character has three ostensible purposes, namely: (i) to protect the public;(ii) to protect
the public image of lawyers; and (iii) to protect prospective clients. A writer added a
fourth: to protect errant lawyers from themselves (Dantes v. Dantes, A.C. No. 6486,
September 22, 2004).
Good moral character and the Code of Professional Responsibility
To avoid immorality or the appearance of immorality, or, to put it another way, to
preserve a lawyers good moral character, Rule 1.01 of the Code of Professional
Responsibility cautions him to avoid unlawful, dishonest, immoral and deceitful conduct.
This is, indeed, a broad prescription for the maintenance of good moral character.
Unlawful conduct is easy to understand; it is conduct in violation of the law. A
lawyer should take care not to violate the law, because his first duty under Canon 1 of
the Code is to uphold the Constitution, obey the laws of the land and promote respect
for law and legal processes. According to the Supreme Court
163
To say that lawyers must at all times uphold and respect the law is
to state the obvious, but such statement can never be overemphasized.
Considering that, of all classes and professions . (lawyers are) most
sacredly bound to uphold the law, it is imperative that they live by the law.
Accordingly, lawyers who violate their oath and engage in deceitful conduct,
have no place in the legal profession. (De Guzman vs. De Dios, A.C. No.
4943, January 20, 2001).
And yet, the Supreme Court has held that it will not be satisfied with conduct
which merely evades the penalty of criminal law (Royong v.Oblena, supra). Thus, a
lawyer who raped his neighbors wife but was acquitted due to insufficiency of evidence,
was nevertheless disbarred by the Supreme Court (Calub v. Suller, 323 SCRA 556).
Other instances of unlawful conduct include the use of a forged Special Power of
Attorney to obtain a bank loan (Rural Bank of Silay v. Pilla, 350 SCRA 28), the
issuance of bouncing checks (De Jesus v. Collado, 216 SCRA 306, Grande v. De
Silva, A.C. No, 4838, July 29, 2003, and Orbe vs. Adaza, A.C. No. 5252, May 20,
2004), and providing OFWs with spurious travel documents (Sebastian v. Calis, 314
SCRA 1). The case of Grande v. De Silva is particularly notable because in that case,
the lawyer persuaded the complainant in an estafa case to withdraw the complaint on
the basis of the lawyers own check for the amount claimed, with the lawyer giving
assurance that the said check was sufficiently funded. But when the check was presented
to the drawee bank for acceptance, it was dishonored for having been drawn against a
Closed Account.
The Supreme Court has been unremitting in penalizing lawyers who were notaries
public for dishonesty, for notarizing documents without the presence of the parties who
allegedly executed the same, or for notarizing forged documents allegedly executed by
persons whom they know are hospitalized or are already dead (Flores v. Chua, 309
SCRA 566, Maligsa v. Cabanting, 272 SCRA 408).
Immoral conduct invariably involves the violation of a marriage, an institution
which the Constitution seeks to protect as the basic unit of society. The Supreme Court
has held that a relationship between two adults who are not disqualified to marry each
other is not immoral, even if a child should be born as a result of such relationship
164 JOURNAL
(Figueroa v. Barranco, 276 SCRA 445). And a lady lawyer who was deceived into
believing that the man courting her was unmarried, received only an admonition for her
lack of prudence in having relations with him (Ui vs. Bonifacio, supra).
But a married lawyer who abandons his family to live with other women (Cordova
v. Cordova, 179 SCRA 680, Laguitan v. Tinio, 179 SCRA 837), a lawyer who contracted
a bigamous marriage (Santos v. Tan, 196 SCRA 16), a lawyer who convinced a married
woman to marry him (Terre v. Terre, 211 SCRA 839), a lawyer who abandoned his
family to live with a mistress (Narag v. Narag, 291 SCRA 451), a dismissed judge who
continued to cohabit with a mistress and married her despite the existence of a previous
marriage (Tapucar vs. Tapucar, 293 SCRA 331), and a married lawyer who maintained
illicit relations with another woman but was acquitted of concubinage (Paras v. Paras,
343 SCRA 414), were all penalized by the Supreme Court.
In a case decided last year, the Supreme Court has this reminder for all lawyers:
As keepers of the public faith, lawyers are burdened with the highest
degree of social responsibility and thus must handle their personal affairs
with greatest caution. They are expected at all times to maintain due regard
for public decency in the community where they live. Their exalted position
as officers of the court demand no less than the highest degree of morality.
Indeed, those who have taken the oath to assist in the dispensation of
justice should be more possessed of the consciousness and the will to
overcome the weakness of the flesh. (Rau Sheng Mo v. Atty. Angeles A.
Velasco, A.C. No. 4881, October 6, 2003)
The Supreme Court is even more severe where the immorality is accompanied
with deceit, such as when married lawyers resort to lies and deception to have young
women submit to them (De los Reyes v. Aznar, 19 SCRA 753, Barrientos v. Daarol,
218 SCRA 512, Royong v.Oblena, 7 SCRA 859).
Deceit has also been resorted to in order to deprive other persons of money or
property, such as when a lawyer deceived an octogenarian aunt to deposit her money in
joint account with him and thereafter withdrawing it (Rayos-Ombac v. Rayos, 265 SCRA
165
83), or where a lawyer deceived some businesswomen into believing that he held a
high position in the Bureau of Customs and can do favors for them, and thereafter
borrowing large sums of money from them which he failed to pay (Co v. Bernardino,
285 SCRA 102). The Supreme Court was most outraged in the case of Cordon v.
Balicanta (A.C. No. 2797, October 4, 2002) which involved a lawyer who was retained
to settle the estate of a deceased businessman. He persuaded the heirs of the deceased
to assign the properties of his estate to a corporation which he organized for them, and
of which he had himself elected as President, Treasurer and Secretary. By the use of
such corporation, he thereafter mortgaged and sold the properties of the estate without
accounting for any of the proceeds to the heirs. The language used by the Supreme
Court in disbarring him deserves repetition:
After a thorough review of the records, we find that respondent
committed grave and serious misconduct that casts dishonor on the legal
profession. His misdemeanors reveal a deceitful scheme to use the
corporation as a means to convert for his own personal benefit properties
left to him in trust by complainant and her daughter.
Not even his deviousness could cover up the wrongdoings he
committed. The documents he thought could exculpate him were the very
same documents that revealed his immoral and shameless ways. These
documents were extremely revealing in that they unmasked a man who
knew the law and abused it for his personal gain without any qualms of
conscience. They painted an intricate web of lies, deceit and opportunism
beneath a carefully crafted smokescreen if corporate maneuvers.
The Code of Professional Responsibility mandates upon each lawyer,
as his duty to society, the obligation to obey the laws of the land and
promote respect for law and legal processes. Specifically, he is forbidden
to engage in unlawful, dishonest, immoral or deceitful conduct. If the practice
of law is to remain an honorable profession and attain its basic ideal, those
enrolled in its ranks should not only master its tenets and principles but
should also, in their lives, accord continuing fidelity to them. Thus, the
requirement of good moral character is of much greater import, as far as
the general public is concerned, than the possession of legal learning.
Lawyers are expected to abide by the tenets of morality, not only upon
166 JOURNAL
admission to the Bar but also throughout their legal career, in order to
maintain ones good standing in that exclusive and honored fraternity. Good
moral character is more than just the absence of bad character. Such
character expresses itself in the will to do the unpleasant thing if it is right
and the resolve not to do the pleasant thing if it is wrong. This must be so
because vast interests are committed to his care; he is the recipient of
unbounded trust and confidence; he deals with his clients property,
reputation, his life, his all.
Indeed, the words of former Presiding Justice of the Court of Appeals
Pompeyo Diaz cannot find a more relevant application than in this case:
There are men in any society who are so self-serving
that they try to make law serve their selfish ends. In this group
of men, the most dangerous is the man of the law who has no
conscience. He has, in the arsenal of his knowledge, the very
tools by which he can poison and disrupt society and bring it
to an ignoble end.
Rule 1.01 is supplemented by Rule 7.03 of the Code of Professional Responsibility
which provides that a lawyer shall not engage in conduct that adversely reflects on his
fitness to practice law, nor shall he, whether in public or private life, behave in a scandalous
manner to the discredit of the legal profession. The emphasis is on the necessity of
morality even in the lawyers private life, and that his misconduct, public or private,
brings discredit to the legal profession. Truly, each lawyer is his brothers keeper. A loss
of trust and confidence in him can escalate to a loss of trust and confidence in the legal
profession itself. The other side of the coin is that any denigration of the legal profession
affects the lawyer personally, so he should make it his business to defend and uphold
the dignity of such profession.
The Supreme Court has held that keeping a mistress constitutes scandalous
conduct (Rau Sheng Mo v. Atty. Velaso, supra).
167
Other provisions
Other provisions of the Code of Professional Responsibility where good moral
character, or facets thereof, is interwoven or implied are the following:
a)
use only true information
Canon 3 A lawyer in making known his legal services shall use

only true, honest, fair, dignified and objective information or statement of
facts.
Rule 3.01 A lawyer shall not use or permit the use of any false,
fraudulent, misleading, deceptive, undignified, self-laudatory or unfair
statement or claim regarding his qualifications or legal services.
Truth and dignity are the parameters that a lawyer may make of the availability of
his services. One reason for this is the nobility of the legal profession. A lawyer is not a
merchant, and cannot advertise his services in the same manner that a merchant would
advertise his wares. Another reason is that unrestricted advertising can bring with it
temptations of self-praise or puffery, as well as the presentation of fraudulent claims. In
a case where a lawyer placed an advertisement simply stating Annulment of Marriage
Specialist followed by a telephone number, the Supreme Court penalized him not only
for engaging in a commercial activity, but also because of its deleterious effect on the
community:
What adds to the gravity of respondents acts is that in advertising
himself as a self-styled Annulment of Marriage Specialist, he wittingly or
unwittingly erodes and undermines not only the stability but also the sanctity
of an institution still considered as sacrosanct despite the contemporary
climate of permissiveness in our society. Indeed, in assuring prospective
clients that an annulment may be obtained in four to six months from the
time of the filing of the case, he in fact encourages people, who might have
otherwise been disciplined and wold have refrained from dissolving heir
168 JOURNAL
marriage bonds, to do so. (Atty. Ishmael G. Khan, Jr. v. Atty. Rizalino T.

Simbillo, supra)
b)
pursuit of justice
Rule 6.01 The primary duty of a lawyer engaged in public

prosecution is not to convict but to see to it that justice is done. The
suppression of facts or the concealment of witnesses capable of establishing
the innocence of the accused is highly reprehensible and I cause for
disciplinary action.
A 1998 Supreme Court decision couldnt have worded the reason for this provision
any better:
Prosecutors should never forget that, in the language of Suarez v.
Platon, 69 Phil. 556, they are the representatives not of any ordinary party
to a controversy, but of a sovereignty whose obligation to govern impartially
is as compelling as its obligation to govern at all, and whose interest,
therefore, in a criminal prosecution, is not that it shall win every case but
that justice is done. As such, they are in a peculiar and every definite sense
the servant of the law, whose two-fold aim is that guilt shall no escape or
innocence suffer. (Dimatulac v. Villon, 297 SCRA 679)
c)
government lawyers
Rule 6.02 A lawyer in the government service shall not use his
public position to promote or advance his private interests, nor allow the
latter to interfere with his public duties.
This rule is in consonance with the constitutional provision that a public office
is a pubic trust. Government lawyers who forget this rule may face not only dismissal
from office but also disbarment from the legal profession. Double jeopardy is no defense
(Dinsay v. Cioco, 264 SCRA 703).
169
d)
courtesy to fellow lawyers
Canon 8 A Lawyer shall conduct himself with courtesy, fairness

and candor toward his professional colleagues, and shall avoid harassing
tactics against opposing counsel.
To retaliate against the filing of an estafa case against his client in Manila, a lawyer
filed a civil case for damages in Zamboanga, not only against the complainant but also
against the latters lawyer and the Public Prosecutor who conducted the preliminary
investigation of the estafa case. In penalizing him, the Supreme Court said:
Lawyers should treat their opposing counsel with courtesy, dignity
and civility. A great part of their comfort, as well as their success at the bar,
depends upon their relation with professional brethren. Since they deal
constantly with each other, they must treat one another with trust and respect.
Any undue ill feeling between clients should not influence counsel in their
conduct and demeanor toward each other. Mutual bickering, unjustified
recrimination and offensive behavior among lawyers not only detract from
the dignity of the legal profession , but also constitute highly unprofessional
conduct subject to disciplinary action. (Atty. Ramon P. Reyes v .Atty
Victorino Chiong, A.C. 5148, July 3, 2003)
Rule 8.02 A lawyer shall not, directly or indirectly, encroach upon
the professional employment of another lawyer, however, it is the right of
any lawyer, without fear or favor, to give proper advice and assistance to
those seeking relief against unfaithful or neglectful counsel
A lawyer should not try to steal the other lawyers client. He should not criticize
the other lawyer for accepting a case which he believes to be unmeritorious, or for
charging higher fees. A lawyer should not enter his appearance in a case, whether by
substitution or in collaboration, which he knows is being handled by another lawyer
without the latters consent. A lawyer should not communicate directly with the the
adverse party, without coursing it through his lawyer (Likong v. Atty. Lim, A.C. 3149,
August 17, 1994, Camacho v. Pagulayan, 325 SCRA 636).
170 JOURNAL
e)
honesty
Canon 10 A Lawyer owes candor, fairness and good faith to the
court.
Rule 10.01 A lawyer shall not do any falsehood, nor consent to the
doing of any in court, nor shall he mislead, or allow the Court to be misled
by any artifice.
Honesty is the best policy in a lawyers relationship with the court. A lawyer is
an officer of the court. He should assist, not resist, the courts performance of its job.
The proper relationship between a lawyer and the court has been aptly depicted by the
Highest Tribunal thus:
A lawyer must be a disciple of truth. He swore upon his admission
to the Bar that he will do no falsehood nor consent to the doing of any in
court, and he shall conduct myself as a lawyer according to the best of
his knowledge and discretion with all good fidelity as well to the court as to
his clients. He should bear in mind that as an officer of the court, his high
vocation is to correctly inform the court of the of the law and the facts of
the case and to aid it in doing justice and arriving at correct conclusions.
The courts, on the other hand, are entitled to expect only complete honesty
from lawyers appearing and pleading before them. While a lawyer has the
solemn duty to defend his clients rights and is expected to display the
utmost zeal in defense of his clients cause, his conduct must never be at
the expense of the truth. (Walter T. Young v. Cesar G. Batuegas, et al.,
A.C. No. 5379,July 4, 2002)
f)
multiple suit
Rule 12.02 A lawyer shall not file multiple actions arising from the
same cause.
This is very clearly aimed at the practice of forum-shopping. Forum-shopping is
often resorted to by a lawyer unsure of his case. By filing multiple actions involving the
same cause, he is hopeful that he will win in at least one of them. Quite often, clients
171
pressure their counsel to file various motions and actions in order to simply delay the
execution of a final and executory judgment. The l.awyer should not lend a hand to such
design. Forum-shopping constitutes an abuse of legal processes, for which the lawyer
may be held administratively liable, even for direct contempt (Benguet Electric
Cooperative v. Flores, 287 SCRA 449). In Millare v. Montero, 246 SCRA 1, a lawyer
filed six complaints or petitions to frustrate the execution of a decision of the Metropolitan
Trial Court which had already become final. In suspending him for one year, the Supreme
Court warned:
It is unethical for a lawyer to abuse or wrongfully use the judicial
process, like the filing of dilatory motions, repetitious litigation and frivolous
appeals for the sole purpose of frustrating and delaying the execution of a
judgment (Edelstein, The Ethics of Dilatory Motions Practice: Time for
Change, 44 Fordham L Rev. 1069 [1976], Overmeyer v. Fidelista and
Deposit Co., 554 F 2D 539, 543 [2ND Cir, 1971]).
g)
rely only on merits
Canon 13 A lawyer shall rely upon the merits of his cause

and refrain from any impropriety which tends to influence, or gives
the appearance of influencing the court.
A lawyer who relies on giving the impression that he is influential with the court,
does a disservice not only to his client but also to his profession and to the court. Trust
and confidence in the legal system will be destroyed if people start to believe that all it
takes to win cases is influence on the judge. In a recent case, a lawyer was disbarred
because he boasted that he can get a person released from jail because he can get the
assistance of an Associate Justice of the Supreme Court who his friend. What made
matters worse was that he asked for money from the client for his alleged friend, and in
cash, because his friend allegedly does not accept checks (Felicitas Bernardo vs. Atty.
Wneceslao Barcelona, A.C. No. 6084, September 3, 2003). In ordering his disbarment,
the Supreme Court had this to say:
172 JOURNAL
The Code exacts from lawyers not only a firm respect for law,
legal processes and the courts but also mandates the utmost degree of
fidelity and good faith in dealing with clients and the moneys entrusted to
them pursuant to their fiduciary relationship. Instead of promoting respect
for law and the legal processes, respondent callously demeaned the legal
profession by taking money from a client under the pretext of having
connections with a Member of this Court.
The judiciary has been besieged enough with accusations of
corruption and malpractice. For a member of the legal profession to further
stoke the embers of mistrust on the judicial system with such irresponsible
representations is reprehensible and cannot be tolerated. Respondent made
a mockery of the Judiciary and further eroded public confidence in courts
and lawyers when he ignored the proceedings in the Aquino case and in the
present case. More so, when he misrepresented to complainant that he has
connections with a Member of the Court to accommodate his client and
the Justices of the Court accept money. Indubitably, he does not deserve
to remain a member of the Bar any minute longer.
h)
Candor and loyalty
Canon 15 A lawyer shall observe candor, fairness and loyalty in all

his dealings and transactions with his client.
It should be fairly obvious by now that candor is the first duty of a lawyer towards
the courts, his colleagues and his clients. This is more so with regard to the last, because
the client reposes trust and confidence in the lawyer. Generally, a lawyer-client relationship
has been characterized as strictly personal, highly confidential and fiduciary. A client
chooses a lawyer because of his trust and confidence in him. In turn, the lawyer owes
the client candor and loyalty. He should be candid about his competence. A lawyer shall
not undertake a legal service which he knows or should know that he is not qualified to
render (Rule 18.01, Code of Professional Responsibility). He should be candid about
the merits of the clients case. And, because of his duty of loyalty, a lawyer shall not,
without the full knowledge and consent of the client, accept any fee, reward, costs,
commission, interest, rebate or forwarding allowance or other compensation whatsoever
173
related to his professional employment from anyone other than the client (Rule 320.2,
Code of Professional Responsibility).
But the first thing that the lawyer should be candid about is whether or not a
conflict of interest is involved. Rule 15.03 of the Code of Professional Responsibility is
quite emphatic when it states:
Rule 15.03 A lawyer shall not represent conflicting interest except
by written consent of all concerned given after a full disclosure of the
facts.
Serving conflicting interests is a gross violation of the duty of loyalty which the
lawyer owes to his client. It can also be a violation of the duty to keep in confidence the
secrets that may have been conveyed to him by his client.
There can be a conflict of interest between the client and the lawyer himself.
There can be a conflict of interest between a prospective client and a present client of
the lawyer. There can be a conflict of interest between the prospective client and a
former client of the lawyer. In all such instances, the lawyer should not accept the
proferred case without the consent of all concerned.
In an early case, the Supreme Court even overturned a conviction, on the ground
that the counsel de oficio for the accused served conflicting interests; he had earlier
served as private prosecutor against a co- accused in the same case (U.S. v. Laranja,
21 Phil. 500).
The tests of conflict of interest has been summarized by the Supreme Court thus:
There is conflict of interest when a lawyer represents inconsistent
interests of two or more opposing parties. The test is whether or not in
behalf of one client, it is the lawyers duty to oppose it for another client.
In brief, if he argues for one client, this argument will be opposed by him
when he argues for the other client. This rule covers not only cases in
which confidential communications have been confided, but also those in
174 JOURNAL
which no confidence has been bestowed or will be used. Also, there is

conflict of interests if the acceptance of the new retainer will require the
attorney to perform an act which will injuriously affect his first client in any
matter in which he represents him, and also whether he will be called upon
in his new relation to use against his first client any knowledge acquired
through their connection. Another test of inconsistency of interests is
whether the acceptance of a new relation will prevent an attorney from
the full discharge of his duty of undivided fidelity and loyalty to his client
or invite suspicion of unfaithfulness or double-dealing in the performance
thereof. (Santua v. Beltran, A.C. No. 5858, Dec. 11, 2003)
It is not necessary for there to be a conflict of interest, that the lawyer should
enter his appearance as counsel for both the plaintiff and the defendant in the same case.
It is enough that he appear as counsel for one party, and give advice and assistance to
the other concerning the same case (Artezuela v. Maderazo, A.C. No. 4354, December
11, 2003).
A lawyer who is a retained counsel of a corporation, cannot appear for the
Board of Directors in a derivative suit against them, because in a derivative suit, the
corporation is the real party plaintiff (Bornilla v. Salunat, A.C. No. 5804, July 1,
2003). A lawyer cannot appear as counsel for the Administrator in the settlement of the
estate of a deceased person and, in his capacity as an accountant, represent the creditors
of the estate (Nakpil v. Valdes, 286 SCRA 758).
A lawyer cannot continue representing a client in an action or any proceeding
against a party, even with the clients consent, after the lawyer brings suit in his own
behalf against the same defendant, if it is uncertain whether the defendant will be able to
satisfy both judgments (Gamilla v. Mario, Jr., 399 SCRA 398). The reason for this
is that there will necessarily be a conflict of interest between the lawyer and the client.
i)
holding of funds
Canon 16 A lawyer shall hold in trust all moneys and properties of

his client that may come into his possession.
175
Rule 16.01 A lawyer shall account for all money or property

collected or received for or from the client.
Rule 16.03 A lawyer shall deliver the funds and property of his
client when due or upon demand. However, he shall have a lien over the
funds and may apply so much thereof as may be necessary to satisfy his
lawful fees and disbursements, giving notice promptly thereafter to his
client. He shall also have a lien to the same extent on all judgments and
executions he has secured for his client as provided for in the Rules of
Court.
This is the fiduciary duty of the lawyer to his client, truly a test of his character.
In the course of his career, a lawyer will inevitably come to possession of money belonging
to his client. His client may give him money to pay court fees, rentals, taxes, a debt or
obligation. On the other hand, he may be authorized by the client to collect rentals from
the clients property, or the debt of an adverse party. The adverse party himself may
give him money to be delivered to his client. He should be able to account for all of
these at any time upon demand of his client.
The amount matters not, the duty is still the same. In the case of Marquez v.
Meneses, Jr. (321 SCRA 1) the amount involved was only P50.00, but the lawyer was
penalized for failure to deliver the same to his client. In the case of Lemoine vs. Atty.
Balon (A.C. No. 5829, October 28, 2003), the amount involved was P525,000.00. In
the said case, a lawyer was retained by the client to follow up his claim against an
insurance company during his absence from the Philippines. The insurance company
agreed to settle the claim for P525,000.00 and gave a check in that amount to the lawyer.
However, the lawyer did not disclose such fact to the client and made him believe for
some time that he was still negotiating with the insurance company. But the time came
when the client could not longer wait, and he himself went to the insurance company to
inquire about his claim. It was only then that he learned that the company had long paid
P525,000.00 to his lawyer. The client asked for the said amount from the lawyer, but the
latter refused to deliver it to him, arguing that he was holding it as a retaining lien and,
pursuant to Rule 16.03 cited above, he can apply the same to the payment of his fees
which he fixed at 50% of the amount collected. The client objected to the amount of the
176 JOURNAL
fee, but the lawyer claimed that it was in accordance with standard practice in the insurance
industry. The Supreme Court rejected his claim and ruled as follows:
That respondent has a lien on complainants funds for his attorneys
fees did not relieve him of his duty to account for it. The lawyers continuing
exercise of his retaining lien presupposes that the client agrees with the amount
of the attorneys fees to be charged. In case of disagreement or when the client
contests that amount for being unconscionable, however, the lawyer must not
arbitrarily apply the funds in his possession to the payment of his fees. He can
file, if he still deems it desirable, the necessary action or proper motion with the
proper court to fix the amount of such fees.
j)
fidelity to client
Canon 17 A lawyer owes fidelity to the cause of his client

and he shall be mindful of the trust and confidence reposed in him.
Canon 18 A lawyer shall serve his client with competence
and diligence.
Negligence is a chink in a lawyers moral armor. If he takes no heed of it, it will
become bigger and bigger and strip him bare. The Supreme Court has explained the
necessity of diligence in the recent case of Katrina Joaquin Cario vs. Atty. Arturo de
ls Reyes, A.C. No. 4982, August 9, 2001, thus:
What this Court said in Santiago v. Fojas was totally lost to
petitioner, to wit:
It is axiomatic that no lawyer is obliged to act either
as adviser or advocate for every person who may wish to
become his client. [However], once he agrees to take up
the cause of a client, the lawyer owes fidelity to such cause
and must always be mindful of the trust and confidence
reposed in him. He must serve the client with competence
and diligence and champion the latters cause with
wholehearted fidelity, care and devotion. Elsewise stated, he
177
owes entire devotion to the interest of the client. Warm zeal in

the maintenance and defense of his clients rights, and the
exertion of his utmost learning and ability to the end that nothing
be taken or withheld from his client save by the rules of law,
legally applied. If much is demanded from an attorney, it is
because the entrusted privilege to practice law carries with it
the correlative duties not only to the client but also to the
court, to the bar and to the public. A lawyer who performs his
duty with diligence and candor not only protects the interest
of his client; he also serves the ends of justice, does honor to
the bar, and helps maintain the respect of the community to
the legal profession.
There are many occasions for a lawyer to be negligent. Lawyers have been found
negligent for delays in the filing of pleadings, in failing to attend a pre-trial or a hearing, in
failing to present vital evidence, in failing to file a memorandum, position paper or a
notice of appeal. within the reglementary period. In the case of Reontoy v. Ibadlit, 283
SCRA 88, a lawyer did not file a notice of appeal because he could no longer locate his
client. The Supreme Court held that in such a contingency, the prudent thing a lawyer
can do is to file the notice of appeal. In that way, if the client should subsequently appear
and decide that he does not wish to appeal, the notice could always be withdrawn. But
if the lawyer fails to file a notice of appeal and his client should later appear and decide
to appeal, he may have already lost that right because of the negligence of his lawyer.
It is axiomatic, of course, that the negligence of the lawyer is binding on his client.
The only exception is if the negligence was gross negligence and as a result thereof, the
client was denied due process of law.
k)
fees
Canon 20 A lawyer shall charge only fair and reasonable fees.

Although the practice of law is not intended to be a money-making venture, a
lawyer is entitled to be earn a livelihood from his profession. He is entitled to be paid for
178 JOURNAL
his services. It would be ironic if he strives to achieve justice for others and not receive
justice himself.
The only condition required is that he should charge only fair and reasonable
fees. There may be statutes fixing the amount that he can charge, such as in the Labor
Code. But, generally, a lawyer and a client are left free to agree on his fees. Such
agreement constitutes the contract between them. However, if the amount agreed upon
should be unconscionable, the courts may reduce the same.
What is a fair and reasonable fee depends on the circumstances of the case.
Several factors are enumerated in the Code of Professional Responsibility as guides for
fixing the lawyers fee, but these are not mandatory or exclusive.
Lawyers who are appointed as counsel de oficio are entitled to almost symbolic
fees for their services. But Rule 14.04 of the Code of Professional Responsibility provides
that a lawyer who accepts the cause of a person unable to pay his professional fees
shall observe the same standard of conduct governing his relations with paying clients.
l)
confidential nature
Canon 21 A lawyer shall preserve the confidences and secrets

of his client even after the attorney-client relation is terminated.
It takes a lot of will power to comply with this obligation. Man is a social being
with an urge to communicate. But this obligation is necessary. In order that a lawyer can
give proper advice to the client, the latter should tell him all the facts of a situation. But
some people are afraid to do that, for fear of having their secrets revealed. To encourage
them to overcome such fear, lawyers are required to preserve their confidences and
secrets.
As a matter of fact, the Supreme Court has held in Hilado vs. David, 84 Phil.
569, that communications between lawyer and client are a complex matter; it is difficult
to determine what is intended to be secret and confidential and what is not. It will be
179
sufficient, the Supreme Court said, that once a lawyer-client relationship is established,
any communication between them should be covered by the mantle of privileged
communication.
m)
termination of relationship
Canon 22 A lawyer shall withdraw his services only for

good cause and upon notice appropriate in the circumstances.
A final test of a lawyers moral character is the matter of the withdrawal of his
services from the client. He is not as free, as the client is, to terminate the lawyer-client
relationship This is because the service he renders to the client is a duty rather than a
right. He can withdraw only with the consent of his client, and if no such consent is
given, only for good cause and upon notice given to the client. What is good cause is
left to the discretion of the court.
Good moral character is the bedrock of Legal Ethics. It should not be difficult for
a lawyer to abide by the ethics of his profession, because the basic principles of morality
are inborn in him, placed there by his Creator. All that he has to do is to listen to that
small voice called his conscience. All he has to do is listen to himself. On this point,
perhaps that great Bard hit the spot when he wrote in Hamlet that:
This above all: to thine ownself be true.
And it must follow, as the night the day,
Thou canst not then be false to any man.
______
180 JOURNAL
______
Regulation and Reorganization: Significant Legal Developments in 2004
Regulation and Reorganization:

Significant Legal Developments in 2004
Christine V. Lao*
Foremost among the significant legal developments in 2004 are new regulations
issued by the Supreme Court and Securities and Exchange Commission and issuances
reorganizing certain offices under the executive branch.
New rules on notarial practice
The Supreme Court approved the 2004 Rules on Notarial Practice (A.M. No. 028-13, or the Notarial Rules) on July 6, 2004. The Notarial Rules, which took effect on
August 1, 2004, took the place of the Notarial Law (Title IV, Chapter 11 of the Revised
Administrative Code).
Under the Notarial Rules, only members of the Philippine bar in good standing,
who are over 21 years of age, Philippine citizens and residents for at least one year, and
with a regular work place in the city or province where the notarys commission is to be
issued, can be commissioned as a notary public.1 The Notarial Rules disqualify a person
convicted of any crime involving moral turpitude from being commissioned as a notary
public.2 The Notarial Rules no longer allow judges to appoint persons to temporarily
exercise the office of the notary public. They likewise no longer allow persons to act as
ex officio notaries public.
The Notarial Rules provide in greater detail the procedure concerning the
commissioning of notaries public. Persons who wish to be commissioned must submit
to the executive judge of the place where they are applying for commission, a verified
petition stating their personal qualifications, a certification of good moral character issued
by at least two executive officers of the local chapter of the Integrated Bar of the
Philippines where they are applying for commission, proof of payment for the filing of
the petition, and three unretouched passport-size color photographs taken within 30
Consultant, Law and Policy Reform, Asian Development Bank; A.B. magna cum laude (Ateneo de Manila University, 1995); Ll.B.
(University of the Philippines, 2000). Former associate, SyCip Salazar Hernandez & Gatmaitan.
1
A.M. No. 02-8-13 (Notarial Rules), rule III, sec. 1.
2
Notarial Rules, rule III, sec. 1 (5).
3
Notarial Rules, rule III, secs. 2 and 3 provide:
SECTION 2. Form of the Petition and Supporting Documents. Every petition for a notarial commission shall be in writing,
verified, and shall include the following:
181
days of the application. They must also pay an application fee. 3 The Notarial Rules
require the executive judge to hold a summary hearing to determine if the petition filed is
sufficient in form and substance and if the petitioner proves the allegations in the petition
and establishes that he has read and fully understands the Notarial Rules.4 The notice of
the summary hearing should be published in a newspaper of general circulation and
petitioner should shoulder publications costs.5 Persons who wish to oppose the petition
may file a verified written opposition, which the executive judge should receive before
the date of the summary hearing.6 If the executive judge decides to grant the petition, he
or she will issue the commission and a certificate authorizing the petitioner to purchase a
notarial seal.7 The certificate authorizing the purchase of the notarial seal is valid for
three months from issue, unless the judge extends such period.8
The Notarial Rules likewise provide greater detail as to the limitations to a notary
publics powers.9 They explicitly provide that notaries public are generally prohibited
from performing a notarial act outside their regular work place and that they cannot
perform a notarial act if the signatories to a document are not in the notaries presence
(a) a statement containing the petitioners personal qualifications, including the petitioners date of birth, residence, telephone
number, professional tax receipt, roll of attorneys number and IBP membership number;
(b) certification of good moral character of the petitioner by at least two (2) executive officers of the local chapter of the Integrated
Bar of the Philippines where he is applying for commission;
(c) proof of payment for the filing of the petition as required by these Rules; and
(d) three (3) passport-size color photographs with light background taken within thirty (30) days of the application. The photograph
should not be retouched. The petitioner shall sign his name at the bottom part of the photographs.
SECTION 3.
Application Fee. Every petitioner for a notarial commission shall pay the application fee as prescribed in the
Rules of Court.
4
Notarial Rules, rule III, sec. 4.
5
6
7
8
9
Rule IV, sec. 1 of the Notarial Rules lists the powers of notaries public thus:
(a) A notary public is empowered to perform the following notarial acts:
(1) acknowledgments;
(2) oaths and affirmations;
(3) jurats;
(4) signature witnessings;
(5) copy certifications; and
(6) any other act authorized by these Rules.
(b) A notary public is authorized to certify the affixing of a signature by thumb or other mark on an instrument or document
presented for notarization if:
(1) the thumb or other mark is affixed in the presence of the notary public and of two (2) disinterested and unaffected witnesses to
the instrument or document;
(2) both witnesses sign their own names in addition to the thumb or other mark;
(3) the notary public writes below the thumb or other mark: Thumb or Other Mark affixed by (name of signatory by mark) in the
presence of (names and addresses of witnesses) and undersigned notary public; and
(4) the notary public notarizes the signature by thumb or other mark through an acknowledgment, jurat, or signature witnessing.
(c) A notary public is authorized to sign on behalf of a person who is physically unable to sign or make a mark on an instrument or
document if:
(1) the notary public is directed by the person unable to sign or make a mark to sign on his behalf;
(2) the signature of the notary public is affixed in the presence of two disinterested and unaffected witnesses to the instrument or
document;
182 JOURNAL
personally at the time of notarization.10 Notaries public are similarly prohibited from
notarizing documents of parties who are not personally known by them, or whose
identifies could not otherwise be verified by competent evidence.11 Moreover, the Notarial
Rules disqualify notaries public from executing any notarial act if they are parties to the
document to be notarized, receive consideration, advantage, right title or interest other
than what the Notarial Rules provide, or when the party to a document is their spouse,
common law partner, ancestor, descendant or relative by affinity or consanguinity within
the fourth civil degree.12 The Notarial Rules also prohibit notaries public from performing
notarial acts if they have good reason to believe that the notarial act would be unlawful
or immoral, or if the signatorys demeanor engenders reasonable doubt as to the latters
knowledge of the transactions consequences, or when, in the notaries judgment, the
signatory is not acting of his own will.13 Finally, the Notarial Rules provide that notaries
public should not notarize a blank or incomplete instrument, and should not execute
false and incomplete certificates.14
(3) both witnesses sign their own names;

(4) the notary public writes below his signature: Signature affixed by notary in presence of (names and addresses of person and two
[2] witnesses); and
(5) the notary public notarizes his signature by acknowledgment or jurat.
10
Notarial Rule, rule IV, sec. 2. Prohibitions. (a) A notary public shall not perform a notarial act outside his regular place of work
or business; provided, however, that on certain exceptional occasions or situations, a notarial act may be performed at the request of
the parties in the following sites located within his territorial jurisdiction:
(1) public offices, convention halls, and similar places where oaths of office may be administered;
(2) public function areas in hotels and similar places for the signing of instruments or documents requiring notarization;
(3) hospitals and other medical institutions where a party to an instrument or document is confined for treatment; and
(4) any place where a party to an instrument or document requiring notarization is under detention.
11
Sec. 2 (b)
A person shall not perform a notarial act if the person involved as signatory to the instrument or document
(1) is not in the notarys presence personally at the time of the notarization; and
(2) is not personally known to the notary public or otherwise identified by the notary public through competent evidence of identity
as defined by these Rules.
12
Notarial Rule, rule IV, sec. 3.
Disqualifications. A notary public is disqualified from performing a notarial act if he:
(a) is a party to the instrument or document that is to be notarized;
(b) will receive, as a direct or indirect result, any commission, fee, advantage, right, title, interest, cash, property, or other consideration,
except as provided by these Rules and by law; or
(c) is a spouse, common-law partner, ancestor, descendant, or relative by affinity or consanguinity of the principal within the fourth
civil degree.
13
Refusal to Notarize. A notary public shall not perform any notarial act described in these
Rules for any person requesting such an act even if he tenders the appropriate fee specified by these Rules if:
(a) the notary knows or has good reason to believe that the notarial act or transaction is unlawful or immoral;
(b) the signatory shows a demeanor which engenders in the mind of the notary public reasonable doubt as to the formers knowledge
of the consequences of the transaction requiring a notarial act; and
(c) in the notarys judgment, the signatory is not acting of his or her own free will.
14
False or Incomplete Certificate. A notary public shall not:
(a) execute a certificate containing information known or believed by the notary to be false.
(b) affix an official signature or seal on a notarial certificate that is incomplete.
Notarial Rule, rule IV, sec. 6. Improper Instruments or Documents. A notary public shall not notarize:
(a) a blank or incomplete instrument or document; or
(b) an instrument or document without appropriate notarial certification.
183
With respect to fees, the Notarial Rules state that notaries public may charge the
maximum fee prescribed by the Supreme Court for a notarial act15 and may also charge
travel fees and expenses if previously agreed upon with the signatory to the document to
be notarized.16 Notaries public may not charge fees other than those prescribed by the
Notarial Rules for performing a notarial act.17 Generally, notaries public cannot require
payment of fees prior to performing a notarial act.18 Moreover, they are required to issue
receipts registered with BIR and keep a journal of notarial fees received. Notaries public
should also post a scale of all notarial charges in a conspicuous place. 19
The Notarial Rules also provide a more detailed list of what notaries public must
enter in the notarial register.20 Among these are reasons why notaries public fail to
complete a notarial act, 21 as well as the circumstances surrounding a request to inspect
or copy an entry in the notarial register and a reason for refusal.22 Notaries public are
also allowed to deny access to the notarial register if they have reasonable grounds to
believe that a person requesting to inspect or copy the register with criminal intent or
wrongful motive.23 The Notarial Rules also set forth a procedure that needs to be complied
with in case the notarial register is lost, destroyed or damaged.24
Other new provisions include those relating to the signature and seal of notaries
public,25 what should be included in the concluding part of the notarial certificate,26 and
a procedure that notaries public need to comply with if a change in status or court order
15
Notarial Rules, rule V, sec. 1.

Notarial Rules, rule V, sec. 2. Travel Fees and Expenses. A notary public may charge travel fees and expenses separate and apart
from the notarial fees prescribed in the preceding section when traveling to perform a notarial act if the notary public and the person
requesting the notarial act agree prior to the travel.
17
18
Notarial Rules, rule V, sec. 4. Payment or Refund of Fees. A notary public shall not require payment of any fees specified herein
prior to the performance of a notarial act unless otherwise agreed upon. Any travel fees and expenses paid to a notary public prior to
the performance of a notarial act are not subject to refund if the notary public had already traveled but failed to complete in whole or
in part the notarial act for reasons beyond his control and without negligence on his part.
19
20
Notarial Rules, rule VI, sec. 2.
21
Notarial Rules, rule VI, sec. 2 (b).
22
Notarial Rules, rule VI, sec. 2 (c).
23
Notarial Rules, rule VI, sec. 4 (b).
24
Notarial Rules, rule VI, sec. 5. Loss, Destruction or Damage of Notarial Register. (a) In case the notarial register is stolen, lost,
destroyed, damaged, or otherwise rendered unusable or illegible as a record of notarial acts, the notary public shall, within ten (10)
days after informing the appropriate law enforcement agency in the case of theft or vandalism, notify the Executive Judge by any
means providing a proper receipt or acknowledgment, including registered mail and also provide a copy or number of any pertinent
police report.
(b) Upon revocation or expiration of a notarial commission, or death of the notary public, the notarial register and notarial records
shall immediately be delivered to the office of the Executive Judge.
25
Notarial Rules, rule VII.
26
Notarial Rules, rule VIII, sec. 2. Contents of the Concluding Part of the Notarial Certificate. The notarial certificate shall include
the following:
(a) the name of the notary public as exactly indicated in the commission;
(b) the serial number of the commission of the notary public;
16
184 JOURNAL
necessitates a change in the their names, or when they change their work place.27 Likewise
new are certain provisions relating to the resignation of notaries public,28 as well as the
grounds and procedures for revocation of their commission, as well as the imposition
of administrative discipline and sanctions.29 The Notarial Rules also punish third persons
that knowingly act or impersonate notaries public, obtain, conceal, deface or destroy
notarial seals, or who solicit, coerce or influence notaries public to commit misconduct.30
(c) the words Notary Public and the province or city where the notary public is commissioned, the expiration date of the
commission, the office address of the notary public; and
(d) the roll of attorneys number, the professional tax receipt number and the place and date of issuance thereof, and the IBP
membership number.
27
Notarial Rules, rule X, sec. 1. Change of Name and Address. Within ten (10) days after the change of name of the notary public
by court order or by marriage, or after ceasing to maintain the regular place of work or business, the notary public shall submit a signed
and dated notice of such fact to the Executive Judge.
The notary public shall not notarize until:
(a) he receives from the Executive Judge a confirmation of the new name of the notary public and/or change of regular place of work
or business; and
(b) a new seal bearing the new name has been obtained.
The foregoing notwithstanding, until the aforementioned steps have been completed, the notary public may continue to use the former
name or regular place of work or business in performing notarial acts for three (3) months from the date of the change, which may be
extended once for valid and just cause by the Executive Judge for another period not exceeding three (3) months.
28
Notarial Rules, rule X, sec. 2. Resignation. A notary public may resign his commission by personally submitting a written, dated
and signed formal notice to the Executive Judge together with his notarial seal, notarial register and records. Effective from the date
indicated in the notice, he shall immediately cease to perform notarial acts. In the event of his incapacity to personally appear, the
submission of the notice may be performed by his duly authorized representative.
29
Notarial Rules, rule XI, sec. 1. Revocation and Administrative Sanctions. (a) The Executive Judge shall revoke a notarial
commission for any ground on which an application for a commission may be denied.
(b) In addition, the Executive Judge may revoke the commission of, or impose appropriate administrative sanctions upon, any
notary public who:
(1) fails to keep a notarial register;
(2) fails to make the proper entry or entries in his notarial register concerning his notarial acts;
(3) fails to send the copy of the entries to the Executive Judge within the first ten (10) days of the month following;
(4) fails to affix to acknowledgments the date of expiration of his commission;
(5) fails to submit his notarial register, when filled, to the Executive Judge;
(6) fails to make his report, within a reasonable time, to the Executive Judge concerning the performance of his duties, as may be
required by the judge;
(7) fails to require the presence of a principal at the time of the notarial act;
(8) fails to identify a principal on the basis of personal knowledge or competent evidence;
(9) executes a false or incomplete certificate under Section 5, Rule IV;
(10) knowingly performs or fails to perform any other act prohibited or mandated by these Rules; and
(11) commits any other dereliction or act which in the judgment of the Executive Judge constitutes good cause for revocation of
commission or imposition of administrative sanction.
(c) Upon verified complaint by an interested, affected or aggrieved person, the notary public shall be required to file a verified
answer to the complaint.
If the answer of the notary public is not satisfactory, the Executive Judge shall conduct a summary hearing. If the allegations of the
complaint are not proven, the complaint shall be dismissed. If the charges are duly established, the Executive Judge shall impose the
appropriate administrative sanctions. In either case, the aggrieved party may appeal the decision to the Supreme Court for review.
Pending the appeal, an order imposing disciplinary sanctions shall be immediately executory, unless otherwise ordered by the
Supreme Court.
(d) The Executive Judge may motu proprio initiate administrative proceedings against a notary public, subject to the procedures
prescribed in paragraph (c) above and impose the appropriate administrative sanctions on the grounds mentioned in the preceding
paragraphs (a) and (b).
30
Notarial Rules, rule XII, sec. 1.
185
Increase and imposition of new legal fees

On July 20, 2004, the Supreme Court approved a proposed revision of Rule 141
of the Rules of Court, increasing legal fees and imposing new ones. The revised rule,
A.M. No. 04-02-04-SC took effect on August 16, 2004.31 A.M. No. 04-02-04-SC was
issued to implement Republic Act No. 9227, which took effect last November 11, 2003.32
However, on September 20, 2004, the Supreme Court agreed to suspend the new rates
imposed on the solemnization of marriages, filing motions and the new legal fee imposed
on the filing of compulsory counterclaims. These rates will remain suspended while the
Supreme Court deliberates on the petitions questioning the constitutionality of Republic
Act No. 9227.
Guidelines in the preparation of the Revised Anti-Money Laundering Operating Manual
for covered institutions
The Securities and Exchange Commission (SEC), pursuant to the provisions
of Republic Act No. 9194, which amended Republic Act No. 9160 (the Anti-Money
Laundering Act of 2001, or AMLA), the Securities Regulation Code, and other laws,
issued SEC Circular No. 12 (2004) (the Guidelines), to guide all regulated
intermediaries (called covered institutions under AMLA) in preparing their respective
Anti-Money Laundering Operating Manual. The Guidelines takes into consideration the
amendments introduced by Republic Act No. 9194 to AMLA. The Guidelines requires
all regulated intermediaries to submit their respective revised operating manual on or
before October 29, 2004.33 Regulated intermediaries that fail to submit their revised
operating manual by the aforementioned date will be subject to a penalty of PHP500 per
day of delay.34 However, regulated intermediaries that had already revised and amended
their operating manuals in conformity with the Guidelines need only to inform SEC in
writing and provide details of the latest filing with the SEC.35
31
A table of the new and increased rates is provided at the end of the article.
Republic Act No. 9227 granted justices, judges and all other judicial officers with equivalent rank special allowances equivalent to
100% of their basic monthly salary, and which provided that the allowances should be charged against the legal fees originally imposed
under Rule 141 of the Rules of Court prior to the establishment of the Judiciary Development Fund under Presidential Decree 1949
(1984) and from increases in current fees and new fees that may be imposed by the Court.
33
SEC Circ. No. 12, sec. 3 (2004).
34
SEC Circ. No. 12, sec. 7 (2004).
35
SEC Circ. No. 12, sec. 4 (2004).
32
186 JOURNAL
Transfer of Public Estates Authority to the Department of Finance

Executive Order No. 329 (2004), which was issued on July 19, 2004, transferred
the Public Estates Authority (PEA) from the Department of Public Works and Highways
and attached PEA to the Department of Finance.36 PEA is the government agency primarily
responsible for integrating, directing and coordinating all reclamation projects for and
behalf of the national government.
Reorganization of the Subic Bay Metropolitan Authority
Executive Order No. 340 (2004), which was issued on August 4, 2004, separates
and reallocates the powers of the chairman of the Subic Bay Metropolitan Authority
(SBMA) and the SBMA administrator.37
Executive Order No. 340 separates the position of chairman of SBMAs board of
directors from that of the SBMA administrator. The SBMA chairman is the head of
SBMA and has the following powers, functions and duties:
a. to preside at all meetings of the SBMA board;
b. to ensure that all policies, directives, plans and programs formulated by the SBMA
board are carried out by the SBMA administrator; and
c. to exercise all powers and perform all functions and duties as the Philippine
president may direct, or as may be assigned to him by the SBMA board.38
On the other hand, the SBMA administrator, who sits as SBMAs CEO,39 also
serves as the ex officio vice-chairman of SBMAs board of directors.40 The SBMA
administrator has the following powers and duties:
a. to execute, administer and implement the policies and measures approved and
adopted by the SBMA board;
36
Exec. Ord. No. 329, sec. 1 (2004).

Under Republic Act No. 7227, the SBMA administrator, who serves as SBMAs chief executive officer (CEO) was the ex officio
chairman of SBMAs board of directors.
38
Exec. Ord. No. 340, sec. 2, (2004).
39
Exec. Ord. No. 340, sec. 3 (2004).
40
Exec. Ord. No. 340, sec. 1 (2004).
37
187
b. to directly administer and supervise the operations and day-to-day business activities
of SBMA;
c. to represent SBMA in all dealings with government offices, agencies and
instrumentalities, as well as with all persons and entities, public or private, domestic
or foreign, unless otherwise directed by the Philippine president or by the SBMA
board;
d. to execute, on SBMAs behalf, all contracts, agreements and other instruments
affecting SBMAs interests;
e. to preside at the meetings of the SBMA board in the chairmans absence; and
f. to exercise any other power, functions and duties provided SBMAs by-laws and
as directed by the Philippine president or assigned to him by the SBMA board.41
______
41
Exec. Ord. No. 340, sec. 3 (2004).
188 JOURNAL
______
Case Digest
Subject Guide and Digests

Supreme Court Decisions
Tarcisio Dino
AGRARIAN REFORM LAWS
Agrarian Reform
Concept. In this case, the assignment of the rights and interests on the landholding
by defendants-tenants in favor of the petitioner, who is not a beneficiary under Section
22 of Rep. Act No. 6657, otherwise known as the Comprehensive Agrarian Reform Law
(CARL), is subversive, not only of public policy, but also of the letter and spirit of the
agrarian laws. That the scheme of the petitioner had yet to take effect in the future or ten
years hence is not a justification. (Tayag v. Lacson, G.R. No. 134971, March 25, 2004).
In another case, even assuming that petitioners lease of the fishponds existed prior to
Rep. Act No. 7881, it appears that petitioners are businessmen engaged in aquaculture,
operating a huge fishpond with an area of over a million square meters. Leasing this huge
area could be better appreciated as falling properly under civil law lease rather than
agrarian reform lease-tenancy. (Sps. Romero, G.R. No. 147570, February 27, 2004).
Tenancy Relationship
Requisites: (1) the subject matter should be agricultural land; (2) the purpose
should be agricultural production; and (3) there should be personal cultivation done by
the tenants themselves. Unless the requisite elements of agrarian tenancy concur in order
to create a tenancy relationship between the parties, an occupant of a parcel of land, or
a cultivator thereof, or a planter thereon does not fall within the purview of tenancy
under the CARL. (id.).
Agricultural Land
Fishpond is not an agricultural land. Rep. Act No. 3844, otherwise known as
the Code of Agrarian Reform, included fishponds in its definition of agricultural land.
However, by virtue of Sec. 2 of Rep. Act No. 7881, the operation of a fishpond is no
longer considered an agricultural activity, and a parcel of land devoted to fishpond
operation is not agricultural land as therein defined. (id.).
189
Case Digest
Agricultural Tenant
De Jure. Unless a person has established his status as a de jure tenant, he is not
entitled to security of tenure nor is he covered by the Land Reform Program of the
Government under existing agrarian reform laws. Here, petitioners failed to prove their
personal cultivation of the area in question. (id.).
Right of Pre-emption. (Section 11, Rep. Act No. 3844). If the respondents
(landowners) agreed to sell the property, the defendants-tenants shall have preferential
right to buy the same under reasonable terms and conditions. (Tayag, G.R. No. 134971,
March 25, 2004).
Right of Redemption. (Section 12, Rep. Act No. 3844). If the property is sold to
a third person without the knowledge of the tenants thereon, the latter shall have the right
to redeem the property at a reasonable price and consideration. (id.). A valid tender or
consignation of the redemption price is required. In this case, the presentation of
Certification To Finance Redemption of Estate, issued by the Land Bank of the
Philippines, did not meet the above requirements. (Spouses Mallari v. Arcega, G.R. No.
106615, January 15, 2004).
Vested Rights Arising from Existing Tenancy Relations. Section 2(b) of Rep. Act
No. 7881 protects the vested rights of those who have already been issued a Certificate
of Land Ownership Award (CLOA). (Sps. Romero, G.R. No. 147570, February 27,
2004).
COMPREHENSIVE AGRARIAN REFORM LAW OF 1988
(REP. ACT NO. 6657)
Land Acquisition
Voluntary Offer to Sell. Determination of Land Value. Role of the Land Bank of
the Philippines (Section 1, Executive Order No. 405, Series of 1990). (Land Bank of the
Philippines v. Wycoco, G.R. No. 140160, January 13, 2004).
Acquisition of Entire Property Not Mandatory. The power to determine whether
a parcel of land may come within the coverage of the Comprehensive Agrarian Reform
Program is essentially lodged with the DAR. The DAR cannot be compelled to purchase
the entire property voluntarily offered by the landowner. That the landowner in this case
will suffer damages by the DARs non-acquisition of approximately 10-hectare portion
190 JOURNAL
Case Digest
of the entire land which was found to be not suitable for agriculture is no justification to
compel DAR to acquire the whole area. (id.).
Just Compensation
Determination of Amount. (id.).
Modes of Compensation. The Court struck down as void DAR Administrative
Circular No. 9, Series of 1990, which provides for the opening of trust accounts in
behalf of the landowner as compensation for his property, in lieu of the deposit in cash
or in LBP bonds, as contemplated in Section 16 (e) of RA 6657. Hence, in this case, the
trust account opened by LBP in the name of the landowner as the mode of payment of
just compensation should be converted to a deposit account. Such conversion should
be retroactive in application in order to rectify the error committed by the DAR in
opening a trust account and to grant the landowners the benefits concomitant to payment
in cash or LBP bonds. The interest earnings accruing on the deposit account of landowners
would suffice to compensate them pending payment of just compensation. (id.).
Interest on Amount of Just Compensation. Where there was delay in tendering a
valid payment of just compensation, imposition of interest is in order. Accordingly, the
just compensation due Wycoco should bear 12% interest per annum from the time LBP
opened a trust account in his name up to the time said account was actually converted
into cash and LBP bonds deposit accounts. The basis of the 12% interest would be the
just compensation that would be determined by the Special Agrarian Court upon remand
of the instant case. In the same vein, the amount determined by the Special Agrarian
Court would also be the basis of the interest income on the cash and bond deposits due
Wycoco from the time of the taking of the property up to the time of actual payment of
just compensation. (id.).
Special Agrarian Courts
Jurisdiction of Special Agrarian Courts. (Sections 50 and 57 of the CARL).
Special Agrarian Courts are given original and exclusive jurisdiction over two categories
of cases, to wit: (1) all petitions for the determination of just compensation; and (2) the
prosecution of all criminal offenses under R.A. No. 6657. Section 50 must be construed
in harmony with Section 57, by considering cases involving the determination of just
compensation and criminal cases for violations of R.A. No. 6657 as excepted from the
plenitude of power conferred to the DAR. (id.).
191
Case Digest
CIVIL LAW
PRELIMINARY TITLE
General
Civil Law. Defined. Scope. (Tecson v. Commission On Elections [En Banc], G.R.
No. 161434, March 3, 2004).
Equity. Cannot be invoked so as to overrule positive provisions of law. Absent a
perfected contract between the parties, equity will not immediately govern their relationship,
but other existing laws, which provide for their reciprocal rights and obligations. (National
Housing Authority, G.R. No. 156437, March 1, 2004). For all its conceded merits,
equity is available only in the absence of law and not as its replacement. (Laban ng
Demokratikong Pilipino v. Commision on Elections [En Banc], G.R. No. 161265, February
24, 2004).
Human Relations
Unjust Enrichment. In this case, the sum of other damages awarded by the trial
court is almost equivalent to the amount of actual damages also awarded. To avoid
breaching the doctrine on enrichment, the award for damages other than actual should
be reduced. (Rivera v. Del Rosario, G.R. No. 144934, January 15, 2004).
In this case, both parties acknowledge that petitioners are entitled to their inheritance,
hence, the remedy of nullification, which invalidates the Paknaan, would prejudice
petitioners and deprive them of their just share of the inheritance. Respondent cannot, as
an afterthought, be allowed to renege on his legal obligation to transfer the property to
its rightful heirs. A refusal to reform the Paknaan under such circumstances would have
the effect of penalizing one party for negligent conduct of the other, and at the same time
permitting the other party to escape the consequences of his negligence and profit thereby.
No person shall be unjustly enriched at the expense of another. (Quiros, G.R. No.
158901, March 9, 2004).
Civil Action for Libel (Article 33, Civil Code). Contemplates a civil action for the
recovery of damages that is entirely unrelated to the purely criminal aspect of the case.
(Arafiles v. Philippine Journalists, Inc., G.R. No. 150256, March 25, 2004). Doctrine of
Fair Comment. The published work alleged to contain libelous material must be examined
and viewed as a whole. (id.).
192 JOURNAL
Case Digest
PERSONS
Citizenship
The Civil Code provisions on citizenship must be taken in the context of private
relations, the domain of civil law. There is little, if any, to indicate that the provisions on
legitimate or illegitimate civil status of the individual would also affect his political rights
or, in general, his relationship to the State. (Tecson [En Banc], G.R. No. 161434, March
3, 2004).
Marriage
Marriage and Family Law. Marriage is not a mere contract, but a social institution
in which the State is vitally interested. The break-up of families weakens our social and
moral fabric; hence, their preservation is not the concern of the family members alone.
(Ancheta v. Ancheta, G.R. No. 145370, March 4, 2004).
No Declaration of Default in Cases for Annulment, Declaration of Nullity of
Marriage or Legal Separation. If the defendant-spouse fails to answer the complaint,
the court cannot declare him or her in default but instead, should order the prosecuting
attorney to determine if collusion exists between the parties. (id.).
Void Marriage Due to Psychological Incapacity. Appears to merely differ from a
voidable marriage in that, unlike the latter, it is not convalidated by either cohabitation or
prescription. A void marriage due to psychological incapacity remains, for all intents
and purposes, to be binding and efficacious until judicially declared otherwise. Without
such marriage having first been declared a nullity (or otherwise dissolved), a subsequent
marriage could constitute bigamy. Thus, a civil case questioning the validity of the first
marriage would not be a prejudicial issue much in the same way that a civil case assailing
a prior voidable marriage (being valid until annulled) would not be a prejudicial question
to the prosecution of a criminal offense for bigamy. (Separate Opinion, Vitug, J. in
Tenebro v. Court of Appeals [En Banc], G.R. No. 150758, February 18, 2004).
Property Relations Between Husband and Wife
Conjugal Partnership Property. Article 160 of the Civil Code provides that all the
properties acquired during the marriage are presumed to belong to the conjugal partnership,
unless it be proved that it pertains exclusively to the husband, or to the wife. It is not
even necessary to prove that the properties were acquired with funds of the partnership.
As long as the properties were acquired by the parties during the marriage, they are
193
Case Digest
presumed to be conjugal in nature. Even when the manner in which the properties were
acquired does not appear, the presumption will still apply, and the properties will still be
considered conjugal. Such presumption subsists in the absence of clear, satisfactory
and convincing evidence to overcome the same. (Ching v. Court of Appeals, G.R. No.
124642, February 23, 2004). In this case, the evidence adduced by the petitioners in the
RTC is that the 100,000 shares of stocks in the Citycorp Investment Philippines were
issued to and registered in its corporate books in the name of the petitioner-husband
when the said corporation was incorporated in May 1979. This was done during the
subsistence of the marriage of the petitioner-spouses. The shares of stocks are, thus,
presumed to be the conjugal partnership property of the petitioners. The private respondent
failed to adduce evidence that the petitioner-husband acquired the stocks with his exclusive
money. The barefaced fact that the shares of stocks were registered in the corporate
books of Citycorp Investment Philippines solely in the name of the petitioner-husband
does not constitute proof that the petitioner-husband, not the conjugal partnership, owned
the same. (id.).
Liabilities of the Conjugal Partnership. Article 161(1) of the Civil Code (now
Article 121[2 and 3] of the Family Code of the Philippines). In this case, the petitionerhusband signed the continuing guaranty and suretyship agreement to secure the payment
of the loan obtained by PBMCI from private respondent, in the amount of P38 Million.
Acting as such surety is certainly not an exercise of an industry or profession nor
embarking in a business by petitioner-husband, and private respondent failed to prove
that the conjugal partnership of the petitioners was benefited thereby. The contract of
loan was between the private respondent and the PBMCI, solely for the benefit of the
latter. No presumption can be inferred from the fact that when the petitioner-husband
entered into an accommodation agreement or a contract of surety, the conjugal partnership
would thereby be benefited. The private respondent was burdened to establish that such
benefit redounded to the conjugal partnership. For the conjugal partnership to be liable
for a liability that should appertain to the husband alone, there must be a showing that
some advantages accrued to the spouses. Certainly, to make a conjugal partnership
responsible for a liability that should appertain alone to one of the spouses is to frustrate
the objective of the Civil Code to show the utmost concern for the solidarity and well
being of the family as a unit. The husband, therefore, is denied the power to assume
unnecessary and unwarranted risks to the financial stability of the conjugal partnership.
(id.).
It could be argued that the petitioner-husband was a member of the Board of
Directors of PBMCI and was one of its top twenty stockholders, and that the shares of
stocks of the petitioner-husband and his family would appreciate if the PBMCI could be
194 JOURNAL
Case Digest
rehabilitated through the loans obtained; that the petitioner-husbands career would be
enhanced should PBMCI survive because of the infusion of fresh capital. However,
these are not the benefits contemplated by Article 161 of the Civil Code. The benefits
must be those directly resulting from the loan. They cannot merely be a by-product or a
spin-off of the loan itself. (id.). This is different from the situation where the husband
borrows money or receives services to be used for his own business or profession, in
which case, it is within the term obligation for the benefit of the conjugal partnership.
(id.).
Paternity and Filiation
Illegitimate Children. Acknowledgment or Recognition of. Under the Civil Code of
Spain, which was in force in the Philippines from 08 December 1889 up until the day
prior to 30 August 1950, when the Civil Code of the Philippines took effect. Under the
Civil Code of the Philippines. Under the Family Code (Articles 172, 173 and 175),
which shall have retroactive effect insofar as they do not prejudice or impair vested
rights. The growing trend to liberalize the acknowledgment or recognition of illegitimate
children is an attempt to break away from the traditional idea of keeping well apart
legitimate and non-legitimate relationships within the family in favor of the greater interest
and welfare of the child. (Tecson [En Banc], G.R. No. 161434, March 3, 2004).
Voluntary Recognition.Authentic Writing. For purposes of voluntary recognition,
defined simply as being a genuine or indubitable writing of the father. The term would
include a public instrument (one duly acknowledged before a notary public or other
competent official) or a private writing admitted by the father to be his. (id.).
DNA Testing. (id.).
Use of Surname
While judicial authority is required for a change of name or surname, there is no
such requirement for the continued use of a surname, which a person has already been
using since childhood. (Republic v. Lim, G.R. No. 153883, January 13, 2004).
Civil Register
Cancellation or Correction of Entries in the Civil Registry. In this case, the following
corrections were allowed: [i] petitioners family name, from Yo to Yu; [ii] her fathers
name, from Yo Diu To (Co Tian) to Yu Dio To (Co Tian); [iii] her status, from
legitimate to illegitimate; and [iv] her citizenship, from Chinese to Filipino.
(Republic v. Lim, G.R. No. 153883, January 13, 2004).
JOURNAL of the Integrated Bar of the Philippines 195
Case Digest
PROPERTY, OWNERSHIP AND ITS MODICATIONS

Ownership in General
Rights of Owners of Property (Articles 428 and 1306 of the Civil Code). The
respondents (landowners) cannot be enjoined from selling or encumbering their property
simply and merely because the tenants on said property had executed Deeds of
Assignment in favor of the petitioner, obliging themselves to assign and transfer their
rights or interests as agricultural farmers/laborers/sub-tenants over the landholding, and
granting the petitioner the exclusive right to buy the property subject to the occurrence
of certain conditions. The respondents were not parties to the said deeds. There is no
evidence that the respondents agreed, expressly or impliedly, to the said deeds or to the
terms and conditions set forth therein. Not being the registered owners of the property,
the defendants-tenants could not legally grant to the petitioner the option, much less the
exclusive right to buy the property. (Tayag v. Lacson, G.R. No. 134971, March 25,
2004).
Possession
Possessor in Good Faith. The good faith of the possessor consists in the reasonable
belief that the person from whom he received the thing was the owner thereof, and could
transmit his ownership. (Calicdan v. Cendaa, G.R. No. 155080, February 5, 2004).
Builder in Good Faith. Despite knowledge that its intended contract of sale with the
NHA had not been perfected, the Church proceeded to introduce improvements on the
disputed land. On the other hand, the NHA knowingly granted the Church temporary
use of the subject properties and did not prevent the Church from making improvements
thereon. The Church and the NHA, who both acted in bad faith, shall be treated as if
they were both in good faith under Article 448 of the Civil Code. (National Housing
Authority v. Grace Baptist Church, G.R. No. 156437, March 1, 2004).
Not a Builder in Good Faith. (Del Rosario v. Sps. Manuel, G.R. No. 153652,
January 16, 2004).
Not Purchasers or Mortgagee in Good Faith. (Cayana v. Court Of Appeals, G.R.
No. 125607, March 18, 2004).
Continuous, Exclusive and Adverse Possession. The deed of donation inter vivos,
albeit void for having been executed by one who was not the owner of the property
donated, may still be used to show the exclusive and adverse character of respondents
196 JOURNAL
Case Digest
possession. (Calicdan v. Cendaa, G.R. No. 155080, February 5, 2004). Even assuming
that the donation propter nuptias is void for failure to comply with formal requisites, it
could still constitute a legal basis for adverse possession. (id.).
DIFFERENT MODES OF ACQUIRING OWNERSHIP
Donation
Unregistered donation is binding between the parties. In donations of immovable
property, the law requires for its validity that it should be contained in a public document,
specifying therein the property donated and the value of the charges which the donee
must satisfy; but in order to bind third persons, the donation must be registered in the
Registry of Property (now the Registry of Land Titles and Deeds). Section 50 of Act
No. 496 (Land Registration Act). Section 51 of P.D. No. 1529 (Property Registration
Decree). (Shoppers Paradise Realty & Development Corporation v. Roque, G.R. No.
148775, January 13, 2004).
Succession
Heirs and Estate of the Decedent. An heir can sell his right, interest, or participation
in the property under administration under Art. 533 of the Civil Code, which provides
that possession of hereditary property is deemed transmitted to the heir without
interruption from the moment of death of the decedent. However, an heir can only
alienate such portion of the estate that may be allotted to him in the division of the estate
by the probate or intestate court after final adjudication, that is, after all debtors shall
have been paid or the devisees or legatees shall have been given their shares. This means
that an heir may only sell his ideal or undivided share in the estate, not any specific
property therein. (Aggabao v. Regional Trial Court of Quezon, G.R. No. 146006, February
23, 2004). In this case, Juliana and Jose sold specific properties of the estate without
court approval necessary for the validity of any disposition of the decedents estate.
Such sale is void and passes no title to the purchaser, and the same can be annulled by
the probate court, without need for a separate action to annul the unauthorized disposition.
(id.).
Pending the filing of administration proceedings, the heirs have legal personality to
bring suit in behalf of the estate of the decedent in accordance with the provision of
Article 777 of the Civil Code. (Rioferio v. Court of Appeals, G.R. No. 129008, January
13, 2004). The heirs have legal standing to prosecute the rights belonging to the deceased
subsequent to the commencement of the administration proceedings but pending the
appointment of an administrator. And, even if there is an appointed administrator,
197
Case Digest
jurisprudence recognizes two exceptions where the heirs can bring suit to protect the
rights or interests of the estate: (1) if the executor or administrator is unwilling or refuses
to bring suit; and (2) when the administrator is alleged to have participated in the act
complained of and he is made a party defendant. (id.).
Prescription
Acquisitive Prescription. It is concerned with lapse of time in the manner and under
conditions laid down by law, namely, that the possession should be in the concept of an
owner, public, peaceful, uninterrupted and adverse. Acquisitive prescription is either
ordinary or extraordinary. Ordinary acquisitive prescription requires possession in good
faith and with just title for ten years. (Calicdan, G.R. No. 155080, February 5, 2004).
Extraordinary Acquisitive Prescription. In extraordinary prescription ownership and
other real rights over immovable property are acquired through uninterrupted adverse
possession thereof for thirty years without need of title or of good faith. (id.).
Extinctive Prescription and Laches. (Heirs of Gaudiane v. Court of Appeals, G.R.
No. 119879, March 11, 2004).
OBLIGATIONS AND CONTRACTS
Obligations
Reciprocal Obligations. (Article 1169 of the Civil Code). Neither party incurs in
delay if the other does not comply or is not ready to comply in a proper manner with
what is incumbent upon him. From the moment one of the parties fulfills his obligation,
delay by the other begins. (Salvador v. Court of Appeals, G.R. No. 124899, March 30,
2004).
Fortuitous Event. The difficulties in processing claims during the Christmas season
are not acts of God that would excuse noncompliance with judicially approved
obligations. (Manila International Airport Authority v. Ala Industries Corporation, G.R.
No. 147349, February 13, 2004).
Rescission Under Article 1191 of the Civil Code (Relating to Reciprocal Obligations)
Distinguished from Rescission of Contracts Under Article 1383 of the same Code. Both
presuppose contracts validly entered and subsisting, and both require mutual restitution
when proper. Article 1191 uses the term rescission, but the original term is resolution in
Article 1124 of the old Civil Code, from which Article 1191 was based. Resolution is a
198 JOURNAL
Case Digest
principal action that is based on breach of a party, while rescission under Article 1383 is
a subsidiary action, limited to cases of rescission for lesion under Article 1381 of the
Civil Code, which expressly enumerates the rescissible contracts. The Kasunduan in
this case does not fall under any of those situations mentioned in Article 1381.
Consequently, Article 1383 is inapplicable. Article 1191 of the Civil Code does not
apply to a contract to sell, as the breach contemplated therein is the obligors failure to
comply with an obligation already extant, not a failure of a condition to render binding
that obligation. (Rivera, G.R. No. 144934, January 15, 2004).
Extinguishment of Obligation. Payment. An obligation may be extinguished by
payment, but this rule applies when the creditor receives and acknowledges full payment
from the debtor. In this case, respondent neither acknowledged full payment nor led
petitioner to believe that it has. (Manila International Airport Authority, G.R. No. 147349,
February 13, 2004).
Valid Tender Of Payment. The reason for respondents non-acceptance of the
tender of payment was the alleged insufficiency thereof or because it was in the form of
managers check. While it is true that, in general, a managers check is not legal tender,
the creditor has the option of refusing or accepting it. Payment in check by the debtor
may be acceptable as valid, if no prompt objection to said payment is made. (Pabugais
v. Sahijwani, G.R. No. 156846, February 23, 2004).
Consignation. The act of depositing the thing due with the court or judicial authorities
whenever the creditor cannot accept or refuses to accept payment and it generally requires
a prior tender of payment. In order that consignation may be effective, the debtor must
show that: (1) there was a debt due; (2) the consignation of the obligation had been
made because the creditor to whom tender of payment was made refused to accept it,
or because he was absent or incapacitated, or because several persons claimed to be
entitled to receive the amount due or because the title to the obligation has been lost; (3)
previous notice of the consignation had been given to the person interested in the
performance of the obligation; (4) the amount due was placed at the disposal of the
court; and (5) after the consignation had been made the person interested was notified
thereof. Failure in any of these requirements is enough ground to render a consignation
ineffective. (id.).
Right to Withdraw Amount Consigned. Article 1260 of the Civil Code. The amount
consigned with the trial court can no longer be withdrawn by petitioner because
respondents prayer in his answer that the amount consigned be awarded to him is
equivalent to an acceptance of the consignation, which has the effect of extinguishing
199
Case Digest
petitioners obligation. Moreover, the petitioner failed to manifest his intention to comply
with the Agreement And Undertaking by delivering the necessary documents and the
lot subject of the sale to respondent in exchange for the amount deposited. Withdrawal
of the money consigned would enrich petitioner and unjustly prejudice respondent.
(id.).
Contracts
Violation of Contract Upon Inducement by a Third Party. Article 1314 of the
Civil Code. For this legal provision to apply, the pleader must establish: [i] the existence
of a valid contract; [ii] knowledge by the third person of the existence of the contract;
and [iii] interference by the third person in the contractual relation without legal justification.
Where there was no malice in the interference of a contract, and the impulse behind
ones conduct lies in a proper business interest rather than in wrongful motives, a party
cannot be a malicious interferer. In fine, one who is not a party to a contract and who
interferes thereon is not necessarily an officious or malicious intermeddler. (Tayag, G.R.
No. 134971, March 25, 2004).
Government Contracts. Contracts in which the Government is a party are subject to
the same rules of contract law which govern the validity and sufficiency of contract
between individuals. All the essential elements and characteristics of a contract in general
must be present in order to create a binding and enforceable Government contract.
(National Housing Authority, G.R. No. 156437, March 1, 2004).
Unperfected Contracts. (Article 1319 of the Civil Code). Where the parties merely
exchange offers and counteroffers, no agreement or contract is perfected. A party may
withdraw its offer or counteroffer prior to its receipt of the other partys acceptance
thereof. To produce an agreement, the offer must be certain and the acceptance timely
and absolute. (The Insular Life Assurance Company, Ltd., G.R. No. 147410, February
5, 2004). There being no concurrence of the offer and acceptance, the parties did not
pass the stage of perfecting an agreement. The inexistent agreement cannot be validated
either by lapse of time or ratification. (National Housing Authority, G.R. No. 156437,
March 1, 2004).
Stages of a Contract: (a) Negotiation begins when the prospective contracting parties
manifest their interest in the contract and ends at the moment of their agreement. (b) The
perfection or birth of the contract occurs when they agree upon the essential elements
thereof. (c) Consummation - the parties fulfill or perform the terms agreed upon in the
contract, culminating in the extinguishment thereof. In the case at bar, the parties did not
get past the negotiation stage. There was only an offer and a counteroffer that did not
200 JOURNAL of the Integrated Bar of the Philippines
Case Digest
sum up to any final arrangement containing the elements of a contract. The mere
determination to accept the proposal of a bidder does not constitute a contract; that
decision must be communicated to the bidder. Although consent may be either express
or implied, the Instruction to Bidders prepared by petitioner itself expressly required a
formal acceptance and a period within which such acceptance was to be made known to
respondent. The effect of giving the Notice of Award to the latter would have been the
perfection of the contract. No such acceptance was communicated to respondent;
therefore, no consent was given. The due execution of documents representing a contract
is one thing, but its perfection is another. (The Insular Life Assurance Company, Ltd.,
G.R. No. 147410, February 5, 2004).
Reformation of Instrument. (Article 1359 of the Civil Code). The amicable settlement
entered into by the parties had all the elements of a valid contract. However, they failed
to include in the written document a sufficient description of the property to convey.
This error is not one for nullification of the instrument but only for reformation under
Article 1359 of the Civil Code. (Quiros, G.R. No. 158901, March 9, 2004).
Voidable Contracts. Article 1391 of the Civil Code states that the action for annulment
of voidable contracts shall be brought within four years. This period shall begin from
the time the fraud or mistake is discovered. (Rivera, G.R. No. 144934, January 15,
2004).
Void Contract. The deed of sale in this case is void in its entirety. (id.).
Estoppel
Essential elements of estoppel in pais, in relation to the party sought to be estopped:
(1) a clear conduct amounting to false representation or concealment of material facts
or, at least, calculated to convey the impression that the facts are otherwise than, and
inconsistent with, those which the party subsequently attempts to assert; (2) an intent or,
at least, an expectation, that this conduct shall influence, or be acted upon by, the other
party; and (3) the knowledge, actual or constructive, by him of the real facts. With
respect to the party claiming the estoppel, the conditions he must satisfy are: (1) lack of
knowledge or of the means of knowledge of the truth as to the facts in question; (2)
reliance, in good faith, upon the conduct or statements of the party to be estopped; and
(3) action or inaction based thereon of such character as to change his position or status
calculated to cause him injury or prejudice. It has not been shown that respondent
intended to conceal the actual facts concerning the property; more importantly, petitioner
has been shown not to be totally unaware of the real ownership of the subject property.
(Shoppers Paradise Realty & Development Corporation, G.R. No. 148775, January
Case Digest
13, 2004). Estoppel is a shield against injustice; the party invoking its protection should
not be allowed to use it to conceal its own lack of diligence or want of reasonable care
and circumspection. (The Insular Life Assurance Company, Ltd., G.R. No. 147410,
February 5, 2004).
Estoppel Not Applicable. From the very start, respondent was already asking the
courts to enforce all its claims, pursuant to the Agreement. It has not shown any act or
conduct that would leads us to believe that by accepting petitioners partial payment, it
has dropped all claims to which it is entitled. (Manila International Airport Authority,
G.R. No. 147349, February 13, 2004). NHA is not estopped from selling the subject lots
at a price equal to their fair market value. The principle of estoppel does not operate
against the Government for the act of its agents or their inaction. (NHA). Cannot be
sustained by mere argument or doubtful inference; it must be clearly proved in all its
essential elements by clear, convincing and satisfactory evidence. It is hardly separable
from the waiver of a right. (National Hounsing Authority, G.R. No. 156437, March 1,
2004).
Laches. Its real sense, is the failure or neglect, for an unreasonable and unexplained
length of time, to do that which, by exercising due diligence, could or should have been
done earlier; it is negligence or omission to assert a right within a reasonable time,
warranting a presumption that the party entitled to assert it either has abandoned or
declined to assert it. Respondent learned of the contracts only in February 1994, after
the death of his father; and in the same year, he assailed the validity of the agreements.
Hardly, could respondent then be said to have neglected to assert his case for
unreasonable length of time. (Shoppers Paradise Realty & Development Corporation,
G.R. No. 148775, January 13, 2004).
LOAN
Loan. (Development Bank of the Philippines v. Commission On Audit [En Banc],
G.R. No. 144516, February 11, 2004).
Interest Rate. 8% to 10% interest per month is illegal, for being excessive, iniquitous
and unconscionable. Such interest should be reduced to 12% per annum, which is fair
and reasonable. Stipulations authorizing iniquitous or unconscionable interests are contrary
to morals, if not against the law. Under Article 1409 of the Civil Code, these contracts
are inexistent and void from the beginning. They cannot be ratified, nor the right to set
up their illegality as a defense be waived. (Cuaton v. Salud, G.R. No. 158382, January
27, 2004).
202 JOURNAL
Case Digest
Guidelines on the Imposition of Interest. Applying the guidelines, the interest of

12% per annum imposed by the Court (in lieu of the invalidated 10% and 8% per month
interest rates) should be computed from the date of the execution of the loan until
finality of this decision. After the judgment becomes final and executory until the obligation
is satisfied, the amount due shall further earn interest at 12% per year. (id.).
The Usury Law. Suspended by Central Bank Circular No. 905, s. 1982, effective on
January 1, 1983, and parties to a loan agreement have been given wide latitude to agree
on any interest rate. However, nothing in the said Circular grants lenders carte blanche
authority to raise interest rates to levels which will either enslave their borrowers or lead
to a hemorrhaging of their assets. (id.)
AGENCY
Personal Relationship. The relationship between the decedent and Philtrust was
one of agency which is a personal relationship between agent and principal. Under
Article 1919 (3) of the Civil Code, death of the agent or principal automatically terminates
the agency. In this instance, the agency between the taxpayer and Philtrust, which was
severed upon the taxpayers death on April 3, 1979, could not be revived by the mere
fact that Philtrust filed on April 5, 1979, the decedents Income Tax Return for 1978. As
such, none of Philtrusts acts or omissions could bind the estate of the said taxpayer.
Service on Philtrust of the demand letter and Assessment Notice directed at the taxpayer
was improperly done. Philtrust was never appointed as the administrator of the Estate of
the decedent. (Estate of Vda. De Gabriel v. Commissioner of Internal Revenue, G.R.
No. 155541, January 27, 2004).
Special Power of Attorney. (Article 1878 of the Civil Code). Required for a person
to lease any real property of another person for more than one year. (Shoppers Paradise
Realty & Development Corporation, G.R. No. 148775, January 13, 2004). Legal Action.
In this case, the filing of a case in court in behalf of the principal, Soledad (the agents
mother), is not one of the acts the agent (Jose) is explicitly authorized to do under the
SPA. Moreover, it is doubtful under the circumstances of this case if the principal was
still alive when the petition was filed before the Court, since fifteen (15) years had lapsed
then from the date the SPA was executed. (Castillo v. Court of Appeals, G.R. No.
159971, March 25, 2004).
203
Case Digest
SALES
Capacity to Buy or Sell
Prohibited Transactions. The withdrawal of the amount deposited in order to pay
attorneys fees to petitioners counsel, Atty. De Guzman, Jr., violates Article 1491 of the
Civil Code, which forbids lawyers from acquiring by assignment, property and rights
which are the object of any litigation in which they may take part by virtue of their
profession. Furthermore, Rule 10 of the Canons of Professional Ethics provides that
the lawyer should not purchase any interest in the subject matter of the litigation which
he is conducting. The assailed transaction falls within the prohibition because the Deed
assigning the amount of P672,900.00 to Atty. De Guzman, Jr., as part of his attorneys
fees was executed during the pendency of this case with the CA. In his Motion to
Intervene, Atty. De Guzman, Jr., not only asserted ownership over said amount, but
likewise prayed that the same be released to him. That petitioner knowingly and voluntarily
assigned the subject amount to his counsel did not remove their agreement within the
ambit of the prohibitory provisions. To grant the withdrawal would be to sanction a void
contract. (Pabugais, G.R. No. 156846, February 23, 2004).
Contract to Sell
Distinguished from Contract of Sale. In a contract of sale, the title to the property
passes to the vendee upon the delivery of the thing sold; while in a contract to sell,
ownership is, by agreement, reserved in the vendor and is not to pass to the vendee until
full payment of the purchase price. In a contract to sell, the payment of the purchase
price is a positive suspensive condition, the failure of which is not a breach, casual or
serious, but a situation that prevents the obligation of the vendor to convey title from
acquiring an obligatory force. In this case, respondents bound themselves to deliver a
deed of absolute sale and clean title covering Lot No. 1083-C after petitioners make the
second installment. Petitioners failed to complete payment of the second installment
which rendered the contract to sell ineffective and without force and effect. Failure to
pay, in this instance, is not even a breach but an event that prevents the vendors obligation
to convey title from acquiring binding force. Hence, the agreement of the parties in the
instant case may be set aside, but not because of a breach on the part of petitioners for
failure to complete payment of the second installment. Rather, their failure to do so
prevented the obligation of respondents to convey title from acquiring an obligatory
force. (Rivera, G.R. No. 144934, January 15, 2004).
204 JOURNAL
Case Digest
DAMAGES
Moral Damages
While respondent alleged in his complaint that he suffered mental anguish, serious
anxiety, wounded feelings and moral shock, he failed to prove them during the trial.
Respondent should have taken the witness stand and testified on his mental anguish and
sufferings. Mere allegations do not suffice; they must be substantiated by clear and
convincing proof. No other person could have proven such damages, except the
respondent himself, as they were extremely personal to him. (Mahinay v. Atty. Velasquez,
Jr., G.R. No. 152753, January 13, 2004). May be recovered in cases where one willfully
causes injury to property, or in cases of breach of contract where the other party acts
fraudulently or in bad faith. (Rivera, G.R. No. 144934, January 15, 2004).
A breach of contract may give rise to an award of moral damages if the party guilty
of the breach acted fraudulently or in bad faith. In this case, both parties did not comply
with their obligations under the Contract. Respondents must share part of the blame for
the stoppage of work on the Project, as the stoppage was partly due to respondents
failure to obtain the necessary building permit. (Salvador, G.R. No. 124899, March 30,
2004)/
Exemplary Damages
Imposed by way of example or correction for the public good, when the party to a
contract acts in a wanton, fraudulent, oppressive or malevolent manner. This specie of
damages is allowed only in addition to moral damages, and cannot be awarded unless
the claimant first establishes his clear right to moral damages. (Mahinay, G.R. No. 152753,
January 13, 2004).
Attorneys Fees
Allowed when exemplary damages are awarded and when the party to a suit is
compelled to incur expenses to protect his interest. (Rivera, G.R. No. 144934, January
15, 2004). Attorneys Fees and Costs of suit are not recoverable against government
entities and officers when they are sued purely in their official capacity. (Occidental
Mindoro National College v. Macaraig, G.R. No. 152017, January 15, 2004).
Reduction of Amount of Damages. (Other Than Actual Damages) Awarded. (Rivera,
G.R. No. 144934, January 15, 2004).
205
Case Digest
SURETYSHIP
Indemnity Against Liability. Respondents obligation under the Deed of Undertaking
to keep petitioner free and harmless from any damage or liability became operative as
soon as the liability of petitioner arose, and there was no need for petitioner to first
sustain actual loss before it could have a cause of action against respondents. The mere
inclusion in petitioners original complaint of the allegation that the PNB had already
called on the guarantees of petitioner is sufficient to constitute a cause of action against
respondents. (Philippine Export and Foreign Loan Guarantee Corporation v. Philippine
Infrastructures, Inc., G.R. No. 120384, January 13, 2004).
LEASE
Essentially Not Personal in Character. The general rule is that heirs are bound by
contracts entered into by their predecessors-in-interest, except when the rights and
obligations arising therefrom are not transmissible by (1) their nature, (2) stipulation or
(3) provision of law. In the subject Contract of Lease, not only were there no stipulations
prohibiting any transmission of rights, but its very terms and conditions explicitly provided
for the transmission of the rights of the lessor and of the lessee to their respective heirs
and successors. The death of a party does not excuse nonperformance of a contract,
which involves a property right, and the rights and obligations thereunder pass to the
successors or representatives of the deceased. Similarly, nonperformance is not excused
by the death of the party when the other party has a property interest in the subject
matter of the contract. (Sui Man Hui Chan v. Court Of Appeals, G.R. No. 147999,
February 27, 2004).
CONTRACT FOR A PIECE OF WORK
Claims for Additional Works. Under Article 1724 of the Civil Code, there are two
requisites in order that a contractor may claim for additional works, or changes in the
work agreed upon: (1) Such change has been authorized by the proprietor in writing;
and (2) The additional price to be paid to the contractor has been determined in writing
by both parties. Compliance with both of these requirements is a condition precedent to
the recovery of additional costs. (Salvador, G.R. No. 124899, March 30, 2004).
Escalation of Contract Price. In this case, paragraph 18 of the Contract authorizes
an escalation of the Contract Price, only if there are substantial increases in the prices of
materials, and only up to the actual increase in the prices of particular item/s or materials
used in the Project. Such contractual stipulation, however, did not give the contractor
the right to determine arbitrarily the proportion or amount of the escalation in the Contract
206 JOURNAL
Case Digest
Price. This excludes escalation based on estimates or blanket increases. The general
claim that the prices of construction materials had increased by 40% was not sufficient.
Assuming arguendo that the Contract authorized the contractor to determine unilaterally
the escalation of the Contract Price, such a provision would be void for violating the
principle of mutuality. In order that obligations arising from contracts may have the
force of law between the parties, there must be mutuality between the parties based on
their essential equality. Moreover, the computation submitted shows a 20% increase in
the cost of services, which is not authorized in the Contract. (id.).
COMPROMISES
Amicable Settlement. A contract whereby the parties make reciprocal concessions
to resolve their differences, thus avoiding litigation or putting an end to one that has
already commenced. Generally favored in law, such agreement is a bilateral act or
transaction that is binding on the contracting parties and is expressly acknowledged by
the Civil Code as a juridical agreement between them. (Manila International Airport
Authority, G.R. No. 147349, February 13, 2004). Subject to the same legal provisions
providing for the validity, enforcement, rescission or annulment of ordinary contracts.
(Quiros, G.R. No. 158901, March 9, 2004). Autonomy of Contracts. The lower court
was without power to relieve petitioner from an obligation it had voluntarily assumed,
simply because the Agreement later turned out to be unwise, disastrous or foolish. It had
no authority to impose upon the parties a judgment different from or against the terms
and conditions of their Compromise Agreement. It could not alter a contract by
construction or make a new one for the parties. (id.).
Courts must endeavor to persuade the litigants in a civil case to agree upon some fair
compromise. (Article 2029, Civil Code). , which has upon the parties the effect and
authority of res judicata, and this is true even if the compromise is not judicially approved;
although there shall be no execution except in compliance with a judicial compromise
(Article 2037, Civil Code). Articles 2030 and 2031 also provide for the suspension of
pending actions and mitigation of damages to the losing party who has shown a sincere
desire for a compromise. (id.).
Judicial Compromise. Final and Executory. A compromise once approved by final
orders of the court has the force of res judicata between the parties and should not be
disturbed except for vices of consent or forgery. It transcends its identity as a mere
contract binding only upon the parties thereto, as it becomes a judgment that is subject
to execution in accordance with the Rules. (Manila International Airport Authority, G.R.
No. 147349, February 13, 2004).
207
Case Digest
If a party fails or refuses to abide by a compromise agreement, the other may either
enforce it or regard it as rescinded and insist upon the original demand. For failure of
petitioner to abide by the judicial compromise, respondent chose to enforce it. The
latters course of action was in accordance with the very stipulations in the Agreement
that the lower court could not change. Respondent is thus entitled to a writ of execution
for the total amount contained in the Compromise Agreement. The Court cannot reduce
it. The partial payment made by petitioner does not at all contravene Article 1229 of the
Civil Code, which is applicable only to contracts that are the subjects of litigation, not to
final and executory judgments. (id.).
Supervening Event. In this case, the CA failed to take into account that, more than
two years after the judgment on the compromise agreement was rendered and partially
executed, MYC and the Zamora family unilaterally cancelled the development
agreement, which effectively discharged petitioner from its obligation under the
compromise agreement to advance the balance of respondents brokers fee in the
amount of P25.1 million. It is evident from Section 6 of the compromise agreement that
petitioners obligation to advance the balance of respondents commission was
dependent on the success meaning, the earnings of the joint venture project and
that whatever amount petitioner advanced to respondents was to be deducted from the
share of MYC and/or the Zamora family in the proceeds of the joint venture agreement.
Consequently, when MYC and the Zamora family unilaterally cancelled the development
agreement, petitioner was effectively deprived of its source of payment to respondents
since it was left without recourse to reimbursement. To hold petitioner liable under the
circumstances will result in the unjust enrichment of MYC, the Zamora family and the
respondents. (Megaworld Properties and Holdings, Inc. v. Judge Cobarde, G.R. No.
156200, March 31, 2004).
Unreasonable and Oppressive. It was MYC and the Zamora family that gave
respondents the authority to broker a joint venture agreement between them and petitioner
for the development of MYCs prime parcels of land into a world-class residential/
commercial condominium complex, in consideration of three percent (3%) brokers/
consultants fee based on the total consideration the Corporation may receive from
Megaworld Properties and Holdings, Inc. In short, respondents were the agents or
brokers of MYC and the Zamora family, not the petitioner, and the obligation to pay the
brokers fee therefore rested on MYC and the Zamora family. The Court finds it totally
unreasonable, oppressive even, for respondents to exact its brokers fee from a party
which is not even its principal or the entity that engaged its services. Even on the premise
that petitioner obligated itself under the compromise agreement to pay respondents the
P25.1 million commission, that assumption of liability if needed it was was conditioned
208 JOURNAL
Case Digest
on the presence of earnings due MYC and the Zamora family. But how could there
have accrued any earnings for MYC and the Zamora family when the latter unilaterally
cancelled the project from which petitioner could draw the payment? It appears to be
respondents theory that the compromise agreement in effect made the petitionerdeveloper a surety or solidary co-obligor of MYC and the Zamora family, absolutely
and unconditionally liable for the P25.1 million brokers commission due the respondents
with or without any possibility of reimbursement from the landowners MYC and
Zamora family, and regardless of whether the joint venture project materializes or not.
This is absurd and reads too much into the compromise agreement. (id.).
Modification of Judgment, Notwithstanding That It is Final and Executory. The
judgment on the compromise agreement where petitioner obligated itself to pay the
balance of respondents commission of P25.1 million has become final and executory.
The same was in fact partially performed when MYC and the Zamora family gave
respondents P3.9 million as partial payment of their brokers fee. However, under the
law, the Court may modify or alter a judgment even after the same has become executory
whenever circumstances make its execution unjust and inequitable, as where certain
facts and circumstances justifying or requiring such modification or alteration transpire
after the judgment becomes final and executory. The Court has the authority to suspend
the execution of a final judgment or to cause a modification thereof as and when it
becomes imperative in the higher interest of justice or when supervening events warrant
it. In the case at bar, the critical factor was the unilateral cancellation by MYC and
the Zamora family of the development agreement after the compromise agreement
became final and partially executed. This was extremely important because, without
the development agreement, the joint venture project could not push through. And without
the joint venture project, there could have been no earnings from which the P25.1 million
could be advanced. Thus, on account of the cancellation of the development agreement
and the consequent abrogation of the entire joint venture project petitioners
obligation to advance the balance of respondents commission ceased. (id.).
Amicable Settlement at the Barangay Level. (Quiros, G.R. No. 158901, March 9,
2004).
209
Case Digest
CRIMINAL LAW
REVISED PENAL CODE (RPC)
Book I
CIRCUMSTANCES WHICH AFFECT CRIMINAL LIABILITY
Consummated, Frustrated and Attempted Felonies
Attempted. (Article 6 of the RPC). There is an attempt to commit a felony when the
offender commences the commission of a felony by direct acts, and does not perform
all the acts of execution by reason of some causes or accident other than his own
spontaneous desistance. Intent to kill in attempted or frustrated murder distinguishes it
from physical injuries. (People v. Darilay, G.R. Nos. 139751-52, January 26, 2004).
Frustrated. Not frustrated homicide but Less Serious Physical Injuries. (Aradillos v.
Court of Appeals, G.R. No. 135619, January 15, 2004).
Conspiracy
As a Mode of Committing a Fenlony. Exists when two or more persons come to an
agreement concerning the commission of a felony and decide to commit it. Like the
offense itself, conspiracy must be proved beyond reasonable doubt. Neither joint nor
simultaneous action is per se sufficient proof of conspiracy. However, to prove
conspiracy, it is not necessary to prove prior agreement by the parties to commit a
crime, for conspiracy may be inferred from their acts before, during and after the
commission of the crime, which indubitably point to a joint purpose, concerted action
and community of interest. (People v. Martinez [En Banc, Per Curiam], G.R. No. 137519,
March 16, 2004). Conspiracy need not be established by direct proof; it may be shown
by circumstantial evidence. (People v. Sayaboc [En Banc], G.R. No. 147201, January
15, 2004).
In conspiracy, it is not necessary to show that all the conspirators actually hit and killed
the victim. What is important is that the participants performed specific acts with such
closeness and coordination as unmistakably to indicate a common purpose or design in
bringing about the death of the victim. Regardless of the extent and character of his participation
then, conspiracy renders appellant liable as a co-principal because in contemplation of law,
the act of one conspirator is the act of all. (People v. Duetes, G.R. No. 144598, February 6,
2004; People v. Allawan, G.R. No. 149887, February 13, 2004).
210 JOURNAL
Case Digest
Conspiracy was negated where the only participation of the appellant was his presence
at the scene of the crime and the complainant did not sustain any injury inflicted by the
said appellant. (Aradillos, G.R. No. 135619, January 15, 2004; Sayaboc [En Banc],
G.R. No. 147201, January 15, 2004).
Price or reward as evidence of conspiracy. (id.). Conspiracy in kidnapping for
ransom with serious illegal detention. (Martinez [En Banc, Per Curiam], G.R. No. 137519,
March 16, 2004).
Justifying Circumstances
Self-Defense. (Article 11[1], RPC). When the accused interposes self-defense, he
thereby admits having deliberately caused the injuries of the victim. The burden of proof
then shifts on him to prove, with clear and convincing evidence, the confluence of the
essential requisites for such a defense, namely: (a) unlawful aggression on the part of the
victim; (b) reasonable necessity of the means employed to prevent or repel it; and (c)
lack of sufficient provocation on the part of the person defending himself. (Rugas v.
People, G.R. No. 147789, January 14, 2004; Casitas v. People, G.R. No. 152358, February
5, 2004).
(a) Unlawful Aggression. Slap on the Face. Not established. (Rugas, G.R. No. 147789,
January 14, 2004). Even if appellant believed that the deceased did try to kill him when
he saw him raise his bolo, such aggression ceased when appellant succeeded in grabbing
the bolo. When an unlawful aggression which has begun no longer exists, one making a
defense has no right to kill or even injure the former aggressor. (People v. Bautista, G.R.
No. 139530, February 27, 2004).
Claim to Self-Defense. Negated, among others, by the number, nature and location
of the victims wounds. (Casitas, G.R. No. 152358, February 5, 2004).
Self-defense is incompatible with accident. Accident presupposes lack of intention,
while self-defense assumes voluntariness, but induced only by necessity. The injuries
sustained by the private complainant confirm that it was not intentional. For if it were so,
petitioner Aradillos would have exerted such force that Gloria would have suffered more
than what she had sustained. Worse, she would not have survived at all. (Aradillos, G.R.
No. 135619, January 15, 2004).
Lawful Performance of Duty. (Article 11[5], RPC). Two requisites must concur
before this defense can prosper: (1) the accused must have acted in the performance of
a duty or in the lawful exercise of a right or office; and (2) the injury caused or the
211
Case Digest
offense committed should have been the necessary consequence of such lawful exercise.
In this case, appellant was not performing his duties at the time he shot the victims, and
the fatal injuries that he inflicted on the victims were not a necessary consequence of the
performance of his duty as a police officer. (People v. Catbagan, G.R. Nos. 149430-32,
February 23, 2004).
Exempting Circumstances
Insanity. (Article 12 [1], RPC). An accused invoking insanity admits to have
committed the crime but claims that he is not guilty because he is insane. The testimony
or proof of an accuseds insanity must relate to the time immediately preceding or
coetaneous with the commission of the offense with which he is charged. Evidence to
establish insanity, such as psychiatric history, is subject to stringent standards. An inquiry
into the mental state of an accused should relate to the period immediately before or at
the precise moment of the commission of the act which is the subject of the inquiry. His
mental condition after that crucial period or during the trial is inconsequential for purposes
of determining his criminal liability. Tests for insanity. Insanity, as a defense, must be
raised at the earliest opportunity. Here, the accused invoked insanity for the first time in
the year 2000 and only after he had already testified on his defenses of alibi and denial.
Invocation of denial and alibi as defenses indicates that the accused was in full control
of his mental faculties. (People v. Opuran, G.R. Nos. 147674-75, March 17, 2004).
Accident While in the Performance of a Lawful Duty. (Article 12[4], RPC). A
person who, while performing a lawful act with due care, causes an injury by accident,
without fault or intention of causing it, is exempt from criminal liability. (Aradillos, G.R.
No. 135619, January 15, 2004). When self-defense is pleaded as a defense but, during
trial, the accused claims that the crime was the result of an accident, the burden of
proving self-defense will not come into play. However, the defense of accidental infliction
of injuries on the victim must be established by clear and convincing evidence. (id.).
Mitigating Circumstances
Incomplete Self-Defense. (Article 13 [1], RPC). For this circumstance to be
appreciated, a majority of the elements of self-defense, including unlawful aggression,
must be established. As regard victim A, it was established that: [i] It was A who
first drew and aimed his gun at appellant, and this was confirmed by As gun that had
a live bullet sandwiched between its breechblock and chamber, indicating that the gun
was cocked and fired, but that the bullet was jammed in the process. Hence, the element
of unlawful aggression was present. [ii] Also, the element of lack of sufficient provocation
on the part of the appellant was sufficiently established. [iii] However, appellant failed to
Case Digest
establish the reasonable necessity of the means employed by him. (Catbagan, G.R. Nos.
149430-32, February 23, 2004).
Absent the element of unlawful aggression, the mitigating circumstance of incomplete
self-defense cannot be appreciated. With respect to victim B, unlawful aggression on
his part was not established. B allegedly rushed towards his house to get hold of the
mahaba, so appellant had no other recourse but to shoot him. Unlawful aggression
presupposes an actual, sudden and unexpected attack or imminent danger thereof. Such
aggression refers to an attack that has actually broken out, or materialized, or is at the
very least clearly imminent; it cannot consist merely of any oral threat or intimidating
stance or posture. In this case, the RTC was categorical in ruling that the perceived
danger was more in the mind of appellant than in reality. (id.). There is the rule that if it is
clear that the purpose of the aggressor in retreating to take a more advantageous position
to ensure the success of the attack already begun, the unlawful aggression is considered
still continuing; and the one resorting to self-defense has a right to pursue and disable
the aggressor. This rule does not apply to B, because: [i] there was no clear purpose
in his act of retreating to take a more advantageous position; and [ii] since B never
attacked appellant in the first place, the former could not have begun any unlawful
aggression and, hence, would not have had any reason to take a more advantageous
position. Absent the element of unlawful aggression on the part of B, there can be no
self-defense - complete or incomplete. (id.).
Minority. (Article 13[2], RPC). Appellant, acting with discernment, was over 9 years
but under 15 years old when he committed the crime of rape with homicide. Appreciated
as a privileged mitigating circumstance in accordance with Article 68 [1] of the RPC,
which provides that the imposable penalty should be reduced by at least two degrees
than that prescribed by law for the crime he committed. (Darilay, G.R. Nos. 139751-52,
January 26, 2004).
Voluntary Surrender. (Article 13[7], RPC). Requisites: (1) the offender has not
actually been arrested; (2) the offender surrendered himself to a person in authority; and
(3) the surrender was voluntary. (Catbagan, G.R. Nos. 149430-32, February 23, 2004).
A surrender, to be voluntary, must be spontaneous, showing the intent of the accused to
submit himself unconditionally to the authorities, either because he acknowledges his
guilt, or he wishes to save them the trouble and expense necessarily incurred in his
search and capture. Voluntary surrender presupposes repentance. (People v. Abolidor,
G.R. No. 147231, February 18, 2004). Appreciated, where the accused spontaneously
and unconditionally surrendered to the Purok Leader, immediately after the incident.
(Aradillos, G.R. No. 135619, January 15, 2004).
213
Case Digest
Rejected, in the following cases, where: [i] Appellant, after shooting the victim, was
immediately disarmed and placed under arrest. That appellant did not resist arrest or
deny his criminal act did not constitute voluntary surrender. (People v. Brecinio, G.R.
No. 138534, March 17, 2004). [ii] Accused even failed to identify the policeman to
whom he allegedly surrendered voluntarily. (Casitas, G.R. No. 152358, February 5,
2004). [iii] Appellant surrendered to the authorities after more than one year had lapsed
since the incident and in order to disclaim responsibility for the killing of the victim.
Besides, at the time of his surrender, there was a pending warrant of arrest against him.
(Abolidor, G.R. No. 147231, February 18, 2004).
Voluntary Confession of Guilt. Article 13 (7) of the RPC. Requisites: (1) the accused
spontaneously confessed his guilt; (2) the confession was made in open court, that is,
before a competent court trying the case; and (3) the confession was made prior to the
presentation of evidence by the prosecution. (People v. Juan [En Banc], G.R. No. 152289,
January 14, 2004).
Diminished Willpower. Article 13 (9) of the RPC. To be appreciated as a mitigating
circumstance, after a plea of insanity is rejected, the accused must be shown to have
been suffering from a chronic mental disease that affected his intelligence and willpower
for quite a number of years prior to the commission of the act he was being held for.
(Opuran, G.R. Nos. 147674-75, March 17, 2004).
Aggravating Circumstances
Dwelling of the Offended Party. (Article 13[3], RPC). The victims were killed inside
their house. (People v. Cachola [En Banc], G.R. Nos. 148712-15, January 21, 2004).
Evident Premeditation. (Art. 14[13], RPC). Exists when it is shown that the execution
of a criminal act is preceded by cool thought and reflection upon the resolution to carry
out the criminal intent. Requisites: (1) the time when the accused determined to commit
the crime; (2) an act manifestly indicating that the accused clung to his determination;
and (3) sufficient lapse of time between such determination and execution to allow him
to reflect upon the circumstances of his act. Cannot be considered when it is not shown
how and when the plan to kill was hatched or what time had elapsed before that plan was
carried out. (Sayaboc [En Banc], G.R. No. 147201, January 15, 2004; Cachola [En
Banc, Per Curiam], G.R. Nos. 148712-15, January 21, 2004; People v. Santiago[En
Banc], G.R. No. 147314, February 6, 2004; People v. Torrecampo [En Banc], G.R. No.
139297, February 23, 2004). The essence of evident premeditation is that the execution
of the criminal act must be preceded by cool thought and reflection upon the resolution
to carry out the criminal intent, during the space of time sufficient to arrive at a calm
Case Digest
judgment. In this case, appellant could have reacted on instinct and relied on sheer
impulse to respond to the situation at hand. While it is possible that appellant deliberately
ran over the victim, it is equally possible, if not more probable, that the vehicle moved
forward because appellant failed to control its momentum. Indeed, this is more consistent
with the unrebutted evidence that the jeepney, which had no handbrake, was moving fast
and that appellant became confused when the accident occurred. Furthermore, appellants
act of bringing the victim to the hospital despite numerous opportunities to flee from the
scene is more compatible with a state of mind devoid of criminal intent. (People v.
Garcia, G.R. No. 153591, February 23, 2004).
Evident premeditation, like other circumstances that would qualify a killing as murder,
must be established by clear and positive evidence showing the planning and preparation
stages prior to the killing. Without such evidence, mere presumptions and inferences, no
matter how logical and probable, will not suffice. (People v. Borbon, G.R. No. 143085,
March 10, 2004; Catbagan, G.R. Nos. 149430-32, February 23, 2004).
Abuse of Superior Strength. (Article 13[15], RPC). Present, whenever there is
inequality of forces between the victim and the aggressor. This assumes a situation of
superiority of strength notoriously advantageous for the aggressor and selected or taken
advantage of by him in the commission of the crime. (Torrecampo [En Banc], G.R. No.
139297, February 23, 2004).
Treachery. (Article 13[16], RPC). There is treachery when the offender commits
any of the crimes against persons, employing means, methods, or forms in the execution
thereof, which tend to directly and specially insure the execution of the crime, without
risk to himself arising from the defense which the offended party might make. (People v.
Alzaga, G.R. No. 144937, February 26, 2004; Rugas, G.R. No. 147789, January 14,
2004; Borbon, G.R. No. 143085, March 10, 2004; People v. Santos, G.R. No. 127492,
January 16, 2004; People v. Hormina, G.R. No. 144383, January 16, 2004; Opuran, G.R.
Nos. 147674-75, March 17, 2004; Allawan, G.R. No. 149887, February 13, 2004). There
was treachery: [i] When the victim was sleeping or had just awakened when killed.
(Abolidor, G.R. No. 147231, February 18, 2004). [ii] The victim was only seven (7)
years old at the time of the physical assault on her by appellant. (Darilay, G.R. Nos.
139751-52, January 26, 2004). [iii] Where the assailants suddenly barged in and
immediately went on a shooting rampage. (Cachola [En Banc, Per Curiam], G.R. Nos.
148712-15, January 21, 2004). [iii] Where the victim, an inmate, was killed by appellant
(police officer), while inside the prison cell, together with other inmates. Appellant police
officer manhandled them and suddenly fired three successive shots, the third shot killing
the victim. (Brecinio, G.R. No. 138534, March 17, 2004).
215
Case Digest
Treachery must be proven as indubitably as the crime itself. Two (2) conditions
must concur for treachery to exist, namely: (a) the employment of means of execution
that gave the person attacked no opportunity to defend himself or to retaliate; and (b)
the means or method of execution was deliberately and consciously adopted. Both
these circumstances must be proved as indubitably as the crime itself. It does not always
follow that because the attack is sudden and unexpected, it is tainted with treachery.
(People v. Flores [En Banc], G.R. No. 137497, February 5, 2004). What is decisive is
that the execution of the attack makes it impossible for the victim to defend himself or
retaliate. (Bautista, G.R. No. 139530, February 27, 2004). The mode of attack must be
consciously adopted and must not spring from unexpected turn of events. In this case,
while the attack on Nathaniel was sudden and unexpected, there is no showing that
appellant consciously adopted his mode of attack in order to insure the execution of the
crime without risk to himself. Neither was Nathaniel completely caught by surprise. He
and appellant grappled for the knife. Also, he was able to run away before he was
eventually killed. It bears emphasis that the victim struggled for the possession of the
knife and had the opportunity to grab it and defend himself. (Flores [En Banc], G.R. No.
137497, February 5, 2004).
Treachery was absent in the following cases: [i] Where the appellant shot the victim
when he was peeved by the victims failure to give him duck eggs. In fine, the shooting
was perpetrated at the spur of the moment. (People v. Badajos, G.R. No. 139692,
January 15, 2004). [ii] The decision to shoot A and B was suddenly arrived at after
the confrontation with A had already occurred. Even if the positions of the victims
were vulnerable, there was still no treachery, as appellant did not deliberately adopt such
mode of attack. Its presence was negated by the fact that the shootings had sprung
from the unexpected turn of events. (Catbagan, G.R. Nos. 149430-32, February 23,
2004).
Treachery cannot be presumed but must be proved by clear and convincing evidence
or as conclusively as the killing itself. Where no particulars are shown as to the manner
by which the aggression was commenced or how the act which resulted in the death of
the victim began and developed, treachery can in no way be established from mere
suppositions, drawn solely from circumstances prior to the killing. (People v. Genita,
Jr., G.R. No. 126171, March 11, 2004). The trial court erred when it concluded, from
the fact that the witnesses did not hear any shout or conversation between the assailant
and the victim immediately before the attack, that it could only mean that appellant had
approached his victim through stealth. While not improbable, that conclusion is merely
an inference. The fact remains that none of the witnesses testified as to how the aggression
began. (Sayaboc [En Banc], G.R. No. 147201, January 15, 2004). In another case, there
216 JOURNAL
Case Digest
is no evidence that the victim was asleep when she was stabbed by the appellant. The
witness testified that she heard the victim shouting for help. When she peeped through
the hole, she saw the appellant stabbing the victim. The witness did not know how the
stabbing commenced. (Santiago[En Banc], G.R. No. 147314, February 6, 2004).
Ignominy. (Article 13[17], RPC). Exists when the offense is committed in a manner
that tends to make its effect more humiliating, thus adding to the victims moral suffering.
Where the victim was already dead when his body or a part thereof was dismembered,
ignominy cannot be taken against the accused. In this case, ignominy cannot be
appreciated where the information states that the victims sexual organ was severed after
he was shot and there is no allegation that it was done to add ignominy to the natural
effects of the act. (Cachola [En Banc], G.R. Nos. 148712-15, January 21, 2004).
Qualifying Aggravating Circumstances
and Generic Aggravating Circumstance
The use of a knife by the appellant in this case was the aggravating circumstance
attendant to, and which qualified, the crime of robbery with rape. Such use of a deadly
weapon, which is not among the aggravating circumstances enumerated in Article 14 of
the RPC, cannot be regarded as a generic aggravating circumstance. (People v. Torres
[En Banc], G. R. No. 149557, March 16, 2004).
Special Aggravating Circumstances
Use of Unlicensed Firearm. Under Republic Act No. 8294, the use of an unlicensed
gun to commit homicide is a special aggravating circumstance. (Badajos, G.R. No.
139692, January 15, 2004; Allawan, G.R. No. 149887, February 13, 2004).
Alternative Circumstances
Intoxication. (Article 15[3], RPC). May either be an aggravating or a mitigating
circumstance. It is mitigating under the following conditions: (1) the same is not habitual
or is not subsequent to a plan of the commission of a felony; otherwise, it is aggravating
if it is habitual and intentional; and (2) the consumption of alcoholic drinks was in such
quantity as to blur the accuseds reason and deprive him of certain degree of control.
(Borbon, G.R. No. 143085, March 10, 2004; Bautista, G.R. No. 139530, February 27,
2004; Duetes, G.R. No. 144598, February 6, 2004).
217
Case Digest
PERSONS CRIMINALLY LIABLE

Principals
Husband and wife tandem in rape. Under the RPC, an accused may be considered
a principal by direct participation, by inducement, or by indispensable cooperation.
(People v. De la Torre, G.R. Nos. 121213 and 121216-23, January 13, 2004)
Accomplice
To hold a person liable as an accomplice, two elements must concur: (1) community
of design, which means that the accomplice knows of, and concurs with, the criminal
design of the principal by direct participation; and (2) the performance by the accomplice
of previous or simultaneous acts that are not indispensable to the commission of the
crime. In the present case, neither element was proved. The mere presence of the six
appellants in the company of appellants Cachola and Amay on board a jeep is not
evidence of their knowledge of, or assent to, the criminal design to perpetuate the
massacre. That they were found to be with appellants Cachola and Amay, almost two
hours after the commission of the crime, does not constitute previous or simultaneous
act. Absent a link between the crime and their presence in the jeep two hours later, they
cannot even be considered as accessories to the crime. (Cachola [En Banc], G.R. Nos.
148712-15, January 21, 2004).
PENALTIES
Penalties in General
Retroactive Effect of Penal Laws. Section 8, Rule 110 of The Revised Rules of
Criminal Procedure (RRCP) was applied to crimes committed before December 1,
2000, when the RRCP took effect, as its retroactive application is favorable to the
accused. (Santiago[En Banc], G.R. No. 147314, February 6, 2004; Rugas, G.R. No.
147789, January 14, 2004; People v. Intong, En Banc G. R. No. 145034-35, February 5,
2004; Escobal v. Garchitorena, G.R. No. 124644, February 5, 2004; Borbon, G.R. No.
143085, March 10, 2004).
Robbery with Homicide is punishable by reclusion perpetua to death under Article
294 of the RPC. However, at the time the crime was committed, on September 14, 1992,
the death penalty could not be imposed in view of Article III, Section 19(1) of the
Constitution. The penalty of reclusion perpetua to death for the crime was again imposed
in 1993, with the enactment of Republic Act No. 7695. The provisions of Republic Act
218 JOURNAL
Case Digest
No. 7695, however, cannot be applied retroactively, for that would violate Article III,
Sec. 22 of the Constitution stating that no ex post facto law shall be enacted, as well as
Article 21 of the RPC. Consequently, the single indivisible penalty of reclusion perpetua
should be imposed on each of appellants. (People v. Hijada [En Banc] ,G.R. No. 123696,
March 11, 2004).
R.A. No. 7975 is a substantive procedural law which may be applied retroactively.
(Escobal, G.R. No. 124644, February 5, 2004).
CIVIL LIABILITY
Persons Civilly Liable for Felonies
Considering that at the time of the commission of the crime, the appellant was a
minor under the parental authority of his parents, the parents were held primarily and
directly liable for the damages sustained by the heirs of the victim in one case, and by
the victim in another case. (Darilay, G.R. Nos. 139751-52, January 26, 2004).
What Civil Liability Includes
Civil Indemnity, Moral Damages, Exemplary Damages in Qualified Rape
Where the rape is perpetrated with any of the qualifying/aggravating circumstances
that require the imposition of the death penalty, the victim shall be awarded: [i] P75,000.00
as civil indemnity ex delicto - which is mandatory upon the finding of the fact of rape; [ii]
P75,000.00 as moral damages, even without need of proof since it is assumed that the
victim has suffered moral injuries; and [iii] P25,000.00 as exemplary damages to curb
this disturbing trend of incestuous rape and to set as an example for the public good.
(People v. Padilla [En Banc, Per Curiam], G.R. No. 142899, March 31, 2004).
Civil Indemnity and Moral Damages in Rape
Civil indemnity of P50,000.00 and another P50,000.00, as moral damages - are
mandatory and are automatically awarded for each count of rape, once the fact of rape
is established, without need of proof other than the fact of the commission of rape.
((People v. Luceriano En Banc G.R. No. 145223, February 11, 2004; Intong, En Banc
G. R. No. 145034-35, February 5, 2004; People v. Manambay, G.R. No. 130684, February
5, 2004; G.R. Nos. 152624-25, February 5, 2004; People v. Dimacuha, G.R. Nos. 15259293, February 13, 2004; People v. Blancaflor, En Banc [G.R. No. 130586, January 29,
2004; De la Torre, G.R. Nos. 121213 and 121216-23, January 13, 2004; People v. Fucio
219
Case Digest
[En Banc], G.R. Nos. 151186-95, February 13, 2004; People v. Muros, G.R. No. 142511,
February 16, 2004).
Civil Indemnity In Crimes Involving Loss of Human Life
Civil indemnity in the amount of P50,000.00 (hereafter Civil Indemnity), for each
count, is mandatory and is granted to the heirs of the victim, without need of proof other
than the commission of the crime. (Opuran, G.R. Nos. 147674-75, March 17, 2004).
Thus, Civil Indemnity was awarded in:
[i] Reckless Imprudence Resulting in Homicide. (Garcia, G.R. No. 153591, February
23, 2004).
[ii] Murder. (Abolidor, G.R. No. 147231, February 18, 2004; Santos, G.R. No.
127492, January 16, 2004; Borbon, G.R. No. 143085, March 10, 2004; Hormina, G.R.
No. 144383, January 16, 2004; Allawan, G.R. No. 149887, February 13, 2004; Brecinio,
G.R. No. 138534, March 17, 2004).
[iii] Homicide. (Sayaboc [En Banc], G.R. No. 147201, January 15, 2004; Baldeo v.
People, G.R. No. 152205, February 5, 2004; Santiago[En Banc], G.R. No. 147314,
February 6, 2004; Opuran, G.R. Nos. 147674-75, March 17, 2004; Badajos, G.R. No.
139692, January 15, 2004; Torrecampo [En Banc], G.R. No, 139297, February 23,
2004; Flores [En Banc], G.R. No. 137497, February 5, 2004).
[iv] Parricide. (People v. Bao, G.R. No. 148710, January 15, 2004; People v. Juan
[En Banc], G.R. No. 152289, January 14, 2004).
[v] Robbery with Homicide. (People v. Rugay, G.R. No. 145509, March 16, 2004;
People v. Alicnas, G.R. No. 142855, March 17, 2004; People v. Sumalinog, G.R. No.
128387, February 5, 2004).
Moral Damages in Crimes Involving Loss of Human Life
In addition to Civil Indemnity, Moral damages in the amount of P50,000.00 (hereafter
Moral Damages) should also be awarded to the heirs of the victim, even in the absence
of allegation and proof of their emotional suffering (Bao, G.R. No. 148710, January
15, 2004) because, as borne out by human nature and experience, a violent death invariably
and necessarily brings about emotional pain and anguish on the part of the victims
family. (Opuran, G.R. Nos. 147674-75, March 17, 2004).
220 JOURNAL
Case Digest
But, in other cases, the Court held that Moral Damages in murder and homicide
should be substantiated by evidence; and the grant of such award by the trial court was
deleted, as the prosecution failed to present proof that the victims heirs suffered mental
anguish, moral shock and wounded feelings due to the victims death. (Abolidor, G.R.
No. 147231, February 18, 2004; Brecinio, G.R. No. 138534, March 17, 2004; People v.
Segnar, Jr., [En Banc], G.R. No. 133380, February 18, 2004). In the following cases, the
award of Moral Damages was sustained because the heir of the victim testified regarding
her/his mental anguish and wounded feeling resulting from the untimely death of the
victim. (Santos, G.R. No. 127492, January 16, 2004; Torrecampo [En Banc], G.R. No.
139297, February 23, 2004; Sumalinog, Jr., G.R. No. 128387, February 5, 2004; Flores
[En Banc], G.R. No. 137497, February 5, 2004).
Moral Damages in Other Offenses
In Kidnapping for Ransom and Serious Illegal Detention. Moral damages in the
amount of P300,000 was awarded. (Martinez [En Banc, Per Curiam], G.R. No. 137519,
March 16, 2004).
In Physical Injuries. Moral damages in the amount of P30,000 was awarded. (Casitas,
G.R. No. 152358, February 5, 2004).
Actual Damages
To be entitled to these damages, the actual amount of loss must be established with
a reasonable degree of certainty, premised upon competent proof and on the best evidence
obtainable to the injured party. (Segnar, Jr., [En Banc], G.R. No. 133380, February 18,
2004; Hormina, G.R. No. 144383, January 16, 2004; Santos, G.R. No. 127492, January
16, 2004). Only substantiated and proven expenses, or those that appear to have been
genuinely incurred in connection with the death, wake or burial of the victim, will be
recognized in court. (Rugay, G.R. No. 145509, March 16, 2004). The Court cannot rely
on the victims uncorroborated testimony, which lacks specific details or particulars on
the claimed actual damages and the amount thereof. (Casitas, G.R. No. 152358, February
5, 2004). A list of expenses cannot replace receipts when the latter should have been
issued as a matter of course in business transactions. Neither can the mere testimonies
of the victims siblings on the amount they spent suffice. (Bao, G.R. No. 148710,
January 15, 2004
Where the amount of actual damages awarded by the trial court was less than the
amount of damages duly receipted and borne by the records, the Court allowed the
bigger amount thus established. (Baldeo, G.R. No. 152205, February 5, 2004; Abolidor,
221
Case Digest
G.R. No. 147231, February 18, 2004). Thus, in this case of reckless imprudence resulting
in homicide, the award of P30,000.00, as actual damages, was increased to P58,257.90,
being the amount supported by receipts, as having been spent by the mother of the
victim for hospital bills and funeral expenses. The fact that she received P40,000.00
from insurance will not affect the award of actual damages. (Garcia, G.R. No. 153591,
February 23, 2004).
Where the actual damages granted by the lower court exceeded the amount
wholly supported by the evidence on record, the Court reduced the award of actual
damages to the amount thus established. (Sayaboc [En Banc], G.R. No. 147201, January
15, 2004; Rugay, G.R. No. 145509, March 16, 2004).
In another case, the Court sustained the award of P177,000, as actual damages, even
if only a list of expenses, not official receipts, was submitted - because such amount
was admitted by the defense during the trial. (Cachola [En Banc], G.R. Nos. 148712-15,
January 21, 2004).
Loss of Earning Capacity. (Casitas, G.R. No. 152358, February 5, 2004).
Temperate Damages in Lieu of Actual Damages.
When the actual damages established by receipts during the trial amount to less than
P25,000, the award of temperate damages of P25,000 (hereafter Temperate Damages),
in lieu of actual damages, is justified. (Torrecampo [En Banc], G.R. No. 139297, February
23, 2004; Brecinio, G.R. No. 138534, March 17, 2004; Bao, G.R. No. 148710, January
15, 2004; Cachola [En Banc, Per Curiam], G.R. Nos. 148712-15, January 21, 2004;
Sayaboc [En Banc], G.R. No. 147201, January 15, 2004; Santos, G.R. No. 127492,
January 16, 2004; Darilay, G.R. Nos. 139751-52, January 26, 2004).
In one case, the father of the victim claimed actual damages of P10,000.00 for
burial expenses and testified thereon, However, he failed to present receipts to substantiate
his claim. The Court granted temperate damages in the amount of P10,000. (Opuran,
G.R. Nos. 147674-75, March 17, 2004). In another case, the widow of the victim claimed
actual damages, which included funeral expenses amounting to P30,000. But she merely
submitted a statement of expenses she had prepared herself. The Court granted her
Temperate Damages instead. (Rugay, G.R. No. 145509, March 16, 2004).
222 JOURNAL
Case Digest
Exemplary Damages
Exemplary damages in the amount of P25,000.00 (hereafter Exemplary Damages).
Under Article 2230 of the Civil Code, exemplary damages as part of the civil liability
may be imposed when the crime was committed with one or more aggravating
circumstances. The term aggravating circumstances is to be understood in its broad
or generic sense. (Abolidor, G.R. No. 147231, February 18, 2004). Hence, although the
presence of: [i] relationship of the rape victim to the appellant, being the common-law
spouse of the rape victims mother; [ii] dwelling (appellant raped private complainant in
their own home; and [iii] abuse of confidence (since the rape victim was a very young
child, she lived with her mother and appellant) - could not be used to increase the
penalty, as the same were not alleged in the Information such circumstances are sufficient
bases to award Exemplary Damages. (Blancaflor, En Banc [G.R. No. 130586, January
29, 2004). Also, in this case, where the relationship between the appellant and the rape
victim cannot be appreciated as a qualifying circumstance, it was nonetheless used to
award Exemplary Damages. (Luceriano En Banc G.R. No. 145223, February 11, 2004).
Exemplary Damages were awarded in:
[i] Homicide. (Badajos, G.R. No. 139692, January 15, 2004; Sayaboc [En Banc],
G.R. No. 147201, January 15, 2004).
[ii] Statutory Rape. (People v. Antivola [En Banc], G.R. No. 139236, February 3,
2004).
[iii] Murder. (Opuran, G.R. Nos. 147674-75, March 17, 2004; Santos, G.R. No.
127492, January 16, 2004; Allawan, G.R. No. 149887, February 13, 2004).
In Kidnapping for Ransom With Serious Illegal Detention, P100,000.00 in exemplary
damages was awarded. (Martinez [En Banc, Per Curiam], G.R. No. 137519, March 16,
2004).
Reparation
Return of the money taken by the appellant from the victim of robbery with homicide.
(Alicnas, G.R. No. 142855, March 17, 2004).
223
Case Digest
Book II
CRIMES AND PENALTIES
CRIMES AGAINST PUBLIC INTEREST
Falsification by Public Employee
Making Untruthful Statement in a Narration of Facts. (Article 171[4] of the RPC).
Private respondent may not be convicted of the crime of falsification of public document,
by making false statements in a narration of facts, absent any legal obligation to disclose
where he would spend his vacation leave and forced leave. (Enemecio v. Office Of The
Ombudsman, G.R. No. 146731, January 13, 2004).
CRIMES RELATIVE TO PROHIBITED DRUGS
Sale and Delivery of Prohibited Drugs
Republic Act No. 6425 (Dangerous Drugs Act) punishes not only the sale but also
the mere act of delivery of prohibited drugs. In connection with such delivery, it is
immaterial that no payment was made to appellant. (People v. Cadley, G.R. No. 150735,
March 15, 2004). The consummation of the crime of delivery of prohibited drug may be
sufficiently established even in the absence of the marked money. (People v. Domingcil,
G.R. No. 140679, January 14, 2004). Sale of Shabu. Violation of Section 15 of Republic
Act No. 6424, as amended by Republic Act No. 7659. (People v. Li Yin Chu, G.R. No.
143793, February 17, 2004; People v. Wu Tuan Yuan, G.R. No. 150663, February 5,
2004). The forensic chemist is not mandated to examine the entire mass of shabu
confiscated by the policemen. It is enough that a sample of the said substance be
subjected to qualitative examination. (Li Yin Chiu, G.R. Nos. 142915-16, February 27,
2004). Absence of license or authority to sell or deliver prohibit drugs established in
this case. (People v. Yang [En Banc], G.R. No. 148077, February 16, 2004).
Possession of Shabu
Violation of Section 16 of Republic Act No. 6425, as amended by Republic Act No.
7659. (id.).
224 JOURNAL
Case Digest
Transportation and Delivery of Shabu

Consummated by the mere act of transporting or passing to another the illicit drug,
with or without consideration. (id.).
Membership in an Organized or Syndicated Crime Group
Being a member of a syndicate or organized crime group should have been alleged
in the Information, pursuant to Rule 110, Section 8 of the RRCP, as a specific qualifying
circumstance. Since the Information was silent as to the crime being committed by an
organized or syndicated group or in conspiracy, then the same cannot be appreciated
against appellant for purposes of determining the penalty to be imposed. (People v.
Yang [En Banc], G.R. No. 148077, February 16, 2004).
Drug Addiction
Drug addiction is one of the most pernicious evils that has ever crept into our
society. Equally reprehensible is the police practice of using the law as a tool in extorting
money from hapless victims. Courts must be vigilant in trying drug charges lest an
innocent person is made to suffer the unusually severe penalties for drug offenses. (Wu
Tuan Yuan, G.R. No. 150663, February 5, 2004).
(Editors Note: The new law governing dangerous drugs in the Philippines is Republic
Act No. 9165, approved on June 7, 2002, otherwise known as the Comprehensive
Dangerous Drugs Act of 2002).
CRIMES AGAINST PERSONS
Murder
Established. (People v. Almazan, G.R. No. 133442, March 23, 2004; Opuran, G.R.
Nos. 147674-75, March 17, 2004; Duetes, G.R. No. 144598, February 6, 2004; Hormina,
G.R. No. 144383, January 16, 2004; People v. Sampaga, G.R. No. 139823. March 12,
2004; Brecinio, G.R. No. 138534, March 17, 2004; Alzaga, G.R. No. 144937, February
26, 2004; Santos, G.R. No. 127492, January 16, 2004; Borbon, G.R. No. 143085,
March 10, 2004; Cachola [En Banc, Per Curiam], G.R. Nos. 148712-15, January 21,
2004). Not Accidental Killing. (Brecinio, G.R. No. 138534, March 17, 2004).
225
Case Digest
Attempted Murder. (Darilay, G.R. Nos. 139751-52, January 26, 2004).

Intent to Kill. For one to be criminally liable for a consummated, frustrated or
attempted homicide or murder, there must be, on the part of the accused, an intent to kill
the victim. Intent to kill is an internal act that may be proved by evidence, inter alia, that
the accused used a lethal weapon; the nature, location and number of wounds sustained
by the victim; and by the words uttered by the malefactor before, at the time, or immediately
after the infliction of the injuries on the victim. (id.).
Homicide
Article 249 of the RPC. (Baldeo, G.R. No. 152205, February 5, 2004; Sayaboc [En
Banc], G.R. No. 147201, January 15, 2004; Flores [En Banc], G.R. No. 137497, February
5, 2004; Opuran, G.R. Nos. 147674-75, March 17, 2004; Bautista, G.R. No. 139530,
February 27, 2004; People v. Latayada [En Banc], G.R. No. 146865, February 18, 2004;
Catbagan, G.R. Nos. 149430-32, February 23, 2004; Badajos, G.R. No. 139692, January
15, 2004; Genita, Jr., G.R. No. 126171, March 11, 2004).
Frustrated Homicide. (Rugas, G.R. No. 147789, January 14, 2004). Not established.
The Court found the appellant guilty of Less Serious Physical Injuries. (Aradillos, G.R.
No. 135619, January 15, 2004).
Parricide
Article 246 of the RPC. (Juan [En Banc], G.R. No. 152289, January 14, 2004).
Elements: (1) a person is killed; (2) the deceased is killed by the accused; and (3) the
deceased is the father, mother, or child, whether legitimate or illegitimate, or a legitimate
ascendant, descendant, or spouse of the accused. (Bao, G.R. No. 148710, January 15,
2004).
Physical Injuries
(Hormina, G.R. No. 144383, January 16, 2004; Catbagan, G.R. Nos. 149430-32,
February 23, 2004). Distinguished from Frustrated Homicide. Intent to kill is the principal
element of attempted or frustrated homicide, or murder. Such intent must be proved in a
clear and evident manner to exclude every possible doubt as to the homicidal intent of
the aggressor. Here, there is a dearth of medical evidence on record to prove that the
nature of injuries inflicted by Aradillos showed any willful intent to kill Gloria. (Aradillos,
G.R. No. 135619, January 15, 2004).
226 JOURNAL
Case Digest
Less Serious Physical Injuries. Article 265 of the RPC. (id.).

Rape
Republic Act No. 8353 (Anti-Rape Law of 1997) repealed Article 335 of the RPC
and reclassified rape as a crime against persons under Title Eight of the RPC. The new
provisions on rape are found in Articles 266-A and 266-B of the RPC. Rape is thus
committed either: (1) by carnal knowledge of a woman under (a), (b), (c) or (d) of
paragraph 1, Section 266-A, which is punishable with reclusion perpetua under Article
266-B; or (2) by an act of sexual assault committed by any person under any of the
circumstances mentioned in paragraph 1 of Section 266-A, by inserting his penis into
another persons mouth or anal orifice, or any object or instrument into the genital or
anal orifice of another person, which is punishable by prision mayor. (Padilla [En Banc,
Per Curiam], G.R. No. 142899, March 31, 2004; Santos [En Banc], G.R. Nos. 13782833, March 23, 2004; Antivola [En Banc], G.R. No. 139236, February 3, 2004)
Carnal Knowledge. Explained. (People v. Lou [En Banc], G.R. No. 146803, January
14, 2004; Torres [En Banc], G. R. No. 149557, March 16, 2004; Luceriano En Banc
G.R. No. 145223, February 11, 2004). Absence of laceration does not negate sexual
intercourse. A freshly broken hymen is not an essential element of rape. Even if the
hymen of the victim was still intact, the possibility of rape cannot be ruled out. For
consummated rape, full penetration is not necessary. (Dimacuha, G.R. Nos. 152592-93,
February 13, 2004). Resistance that is expected from a victim to negate consent in rape
is dependent upon the peculiar circumstances of the case. (Muros, G.R. No. 142511,
February 16, 2004; Blancaflor [En Banc], G.R. No. 130586, January 29, 2004).
Force, Threat or Intimidation. The act of holding a knife by itself is strongly
suggestive of force or at least intimidation, and threatening the victim with a knife is
sufficient to bring her into submission. (Luceriano En Banc G.R. No. 145223, February
11, 2004). Moral Ascendancy in lieu of intimidation. (Blancaflor [En Banc], G.R. No.
130586, January 29, 2004;
Act of Sexual Assault. The sexual congress and the insertion of appellants fingers
into the sex organ of the victim, twice committed, have been sufficiently established.
Unexplainably, appellant has not been additionally charged in the information under the
second mode of committing rape. (Intong, En Banc G. R. No. 145034-35, February 5,
2004).
Statutory Rape. When the victim is under twelve (12) years of age, there is rape,
even in the absence of force, threat or intimidation and regardless of the presence or
227
Case Digest
absence of consent of the victim. (Luceriano En Banc G.R. No. 145223, February 11,
2004; Fucio [En Banc], G.R. Nos. 151186-95, February 13, 2004; People v. Tolentino[En
Banc], G.R. No. 139351, February 23, 2004; People v. Malones, G.R. Nos. 124388-90,
March 11, 2004; (G.R. Nos. 152624-25, February 5, 2004). Age of the victim, not
established by sufficient evidence in this case. (Dimacuha, G.R. Nos. 152592-93, February
13, 2004).
Rape of Mental Retardate. Not established. (People v. De Jesus, G.R. Nos. 14408081, January 26, 2004).
Qualified Rape
Punishable by Death. Under Republic Act No. 7659, which took effect on December
31, 1993, the death penalty shall be imposed for rape committed by using force or
intimidation with the following attendant circumstances: (1) when the victim is under
eighteen (18) years of age (hereafter Minority) and the offender is a parent, ascendant,
stepparent, guardian, relative by consanguinity or affinity within third civil degree, or the
common-law-spouse of the parent of the victim (hereafter Relationship). Minority and
Relationship, which constitute only one special qualifying circumstance, must be alleged
in the Information and proved with certainty. (Blancaflor, En Banc [G.R. No. 130586,
January 29, 2004).
Under Article 266-B of the RPC, as amended by Republic Act No. 8353 (The AntiRape Act of 1997, which took effect on October 7, 1977), rape shall be punishable by
death, if attended by any of the following circumstance:
(1) Carnal knowledge of a woman, by using force or intimidation, when the victim
is under eighteen (18) years of age (hereafter Minority) and the offender is a parent,
ascendant, stepparent, guardian, relative by consanguinity or affinity within third civil
degree, or the common-law-spouse of the parent of the victim (hereafter Relationship).
(Luceriano En Banc G.R. No. 145223, February 11, 2004; Intong, En Banc G. R. No.
145034-35, February 5, 2004).
[i] Minority. (Blancaflor, En Banc [G.R. No. 130586, January 29, 2004; Intong, En
Banc G. R. No. 145034-35, February 5, 2004). Rules relating to Minority, either as an
aggravating or qualifying circumstance. (Intong, En Banc G. R. No. 145034-35, February
5, 2004). No sufficient evidence was presented to prove Minority. (Lou [En Banc], G.R.
No. 146803, January 14, 2004).
228 JOURNAL
Case Digest
[ii] Relationship. That the appellant is the godfather of the rape victim, in whose care
and custody the victim was entrusted - is not one of those relationships mentioned in the
law. Neither would it constitute the qualifying circumstance of guardian-ward relationship.
(Fucio [En Banc], G.R. Nos. 151186-95, February 13, 2004). Similarly, the relationship
of the offender, as being just a step-grandfather of the victim, cannot be deemed embraced
by the enumeration of Relationship. (Intong, En Banc G. R. No. 145034-35, February 5,
2004). That the appellant is the live-in partner of the victims mother, should be specifically
alleged in the Information; otherwise, even if the prosecution proved that appellant was
in fact the common-law spouse of the victims mother, the death penalty could not be
imposed on appellant. (Luceriano En Banc G.R. No. 145223, February 11, 2004).
(2) Rape committed in full view x x of other relatives of the victim within the third
civil degree of consanguinity (Article 266-B[3]). In this case, the rape was committed in
the presence of, and witnessed by, the nine-year-old brother of the victim. (Intong, En
Banc G. R. No. 145034-35, February 5, 2004)
(3) Victim was less than seven (7) years old at the time of the rape. (Article 266B[5]). Guidelines in appreciating age, either as an element of the crime or as a qualifying
circumstance. (Antivola [En Banc], G.R. No. 139236, February 3, 2004).
In cases where the age of the victim is material to the determination of the nature of
the crime and the imposable penalty, the prosecution must present independent proof of
the victims age. The age of the victim must be proved with equal certainty and clearness
as the crime itself. (Dimacuha, G.R. Nos. 152592-93, February 13, 2004; Antivola [En
Banc], G.R. No. 139236, February 3, 2004). The severity of death penalty makes the
decision-making process in capital offenses aptly subject to the most exacting rules of
procedure and evidence. (id.; People v. Estado [En Banc], G.R. No. 150867, February
5, 2004). Accordingly, in the absence of sufficient proof of the victims minority, the
appellant cannot be convicted of qualified rape and sentenced to suffer the death penalty.
Here, while the testimony of the victims mother that her daughter was five years old at
the time of the commission of the crime is not sufficient to establish that the victim was
then below seven (7) years of age, it is sufficient for purposes of holding the appellant
liable for statutory rape. (Antivola [En Banc], G.R. No. 139236, February 3, 2004).
Rape With Homicide. (Darilay, G.R. Nos. 139751-52, January 26, 2004). Proved by
circumstantial evidence. (id.).
Rape Committed With Use of a Deadly Weapon. Punishable with reclusion perpetua
to death under Article 266-B of the RPC. (De la Torre, G.R. Nos. 121213 and 121216JOURNAL of the Integrated Bar of the Philippines
229
Case Digest
23, January 13, 2004; Manambay, G.R. No. 130684, February 5, 2004). This circumstance
is qualifying when the rape is committed with the use of a deadly weapon and not just
the overt act of being armed with a weapon. (Intong, En Banc G. R. No. 145034-35,
February 5, 2004). Although the witness in the instant case testified about the accused
being armed with a knife, the record, however, is bereft of evidence to show that the
appellant actually used the knife, it having all along been just tucked at the back of his
trousers. (id.).
Not Forcible Abduction with Rape. Forcible abduction is absorbed in the crime of
rape, if the real objective of the accused is to rape the victim. (Muros, G.R. No. 142511,
February 16, 2004).
Rape. Not established. Sweetheart defense given credence. Normally, a rapist who
is pressed for time and seeking to avoid being caught, would not leisurely engage in
sexual intercourse with his victim. Based on the account of complainant herself, the
alleged crime was done at an unhurried and somewhat relaxed pace. (People vs. Ramos,
G.R. Nos. 155292-93, February 13, 2004).
Standards for reviewing an appeal from a conviction for rape. (Antivola [En Banc],
G.R. No. 139236, February 3, 2004).
CRIMES AGAINST PROPERTY
Robbery With Rape
Special complex crime. Elements: (1) Personal property is taken with violence or
intimidation against persons, (2) the property taken belongs to another, (3) the taking is
done with animo lucrandi, and (4) the robbery is accompanied by rape. Punishable by
reclusion perpetua to death under Article 294 of the RPC, as amended. (Torres [En
Banc], G. R. No. 149557, March 16, 2004).
Robbery With Homicide
Special complex crime. (Article 294, RPC). Elements: (1) the taking of personal
property with the use of violence or intimidation against a person; (2) the property taken
belongs to another; (3) the taking is characterized by intent to gain or animus lucrandi;
and (4) on occasion of or by reason of the robbery, the crime of homicide, used in the
generic sense, is committed. (Sumalinog, Jr., G.R. No. 128387, February 5, 2004; Alicnas,
G.R. No. 142855, March 17, 2004; Rugay, G.R. No. 145509, March 16, 2004). Whenever
the commission of Robbery with Homicide is proven, all those who took part in the
230 JOURNAL
Case Digest
robbery are liable as principals even though they did not take part in the killing. (Sumalinog,
Jr., G.R. No. 128387, February 5, 2004).
Robbery with Multiple Homicide. There is no such crime in the RPC. The crime is
Robbery with Homicide, notwithstanding the number of homicides committed on the
occasion of the robbery and even if murder, physical injuries and rape were also committed
on the same occasion. (Hijada [En Banc], G.R. No. 123696, March 11, 2004).
Carnapping With Homicide
Special complex crime under RA 6539 (Anti-Carnapping Act of 1972), as amended
by Sec. 20 of RA 7659. Carnapping is the taking, with intent to gain, of a motor vehicle
belonging to another, without the latters consent, or by means of violence against or
intimidation of persons, or with the use of force upon things. The penalty of reclusion
perpetua to death shall be imposed when the owner, driver, or occupant of the carnapped
motor vehicle is killed or raped in the course of the commission of the carnapping or on
the occasion thereof. (Section 14, RA 6539, as amended by RA 7659). The intention of
the law is to make the offense a special complex crime, in the same way that robbery
with violence against or intimidation of persons is treated under paragraphs 1 to 4 of
Article 294 of the RPC. Hence, the prosecution must prove not only that the essential
requisites of carnapping were present; but also that it was the original criminal design of
the culprit, and that the killing was perpetrated in the course of the commission of the
carnapping or on the occasion thereof. (Latayada [En Banc], G.R. No. 146865, February
18, 2004).
Estafa
Swindling. Penalty. Article 315, RPC. (People v. Dujua, G.R. Nos. 149014-16,
February 5, 2004).
CRIMES AGAINST PERONSAL LIBERTY AND SECURITY
Kidnapping for Ransom and Serious Illegal Detention
Special complex crime under Article 267 of the RPC, as amended by RA 7659. The
penalty of death is imposable where the detention is committed for the purpose of
extorting ransom. (Martinez [En Banc, Per Curiam], G.R. No. 137519, March 16, 2004).
To warrant the imposition of the death penalty for the crime of kidnapping for ransom
and serious illegal detention, the prosecution must prove: (a) the intent of the accused to
deprive the victim of his liberty; (b) the actual deprivation of the victim of his liberty and
231
Case Digest
(c) the motive of the accused to exact ransom for the release of the victim. The purpose
of the offender in extorting ransom is a qualifying circumstance which may be proved
by words or overt acts before, during or after the kidnapping and detention of the
victim. Neither actual demand for nor actual payment of ransom is necessary for the
crime to be committed. (id.).
CRIMES AGAINST THE CIVIL STATUS OF PERSONS
Bigamy
Article 349, RPC. An individual who contracts a second or subsequent marriage
during the subsistence of a valid marriage is criminally liable for bigamy, notwithstanding
the subsequent declaration that the second marriage is void ab initio, on the ground of
psychological incapacity. (Tenebro v. Court of Appeals [En Banc], G.R. No. 150758,
February 18, 2004). For a person to be held guilty of bigamy, it needs only be shown
that the subsequent marriage has all the essential elements of a valid marriage, were
it not for the subsisting first union. Since psychological incapacity does not relate to an
infirmity in the elements, either essential or formal, in contacting a valid marriage,
the declaration of nullity subsequent to the bigamous marriage due to that ground,
without more, would be inconsequential in a criminal charge for bigamy. The judicial
declaration of nullity of a bigamous marriage on the ground of psychological incapacity
merely nullifies the effects of the marriage but it does not negate the fact of perfection of
the bigamous marriage. Its subsequent declaration of nullity dissolves the relationship of
the spouses but, being alien to the requisite conditions for the perfection of the marriage,
the judgment of the court is no defense on the part of the offender who had entered into
it. (id., Separate Opinion, Vitug, J.).
On the other hand, if it is established that the second marriage has been contracted
without the necessary license and thus void, or that the accused is merely forced to enter
into the second (voidable) marriage, no criminal liability for the crime of bigamy can
attach. In both and like instances, however, the lapses refers to the elements required for
contracting a valid marriage. If, then, all the requisites for the perfection of the contract
marriage, freely and voluntarily entered into, are shown to be extant, the criminal liability
for bigamy can unassailably arise. (id., Separate Opinion, Vitug, J.).
QUASI-OFFENSES
Reckless Imprudence Resulting in Homicide. (Article 365 of the RPC, as amended).
Traffic Accident resulting in death, not murder. Reckless imprudence consists in
voluntarily, but without malice, doing or failing to do an act from which material damage
232 JOURNAL
Case Digest
results by reason of inexcusable lack of precaution on the part of the person performing
such act. Compared to intentional felonies, such as homicide or murder, what takes the
place of the element of malice or intention to commit a wrong or evil is the failure of the
offender to take precautions due to lack of skill taking into account his employment, or
occupation, degree of intelligence, physical condition, and other circumstances regarding
persons, time, and place. (Garcia, G.R. No. 153591, February 23, 2004).
SPECIAL PENAL LAWS
Use of Unlicensed Firearm
Under Republic Act No. 8294, the use of an unlicensed gun to commit homicide,
murder, rebellion, insurrection, or attempted coup detat is a special aggravating
circumstance that would warrant the imposition of the maximum penalty provided by
law. That appellant had no license to the possess the firearm used to kill the victim in this
case, must be alleged in the Information as mandated by Section 8, Rule 110 of the
RRCP. Otherwise, appellants use of an unlicensed firearm cannot be considered against
him. (Badajos, G.R. No. 139692, January 15, 2004; Allawan, G.R. No. 149887, February
13, 2004; People v. Almazan, G.R. No. 133442, March 23, 2004).
Illegal Recruitment in Large Scale
Essential elements: (1) the accused engages in acts of recruitment and placement
of workers defined under Article 13(b), or in any prohibited activities under Art. 34, of
the Labor Code; (2) the accused has not complied with the guidelines issued by the
Secretary of Labor and Employment, particularly, with respect to the securing of a
license or an authority to recruit and deploy workers, either locally or overseas; and (3)
the accused commits the unlawful acts against three or more persons, individually or as
a group. (Dujua, G.R. Nos. 149014-16, February 5, 2004).
Appointments by Licensees of agents or representatives to undertake recruitment
activities must be authorized by the POEA; otherwise, such recruitment and placement
activities shall likewise constitute illegal recruitment. People v. Gutierrez, G.R. No. 124439,
February 5, 2004).
233
Case Digest
LABOR LAW
CONDITIONS OF EMPLOYMENT
Holidays
Right of Holiday Pay. Two Holidays Falling on One Day (i.e., Maunday Thursday
which is also Araw ng Kagitingan). Art. 94 of the Labor Code, as amended, providing
for ten (10) paid regular holidays is mandatory, regardless of whether an employee is
paid on a monthly or daily basis. Since a worker is entitled to the enjoyment of ten paid
regular holidays, the fact that two holidays fall on the same date should not operate to
reduce to nine the ten holiday pay benefits a worker is entitled to receive. (Asian
Transmission Corporation v. Court of Appeals, G. R. No. 144664, March 15, 2004).
Wages
Standards/Criteria for Minimum Wage Fixing. Wage Distortion. Wage
Rationalization Act of June 9, 1989 (R.A. No. 6727, amending, among others, Article
124 of the Labor Code) - should be construed and correlated to minimum wage
fixing, the intention of the law being that in the event of an increase in minimum
wage, the distinctions embodied in the wage structure based on skills, length of
service, or other logical bases of differentiation will be preserved. The compulsory
mandate under Article 124 to correct wage distortion does not apply to voluntary
and unilateral increases by the employer in fixing hiring rates. Wage adjustment is
inherently a business judgment prerogative, and the rule on wage distortion should
not apply in cases where an increase in wages of a particular group is justified due
to a re-evaluation of the high productivity of a particular group, or as in the present
case, the need to increase the competitiveness of hiring rate. An employer would be
discouraged from adjusting the salary rates of a particular group of employees for
fear that it would result to a demand by all employees for a similar increase, especially
if the financial conditions of the business cannot address an across-the-board increase.
(Bankard Employees Union-Workers Alliance Trade Unions v. National Labor
Relations Commission, G.R. No. 140689, February 17, 2004).
LABOR RELATIONS
Coverage
Employees Right to Self-Organization. (General Milling Corporation v. Court of
Appeals, G.R. No. 146728, February 11, 2004).
234 JOURNAL
Case Digest
Unfair Labor Practice

Employers refusal to bargain in good faith with the union. (id.).
CBA and Administration of Agreement
Procedure in Collective Bargaining. The procedure in Article 250 of the Labor
Code is mandatory. (id.).
Duty to Bargain Collectively in Good Faith. Article 252 of the Labor Code.
(id.).
Duty to Bargain Collectively When There Exists a CBA. ART. 253 of the
Labor Code mandates the parties to keep the status quo while they are still in the
process of working out their respective proposal and counter-proposal. When a
CBA already exists, its provision shall continue to govern the relationship between
the parties until a new one is agreed upon. The rule necessarily presupposes that all
other things are equal. That is, neither party is guilty of bad faith. However, when
one of the parties abuses the grace period by purposely delaying the bargaining
process, a departure from the general rule is warranted. Applying the foregoing
principles, it would be unfair to the union and its members if the terms and conditions
contained in the old CBA would continue to be imposed on GMCs employees for
the remaining two (2) years of the CBAs duration. GMC should not be allowed an
extended term of the old CBA after it resorted to delaying tactics to prevent
negotiations. Since it was GMC which violated the duty to bargain collectively, it
had lost its statutory right to negotiate or renegotiate the terms and conditions of the
draft CBA proposed by the union. By imposing on GMC the provisions of the
draft CBA proposed by the union, the interests of equity and fair play were properly
served and both parties regained equal footing which was lost when GMC thwarted
the negotiations for new economic terms of the CBA. (General Milling Corporation
v. Court of Appeals, G.R. No. 146728, February 11, 2004).
Term. Article 253-A of the Labor Code, as amended by Rep. Act No. 6715,
mandates that the representation provision of a CBA should last for five years. The
relation between labor and management should be undisturbed until the last 60 days
of the fifth year. In this case, when the union requested for a renegotiation of the
economic terms of the CBA on November 29, 1991, it was still the certified collective
bargaining agent of the workers, because it was seeking said renegotiation within
five (5) years from the date of effectivity of the CBA. The unions proposal was
also submitted within the prescribed 3-year period from the date of effectivity of the
235
Case Digest
CBA. The employer had no valid reason to refuse to negotiate in good faith with the
union. For refusing to send a counter-proposal to the union and to bargain anew on
the economic terms of the CBA, the employer committed an unfair labor practice
under Article 248 of the Labor Code. (id.).
The provision of the CBA that: It is hereby agreed that these salary increases
shall be exclusive of any wage increase that may be provided by law as a result of
any economic change, is clear that the salary increases, such as the P20.00 provided
under the CBA, shall not include any wage increase that may be provided by law, as
a result of any economic change. Hence, aside from the P20.00 CBA wage increase,
respondents members are also entitled to the ECOLA under the Interim Wage Order.
Moreover, such daily wage increase under the CBA can not be considered as
creditable benefit or compliance with the Interim Wage Order, because such was
intended as a CBA or negotiated wage increase and not because, or in anticipation,
of the fuel price hikes on December 5, 1990. (Mindanao Steel Corporation v. Minsteel
Free Workers Organization [MINFREWO-NFL] Cagayan De Oro, G.R. No. 130693,
March 4, 2004).
POST- EMPLOYMENT
Termination of Employment
Termination By Employer. (Art. 282).Just Causes: (a) Serious Misconduct. Willful
Disobedience. Envisages the concurrence of at least two requisites: (1) the employees
assailed conduct has been willful or intentional, the willfulness being characterized by a
wrongful and perverse attitude; and (2) the order violated must have been reasonable,
lawful, made known to the employee and must pertain to the duties which he had been
engaged to discharge. (Procter and Gamble Philippines v. Bondesto, G.R. No. 139847,
March 5, 2004; Bascon v. Court of Appeals, G.R. No. 144899, February 5, 2004). (b)
Unauthorized Absences. (Procter And Gamble Philippines v. Bondesto, G.R. No. 139847,
March 5, 2004). (c) Participating in an illegal strike. Under Article 264 (a) of the Labor
Code, a union officer can be terminated for mere participation in an illegal strike. However,
for an ordinary striking employee to be dismissed, he must have participated in the
commission of illegal acts during the strike. (Bascon v. Court of Appeals, G.R. No.
144899, February 5, 2004).
Authorized Causes: Redundancy. Exists where the services of an employee are in
excess of what is reasonably demanded by the actual requirements of the enterprise. A
position is redundant where it is superfluous, and superfluity of a position or positions
may be the outcome of a number of factors, such as overhiring of workers, decreased
Case Digest
volume of business, or dropping of a particular product line or service activity previously

manufactured or undertaken by the enterprise. The determination that employees services
are no longer necessary or sustainable and, therefore, properly terminable is an exercise
of business judgment of the employer. The wisdom or soundness of this judgment is
not subject to discretionary review of the Labor Arbiter and the NLRC; provided, there
is no violation of law and no showing that it was prompted by an arbitrary or malicious
act. It is not enough for a company to merely declare that it has become overmanned. It
must produce adequate proof that such is the actual situation to justify the dismissal of
the affected employees for redundancy. (Asufrin, Jr. v. San Miguel Corporation, G.R.
No. 156658, March 10, 2004).
Requisites For a Valid Dismissal: (a) there be just and valid cause as provided
under Article 282 of the Labor Code; and (b) the employee be afforded an opportunity
to be heard and to defend himself. There must also be a compliance with the two-notice
requirement: (1) a written notice containing a statement of the cause for the termination
to afford the employee ample opportunity to be heard and defend himself with the
assistance of his representative, if he so desires; and (2) if the employer decides to
terminate the services of the employee, the employer must notify him in writing of the
decision to dismiss him, stating clearly the reason therefor. (Shoppes Manila, Inc. v.
National Labor Relations Commission, G.R. No. 147125, January 14, 2004). The
termination of petitioners employment, not being for any of the just or authorized causes,
constitutes illegal dismissal. Article 279 of the Labor Code, as amended, (Bascon, G.R.
No. 144899, February 5, 2004).
Dismissal as Penalty. There must be a reasonable proportionality between the offense
and the penalty. (Procter and Gamble Philippines, G.R. No. 139847, March 5, 2004;
Bascon, G.R. No. 144899, February 5, 2004). In finding dismissal to be improper, the
Court considered, among others, that at the time of the filing of the complaint, the
respondent had worked with the petitioner for nineteen (19) years and It has not been
shown that the respondent committed any other infraction of company rules during his
stint in the company. (Procter and Gamble Philippines, G.R. No. 139847, March 5,
2004).
Consequence of Illegal Dismissal. The normal consequences of illegal dismissal are
reinstatement without loss of seniority rights and the payment of back wages computed
from the time the employees compensation was withheld from him. However, in view
of the Courts finding in this case that some of the respondents absences were not
wholly justified, the Court agrees with the NLRC and the CA that backwages should be
limited to one (1) year. (id.).
237
Case Digest
Reinstatement. Doctrine of Strained Relations. Should be strictly applied. Every

labor dispute almost always results in strained relations, and the phrase cannot be
given an overarching interpretation, otherwise, an unjustly dismissed employee can never
be reinstated. (id.). This doctrine is inapplicable to a situation where the employee has
no say in the operation of the employers business. Petitioners herein are nurse and
nursing aide, respectively, in MCCH and thus, have no prerogative in the operation of
the business. (Bascon, G.R. No. 144899, February 5, 2004).
During the pendency of the case, the petitioner filed an Urgent Manifestation and
Motion, stating that more than a year after the respondent was placed on payroll
reinstatement the companys Tondo Plant, where the respondent was assigned, was
shut down. Since the respondents employment could not be maintained at the Tondo
Plant, so the petitioner maintains, it was constrained to discontinue the respondents
payroll reinstatement. HELD: Respondent is entitled to reinstatement, without loss of
seniority rights, to another position of similar nature in the company. While the petitioner
manifested to the Court the closure of the Tondo Plant, it failed to indicate the absence
of an unfilled position more or less of a similar nature as the one previously occupied by
the respondent at its other plant/s. (Procter and Gamble Philippines, G.R. No. 139847,
March 5, 2004).
Backwages. The payment of backwages is generally granted on the ground of
equity. It is a form of relief that restores the income that was lost by reason of the
unlawful dismissal; the grant thereof is intended to restore the earnings that would
have accrued to the dismissed employee during the period of dismissal until it is
determined that the termination of employment is for a just cause. It is not private
compensation or damages but is awarded in furtherance and effectuation of the
public objective of the Labor Code. Nor is it a redress of a private right but rather
in the nature of a command to the employer to make public reparation for dismissing
an employee either due to the formers unlawful act or bad faith. The award of
backwages is not conditioned on the employees ability or inability to, in the interim,
earn any income. While it may be true that on June 11, 1996, the private respondent
was detained in Criminal Case No. 5137, the State Prosecutor found no probable
cause for the detention of the private respondent and resolved to dismiss the case.
The private respondent has not yet been convicted by final judgment in Criminal
Case No. 5251. Indeed, he is presumed innocent until his guilt is proved beyond
reasonable doubt. (Tomas Claudio Memorial College, Inc. v. Court Of Appeals,
G.R. No. 152568, February 16, 2004).
238 JOURNAL
Case Digest
RETIREMENT
Retirement Benefits. Cannot be granted in this case in light of the clear lack of
consensual and statutory basis. (Lopez v. National Steel Corporation, G.R. No. 149674,
February 16, 2004).
Retirement Plan. Article 287 of the Labor Code, as amended by Republic Act No.
7641 (Effective July 7, 1993). The rules implementing the New Retirement Law. In this
case, since Pedro was paid according to the boundary system, he is not entitled to the
13th month and the service incentive pay; hence, his retirement pay should be computed
on the sole basis of his salary. Taxi drivers do not receive fixed wages, but retain only
those sums in excess of the boundary or fee they pay to the owners or operators of
their vehicles. Thus, the basis for computing their benefits should be the average daily
income. (R & E Transport, Inc. v. Latag, G.R. No. 155214, February 13, 2004).
Quitclaim and Waiver. Ineffective in barring recovery of the full measure of a workers
rights, and the acceptance of benefits therefrom does not amount to estoppel. A quitclaim
in which the consideration is scandalously low and inequitable cannot be an obstacle
to the pursuit of a workers legitimate claim. (id.).
PROCEDURE IN LABOR CASES
Formal Hearing Before the Labor Arbiter. Pursuant to Section 5, Rule V of the
New Rules of Procedure of the NLRC, the labor arbiter has the authority to determine
whether or not there is a necessity to conduct formal hearings in cases brought before
him for adjudication. The parties cannot demand as a matter of right the holding of a
formal hearing or trial. (Shoppes Manila, Inc., G.R. No. 147125, January 14, 2004).
Appeals from Awards or Final Orders of the Labor Arbiter. Article 223 of the
Labor Code applies only to appeals from awards or final orders of the Labor Arbiter to
the NLRC and not to appeals from the decisions, awards or orders of the NLRC to the
CA. Under Article 222 of the Labor Code, a decision of the NLRC shall be final after
ten (10) calendar days from receipt thereof by the petitioner. (Tomas Claudio Memorial
College, Inc., G.R. No. 152568, February 16, 2004).
The perfection of an appeal in the manner and within the period prescribed by law is
not only mandatory but jurisdictional, and the failure to perfect an appeal has the effect
of rendering the judgment final and executory. Nonetheless, procedural lapses may be
disregarded because of fundamental considerations of substantial justice;or because of
the special circumstances of the case combined with its legal merits or the amount and
239
Case Digest
the issue involved. (R & E Transport, Inc., G.R. No. 155214, February 13, 2004).
The requirement to post a bond to perfect an appeal has also been relaxed in cases
when the amount of the award has not been included in the decision of the labor arbiter.
Besides, substantial justice will be better served in the present case by allowing petitioners
appeal to be threshed out on the merits, especially because of serious errors in the
factual conclusions of the labor arbiter as to the award of retirement benefits. (id.).
The findings of fact of quasi-judicial bodies, like the NLRC, are accorded with
respect, even finality, if supported by substantial evidence. Particularly, when passed
upon and upheld by the CA, they are binding and conclusive upon the Court and will
not normally be disturbed. (Shoppes Manila, Inc., G.R. No. 147125, January 14, 2004;
Lopez, G.R. No. 149674, February 16, 2004; General Milling Corporation, G.R. No.
146728, February 11, 2004; R & E Transport, Inc., G.R. No. 155214, February 13,
2004).
Forum shopping. (R & E Transport, Inc., G.R. No. 155214, February 13, 2004).
The power of the CA to review NLRC decisions via a Rule 65 petition is now a
settled issue. As early as St. Martin Funeral Homes v. NLRC, the Court has definitively
ruled that the proper remedy to ask for the review of a decision of the NLRC is a special
civil action for certiorari under Rule 65 of the Rules of Court, and that such petition
should be filed with the CA in strict observance of the doctrine on the hierarchy of
courts. Under Section 9 of Batas Pambansa (BP) 129, as amended by Republic Act
7902, the CA pursuant to the exercise of its original jurisdiction over petitions for
certiorari was specifically given the power to pass upon the evidence, if and when
necessary, to resolve factual issues. The special civil action for certiorari under Rule 65
of the Rules of Court is generally limited to the question of grave abuse of discretion
amounting to lack or excess of jurisdiction. (id.).
Petition for Review. The remedy of the aggrieved party from a decision or final
resolution of the CA is to file a petition for review on certiorari under Rule 45 of the
Rules of Court, as amended, on questions of fact or issues of law, within fifteen days
from notice of the said resolution. Otherwise, the decision of the CA shall become final
and executory. The remedy under Rule 45 of the Rules of Court is a mode of appeal to
the Court from the decision of the CA. It is a continuation of the appellate process over
the original case. A review is not a matter of right but is a matter of judicial discretion.
(Tomas Claudio Memorial College, Inc. v. Court Of Appeals, G.R. No. 152568, February
16, 2004).
240 JOURNAL
Case Digest
Where the issue raised is fundamentally factual, the Court is not at liberty to review
it. The Court steps in and exercises its power of review only when the inference or
conclusion arrived at on the basis of facts is manifestly erroneous. (Procter and Gamble
Philippines, G.R. No. 139847, March 5, 2004). However, where the findings of facts of
the NLRC contradict those of the Labor Arbiter, a departure from the general rule is
warranted, and the Court may look into the records of the case and reexamine the
questioned findings. (Bascon, G.R. No. 144899, February 5, 2004; Asufrin, Jr., G.R.
No. 156658, March 10, 2004). Factual issues may be reviewed by the CA when the
findings of fact of the NLRC conflict with those of the labor arbiter. The Court may
review factual conclusions of the CA when they are contrary to those of the NLRC or of
the labor arbiter. (R & E Transport, Inc., G.R. No. 155214, February 13, 2004).
The aggrieved party is proscribed from filing a petition for certiorari if appeal is
available, for the remedies of appeal and certiorari are mutually exclusive and not alternative
or successive. The aggrieved party is, likewise barred from filing a petition for certiorari
if the remedy of appeal is lost through his negligence. A petition for certiorari is an
original action and does not interrupt the course of the principal case unless a temporary
restraining order or a writ of preliminary injunction has been issued against the public
respondent from further proceeding. A petition for certiorari must be based on
jurisdictional grounds because, as long as the respondent court acted within its jurisdiction,
any error committed by it will amount to nothing more than an error of judgment which
may be corrected or reviewed only by appeal. (Tomas Claudio Memorial College, Inc.,
G.R. No. 152568, February 16, 2004). (id.).
The aggrieved party, may however, assail the decision of the CA via a petition for
certiorari under Rule 65 of the Rules of Court within sixty days from notice of the
decision of the CA or its resolution denying the motion for reconsideration of the same.
This is based on the premise that in issuing the assailed decision and resolution, the CA
acted with grave abuse of discretion, amounting to excess or lack of jurisdiction and
there is no plain, speedy and adequate remedy in the ordinary course of law. (id.).
241
Case Digest
LAND LAWS
ORIGINAL REGISTRATION
Ordinary Registration Proceedings
Muniments of Title. (Heirs of Saludares v. Court of Appeals, G.R. No. 128254.
January 16, 2004).
Duty to Furnish the Director of Lands With Copy of the Application/Amended
Application. The burden of complying with this requirement and of showing proof of
compliance therewith, is upon private respondents, as applicants in LRC Case No. N531. (Republic v. Vda. de Neri, G.R. No. 139588, March 4, 2004).
Survey Plan of the Land Approved by the Director of the Lands. It is not the
function of the Land Registration Commission (now the National Land Registration
Authority) to approve original plans. The duty devolves upon the Director of Lands
(now the Director of the Land Management Bureau), as mandated by Section 17 of P.D.
No. 1529. (id.).
SUBSEQUENT REGISTRATION
Voluntary Dealings With Registered Lands
Action for Reconveyance. Notwithstanding the indefeasibility of the Torrens title, the
registered owner may still be compelled to reconvey the registered property to its true
owner. Reconveyance does not set aside or re-subject to review the findings of fact of
the Bureau of Lands. In an action for reconveyance, the decree of registration is respected
as incontrovertible. What is sought instead is the transfer of the property or its title
which has been wrongfully or erroneously registered in another persons name to its
rightful or legal owneror to the one with a better right. (Heirs of Saludares, G.R. No.
128254, January 16, 2004).
Prescription of Action. The right to seek reconveyance of registered property is
subject to extinctive prescription which is ten (10) years, reckoned from the date of the
issuance of the certificate of title. (Section 53, paragraph 3 of P. D No. 1529, in conjunction
with Articles 1456 and 1144(2) of the Civil Code). But there is one instance when
prescription cannot be invoked in an action for reconveyance - that is, when the plaintiff
is in possession of the land to be reconveyed. (Heirs of Saludares, G.R. No. 128254,
January 16, 2004). In a series of cases, the Court permitted the filing of an action for
242 JOURNAL
Case Digest
reconveyance despite the lapse of ten years and declared that said action when based on
fraud is imprescriptible as long as the land has not passed to an innocent purchaser for
value. In all those cases, the common factual backdrop was that the registered owners were
never in possession of the disputed property. Instead, it was the persons with the better right
or the legal owners of the land who had always been in possession of the same. Reconveyance
was proper in those cases on the theory that reproceedings could not be used as a shield for
fraud or for enriching a person at the expense of another. (id.).
Laches. Assuming that private respondents validly acquired Lot 5793 in 1966 as
they claimed, they nevertheless slept on their right to secure title thereto. Their unexplained
inaction for more than 11 years rendered their demand for reconveyance stale. (id.).
Involuntary Dealings
Notice of Adverse Claim. While the law provides that the effectivity of an adverse
claim is limited to 30 days, the cancellation of an adverse claim which the court may or
may not allow is necessary to render it ineffective. (Section 110 of Act 496 or the Land
Registration Act; Section 70, P.D. 1529). The limitation on the period of effectivity is
immaterial in determining the validity or invalidity of an adverse claim which is the principal
issue to be decided in the court hearing. It will therefore depend upon the evidence at a
proper hearing for the court to determine whether it will order the cancellation of the
adverse claim or not. (Equatorial Realty Development, Inc. v. Sps. Frogozo, G.R. No.
128563, March 25, 2004).
The validity or efficaciousness of the claim may only be determined by the court
upon petition by an interested party, in which event, the court shall order the immediate
hearing thereof and make the proper adjudication as justice and equity may warrant. And
it is only when such claim is found unmeritorious that the registration of the adverse
claim may be cancelled, thereby protecting the interest of the adverse claimant and
giving notice and warning to third parties. (id.).
The disputed inscription of adverse claim on the Transfer Certificate of Title No. N79073 was still in effect on February 12, 1985 when the Quezon City Sheriff annotated
the notice of levy on execution thereto. Consequently, he is charged with knowledge that
the property sought to be levied upon on execution was encumbered by an interest the
same as or better than that of the registered owner thereof. Such notice of levy cannot
prevail over the existing adverse claim inscribed on the certificate of title in favor of the
petitioners. This can be deduced from the provision on Effect of levy on execution as
to third persons of Section 16 of the Rules of Court (now Sec. 12, Rule 39 of the 1997
Rules of Civil Procedure). (id.).
Case Digest
Notice of Lis Pendens. Not Buyers in Good Faith. Although at the time petitioners
bought the land in question, the notice of lis pendens annotated on the Liwanag groups
title was already cancelled by a subsequent annotation, petitioners were put on notice of
a litigation involving the land, as the title of the Liwanag group bore the said annotations,
as in fact they even imposed as a condition before purchasing the property the cancellation
thereof. Even if petitioners were issued the certification (on the finality of the order of
dismissal of the case subject of the notice of lis pendens), they should have been put on
guard as to the possibility of the existence of any defect or flaw therein, since it did not
mention that the judgment was entered in the book of entries of judgments as required
by the Rules of Court. Knowledge or awareness of these matters by petitioners was
expected as one of them was a lawyer. (Spouses Dimaculangan v. Romasanta, G.R. No.
147029, February 27, 2004).
Section 52 of PD 1529. With the annotation of lis pendens (re Civil Case No. 1376M filed by Valentina against the spouses Fabellas) on the spouses Fabellas title, which
annotation was subsequently carried over to the title issued to the Liwanag group,
respondents-heirs of Valentina were assured that their rights would be protected, regardless
of how many times ownership of the land is transferred, since the annotation would
always be carried over to subsequent titles. Civil Case No. 1376-M was terminated only
in 1988, and respondents-heirs of Valentina had the right to believe that it was only at
such time that the notice of lis pendens would be cancelled, and any transfer of the
subject property before 1988 would always be subject to the notice of lis pendens.
Since the cancellation of the Fabellas title, while the litigation remained pending, did not
cancel the notice of lis pendens, as it was carried over to the subsequent titles of the
Liwanag group, the registration of petitioners title cannot be considered as the start to
consider the prescriptive period to have run; otherwise, it would result to manifest injustice
to respondents-heirs of Valentina. It bears emphasis that the rules on prescription and
constructive notice are intended to prevent, not cause, injustice. (id.).
POLITICAL LAW
POLICE POWER
Temporary Takeover of Business Affected With Public Interest
Section 17, Article XII of the 1987 Constitution provides for an exercise of police
power which, unlike the power of eminent domain, is exercised without provision for
just compensation. Public interest on the occasion of a national emergency is the primary
244 JOURNAL
Case Digest
consideration when the government decides to temporarily take over or direct the
operation of a public utility or a business affected with public interest. The nature
and extent of the emergency is the measure of the duration of the takeover as well as
the terms thereof. It is the State that prescribes such reasonable terms which will
guide the implementation of the temporary takeover as dictated by the exigencies of
the time. This power of the State can not be negated by any party nor should its
exercise be a source of obligation for the State. (Agan, Jr. v. Philippine International
Air Terminals Co., Inc.[En Banc], G.R. No. 155001, January 21, 2004).
In this case, Section 5.10(c), Article V of the ARCA provides that respondent
PIATCO shall be entitled to reasonable compensation for the duration of the
temporary takeover by GRP, which compensation shall take into account the
reasonable cost for the use of the Terminal and/or Terminal Complex. It clearly
obligates the government in the exercise of its police power to compensate respondent
PIATCO and this obligation is offensive to the Constitution. Police power cannot
be diminished, let alone defeated by any contract for its paramount consideration is
public welfare and interest. (id.).
The Court, however, is not unmindful of the reality that the structures comprising
the NAIA IPT III facility are almost complete and that funds have been spent by
PIATCO in their construction. For the government to take over the said facility, it
has to compensate respondent PIATCO as builder of the said structures. The
compensation must be just and in accordance with law and equity for the government
cannot unjustly enrich itself at the expense of PIATCO and its investors. (id.).
BILL OF RIGHTS
Right to Due Process
The essence of due process is the reasonable opportunity to be heard. Where the
opportunity to be heard has been accorded, there is no denial of due process.
(Aggabao v. Regional Trial Court of Quezon, G.R. No. 146006, February 23, 2004;
People v. Cadley, G.R. No. 150735, March 15, 2004). A formal trial-type hearing is
not at all times and in all situations essential to due process. It is enough that the
parties are given a fair and reasonable opportunity to explain their respective sides
of the controversy and to present evidence on which a fair decision can be based.
(Batul v. Bayron [En Banc], G.R. No. 157687, February 26, 2004).
245
Case Digest
Rights of Persons Under Custodial Investigation

Custodial Investigation. Refers to the critical pre-trial stage when the investigation
ceases to be a general inquiry into an unsolved crime but has begun to focus on a
particular person as a suspect. The purpose of providing counsel to a person under
custodial investigation is to curb the uncivilized practice of extracting a confession, even
through the slightest coercion which might lead the accused to admit something untrue.
(People v. Dueas, Jr. [En Banc], G.R. No. 151286, March 31, 2004).
To be Informed of Ones Right to Remain Silent. Sec. 12(1), Article III of the 1987
Constitution requires the transmission of meaningful information rather than just the
ceremonial and perfunctory recitation of an abstract constitutional principle. It should
allow the suspect to consider the effects and consequences of any waiver he might
make of these rights. More so, when the suspect is one who has an educational attainment
of Grade IV and had already been under the control of the police officers for two days
previous to the investigation, albeit for another offense. (People v. Sayaboc [En Banc],
G.R. No. 147201, January 15, 2004).
Right to a Competent and Independent Counsel Preferably of Ones Choice. Means
that the counsel should satisfy himself, during the conduct of the investigation that the
suspect understands the import and consequences of answering the questions
propounded. This right cannot be invoked until such time as the police investigators
start questioning, interrogating or exacting a confession from the person under
investigation. In this case, where during the police line-up, appellant was not interrogated
at all and no statement or confession was extracted from him, there was no deprivation
of his right to counsel. (People v. Martinez [En Banc, Per Curiam], G.R. No. 137519,
March 16, 2004; People v. Estado [En Banc], G.R. No. 150867, February 5, 2004). In
another case, when the accused was brought to the police station, he was already a
suspect and was, therefore, under custodial investigation. He was, thus, entitled to the
rights guaranteed by the constitution. Though he waived these rights in writing, such
was not made in the presence of counsel, as admitted by the police. This makes the
waiver invalid and the confession inadmissible. (People v. Hijada [En Banc] ,G.R. No.
123696, March 11, 2004).
Belated appearance of counsel who assisted appellant in executing his extrajudicial
confession fell short of the standards demanded by the Constitution and Section 2 of
RA 7438. Appellant had already been in detention for five days before he came to be
assisted by a lawyer, just before he was about to put his confession in writing. (Dueas,
Jr. [En Banc], G.R. No. 151286, March 31, 2004).
246 JOURNAL
Case Digest
Right Against Involuntary Confession. Sec. 12(3) and Sec 17, Article III of the
1987 Constitution covers two kinds of involuntary or coerced confessions: (1) those
resulting from third degree methods like torture, force, violence, threat and intimidation,
and (2) those given without the benefit of the Miranda warnings. (id.). A confession is
presumed voluntary where the same contains details and facts unknown to the investigator
which could have been supplied only by the perpetrator of the crime. However, for this
presumption to apply, the prosecution must show that the constitutional requirements
safeguarding an accuseds rights during custodial investigation have been strictly complied
with. (People v. Sayaboc [En Banc], G.R. No. 147201, January 15, 2004). The failure to
properly inform a suspect of his rights during a custodial investigation renders the
confession valueless and inadmissible. (id.).
The rulings cited by the Office of the Solicitor General where confessions extracted
without the assistance of counsel were admitted in evidence refer to cases where the
accused made verbal admissions before private persons or before persons acting in
their private capacity. Such rulings do not apply to the case at bar, where the accused
was made to execute a written extrajudicial confession, upon the instructions of his
police interrogators. (id.).
Even the hardest of criminals have rights that cannot be interfered with. Those
tasked with the enforcement of the law and who accuse those who violate it carry the
burden of ensuring that all evidence obtained by them in the course of the performance
of their duties are untainted with constitutional infirmity. Any deviation cannot be tolerated,
and any fruit of such deviation shall be excluded from evidence. (id.).
Suggested proceeding in the event a witness claims that he was tortured to admit
certain acts. (People v. Abujan [En Banc], G.R. No. 140870, February 11, 2004).
Freedom from Unreasonable Searches and Seizures
Illegal Search Warrant. Absence of Transcript of Searching Questions. Under
Section 2, Article III of the Constitution and Section 5, Rule 126 of the Rules of Court,
the issuance of a search warrant is justified only upon a finding of probable cause. In
determining the existence of probable cause, it is required that: (1) the judge must examine
the complainant and his witnesses personally; (2) the examination must be under oath;
and (3) the examination must be reduced in writing in the form of searching questions
and answers. In this case, the records only show the existence of an application for a
search warrant, the affidavits of the complainants witnesses and the return of the search
warrant. The prosecution failed to prove that the issuing judge put into writing his
examination of the applicant and his witnesses in the form of searching questions and
Case Digest
answers before issuance of the search warrant, rendering the search warrant invalid.
(People v. Mamaril, G.R. No. 147607, January 22, 2004). Consequently, the evidence
seized pursuant to said illegal search warrant cannot be used in evidence against appellant
in accordance with Section 3 (2), Article III of the Constitution. No matter how
incriminating the articles taken from the appellant may be, their seizure cannot validate an
invalid warrant. (id.).
No Waiver of Right to Question Illegality of Search Warrant. In this case,
the police authorities presented a search warrant to appellant before his residence
was searched. At that time, appellant could not determine if the search warrant was
issued in accordance with the law. It was only during the trial of this case that
appellant, through his counsel, had reason to believe that the search warrant was
illegally issued causing appellant to file a motion with memorandum objecting to the
admissibility of the evidence formally offered by the prosecution. (id.). Such Waiver
Cannot be Presumed. The silence of appellant at the time the policemen showed
him the search warrant Is a demonstration of his regard for the supremacy of the
law. Moreover, appellant seasonably objected on constitutional grounds to the
admissibility of the evidence seized pursuant to said warrant during the trial of the
case, after the prosecution formally offered its evidence. Under the circumstances,
no intent to waive his rights can reasonably be inferred from his conduct before or
during the trial. This case should be distinguished from other cases involving
warrantless arrests. (id.).
Warrantless Arrests. The extraordinary circumstances leading to the rescue
of Lopez did not require a search warrant. The PACC had reasonable grounds to
believe that a crime was then being committed. Its agents conducted a series of
surveillance operations to confirm and ascertain that the victim was indeed being
detained inside one of the rooms in the house where the black Honda Accord was
parked. In such an urgent situation, a search warrant could lawfully be dispensed
with. (Martinez [En Banc, Per Curiam], G.R. No. 137519, March 16, 2004). When
an accused is apprehended in flagrante delicto, as a result of a buy-bust operation,
the police are not only authorized but duty-bound to arrest him even without a
warrant. (Cadley, G.R. No. 150735, March 15, 2004). The legality of the warrantless
arrest of the appellants cannot be questioned for the first time before the Court. As
arrests fall under the question of the exercise by the trial court of its jurisdiction
over the person of the accused, the question should have been raised by appellants
prior to their arraignment. (People v. Cachola [En Banc], G.R. No. 148712-15,
January 21, 2004).
248 JOURNAL
Case Digest
Right Against Double Jeopardy

Our jurisdiction adheres to the finality-of-acquittal doctrine as a safeguard against
double jeopardy. Verdicts of acquittal are to be regarded as absolutely final and
irreviewable. In the absence of a finding of mistrial, i.e. the criminal trial was a sham, a
judgment of acquittal is final and unappealable on the ground of double jeopardy, whether
it happens at the trial court level or at the CA. (People v. Court of Appeals, G.R. No.
142051. February 24, 2004). In this case, the special civil action for certiorari seeking a
review and reversal of decision acquitting an accused on ground of grave abuse of
discretion is not proper. The present petition goes deeply into the trial courts appreciation
and evaluation in esse of the evidence adduced by the parties. For the availment of the
remedy of certiorari to correct an erroneous acquittal, the petitioner must clearly
demonstrate that the lower court blatantly abused its authority to a point so grave as to
deprive it of its very power to dispense justice. if the petition, regardless of its
nomenclature, merely calls for an ordinary review of the findings of the court a quo, the
constitutional right against double jeopardy would be violated. Such recourse is tantamount
to converting the petition for certiorari into an appeal, contrary to the express injunction
of the Constitution, the Rules of Court and prevailing jurisprudence on double jeopardy.
(id.).
CITIZENSHIP
Citizenship in the Philippines from Spanish Times to the Present. (Tecson v.
Commission On Elections [En Banc], G.R. No. 161434, March 3, 2004).
Election of Filipino Citizenship. (Article IV, Section 1(3) of the 1935 Constitution;
Section 1 of Commonwealth Act No. 625). These constitutional and statutory
requirements of electing Filipino citizenship apply only to legitimate children, and
not to respondent who was concededly an illegitimate child, as her Chinese father
and Filipino mother were never married. By being an illegitimate child of a Filipino
mother, respondent is a Filipino since birth, without having to elect Filipino citizenship
when she reaches the age of majority. (Republic v. Lim, G.R. No. 153883, January
13, 2004).
Minor Children of Naturalized Filipino Citizens. Section 15 of CA No. 473, which
extends the grant of Philippine citizenship to the minor children of those naturalized
thereunder should be similarly applied to the minor children of those naturalized under
LOI No. 270. (Tan Co v. Civil Register of Manila [En Banc], G.R. No. 138496, February
23, 2004).
249
Case Digest
Citizenship of an Illegitimate Child of a Philippine Citizen. The 1935 Constitution,

during which regime respondent FPJ has seen first light, confers citizenship to all persons
whose fathers are Filipino citizens, regardless of whether such children are legitimate or
illegitimate. Where jurisprudence regarded an illegitimate child as taking after the citizenship
of its mother, it did so for the benefit the child. It was to ensure a Filipino nationality for
the illegitimate child of an alien father in line with the assumption that the mother had
custody, would exercise parental authority and had the duty to support her illegitimate
child. (Tecson [En Banc], G.R. No. 161434, March 3, 2004).
Citizenship and Proof of Filiation or Paternity. The proof of filiation or paternity
for purposes of determining citizenship status should be deemed independent from that
prescribed for civil law purposes. The Civil Code or Family Code provisions on proof
of filiation or paternity, although good law, do not have preclusive effects on matters
alien to personal and family relations. The ordinary rules on evidence could well and
should govern. For instance, the matter about pedigree in Section 39, Rule 130, of the
Rules of Court is not necessarily precluded from being applicable by the Civil Code or
Family Code provisions. (id.).
THE LEGISLATIVE DEPARTMENT
Operation and Effect of Laws. Publication Requirement
There is nothing in E.O. No. 200 that prevents a law from taking effect on a date
other than or even before the 15-day period after its publication. Where a law provides
for its own date of effectivity, such date prevails over that prescribed by E.O. No. 200.
What is mandatory and what due process requires is the publication of the law, for
without such notice and publication, there would be no basis for the application of the
maxim ignorantia legis n[eminem] excusat. (La Bugal-Blaan Tribal Association, Inc.
v. Ramos [En Banc], G.R. No. 127882, January 27, 2004).
Executive Order No. 279 (E.O. No. 279) was signed into law by then President
Aquino on July 25, 1987, two days before the opening of Congress on July 27, 1987.
Section 8 of the E.O. states that the same shall take effect immediately. While the
effectivity clause of E.O. No. 279 does not require its publication, it is not a ground for
its invalidation since the Constitution, being the fundamental, paramount and supreme
law of the nation, is deemed written in the law. Hence, the due process clause mandating
the publication of statutes is read into Section 8 of E.O. No. 279. Additionally, Section 1
of E.O. No. 200, which provides for publication either in the Official Gazette or in a
newspaper of general circulation in the Philippines, finds suppletory application. From
a reading then of Section 8 of E.O. No. 279, Section 1 of E.O. No. 200, and Taada v.
Case Digest
Tuvera, the Court holds that E.O. No. 279 became effective immediately upon its
publication in the Official Gazette on August 3, 1987. That such effectivity took place
after the convening of the first Congress is irrelevant. At the time President Aquino
issued E.O. No. 279 on July 25, 1987, she was still validly exercising legislative powers
under the Provisional Constitution. Article XVIII (Transitory Provisions) of the 1987
Constitution. The convening of the first Congress merely precluded the exercise of
legislative powers by President Aquino; it did not prevent the effectivity of laws she had
previously enacted. E.O. No. 279 is an effective, and a validly enacted, statute. (id.).
Investigations by Congressional Committees
Distinction Between a Case in Court and an Investigation by a Congressional
Committee. The purpose of a judicial proceeding is to settle the dispute in controversy
by adjudicating the legal rights and obligations of the parties to the case. On the other
hand, a congressional investigation is conducted in aid of legislation. Its aim is to assist
and recommend to the legislature a possible action that the body may take with regard to
a particular issue, specifically, whether or not to enact a new law or amend an existing
one. The Court cannot treat the findings in a congressional committee report as binding
because the facts elicited in congressional hearings are not subject to the rigors of the
Rules of Court on admissibility of evidence. (Agan, Jr.[En Banc], G.R. No. 155001,
January 21, 2004).
THE EXECUTIVE DEPARTMENT
The President of the Philippines
Calling Out Power
Declaration of State of Rebellion. For the purpose of exercising the calling out
power, the Constitution does not require the President to make a declaration of a state of
rebellion. Section 18, Article VII of the Constitution grants the President, as Commanderin-Chief, a sequence of graduated power. From the most to the least benign, these
are: (a) the calling out power (b) the power to suspend the privilege of the writ of habeas
corpus and (c) the power to declare martial law. In the exercise of the latter two powers,
the Constitution requires the concurrence of: [i] an actual invasion or rebellion and [ii]
public safety requires the exercise of such power. However, these conditions are not
required in the exercise of the calling out power. The only criterion is that whenever it
becomes necessary, the President may call the armed forces to prevent or suppress
lawless violence, invasion or rebellion. Section 18, Article VII does not expressly
prohibit the President from declaring a state of rebellion. The Constitution vests the
251
Case Digest
President not only with Commander-in-Chief powers but, first and foremost, with
Executive powers. Section 1, Article VII of the 1987 Philippine Constitution states:
The executive power shall be vested in the President. Section 17 of the same Article
provides: He shall ensure that the laws be faithfully executed. (Sanlakas v. Executive
Secretary [En Banc], G.R. No. 159085, February 3, 2004).
The President has full discretionary power to call out the armed forces and to determine
the necessity for the exercise of such power. While the Court may examine whether the
power was exercised within constitutional limits or in a manner constituting grave abuse
of discretion, none of the petitioners here have, by way of proof, supported their assertion
that the President acted without factual basis. (id.).
Purely Executive Powers. Distinguished From Exercise Of Emergency Powers
(Delegated Powers). The President, in declaring a state of rebellion and in calling out the
armed forces, was merely exercising a wedding of her Chief Executive and Commanderin-Chief powers. These are purely executive powers, vested on the President by Sections
1 and 18, Article VII, as opposed to the delegated legislative powers contemplated by
Section 23 (2), Article VI. (id.).
Executive Power and Commander-in-Chief Provisions. Historical Background. The
provisions trace their history to the Constitution of the United States. (id.).
Emergency Powers
The argument that the declaration of a state of rebellion amounts to a declaration of
martial law and, therefore, is a circumvention of the report requirement, is a leap of
logic. There is no indication that military tribunals have replaced civil courts in the
theater of war or that military authorities have taken over the functions of civil
government. There is no allegation of curtailment of civil or political rights. There is no
indication that the President has exercised judicial and legislative powers. There is no
illustration that the President has attempted to exercise or has exercised martial law
powers. Nor by any stretch of the imagination can the declaration constitute an indirect
exercise of emergency powers, which exercise depends upon a grant of Congress
pursuant to Section 23 (2), Article VI of the Constitution. (id.).
If a state of martial law does not suspend the operation of the Constitution or
automatically suspend the privilege of the writ of habeas corpus, then it is with more
reason that a simple declaration of a state of rebellion could not bring about these
conditions. For the same reasons, apprehensions that the military and police authorities
may resort to warrantless arrests are likewise unfounded. In quelling or suppressing the
252 JOURNAL
Case Digest
rebellion, the authorities may only resort to warrantless arrests of persons suspected of
rebellion, as provided under Section 5, Rule 113 of the Rules of Court, if the circumstances
so warrant. The warrantless arrest feared by petitioners is, thus, not based on the
declaration of a state of rebellion. In other words, a person may be subjected to a
warrantless arrest for the crime of rebellion, whether or not the President has declared a
state of rebellion, so long as the requisites for a valid warrantless arrest are present. (id.).
JUDICIAL DEPARTMENT
Supreme Court of the Philippines
Judicial Review
Section 1, Article VIII of the Constitution. The power of judicial review is limited to
the determination of actual cases and controversies which means an existing case or
controversy that is appropriate or ripe for determination, not conjectural or anticipatory,
lest the decision of the court would amount to an advisory opinion. (La Bugal-Blaan
Tribal Association, Inc [En Banc], G.R. No. 127882, January 27, 2004). The Court can
exercise its power of judicial review only if the following requisites are present: (1) The
existence of an actual and appropriate case; (2) A personal and substantial interest of the
party raising the constitutional question; (3) The exercise of judicial review is pleaded at
the earliest opportunity; and (4) The constitutional question is the lis mota of the case.
(id.).
Jurisdiction Over Issues Involving the Sangguniang Panlalawigan. In the instant
case, the Court is not called upon to inquire into the Sanggunians compliance with its
own rules, but to determine whether the Sanggunian complied with the Local Government
Code (LGC) and its Implementing Rules. (Zamora v. Governor Caballero, G.R. No.
147767, January 14, 2004).
Review of Judgments and Final Resolutions of the COMELEC. Rule 64, in relation
to Rule 65, of the 1997 Rules of Civil Procedure. (Tecson v.Commission On Elections
[En Banc], G.R. No. 161434, March 3, 2004).
Legal Issue. Appellate Jurisdiction. Among the cases falling under the appellate
jurisdiction of the Court and, thus, outside the appellate jurisdiction of the CA, are
appeals where only questions of law are involved. (Equatorial Realty Development, Inc.
v. Sps. Frogozo, G.R. No. 128563, March 25, 2004). The interpretation of contracts
and the determination of whether their provisions violate our laws or contravene any
public policy is a legal issue which the Court may properly pass upon. Here, the Court
253
Case Digest
decided the cases by interpreting and applying the Constitution, the BOT Law, its
Implementing Rules and other relevant legal principles on the basis of clearly undisputed
facts. All the operative facts were settled; hence, there is no need for a trial type
determination of their truth or falsity by a trial court. (Agan, Jr. [En Banc], G.R. No.
155001, January 21, 2004).
Heirarchy of Courts. Applies to cases falling within the concurrent jurisdiction of
the trial courts and appellate courts involving warring factual allegations. For this reason,
litigants are required to repair to the trial courts at the first instance to determine the truth
or falsity of these contending allegations on the basis of the evidence of the parties.
Cases which depend on disputed facts for decision cannot be brought immediately
before appellate courts as they are not triers of facts. When cases brought before the
appellate courts do not involve factual but legal questions, a strict application of the rule
of hierarchy of courts is not necessary. (id.).
Standing to Sue
Traditional Rule. Art. XIII, 15-16 of the Constitution has not changed the traditional
rule that only real parties in interest or those with standing, as the case may be, may
invoke the judicial power. The jurisdiction of the Court, even in cases involving
constitutional questions, is limited by the case and controversy requirement of Art.
VIII, 5, which lies at the very heart of the judicial function. (Sanlakas [En Banc], G.R.
No. 159085, February 3, 2004).
Real Party in Interest. Capacity to Sue. Standing to Sue. Locus standi has been
defined as a personal and substantial interest in the case, such that the party has sustained
or will sustain direct injury as a result of the governmental act that is being challenged,
alleging more than a generalized grievance. The gist of the question of standing is whether
a party alleges such personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon which the court
depends for illumination of difficult constitutional questions. Unless a person is
injuriously affected in any of his constitutional rights by the operation of statute or
ordinance, he has no standing. (La Bugal-Blaan Tribal Association, Inc. [En Banc],
G.R. No. 127882, January 27, 2004).
The determination of whether a person may institute an action or become a party to
a suit brings to fore the concepts of real party in interest, capacity to sue and standing
to sue. These three concepts are different although commonly directed towards ensuring
that only certain parties can maintain an action. A real party in interest is the party who
254 JOURNAL
Case Digest
stands to be benefited or injured by the judgment in the suit or the party entitled to the
avails of the suit. Capacity to sue deals with a situation where a person who may have a
cause of action is disqualified from bringing a suit under applicable law or is incompetent
to bring a suit or is under some legal disability that would prevent him from maintaining
an action unless represented by a guardian ad litem. Legal standing is relevant in the
realm of public law. In certain instances, courts have allowed private parties to institute
actions challenging the validity of governmental action for violation of private rights or
constitutional principles. In these cases, courts apply the doctrine of legal standing by
determining whether the party has a direct and personal interest in the controversy and
whether such party has sustained or is in imminent danger of sustaining an injury as a
result of the act complained of, a standard which is distinct from the concept of real
party in interest. The application of the doctrine on legal standing necessarily involves a
preliminary consideration of the merits of the case and is not purely a procedural issue.
(Agan, Jr. [En Banc], G.R. No. 155001, January 21, 2004).
Considering the nature of the controversy and the issues raised in the cases at bar,
the requisite legal standing of petitioners was established: [i] As a party to the Agreement
and a trustor of the Gratuity Plan Fund (Fund), DBP has a material interest in the
implementation of the Agreement, and in the operation of the Gratuity Plan and the Fund
as prescribed in the Agreement. The DBP also possesses a real interest in upholding the
legitimacy of the policies and programs approved by its Board of Directors for the
benefit of DBP employees. (Development Bank of the Philippines v. Commission On
Audit [En Banc], G.R. No. 144516, February 11, 2004). [ii] The petitioners in G.R. Nos.
155001 and 155661 are employees of service providers operating at the existing
international airports and employees of MIAA, while petitioners-intervenors are service
providers with existing contracts with MIAA and they will all sustain direct injury upon
the implementation of the PIATCO Contracts. The implementation of the PIATCO
Contracts, which the petitioners and petitioners-intervenors denounce as unconstitutional
and illegal, would deprive them of their sources of livelihood. Under settled jurisprudence,
ones employment, profession, trade, or calling is a property right and is protected from
wrongful interference. It is also self evident that the petitioning service providers stand in
imminent danger of losing legitimate business investments in the event the PIATCO
Contracts are upheld. (Agan, Jr. [En Banc], G.R. No. 155001, January 21, 2004). [iii]
Petitioners traverse a wide range of sectors. Among them are La Bugal Blaan Tribal
Association, Inc., a farmers and indigenous peoples cooperative organized under
Philippine laws, representing a community actually affected by the mining activities of
WMCP, members of said cooperative, as well as other residents of areas also affected
by the mining activities of WMCP. These petitioners have standing to raise the
constitutionality of the questioned FTAA as they allege a personal and substantial injury.
255
Case Digest
They claim that they would suffer irremediable displacement as a result of the
implementation of the FTAA allowing WMCP to conduct mining activities in their
area of residence. They thus meet the appropriate case requirement as they assert an
interest adverse to that of respondents who, on the other hand, insist on the FTAAs
validity. In view of the alleged impending injury, petitioners also have standing to
assail the validity of E.O. No. 279, by authority of which the FTAA was executed.
(La Bugal-Blaan Tribal Association, Inc. [En Banc], G.R. No. 127882, January 27,
2004).
Standing to Sue: [i] Independent Peoples Organization. (Sanlakas [En Banc],
G.R. No. 159085, February 3, 2004). [ii] Members of Congress. ((Agan, Jr. [En Banc],
G.R. No. 155001, January 21, 2004; Jaworski v. Philippine Amusement and Gaming
Corporation [En Banc], G.R. No. 144463, January 14, 2004). [iii] Juridical Person.
(Sanlakas [En Banc], G.R. No. 159085, February 3, 2004). [iv] Taxpayers. (id.).[v]
Citizens. (id.).
Exception to the Rules on Standing to Sue and Heirarchy of Courts. Exceptional
or Compelling Circumstances. Issues of Paramount Public Interest. Issues of
Transcendental Importance. The repercussions of the issues in this case on the
Philippine mining industry, if not the national economy, as well as the novelty thereof,
constitute exceptional and compelling circumstances to justify resort to the Court in
the first instance. In all events, the Court has the discretion to take cognizance of a
suit which does not satisfy the requirements of an actual case or legal standing when
paramount public interest is involved. (La Bugal-Blaan Tribal Association, Inc. [En
Banc], G.R. No. 127882, January 27, 2004). Constitutional and Other Legal Issues
With Far-reaching Economic and Social Implications. Over and above all these,
constitutional and other legal issues with far-reaching economic and social implications
are embedded in the cases at bar; hence, the Court liberally granted legal standing to
the petitioning members of the House of Representatives. First, at stake is the buildoperate-andtransfer contract of the countrys premier international airport with a
projected capacity of 10 million passengers a year. Second, the huge amount of
investment to complete the project is estimated to be P13,000,000,000.00. Third,
the primary issues posed in the cases at bar demand a discussion and interpretation
of the Constitution, the BOT Law and its implementing rules which have not been
passed upon by the Court in previous cases. They can chart the future inflow of
investment under the BOT Law. (Agan, Jr. [En Banc], G.R. No. 155001, January 21,
2004). In another case, even granting that petitioners have standing on the ground
that the issues they raise are of transcendental importance, the petitions must fail.
(Sanlakas [En Banc], G.R. No. 159085, February 3, 2004).
256 JOURNAL
Case Digest
Judicial Decisions
Section 14, Article VIII of the Constitution. The court must state the legal basis of
its ruling. (Spouses Consing v. Court of Appeals, G.R. No. 143584, March 10, 2004).
Presidential Electoral Tribunal
Article VII, Section 4, paragraph 7 of the 1987 Constitution relating to the Courts
Jurisdiction over post election contests involving the President and Vice-President of
the Philippines is an innovation. The omission in the 1935 and the 1973 Constitution to
designate any tribunal to be the sole judge of presidential and vice-presidential contests
has constrained the Court to declare in the past, as not being justiciable, controversies
or disputes involving contests on the elections, returns and qualifications of the President
or Vice-President. (Tecson [En Banc], G.R. No. 161434, March 3, 2004).
The jurisdiction of the Court would not include cases directly brought before it,
questioning the qualifications of a candidate for the presidency or vice-presidency before
the elections are held. Evidently, the primary jurisdiction of the Court can directly be
invoked only after, not before, the elections are held. (id.).
CIVIL SERVICE
Public School Teachers
Judicial Relief. From the administrative proceeding in the DECS resulting in the
forced resignation of the petitioner, allegedly in violation of Sec. 9 of the Magna Carta
for Public School Teachers, the proper remedy for petitioner is to seek judicial relief
from the proper court for resolution of the jurisdictional issue and for declaration of
nullity of the administrative proceeding. (Gonzales v. Rosas, G.R. No. 145363, February
23, 2004).
Positions in the Civil Service
De facto Officer. (Occidental Mindoro National College v. Macaraig, G.R. No. 152017,
January 15, 2004).
Appointment. Need to be submitted to the Civil Service Commission within thirty
(30) days from date of issuance as appears on the appointment paper. (id.).
Promotion. Officer with pending administrative charge not qualified. (id.).
257
Case Digest
Separation from Service. Back Salaries, Benefits and Other Money Claims. (id.).
ADMINISTRATIVE PROCEEDINGS
Quantum of proof. (Ebero v. Camposano, A.M. No. P-04-1792, March 12, 2004).
Burden of Proof. (Capacete v. Arrellano, A.M. No. P-03-1700, February 23, 2004)
Disciplinary Action. (a) Against Court Employees. [i] Misconduct in Office. Fighting
during office hours. (Judge Aquino v. Israel, A.M. No. P-04-1800, March 25, 2004). [ii]
Requisitioning office supplies for equipment that the court does not have. Respondents
fault lies not in their failure to seek the presiding judges permission for the requisition of
the computer cartridges; what is prohibited is the practice itself of requisitioning computer
cartridges when the court has no computer. (Fuentebella v. Gellada, A.M. No. P-041769, February 5, 2004). [iii] Dishonesty. Overcharging fees for court clearances (JDF
and General Fund). (Concerned Citizens v. Judge Pullos, A.M. No. MTJ-03-1507, January
20, 2004). Dishonesty and falsification of official document warranting dismissal from
the service. (Re: Administrative Case For Dishonesty And Falsification Of Official
Document [En Banc Per Curiam], A.M. No. 2003-9-SC, March 25, 2004). [iv] Immorality.
Agreeing to marry a man during the subsistence of the latters marriage to another
person. (Dizon v. Campo, A.M. No. P-04-1774, February 9, 2004). The withdrawal or
desistance of a complainant from pursuing an administrative complaint does not divest
the Court of its disciplinary authority over court personnel. (Judge Aquino, A.M. No. P04-1800, March 25, 2004).
(b) Against Public Officers. Simple Misconduct. [i] In 1996 and 1997, when
respondent performed the denounced acts, it was already the established rule that
income tax withheld was to be deposited in any authorized agent bank within the
Revenue District Office where the withholding agents office is located. It was only
in places where there were no agent banks that payment was to be made to the
Revenue District officer. By accommodating and accepting withholding tax returns
and check payments from Abraham of the House of Representatives, respondent
disregarded an established BIR rule, Revenue Regulation No. 4-93, which requires
payment through the banks precisely to avoid, whenever possible, BIR employees
direct receipt of tax payments. To compound matters, her acts were essential
ingredients paving the way for the commission of fraud against, and consequent
damage to, the government. Her claimed ignorance thereof cannot erase her liability.
Obviously, she disregarded the established practice and rules. In the face of her
silence, the fact that the checks ended up in an unauthorized BIR account eloquently
speaks, at the very least, of her gross negligence in taking care of collections that
258 JOURNAL
Case Digest
should not have passed through her hands in the first place. Because of her complicity
in the transgression of the cited BIR regulation as well as her gross negligence,
respondent is administratively liable for misconduct. The sketchiness of the
uncontroverted facts, however, fails to sufficiently establish flagrancy in her act.
Hence, she is liable only for simple, not gross, misconduct. (Bureau of Internal
Revenue v. Organo, G.R. No. 149549, February 26, 2004). [ii] Unjustified Refusal
to Sign Clearance. (Dr. Almanzor v. Dr. Felix, G.R. No. 144935, January 15, 2004).
[iii] Alleged Violation of the Code of Conduct and Ethical Standards for Public
Officials and Employees (Republic Act No. 6713). Bangko Sentral ng Pilipinas.
The BSP is an independent body corporate bestowed under its charter (Rep. Act
No. 7653) with fiscal and administrative autonomy. Its officials should be granted a
certain degree of flexibility in the performance of their duties and provided insulation
from interference and vexatious suits, especially when moves of the kind are resorted
to as counterfoil to the exercise of their regulatory mandate. (Reyes v. Rural Bank
of San Miguel (Bulacan), Inc., G.R. No. 154499, February 27, 2004).
PUBLIC OFFICERS
Clerks of Court
Duty Upon Perfection of Appeal. Section 10 of Rule 41 of the Rules of Court.
(Osorio v. Judge Dizon, A.M. No. RTJ-04-1838, March 18, 2004).
Obligations Relating to the Judiciary Fund Collections. (Re: Misappropriation of the
Judiciary Fund Collections, A.M. No. P-02-1641, January 20, 2004; Toribio v. Atty.
Ofilas, A.M. No. P-03-1714, February 13, 2004; Neri v. Judge Hurtado, Jr., A.M. No.
RTJ-00-1584, February 18, 2004).
Simple Neglect of Duty. (Becina v. Vivero, A.M. No. P-04-1797, March 25, 2004).
Gross Neglect of Duty. Lack of Bad Faith. Respondents delay in the remittance of
her cash collections constitutes a gross neglect of duty under the Civil Service Law and
the Omnibus Rules implementing it. However, in determining the applicable penalty in
this case, the Court takes into consideration the lack of bad faith, the fact that she fully
remitted all her collections and that she has no outstanding accountabilities. While the
Court is inclined to be benevolent to respondent, its sympathy is somewhat dampened
by the fact that she has been less than forthright in pleading difficulty in her expanded
functions and responsibilities. (Re: Misappropriation of the Judiciary Fund Collections,
A.M. No. P-02-1641, January 20, 2004).
259
Case Digest
Sheriff
Simple Neglect of Duty. Attachment of personal property capable of manual delivery.
(Attys. Villanueva-Fabella and Arugay v. Judge Lee, A.M. No. MTJ-04-1518, January
15, 2004).
Implementation of writ of execution. (Salcedo v. Judge Caguioa, A.M. No. MTJ00-1328, February 11, 2004; Capacete, A.M. No. P-03-1700, February 23, 2004; Ebero,
A.M. No. P-04-1792, March 12, 2004).
Unlawful receipt and appropriation of money paid for the service of the writ of
execution. Deliberate and malicious delay in the enforcement of the writs of execution.
(Meneses v. Zaragoza [En Banc, Per Curiam), A.M. No. P-04-1768, February 11, 2004).
Irregularity in the enforcement of the break-open order. (Lobregat v. Amoranto,
A.M. No. P-04-1781, February 18, 2000). Failure to serve summons. (Dia V. Paao,
A.M. No. P-04-1790, March 23, 2004).
Notaries Public
Notarization is invested with substantive public interest, such that only those who
are qualified or authorized may act as notaries public. It converts a private document
into a public one, making it admissible in court without further proof of its authenticity.
(Tabas v. Atty. Mangibin, A.C. No. 5602, February 3, 2004). A notary public should not
notarize a document unless the person who signed the same is the very same person
who executed and personally appeared before him to attest to the contents and truth of
matters stated in the document. (id.). Notarizing an affidavit of a party who was not
present before the notary public, as the said party was residing abroad, renders the
notary liable for misconduct. (Traya, Jr. v. Atty. Villamor [En Banc], A.C. No.4595,
February 6, 2004).
THE OMBUDSMAN
The Ombudsman Act of 1989 (Republic Act No. 6770)
Discretion to Determine Probable Cause. The Ombudsman may dismiss the
complaint forthwith if he finds it insufficient in form or substance. On the other hand, he
may continue with the inquiry if he finds otherwise. The Ombudsman has the power to
dismiss a complaint outright without going through a preliminary investigation. (Enemecio
v. Office Of The Ombudsman, G.R. No. 146731, January 13, 2004).
260 JOURNAL
Case Digest
Where the findings of the Ombudsman on the existence of probable cause in criminal
cases is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction,
the aggrieved party may file a petition for certiorari with the Court under Rule 65. Since
Enemecio filed a certiorari petition before the CA, instead of the Court, she availed of a
wrong remedy in the wrong forum. Hence, the instant petition should be dismissed
outright. (id.).
Appeals from decisions of the Ombudsman in administrative disciplinary actions
should be brought to the CA under Rule 43. The only provision affected by the Fabian
ruling is the designation of the CA as the proper forum and of Rule 43 as the proper
mode of appeal. All other matters in Section 27 of RA 6770, including the finality or
non-finality of decisions of the Ombudsman, remain valid. (id.).
Decision of the Ombudsman in Administrative Cases Which is Final and
Unappealable. (Sec. 27 of R.A. No. 6770). That which imposes the penalty of
suspension of not more than one months salary, interpreted in this case as suspension
for one month without pay. (Herrera v. Bohol, G. R. No. 155320, February 5, 2004).
Fndings of fact by the Ombudsman are conclusive as long as it is supported by substantial
evidence. (Almanzor v. Felix, [G.R. No. 144935. January 15, 2004).
SANDIGANBAYAN
Jurisdiction Over the Subject Matter. The Sandiganbayans lack of jurisdiction
over the complaint could not be waived by private respondent or cured by his silence,
acquiescence or even express consent. That private respondent did not file a motion to
dismiss the complaint for lack of jurisdiction of the Sandiganbayan over the subject
matter, he having instead filed a motion for exclusion as party defendant, is of no moment.
(Republic v. Tan, G.R. No. 145255, March 30, 2004).
Jurisdiction over Criminal Cases. Determined by the allegations in the
Information or the complaint and the statute in effect at the time of the commencement
of the action, unless such statute provides for a retroactive application thereof. The
jurisdictional requirements must be alleged in the Information. Such jurisdiction of
the court acquired at the inception of the case continues until the case is terminated.
(Escobal v. Garchitorena, G.R. No. 124644, February 5, 2004). Exclusive Jurisdiction
Over Crimes Committed by Public Officers in Relation to Their Office. Section
4(a) of P.D. No. 1606, as amended by P.D. No. 1861. It is essential that the facts
showing the intimate relation between the office of the offender and the discharge of
official duties must be alleged in the Information. It is not enough to merely allege in
the Information that the crime charged was committed by the offender in relation to
Case Digest
his office because that would be a conclusion of law. Here, the RTC had jurisdiction
over the offense charged when on November 24, 1995, it ordered the re-amendment
of the Information to include therein an allegation that the petitioner committed the
crime in relation to his office. R.A. No. 7975, amending P.D. No. 1606, was already
in effect and under Section 2 of the law, even if the offender committed the crime
charged in relation to his office but occupies a position corresponding to a salary
grade below 27, the proper RTC or MTC, as the case may be, shall have exclusive
jurisdiction over the case. (id.).
COMMISSION ON AUDIT (COA)
Power, Authority and Duty (Section 2, Article IX-D of the Constitution). The
COA is a constitutional body with the mandate to examine and audit all government
instrumentalities and investment of public funds. It has authority to disallow in audit
dividends distributed under the Special Loan Program (SLP) to the members of
the DBP Gratuity Plan. (Development Bank of the Philippines [En Banc], G.R. No.
144516, February 11, 2004). It has jurisdiction to rule on the invalidity of allowances
and other benefits given to members of the Board of local water districts. (De Jesus
v. Commission on Audit [En Banc], G.R. No. 156641, February 5, 2004).
Section 2, Article IX-D of the Constitution does not bar government
instrumentalities from questioning decisions of the COA. Government agencies and
government-owned and controlled corporations have long resorted to petitions for
certiorari to question rulings of the COA. Likewise, the Government Auditing
Code expressly provides that a government agency aggrieved by a COA decision,
order or ruling may raise the controversy to the Court on certiorari in the manner
provided by law and the Rules of Court. Rule 64 of the Rules of Court now
embodies this procedure. (Development Bank of the Philippines [En Banc], G.R.
No. 144516, February 11, 2004).
The petition for certiorari under Rule 65, however, is not available to any
person who feels injured by the decision of a tribunal, board or officer exercising
judicial or quasi-judicial functions. The person aggrieved under Section 1 of
Rule 65 who can avail of the special civil action of certiorari pertains only to one
who was a party in the proceedings before the court a quo, or in this case, before
the COA. To hold otherwise would open the courts to numerous and endless
litigations. Since the DBP was the sole party in the proceedings before the COA,
DBP is the proper party to avail of the remedy of certiorari. (id.).
262 JOURNAL
Case Digest
NATIONAL ECONOMY AND PATRIMONY

Natural Resources
Section 2, Article XII, 1987 Constitution. History, concepts contained therein, and
the laws enacted pursuant thereto. The 1987 Constitution retained the Regalian doctrine.
Like the 1935 and 1973 Constitutions, the 1987 Constitution prohibits the alienation of
natural resources, except agricultural lands. (La Bugal-Blaan Tribal Association, Inc.,
G.R. No. 127882, January 27, 2004).
The third sentence of the same paragraph is new. Under this provision, the State
assumes a more dynamic role in the exploration, development and utilization of natural
resources. Absent in Section 2 is the provision in the 1935 and 1973 Constitutions
authorizing the State to grant licenses, concessions, or leases for the exploration,
exploitation, development, or utilization of natural resources. By such omission, the
utilization of inalienable lands of public domain through license, concession or lease is
no longer allowed under the 1987 Constitution. Consonant with the States full
supervision and control over natural resources, Section 2 offers the State two options:[i]
the State may directly undertake these activities itself; [ii] it may enter into co-production,
joint venture, or production-sharing agreements with Filipino citizens, or entities at least
60% of whose capital is owned by such citizens. (id.).
A third option is found in the third paragraph of the same section which provides
that: The Congress may, by law, allow small-scale utilization of natural resources by
Filipino citizens, as well as cooperative fish farming, with priority to subsistence fishermen
and fish-workers in rivers, lakes, bays, and lagoons. (id.)
While the second and third options are limited only to Filipino citizens or, in the case
of the former, to corporations or associations at least 60% of the capital of which is
owned by Filipinos, a fourth allows the participation of foreign-owned corporations.
The fourth and fifth paragraphs of Section 2 allows the President to enter into agreements
involving either technical or financial assistance. This provision should not be interpreted
literally; otherwise, such literal interpretation would lead to absurd consequences. Surely,
the framers of the 1987 Charter did not contemplate such an absurd result from their use
of either/or. (id.).
Financial or Technical Assistance Agreements (FTAAs). Limitations: (1) As to
Parties. Only the President, in behalf of the State, may enter into these agreements,
and only with corporations. By contrast, under the 1973 Constitution, a Filipino
citizen, corporation or association may enter into a service contract with a foreign
263
Case Digest
person or entity. (2) As to Size of the Activities. Only large-scale exploration,

development, and utilization is allowed. The term large-scale usually refers to very
capital-intensive activities. (3) The natural resources subject of the activities is
restricted to minerals, petroleum and other mineral oils, the intent being to limit
service contracts to those areas where Filipino capital may not be sufficient. (4)
Consistency With the Provisions of Statute. The FTAA must be in accordance with
the terms and conditions provided by law. (5) The FTAA must be based on real
contributions to economic growth and general welfare of the country. (6) The FTAA
must contain rudimentary stipulations for the promotion of the development and
use of local scientific and technical resources. (7) The Notification Requirement.
The President shall notify Congress of every FTAA entered into within thirty days
from its execution. (8) As to the Scope of the FTAA. While the 1973 Constitution
referred to service contracts for financial, technical, management, or other forms
of assistance, the 1987 Constitution provides for agreements. . . involving either
financial or technical assistance. It bears noting that the phrases service contracts
and management or other forms of assistance in the earlier constitution have been
omitted. (id.).
The State, being the owner of the natural resources, is accorded the primary power
and responsibility in the exploration, development and utilization thereof. As such, it
may undertake these activities through four modes:
(1)
The State may directly undertake such activities.
(2)
The State may enter into co-production, joint venture or production-sharing
agreements with Filipino citizens or qualified corporations. (R.A. No. 7942).
(3)
Congress may, by law, allow small-scale utilization of natural resources by
Filipino citizens. (Republic Act No. 7076, otherwise known as the Peoples Small-Scale
Mining Act of 1991 and other pertinent laws).
(4)
For the large-scale exploration, development and utilization of minerals,
petroleum and other mineral oils, the President may enter into agreements with foreignowned corporations involving technical or financial assistance. (R.A. No. 7942). (id.).
Monopolies
Section 19, Article XII of the 1987 Constitution. Monopolies are not per se prohibited.
Given its susceptibility to abuse, however, the State has the bounden duty to regulate
monopolies to protect public interest. Such regulation may be called for, especially in
264 JOURNAL
Case Digest
sensitive areas such as the operation of the countrys premier international airport,
considering the public interest at stake. (Agan, Jr. [En Banc], G.R. No. 155001, January
21, 2004).
PUBLIC UTILITIES
International Air Freight Forwarding. Executive and Management Officer
Positions shall be limited to Filipino citizens. Section 11, Article XII of the Constitution.
Powers and duties of the Civil Aeronautics Board. (Royal Cargo Corporation v. Civil
Aeronautics Board, G.R. Nos. 103055-56, January 26, 2004).
LOCAL GOVERNMENT
Sangguniang Panlalawigan
Compliance with the Local Government Code (LGC) and its Implementing Rules.
(Zamora, G.R. No. 147767, January 14, 2004).
(a) Quorum. The applicable rule respecting quorum is found in Section 53(a) of the
LGC. The entire membership must be taken into account in computing the quorum of
the sangguniang panlalawigan. (id.).
(b) Construction Contracts. For a resolution authorizing the governor to enter into a
construction contract to be valid, the vote of the majority of all members of the
Sanggunian, and not only of those present during the session, is required in accordance
with Section 468 of the LGC in relation to Article 107 of its Implementing Rules. (id.).
What is at issue in this case is not the propriety or the wisdom of entering into the
Contract for the construction of the capitol building, which is beyond the power of the
Court to enjoin, but the Sanggunians compliance with the requirements prescribed
under the LGC before it may grant the Governor authority to enter into the Contract,
which issue falls under the exception to the proscription against injunctions in cases
involving infrastructure projects. Although Presidential Decree No. 1818 prohibits any
court from issuing injunctions in cases involving infrastructure projects, the prohibition
extends only to the issuance of injunctions or restraining orders against administrative
acts in controversies involving facts or the exercise of discretion in technical cases. On
issues clearly outside this dimension and involving questions of law, courts could not be
prevented from exercising their power to restrain or prohibit administrative acts. (id.)/
(c) Presiding Officer. Section 48 of the LGC clearly limits the power of presiding
officers to vote only in case of a tie. While acting as presiding officer, a Board Member
265
Case Digest
may not, at the same time, be allowed to exercise the rights of a regular board member,
including that of voting even when there is no tie to break. (id.).
Eminent Domain by the City of Manila
Whether respondent City deprived petitioners of their property without due process
of law depends on whether the City complied with the legal requirements for expropriation.
Before respondent City can exercise its power of eminent domain, the same must be
sanctioned by and must not violate any law. Being a mere creation of the legislature, a
local government unit can only exercise powers granted to it by the legislature. Such is
the nature of the constitutional power of control of Congress over local government
units, the latter being mere creations of the former. (Estate of Heirs of the Late ExJustice Jose B. L. Reyes v. City of Manila, G.R. No. 132431, February 13, 2004).
When it expropriated the subject properties, respondent City relied on its powers
granted by Section 19 of the LGC and RA 409 (The Revised Charter of the City of
Manila). The latter specifically gives respondent City the power to expropriate private
property in the pursuit of its urban land reform and housing program. Respondent City,
however, is also mandated to follow the conditions and standards prescribed by RA
7279 (The Urban Development and Housing Act of 1992), the law governing the
expropriation of property for urban land reform and housing. Sections 9 and 10 of RA
7279 are limitations to the exercise of the power of eminent domain, specially with
respect to the order of priority in acquiring private lands and in resorting to expropriation
proceedings as a means to acquire the same. Private lands rank last in the order of
priority for purposes of socialized housing. In the same vein, expropriation proceedings
are to be resorted to only after the other modes of acquisition have been exhausted.
Compliance with these conditions is mandatory because these are the only safeguards
of oftentimes helpless owners of private property against violation of due process when
their property is forcibly taken from them for public use. (id.).
Barangay
Katarungan Pambarangay. The Katarungang Pambarangay Law (P.D. 1508)
and later the LGC provide for a mechanism for conciliation where party-litigants can
enter into an agreement in the barangay level. Under Section 416 of the said Code, an
amicable settlement shall have the force and effect of a final judgment of the court upon
the expiration of 10 days from the date thereof, unless repudiation of the settlement has
been made or a petition to nullify the award has been filed before the proper court.
(Quiros v. Arjona, G.R. No. 158901, March 9, 2004).
266 JOURNAL
Case Digest
Liga ng Mga Barangay National. The national organization of all the barangays in
the Philippines, which pursuant to Section 492 of the LGC, constitutes the duly elected
presidents of highly-urbanized cities, provincial chapters, the metropolitan Manila Chapter,
and metropolitan political subdivision chapters. (The Liga Ng Mga Barangay National v.
The City Mayor of Manila [En Banc], G.R. No. 154599, January 21, 2004).
GOVERNMENT CONTRACTS
BOT Law (R.A. No. 6957, as amended by R.A. No. 7718) and the Requirements
of Public Bidding. In public bidding, bids are submitted in accord with the prescribed
terms, conditions and parameters laid down by government and pursuant to the
requirements of the project bidded upon. In light of these parameters, bidders formulate
competing proposals which are evaluated to determine the bid most favorable to the
government. Once the contract based on the bid most favorable to the government is
awarded, all that is left to be done by the parties is to execute the necessary agreements
and implement them. There can be no substantial or material change to the parameters
of the project, including the essential terms and conditions of the contract bidded
upon, after the contract award. If there were changes and the contracts end up
unfavorable to government, the public bidding becomes a mockery and the modified
contracts must be struck down. (Agan, Jr. [En Banc], G.R. No. 155001, January 21,
2004).
Unsolicited Proposal. The BOT Law and its implementing rules provide for three
(3) essential requisites for an unsolicited proposal to be accepted: (1) the project involves
a new concept in technology and/or is not part of the list of priority projects (2) no
direct government guarantee, subsidy or equity is required and (3) the government agency
or local government unit has invited by publication other interested parties to a public
bidding and conducted the same. The failure to fulfill any of the requisites will result in
the denial of the proposal. It is further provided that a direct government guarantee,
subsidy or equity provision will necessarily disqualify a proposal from being treated
and accepted as an unsolicited proposal. In fine, the mere inclusion of a direct government
guarantee in an unsolicited proposal is fatal to the proposal. There is more reason to
invalidate a contract if a direct government guarantee provision is inserted later in the
contract via a backdoor amendment. Such an amendment constitutes a crass circumvention
of the BOT Law and renders the entire contract void. (id.).
Violation of Law and the Requirements of Public Bidding. The contracts at bar
which made a mockery of the bidding process cannot be upheld and must be annulled in
their entirety for violating law and public policy. The contracts were substantially amended
267
Case Digest
after their award to the successful bidder on terms more beneficial to PIATCO and
prejudicial to public interest. (id.).
Other Issues Discussed: Pre-Qualification of PIATCO. Changes that materially altered
the terms and conditions upon which the bids were made, such as: [i] Modification on
Fees and Charges to be Collected by PIATCO. [ii] Assumption by the Government of
the liabilities of PIATCO In the event of the latters default a scheme that is a direct
government guarantee proscribed by the BOT. (id.).
GOVERNMENT OWNED AND CONTROLLED CORPORATIONS

Philippine Amusement and Gaming Corporation (PAGCOR)
PAGCOR is a government-owned and controlled corporation existing under
Presidential Decree No. 1869, issued on July 11, 1983, by then President Ferdinand
Marcos. PAGCORs legislative franchise does not include the right to vest another
entity with the authority to operate Internet gambling. (Jaworski [En Banc], G.R. No.
144463, January 14, 2004).
Local Water Districts
Representation and Transportation Allowance (RATA), rice allowance, clothing
allowance, Christmas bonus, productivity pay and honorarium for the Members of its
Board of Directors prohibited under Section 13 of Presidential Decree No. 198
(otherwise known as the Provincial Water Utilities Act of 1973). (De Jesus [En Banc],
G.R. No. 156641, February 5, 2004). However, the assailed allowances and bonuses
need not be refunded. This is so because at the time such disbursements were made, the
decision in Baybay Water District v. Commission on Audit, which enunciated the rule
prohibiting the grant of allowances and bonuses other than per diems to Board members
of water districts had not yet been promulgated. Good faith was thus considered by the
Court in holding that the recipients of the allowances and bonuses disallowed by the
COA need not refund the same. (id.).
Development Bank of the Philippines (DBP)

The DBP is a government financial institution with an original charter, Executive
Order No. 81, as amended by Republic Act No. 8523 (DBP Charter). (Development
Bank of the Philippines [En Banc], G.R. No. 144516, February 11, 2004).
268 JOURNAL
Case Digest
Retirement Benefits. DPB Gratuity Plan Fund. The DBP Special Loan Program
(SLP). Even assuming that the SLP constitutes a supplementary retirement plan, it is not
governed by RA 4968. The DBP Charter, which took effect on 14 February 1986,
expressly authorizes supplementary retirement plans adopted by and effective in DBP.
Being a special and later law, the DBP Charter prevails over RA 4968. The DBP
originally adopted the SLP in 1983. The Court cannot strike down the SLP now based
on RA 4968, in view of the subsequent DBP Charter authorizing the SLP. However, the
Court affirmed the action of COA in disallowing the P11,626,414.25 distributed as
dividends under the SLP, which enabled certain DBP employees to utilize and even earn
from their retirement gratuities even before they retired. This constitutes a partial release
of their retirement benefits, which is contrary to RA 1616 and the Gratuity Plan. (id.).
ELECTION LAWS
Commission on Elections (COMELEC)
Powers and Functions. Issues Relating to Political Party Identity and Leadership.
The COMELEC has the power and function to enforce and administer all laws and
regulations relative to the conduct of an election. In the exercise of such power and in
the discharge of such function, the COMELEC has jurisdiction to rule upon the issue in
this case as to who, between the Party Chairman and the Secretary General, has the
authority to sign certificates of candidacy of the official candidates of the party. (Laban
ng Demokratikong Pilipino v. Commision on Elections [En Banc], G.R. No. 161265,
February 24, 2004). The repercussions of the question of party identity and leadership
do not end at the validity of the endorsement of the certificates of candidacy of persons
claiming to be the partys standard bearer. The law grants a registered political party
certain rights and privileges, which, naturally, redound to the benefit of its candidates.
(id.).
Nomination of Official Candiates of a Political Party. The matter involved in this
controversy is an internal matter that the political party itself should resolve. (id., Separate
Opinion, Vitug, J. Dissenting Opinion, Sandoval-Gutierrez, J.).
Omnibus Election Code
Certificate of Candidacy. Material Misrepresentation. While the totality of the
evidence may not establish conclusively that respondent FPJ is a natural-born citizen
of the Philippines, the evidence on hand still would preponderate in his favor enough
to hold that he cannot be held guilty of having made a material misrepresentation in
his certificate of candidacy in violation of Section 78, in relation to Section 74, of
269
Case Digest
the Omnibus Election Code. Petitioner has utterly failed to substantiate his case
before the Court, notwithstanding the ample opportunity given to the parties to
present their position and evidence, and to prove whether or not there has been
material misrepresentation, which must not only be material, but also deliberate and
willful. (Tecson [En Banc], G.R. No. 161434, March 3, 2004).
Ballot Appreciation. The cardinal objective of ballot appreciation is to discover
and give effect to, rather than frustrate the intention of the voters, thus, every ballot
shall be presumed valid unless clear and good reasons justify its rejection. Laws
and statutes governing election contests especially appreciation of ballots must be
liberally construed to the end that the will of the electorate in the choice of public
officials may not be defeated by technical infirmities. (De Guzman [En Banc], G.R.
No. 159713, March 31, 2004). Contested Ballots and Election Documents. (id.).
Substituted or Fake Ballots. Evidence aliunde is not necessary to prove substituted
or fake ballots. The ballots are the best evidence of the objections raised and an
inspection of these ballots is sufficient. Moreover, there is no better authority than
the COMELEC itself to determine the authenticity of the ballots, having itself ordered
and supervised the printing of all the official ballots. (Batul [En Banc], G.R. No.
157687, February 26, 2004).
Assistory Voting. Preparation of Ballots for Illiterate of Physically Disabled
Voters. (De Guzman [En Banc], G.R. No. 159713, March 31, 2004).
Election Protests. The COMELEC First Division correctly exercised its discretion
in refusing to hear all 50 BEI chairpersons, as this would not have been feasible and
practical given the remaining time until the next election. Procedural rules in elections
cases are designed to achieve not only a correct but also an expeditious determination
of the popular will of the electorate. (Batul v. Bayron [En Banc], G.R. No. 157687,
February 26, 2004).
Execution Pending Appeal. Section 2, Rule 39 of the Rules of Court, allowing
execution pending appeal in the discretion of the court applies in a suppletory manner
to election cases, including those involving city and provincial officials. (id.). There
is no reason why the public policy underlying the suppletory application of Section
2 to obviate a hollow victory for the duly elected candidate as determined by either
the courts or the COMELEC should not apply with equal force to election contests
involving city and provincial officials. (id.).
270 JOURNAL
Case Digest
REMEDIAL LAW
General Principles
Jurisdiction of Trial Courts and Docket Fees. The filing of the complaint or
appropriate initiatory pleading and the payment of the prescribed docket fee vest a trial
court with jurisdiction over the subject matter or nature of the action. If the amount paid
as docket fee is insufficient, considering the amount of the claim, the clerk of court of
the lower court involved, or his duly authorized deputy, has the responsibility of making
a deficiency assessment. The party filing the case will be required to pay the deficiency,
but jurisdiction is not automatically lost. (Rivera v. Del Rosario, G.R. No. 144934,
January 15, 2004).
Jurisdiction Over the Person of the Defendant. (Ancheta v. Ancheta, G.R. No.
145370, March 4, 2004).
Jurisdiction Over the Subject Matter. In determining which court has jurisdiction
over a case, the averments of the complaint/counterclaim, taken as a whole, are
considered: (a) intra-corporate dispute. (Velarde, G.R. No. 153886, January 14,
2004). (b) agrarian dispute. In this case, however, the cause of action is primarily
against the petitioners, as indispensable parties, for rescission of the Kasunduan
and nullification of the Deed of Sale and the TCTs issued because of them. An
agricultural tenant was impleaded merely as a necessary party. Hence, it is the regular
judicial courts that have jurisdiction over the case. (Rivera, G.R. No. 144934, January
15, 2004).
A court has no power to decide questions, except as presented by the parties in
their pleadings. Anything that is decided beyond them is coram non-judice and
void. Therefore, where a court enters a judgment or awards relief beyond the prayer
of the complaint or the scope of its allegations, the excessive relief is not merely
irregular but is void for want of jurisdiction, and is open to collateral attack. In this
case, the only ground alleged in the petition for declaration of nullity of marriage
(between Jose and Adriana), filed by Adriana with the Pasay RTC, is the
psychological incapacity of Jose, without any prayer for the support of their child,
John Paul. Adriana presented and formally offered her evidence in support of the
petition and submitted the case for decision in May 1994. But, on a motion to reopen filed by her in June 1994, the trial court set the case for reception of evidence
and subsequently allowed Adriana to present evidence of two previous marriages
contracted by Jose with other women to prove that the marriage between Adriana
271
Case Digest
and Jose was null and void for being bigamous. It is only at the July 6, 1994 hearing
that respondent Adriana first claimed support for John Paul when she testified in
open court. HELD: It is a serious error for the trial court to have rendered judgment
on issues not presented in the pleadings as it was beyond its jurisdiction to do so.
The amendment of the petition to reflect the new issues and claims against Jose
was, therefore, indispensable so as to authorize the court to act on the issue of
whether the marriage of Jose and Adriana was bigamous and the determination of
the amount that should have been awarded for the support of John Paul. When the
trial court rendered judgment beyond the allegations contained in the copy of the
petition served upon Jose, it acted in excess of its jurisdiction and deprived petitioner
Lam of due process. Insofar as the declaration of nullity of the marriage between
Adriana and Jose for being bigamous is concerned, the decision rendered by the
Pasay RTC could be declared as invalid for having been issued beyond its jurisdiction.
Nonetheless, Jose did not assail the declaration of nullity of his marriage with Adriana
in his motion for reconsideration which he filed with the Pasay RTC. In the petitions
he filed in the CA and with the Court, he likewise did not raise the issue of jurisdiction
of the Pasay RTC to receive evidence and render judgment on his previous marriages
with other woman which were not alleged in the petition filed by Adriana. Petitioner
Jose is estopped from questioning the declaration of nullity of his marriage with
Adriana and therefore, the Court will not undo the judgment of the Pasay RTC
declaring the marriage of Adriana and Jose null and void for being bigamous. It is
an axiomatic rule that while a jurisdictional question may be raised at any time, this,
however, admits of an exception where estoppel has supervened. (Lam v. Chua,
G.R. No. 131286, March 18, 2004).
Jurisdiction. A probate court or one in charge of proceedings, whether testate or intestate,
cannot adjudicate or determine title to properties claimed to be a part of the estate and which
are equally claimed to belong to outside parties. All that said court could do as regards said
properties is to determine whether they should or should not be included in the inventory or
list of properties to be administered by the administrator. If there is any dispute on the
ownership of such property, the parties, the administrator, and the opposing parties have to
resort to an ordinary action for a final determination of the conflicting claims of title because
the probate court cannot do so. (Camaya v. Patulandong, G.R. No. 144915, February 23,
2004).
The intestate court has the power to execute its order with regard to the nullity of an
unauthorized sale of estate property. In other words, enforcement is a necessary adjunct of
the intestate or probate courts power to annul unauthorized or fraudulent transactions to
prevent the dissipation of estate property before final adjudication. (Aggabao v. Regional
272 JOURNAL
Case Digest
Trial Court of Quezon, G.R. No. 146006, February 23, 2004).

Appellate Jurisdiction. Section 9 of Batas Pambansa Blg. 129, otherwise known as the
Judiciary Reorganization Act of 1980, vests in the CA exclusive appellate jurisdiction over all
final decisions and orders of the RTCs, except those falling within the appellate jurisdiction
of the Court in accordance with, among others, the Constitution and Republic Act No. 296
(the Judiciary Act of 1948). Among the cases falling under the appellate jurisdiction of the
Court and, thus, outside the appellate jurisdiction of the CA, are appeals where only questions
of law are involved. In such case, Section 25 of the Interim Rules and Guidelines Implementing
B. P. Blg. 129, in conjunction with Section 3 of Republic Act No. 5440, provides that the
appeal to the Court shall be taken by petition for certiorari, which shall be governed by Rule
45 of the Rules of Court. (Equatorial Realty Development, Inc. v. Sps. Frogozo, G.R. No.
128563, March 25, 2004).
Rules on Summary Procedure
Unlawful detainer and forcible entry cases are covered by summary procedure
because they involve the disturbance of the social order which must be restored as
promptly as possible. Accordingly, technicalities or details of procedure should be
carefully avoided. (Tugot v. Judge Coliflores, A.M. No. MTJ-00-1332, February
16, 2004).
1997 RULES OF CIVIL PROCEDURE

ORDINARY CIVIL ACTIONS
Rule 2
Cause of Action
Cause of Action. (Equitable Philippine Commercial International Bank v. Court of
Appeals, [G.R. No. 143556. March 16, 2004).
Rule 3
Parties to Civil Actions
Real Party-in-interest. Chan is an heir of Ramon and, together with Co, was a
successor-in-interest to the restaurant business of the late Ramon. Both Chan and Co
273
Case Digest
continued to operate the business after the death of Ramon. Thus, they are real partiesin-interest in the case filed by private respondent, notwithstanding that they are not
signatories to the Contract of Lease. (Sui Man Hui Chan, G.R. No. 147999, February
27, 2004). Counterclaim. (Velarde, G.R. No. 153886, January 14, 2004).
Rule 4
Venue of Actions
Action in Personam. Petitioners cause of action is anchored on the claim that
the spouses Jesus and Caridad reneged on their obligation to convey ownership of
the two parcels of land, subject of their sale. Petitioners pray in their complaint that
the said spouses be ordered to execute the appropriate deed of sale and that the
titles be delivered to them (petitioners); or, in the alternative, that the sale be revoked
and rescinded; and the spouses ordered to return to petitioners their down payment
plus interests. It is an action in personam, i.e., any judgment therein is binding only
upon the parties properly impleaded. Petitioners complaint for specific performance
and/or rescission is also a real action because it affects title to or possession of the
two parcels of land covered by TCT Nos. 10616 and 31856. However, it is not an
action in rem. (Gomez v. Court of Appeals, G.R. No. 127692, March 10, 2004).
Personal Action Distinguished from Real Action. Action in Personam
Distinguished from Action in Rem. In a personal action, the plaintiff seeks the
recovery of personal property, the enforcement of a contract or the recovery of
damages. In a real action, the plaintiff seeks the recovery of real property, or, as
indicated in section 2(a) of Rule 4, a real action is an action affecting title to real
property or for the recovery of possession, or for partition or condemnation of, or
foreclosure of a mortgage on, real property. (id.). An action in personam is an
action against a person on the basis of his personal liability, while an action in rem is
an action against the thing itself, instead of against the person. Hence, a real action
may at the same time be an action in personam and not necessarily an action in rem.
(id.).
274 JOURNAL
Case Digest
PROCEDURE IN REGIONAL TRIAL COURTS (RTCs)

Rule 6
Kinds of Pleadings
Answer. Specific Denial. (Republic v. Vda. de Neri, G.R. No. 139588, March 4,
2004).
Counterclaim. The defendant in a complaint for collection of sum of money filed by
plaintiff corporation cannot raise a counterclaim for retirement benefits, unpaid salaries,
incentives and other benefits arising from services rendered by him in a subsidiary of the
plaintiff corporation. (Velarde v. Lopez, Inc., G.R. No. 153886, January 14, 2004).
Rule 7
Parts of Pleadings
Verification. Although handwritten after the jurat, is sufficient in form and substance.
(Atty. Villanueva-Fabella, A.M. No. MTJ-04-1518, January 15, 2004).
Certification Against Forum Shopping. Section 5 provides that it is the plaintiff or
principal party who shall certify under oath in the complaint or other initiatory pleading
that he has not commenced any action involving the same issues in any court, tribunal or
quasi-judicial agency. Here, only petitioners counsel signed the certification, and there
is no showing that he was authorized by the petitioner company to represent the latter
and to sign the certification. (United Pulp and Paper Co., Inc. v. United Pulp and Paper
Chapter-Federation of Free Workers, G.R. No. 141117, March 25, 2004). The requirement
on certification against forum shopping applies to a petition for review under Rule 45.
(id.).
Rule 9
Effect of Failure to Plead
For reasons of public policy, res judicata cannot be waived by a party because the
time and energy of the State and the taxpayers are wasted by the re-litigation of settled
issues. Under Rule 9 of the 1997 Rules of Civil Procedure, a trial court may dismiss a
case motu proprio on grounds of res judicata although it is not raised, and apparently
waived, in a motion to dismiss or answer. A plaintiff, or the trial court itself, may invoke
275
Case Digest
res judicata to resist a defense barred by prior judgment even after trial on the merits.
(Heirs of Gaudiane v. Court of Appeals, G.R. No. 119879, March 11, 2004).
Rule 10
Amended and Supplemental Pleadings
Amendment to Conform to or Authorize Presentation of Evidence. (Section 5).
(Philippine Export and Foreign Loan Guarantee Corporation v. Philippine Infrastructures,
Inc., G.R. No. 120384, January 13, 2004).
Rule 13
Filing and Service of Pleadings
Priority of Service of Pleadings. (Section 11). Where no explanation is offered to
justify the service of pleadings by modes other than personal service, the court may
expunge the pleading. (United Pulp and Paper Co., Inc. v. United Pulp and Paper ChapterFederation of Free Workers, G.R. No. 141117, March 25, 2004). This requirement applies
to petitions for review under Rule 45. (id.).
Rule 4
Summons
Defined. Summons is a writ by which the defendant is notified of the action
brought against him. Service of such writ is the means by which the court acquires
jurisdiction over his person. Any judgment without such service in the absence of a
valid waiver is null and void. To resolve whether there was valid service of summons
on respondents, the nature of the action filed against them must first be determined:
whether the action is in personam, in rem, or quasi in rem - because the rules on
service of summons apply according to the nature of the action. (Gomez, G.R. No.
127692, March 10, 2004). Jurisdiction is acquired by a trial court over the person of
the defendant, either by his voluntary appearance in court and his submission to its
authority or by service of summons. Jurisdiction cannot be acquired by the court
on the person of the defendant even if he knows of the case against him unless he is
validly served with summons. (Ancheta v. Ancheta, G.R. No. 145370, March 4,
2004).
276 JOURNAL
Case Digest
Service of Summons. (a) In actions in personam, summons on the defendant

must be served: [i] Personally, by handing a copy thereof to the defendant in person,
or if he refuses to receive it, by tendering it to him. (Section 7); or [ii] by Substituted
service. If efforts to find defendant personally makes prompt service impossible,
substituted service may be effected by leaving copies of the summons at the
defendants dwelling house or residence with some person of suitable age and
discretion then residing therein, or by leaving the copies at the defendants office or
regular place of business with some competent person in charge thereof. In substituted
service, it is mandated that the fact of impossibility of personal service should be
explained in the proof of service. (Gomez, G.R. No. 127692, March 10, 2004). The
mode of service should be strictly followed in order that the court may acquire
jurisdiction over the person of the defendant. Thus, it is only when a defendant
cannot be served personally within a reasonable time that substituted service may
be made by stating the efforts made to find him and personally serve on him the
summons and complaint and the fact that such effort failed. This statement should
be made in the proof of service to be accomplished and filed in court by the sheriff.
(Ancheta, G.R. No. 145370, March 4, 2004). Service of summons when the defendant
in an action in personam is a non-resident who does not voluntarily submit himself
to the authority of the court. (id.).
(b) In actions in rem or quasi in rem, jurisdiction over the person of the defendant is
not a prerequisite to confer jurisdiction on the court; provided, that the court acquires
jurisdiction over the res, although summons must be served upon the defendant in order
to satisfy the due process requirements. Thus, where the defendant is a non-resident
who is not found in the Philippines, and the action [i] affects the personal status of the
plaintiff; [ii] relates to, or the subject matter of which is, property in the Philippines in
which the defendant has or claims a lien or interest; [iii] seeks the exclusion of the
defendant from any interest in the property located in the Philippines; or the property of
the defendant has been attached in the Philippines - summons may be served
extraterritorially by: (a) personal service out of the country, with leave of court; (b)
publication, also with leave of court; or (c ) any other manner the court may deem
sufficient. (id.).
Alias Summons. (Section 5). May be issued when the original summons is returned
without being served on any or all of the defendants. (id.).
277
Case Digest
Rule 15
Motions
Requirement of Hearing and Notice. Motion to Withdraw Cash Deposit as
Counterbond. The Rules mandate that, except for motions that the court may act upon
without prejudicing the rights of the adverse party, every written motion shall be set for
hearing by the applicant. The notice of hearing shall be addressed to the defendants
therein and shall specify the time and date of the hearing, which must not be later than
ten (10) days after the filing of the motion. The motion and notice shall be served at
least three days before the date of hearing. Without proof of its service, the court cannot
act upon it. (Atty. Villanueva-Fabella, A.M. No. MTJ-04-1518, January 15, 2004).
Hearing in Open Court. (id.).
Rule 16
Motion to Dismiss
Period for Filing. Within the time for but before filing the answer to the complaint
or pleading asserting a claim. (Sui Man Hui Chan v. Court Of Appeals, G.R. No. 147999,
February 27, 2004).
Grounds. Failure to State a Cause of Action. When a motion to dismiss is grounded
on the failure to state a cause of action, a ruling thereon should be based only on the
facts alleged in the complaint. Lack of cause of action must appear on the face of the
complaint, and its existence may be determined only by the allegations of the complaint.
(Equitable Philippine Commercial International Bank v. Court of Appeals, G.R. No.
143556, March 16, 2004). In this case, the allegations suffice to constitute a cause of
action against petitioners. That petitioners have a valid defense is another matter. They
require evidentiary proof and support that can be better threshed out not upon a motion
to dismiss but in a full blown trial on the merits. (id. ).
Preliminary Hearing on Affirmative Defenses. The holding of such hearing lies
in the discretion of the court. (Rioferio v. Court of Appeals, G.R. No. 129008, January
13, 2004).
Motion to Dismiss Filed After an Answer Had Been Filed. This alone warranted
an outright dismissal of the motion. (Sui Man Hui Chan, G.R. No. 147999, February 27,
2004).
278 JOURNAL
Case Digest
Rule 17
Dismissal of Actions
Dismissal by Plaintiff. Section 1, Rule 17 of the old Rules of Civil Procedure
allows the dismissal of the complaint by the plaintiff as a matter of right at any time
before service of the answer. (Development Bank of the Philippines v. Pingol Land
Transport System Company, Inc., G.R. No. 145908, January 22, 2004).
Dismissed by Order of the Court. Under Section 2 of Rule 17 of the old Rules, if a
counterclaim has been pleaded by the defendant prior to the service upon him of the
plaintiffs motion to dismiss, the action shall not be dismissed against the defendants
objection unless the counterclaim can remain pending for independent adjudication by
the court. (id.).
Rule 18
Pre-trial
Section 5. Failure on the part of the defendants and their counsel to appear at the
pre-trial shall be cause to allow the plaintiff to present his evidence ex parte, and the
court to render judgment on the basis thereof. (Leonardo v. S.T. Best, Inc., G.R. No.
142066, February 6, 2004).
Rule 19
Intervention
Motion to Intervene. Section 2, Rule 19. Should be filed before rendition of
judgment. The New Respondents-Intervenors filed their separate motions after a
decision has been promulgated in the present cases. They have not offered any
worthy explanation to justify their late intervention. Consequently, their Motions for
Reconsideration-In-Intervention are denied for the rules cannot be relaxed to await
litigants who sleep on their rights. In any event, these late motions hoist no novel
arguments. (Agan, Jr. [En Banc], G.R. No. 155001, January 21, 2004). May be
invoked only during the trial phase of a case. (Lopez v. Spouses Pozon, G.R. No.
152745, March 17, 2004).
279
Case Digest
Rule 30
Trial
The trial court dispensed with a full-blown trial because, precisely, the parties
themselves agreed thereto, on the claim that the issues raised may be resolved on the
basis of the pleadings, the memoranda and the appended documents, without need of
presenting witnesses thereon. (Republic v. Vda. de Neri, G.R. No. 139588. March 4,
2004).
Rule 36
Judgments, Final Orders and Entry Thereof
Judicial Compromise has the effect of res judicata and is immediately executory
and not appealable unless set aside on grounds of nullity under Article 2038 of the Civil
Code. A judgment based on a compromise agreement is a judgment on the merits. (Sps.
Romero v. Tan, G.R. No. 147570, February 27, 2004).
Rule 37
New Trial
Denial of Motion for New Trial. (Sec. 9). The judgment or final order of the RTC
may be the proper subject of an appeal by certiorari under Rule 45 of the 1997 Rules of
Civil Procedure, but an order denying a motion for new trial or reconsideration is not.
(L.T. Datu & Co., Inc. v. Sy, G.R. No. 143701, March 23, 2004; Atty. Jaban v. City of
Cebu [En Banc], G.R. Nos. 138336-37, February 16, 2004).
Rule 39
Execution, Satisfaction and Effect of Judgment
Writ of Execution. Must conform strictly to the dispositive portion of the decision
sought to be executed. When it does not, a writ of execution is null and void; and all the
proceedings stemming therefrom are also null and void, including the Notices of
Garnishment issued pursuant thereto. (Development Bank of the Philippines, G.R. No.
155838, January 13, 2004). The sheriffs duty in the execution of a writ issued by a
court is purely ministerial. Only that portion of a decision ordained or decreed in the
dispositive portion should be the subject of execution. No more, no less. As the writ of
280 JOURNAL
Case Digest
execution covered only goods and chattels, the levy on the real property is in excess
of the sheriffs authority. (Equatorial Realty Development, Inc., G.R. No. 128563, March
25, 2004).
Effect of Judgments or Final Orders. (Section 47, Rule 39 of the 1997 Rules of
Civil Procedure).
Doctrine of Res Judicata, or Bar by Prior Judgment Distinguished from
Conclusiveness of Judgment. There is res judicata when, between the first case where
the judgment was rendered and the second case which is sought to be barred, there is
identity of parties, subject matter and cause of action. The judgment in the first case
constitutes an absolute bar to the subsequent action. It is final as to the claim or demand
in controversy, including the parties and those in privity with them, not only as to every
matter which was offered and received to sustain or defeat the claim or demand, but as
to any other admissible matter which might have been offered for that purpose and of all
matters that could have been adjudged in that case. But where between the first and
second cases, there is identity of parties but no identity of cause of action, the first
judgment is conclusive in the second case, only as to those matters actually and directly
controverted and determined and not as to matters merely involved therein. (Cayana v.
Court Of Appeals, G.R. No. 125607, March 18, 2004).
Based on the principle of res judicata, the petitioners are barred in another action
(involving the same subject matter, parties and issues) from raising a defense and from
asking for a relief inconsistent with an order dismissing an earlier case with prejudice.
(Heirs of Gaudiane v. Court of Appeals, G.R. No. 119879, March 11, 2004). Res judicata
or bar by prior judgment is a doctrine which holds that a matter that has been adjudicated
by a court of competent jurisdiction must be deemed to have been finally and conclusively
settled if it arises in any subsequent litigation between the same parties and for the same
cause. For a claim of res judicata to prosper, the following requisites must concur: (1)
there must be a final judgment or order; (2) the court rendering it must have jurisdiction
over the subject matter and the parties; (3) it must be a judgment or order on the merits;
and (4) there must be, between the two cases, identity of parties, subject matter and
causes of action. (Sps. Romero v. Tan, G.R. No. 147570, February 27, 2004).
In order to determine the identity of the causes of action and, consequently, the
application of the doctrine of res judicata, it is essential to consider the identity of facts
essential to their maintenance, or whether the same evidence would sustain both causes
of action. If the same facts or evidence would sustain both, the two actions are considered
the same and covered by the rule that the judgment in the former is a bar to the subsequent
281
Case Digest
action. If, however, the two actions rest upon different states of fact, or if different
proofs would be required to sustain the two actions, a judgment in one is no bar to the
maintenance of the other. (Cayana, G.R. No. 125607, March 18, 2004; Equitable Philippine
Commercial International Bank v. Court of Appeals, G.R. No. 143556, March 16, 2004).
The application of the doctrine of res judicata does not require absolute identity of
parties but merely substantial identity of parties. There is substantial identity of parties
when there is community of interest or privity of interest between a party in the first
and a party in the second case even if the first case did not implead the latter. (id.).
Rule 41
Appeal from the RTCs
Order of Dismissal Without Prejudice. Prior to the 1997 Rules of Civil Procedure,
an order dismissing an action may be appealed by ordinary appeal. However, in the
advent of the 1997 Rules of Civil Procedure, Section 1(h), Rule 41 thereof expressly
provides that no appeal may be taken from an order dismissing an action without
prejudice, but It may be subject of a special civil action for certiorari under Rule
65. Nevertheless, in the higher interest of substantial justice and pursuant to the
hornbook doctrine that procedural laws may be applied retroactively, the Court
gave due course to the present petition. (Philippine Export and Foreign Loan
Guarantee Corporation v. Philippine Infrastructures, Inc., G.R. No. 120384, January
13, 2004).
The grant or denial of a Motion to Dismiss is an interlocutory order, and it
cannot be the proper subject of a special civil action for certiorari. The proper
remedy in such a case is to appeal after a decision has been rendered. (Sui Man Hui
Chan, G.R. No. 147999, February 27, 2004). However, when the court in denying
the motion to dismiss acted without or in excess of jurisdiction or with patent grave
abuse of discretion, or when the assailed interlocutory order is patently erroneous
and the remedy of appeal would not afford adequate and expeditious relief, or when
the ground for the motion to dismiss is improper venue, res judicata, or lack of
jurisdiction, the petition for certiorari under Rule 65 may be availed of. (Velarde v.
Lopez, Inc., G.R. No. 153886, January 14, 2004).
Questions That May be Considered on Appeal. An appellate court is clothed with
ample authority to review rulings even if they are not assigned as errors. This is especially
so if the court finds that their consideration is necessary in arriving at a just decision of
the case before it. An unassigned error closely related to an error properly assigned, or
282 JOURNAL
Case Digest
upon which a determination of the question raised by the error properly assigned is
dependent, will be considered by the appellate court notwithstanding the failure to assign
it as an error. Since respondents pointed out the matter of interest in their Appellants
Brief before the CA, the fairness of the imposition thereof was opened to further
evaluation. (Cuaton v. Salud, G.R. No. 158382, January 27, 2004).
Questions raised on appeal must be within the issues framed by the parties and,
consequently, issues not raised in the trial court cannot be raised for the first time
on appeal. (Manila International Airport Authority, G.R. No. 147349, February 13,
2004).
Rule 42
Petition for Review from the RTC
Liberal Application of Section 1. Failure of the petitioner to serve a copy of the
petition to the adverse party, the People of the Philippines, through the Office of the
Solicitor General. (Fabrigar v. People, G.R. No. 150122, February 6, 2004).
Grounds for Dismissal. In this case: [i] Certification on Non-Forum Shopping was
not signed by the party (Jose) as required by Section 2, Rule 42 and Section 5, Rule 7
of the 1997 Rules of Civil Procedure. This is not curable by mere amendment, but shall
be cause for the dismissal of the case without prejudice. [ii] Jose did not attach to the
Petition he filed the second page of the SPA, which is the page containing the
acknowledgement, and the SPA he attached to the Petition is only a mere photocopy.
[iii] Likewise, he failed to provide a written explanation on why copies of the petition
were served by registered mail to the respondents, as required by Section 11, Rule 13 of
the 1997 Rules on Civil Procedure. This is another mandatory rule and violation of
which is cause to consider the pleading as not having been filed at all. [iv] Finally, Jose
failed to attach a duplicate original or true copy of the assailed judgment of the RTC as
required by Section 2, Rule 42 of the Rules of Civil Procedure. (Castillo v. Court of
Appeals, G.R. No. 159971, March 25, 2004).
Rule 43
Appeal from Quasi-Judicial Agencies to the CA
Appeal from the Decision of the Office of the President. (Heirs of Padilla v. Court
Of Appeals, G.R. No. 147205, March 10, 2004; Diaz v. Mesias, Jr., G.R. No. 156345,
March 4, 2004).
283
Case Digest
Rule 45
Petition for Review on Certiorari
Filing of Petition. The appellate jurisdiction of the Court in cases brought to it
from the CA is limited to reviewing and correcting the errors of law committed by
the latter, the findings of fact of the CA being final and conclusive. The power of the
Court is limited to determining whether the legal conclusions drawn from the findings
of fact are correct. (Philippine Banking Corporation v. Court of Appeals, G.R. No.
133710, January 13, 2004; Castillo v. Court of Appeals, G.R. No. 159971, March
25, 2004; Heirs of Saludares v. Court of Appeals, G.R. No. 128254, January 16,
2004; Republic v. Vda. De Neri, G.R. No. 139588, March 4, 2004; Procter And
Gamble Philippines v. Bondesto, G.R. No. 139847, March 5, 2004; Lopez v. Spouses
Pozon, G.R. No. 152745, March 17, 2004). Only questions of law may be reviewed
in the Court on a petition for review on certiorari under Rule 45. (Republic v. Vda.
de Neri, G.R. No. 139588, March 4, 2004). Exceptions: (1) when the findings are
grounded on speculation, surmises or conjectures; (2) when the inference made is
manifestly mistaken, absurd or impossible; (3) when there is grave abuse of discretion
in the appreciation of facts; (4) when the factual findings of the trial and appellate
courts are conflicting; (5) when the CA, in making its findings, has gone beyond the
issues of the case and such findings are contrary to the admissions of both appellant
and appellee; (6) when the judgment of the appellate court is premised on a
misapprehension of facts or when it has failed to consider certain relevant facts
which, if properly taken into account, will justify a different conclusion; (7) when
the findings of fact are conclusions without citation of specific evidence upon which
they are based; (8) when findings of fact of the CA are premised on the absence of
evidence but are contradicted by the evidence on record; (9) the CA manifestly
overlooked certain relevant and undisputed facts that, if properly considered, would
justify a different conclusion; (10) the findings of the CA are beyond the issues of
the case; and, (11) such findings are contrary to the admissions of both parties; but
petitioners failed to show that any of the exceptions is present in the instant case to
warrant a review of the findings of fact of the lower courts. (Calicdan v. Cendaa,
G.R. No. 155080, February 5, 2004; Asia Traders Insurance Corporation v. Court
of Appeals, G.R. No. 152537, February 16, 2004; Samala v. Court of Appeals, G.R.
No. 130826, February 17, 2004; Republic v. Vda. de Neri, G.R. No. 139588. March
4, 2004; Heirs of Saludares v. Court of Appeals,G.R. No. 128254, January 16,
2004; Megaworld Properties and Holdings, Inc. v. Judge Cobarde, G.R. No. 156200,
March 31, 2004).
284 JOURNAL
Case Digest
Question of Law. There is a question of law when the doubt or difference arises as
to what the law is pertaining to a certain state of facts; and there is a question of fact
when doubt arises as to the truth or the falsity of the facts alleged. In the present case,
there is no doubt as to the truth of the CAs finding of facts, which neither party
controverts. (Bureau of Internal Revenue v. Organo, G.R. No. 149549, February 26,
2004; Equatorial Realty Development, Inc. v. Sps. Frogozo, G.R. No. 128563, March
25, 2004).
The remedy to obtain reversal or modification of the judgment on the merits is
appeal. This is true even if the error, or one of the errors, ascribed to the court
rendering the judgment is its lack of jurisdiction over the subject matter, or the
exercise of power in excess thereof, or grave abuse of discretion in the findings of
fact or of law set out in the decision. The existence and availability of the right of
appeal proscribes a resort to certiorari, because one of the requirements for availment
of the latter remedy is that there should be no appeal. (Heirs of Padilla v. Court of
Appeals, G.R. No. 147205, March 10, 2004). Under Rule 45 the reglementary
period to appeal is fifteen (15) days from notice of judgment or denial of motion for
reconsideration. (id. ).
Contents of Petition. Include a certified true copy of the questioned judgment, final
order or resolution. (Spouses Consing v. Court of Appeals, G.R. No. 143584, March
10, 2004).
Grounds for Dismissal. (a) Res Judicata. The CA still passed upon the same issue
already disposed of by the Court in G.R. No. 123976, declaring that the NLRC did not
commit grave abuse of discretion when it declared the strike illegal but ordered the
reinstatement of petitioners. (Malayang Samahan Ng Manggagawa Sa Balanced Food v.
Pinakamasarap Corporation, G.R. No. 139068, January 16, 2004).
(b) Moot and Academic. (Royal Cargo Corporation v. Civil Aeronautics Board,
G.R. Nos. 103055-56, January 26, 2004; Almanzor v. Felix, G.R. No. 144935, January
15, 2004).
(c) Forum Shopping. (Development Bank of the Philippines v. Pingol Land Transport
System Company, Inc., G.R. No. 145908, January 22, 2004; Sps. Romero v. Tan, G.R.
No. 147570, February 27, 2004; Atty. Jaban [En Banc], G.R. Nos. 138336-37, February
16, 2004; Spouses Donato v. Atty. Asuncion, Sr., A.C. No. 4914, March 2004; Equitable
Philippine Commercial International Bank v. Court of Appeals, [G.R. No. 143556. March
16, 2004).
285
Case Digest
Rule 47
Annulment of Judgments or Final Orders and Resolutions
Grounds for Annulment. An original action in the CA to annul a judgment or final
order or resolution in civil actions of the RTC may be based on two grounds: (1)
extrinsic fraud; or (2) lack of jurisdiction. (Ancheta v. Ancheta, G.R. No. 145370, March
4, 2004).
(a) If based on extrinsic fraud, the remedy is subject to a condition precedent,
namely, the ordinary remedies of new trial, appeal, petition for relief under Rule 38 of the
Rules of Court, or other appropriate remedies are no longer available through no fault of
the petitioner; and this must be alleged in the petition. Otherwise, the petition will be
dismissed. It is not enough to allege in the petition that the said remedies were no longer
available through no fault of her own. The petitioner must also explain and justify her
failure to avail of such remedies. (Ancheta v. Ancheta, G.R. No. 145370, March 4,
2004). If the petitioner fails to avail of the remedies of new trial, appeal or relief from
judgment through her own fault or negligence before filing her petition with the CA, she
cannot resort to the remedy under Rule 47 of the Rules; otherwise, she would benefit
from her inaction or negligence. (id.). Extrinsic Fraud Refers to any fraudulent act of the
prevailing party in litigation committed outside of the trial of the case, whereby the
defeated party is prevented from fully exhibiting his side of the case by fraud or deception
practiced on him by his opponent, such as by keeping him away from court, by giving a
false promise of a compromise, or where the defendant never had any knowledge of the
suit, being kept in ignorance by the acts of the plaintiff, or where an attorney fraudulently
or without authority connives at his defeat. These instances show that there was never
really a real contest in the trial or hearing of the case so that the former judgment should
be annulled and the case set for a new and fair hearing. (Leonardo v. S.T. Best, Inc.,
G.R. No. 142066, February 6, 2004).
(b) In a case where a petition for the annulment of a judgment or final order of the
RTC is grounded on lack of jurisdiction over the person of the defendant/respondent or
over the nature or subject of the action, the petitioner need not allege in the petition that
the ordinary remedy of new trial or reconsideration of the final order or judgment or
appeal therefrom are no longer available through no fault of her own. This is so because
a judgment rendered or final order issued by the RTC without jurisdiction is null and
void and may be assailed any time either collaterally or in a direct action or by resisting
such judgment or final order in any action or proceeding whenever it is invoked, unless
barred by laches. (Ancheta v. Ancheta, G.R. No. 145370, March 4, 2004).
286 JOURNAL
Case Digest
In this case, the petitioner failed to allege in her petition in the CA that the ordinary
remedies of new trial, appeal, and petition for relief, were no longer available through no
fault of her own. However, the petition was based not only on extrinsic fraud but also
on lack of jurisdiction over the person of the petitioner, on her claim that the summons
and the copy of the complaint in Sp. Proc. No. NC-662 were not served on her, because
the sheriff served them on her son, who failed to give her the said summons and complaint.
Thus, the CA acted arbitrarily in dismissing the original petition of the petitioner and the
amended petition for annulment of the assailed order, grounded on lack of jurisdiction
over the person of the petitioner. (Ancheta v. Ancheta, G.R. No. 145370, March 4,
2004).
Historical Background. Dates back to 1918. However, it was only in the 1997
Rules of Civil Procedure that for the first time the procedure for the annulment of
judgments or final orders and resolutions in civil cases of RTCs, through a petition
before the CA, was formally provided. Rule 47 of the 1997 Rules of Civil Procedure
incorporates settled jurisprudence on annulment of judgment. Section 2 thereof
explicitly provides only two grounds for annulment of judgment. This express
limitation is significant since previous jurisprudence recognized other grounds as
well. (Barco v. Court of Appeals, G.R. No. 120587, January 20, 2004)
The law sanctions the annulment of certain judgments which, though final, are
ultimately void. Annulment of judgment is an equitable principle not because it allows
a party-litigant another opportunity to reopen a judgment that has long lapsed into
finality but because it enables him to be discharged from the burden of being bound
to a judgment that is an absolute nullity to begin with. In this case, the RTC Order,
despite its apparent flaws, is not null and void, and thus cannot be annulled. (id.).
In this case, the petitioner pointed out that the RTC erred in directing that the
name of Nadinas daughter be changed from June Salvacion Maravilla to June
Salvacion Gustilo, following its determination that Gustilo was the father of June,
hence an illegitimate child, but prescinding from the conclusive presumption
accorded June of being the legitimate child of Francisco and Nadina. A review of
the records does indicate the insufficiency of the evidence offered to defeat the
presumption, against which the only evidence admissible is the physical impossibility
of the husbands having access to his wife within the first one hundred and twenty
days of the three hundred which preceded the birth of the child. It seems that the
RTC relied primarily on the testimony of Nadina in adjudging that Gustilo, and not
Francisco, was the father of June. Yet, Article 256 of the Civil Code renders ineffectual
any pronouncement against legitimacy made by the mother. The testimony proffered
287
Case Digest
by the mother has no probative value as regards Junes paternity. The RTCs
cognizance of Gustilos Constancia might likewise be subject to critical scrutiny.
But the Court is now precluded from reviewing the RTCs appreciation of the
evidence, however erroneous it may be, because the Order is already final. The
RTCs possible misappreciation of evidence is at most, an error in the exercise of
jurisdiction, which is different from lack of jurisdiction. These purported errors do
not extend to the competence of the RTC to decide the matter and as such does not
constitute a valid ground to annul the final order. (id.).
Petitioner further argues that the RTC erred in allowing the petition for correction
of entries in in the civil registry after it had prescribed under the Civil Code; and that
the petition for correction should be treated as a petition for change of name which
can only be filed by the person whose name is sought to be changed. HELD: Such
arguments are not well taken as they cannot allude to a lack of jurisdiction that
would render the RTC Order subject to annulment. Prescription and lack of capacity
to bring action cannot be ignored by a court of law in properly resolving an action,
to the extent that a finding that any of these grounds exist will be sufficient to cause
the dismissal of the action. Yet, the existence of these grounds does not oust the
court from its power to decide the case. Assuming that the petition for correction
had prescribed, or that Nadina lacked the capacity to file the action which led to the
change of her daughters name, the fact that the RTC granted the Order despite the
existence of these two grounds only characterizes the decision as erroneous. An
erroneous judgment is one though rendered according to the course and practice of
the court is contrary to law. It is not a void judgment. (id.).
The action in Rule 47 of the Rules of Court does not involve the merits of the final
order of the trial court. (Ancheta v. Ancheta, G.R. No. 145370, March 4, 2004).
Rule 52
Procedure in the Court of Appeals (CA)
Second Motion for Reconsideration. A prohibited pleading under Sec. 2, Rule 52 in
relation to Sec. 4, Rule 56 of the 1997 Rules of Civil Procedure, as amended. (Republic
v. Tan, G.R. No. 145255, March 30, 2004). Allowed only for extraordinary persuasive
reasons. (Lopez v. Spouses Pozon, G.R. No. 152745, March 17, 2004).
288 JOURNAL
Case Digest
PROVISIONAL REMEDIES
Rule 58
Preliminary Injunction
Temporary Restraining Order. (Marohombsar v. Judge Adiong, A.M. No. RTJ-021674, January 22, 2004).
Preliminary Injunction. (id.; Dadizon v. Judge Asis, [A.M. No. RTJ-03-1760,
January 15, 2004; Tayag v. Lacson, G.R. No. 134971, March 25, 2004). The comment/
motion of the respondents to dismiss/deny petitioners plea for a writ of preliminary
injunction was not premature. The trial court cannot compel the respondents to adduce
evidence in opposition to the petitioners plea if the respondents opt to waive their right
to adduce such evidence. Thus, the trial court should have resolved the respondents
motion even without the latters opposition and the presentation of evidence thereon.
(Tayag v. Lacson, G.R. No. 134971, March 25, 2004).
Rule 61
Support
The amount of support is by no means permanent. Judgment for support does not
become final. Thus, there is no merit to the claim of Jose that the compromise agreement
between him and Adriana, as approved by the Makati RTC and embodied in its decision
in the case for voluntary dissolution of conjugal partnership of gains, is a bar to any
further award of support in favor of their child, John Paul. (Lam v. Chua, G.R. No.
131286, March 18, 2004).
The amount of support to be awarded should be in proportion to the resources or
means of the giver and the necessities of the recipient, pursuant to Articles 194, 201 and
202 of the Family Code. It is incumbent upon the trial court to base its award of support
on the evidence presented before it, which must prove the capacity or resources of both
parents who are jointly obliged to support their children as provided for under Article
195 of the Family Code; and the monthly expenses incurred for the sustenance, dwelling,
clothing, medical attendance, education and transportation of the child. (id.).
The trial courts action of merely ordering in open court during the July 6, 1994
hearing that a prayer for support be written and inserted in the petition filed by respondent
Adriana does not constitute proper amendment of the pleading and notice upon petitioner
289
Case Digest
Jose. Consequently, herein petitioner Jose was deprived of due process when the trial
court proceeded to hear the case on a motion to re-open and render judgment without
giving Jose the requisite notice and the opportunity to refute the new claim against him.
(id.).
Rule 63
Declaratory Relief
Although the instant petition is styled as a petition for certiorari, in essence, it seeks
the declaration by this Court of the unconstitutionality or illegality of the questioned
ordinance and executive order. It, thus, partakes of the nature of a petition for declaratory
relief over which the Court has only appellate, not original, jurisdiction. Under Section 5,
Article VIII of the Constitution, this petition must necessary fail, as the Court does not
have original jurisdiction over a petition for declaratory relief even if only questions of
law are involved. (The Liga Ng Mga Barangay National v. The City Mayor of Manila [En
Banc], G.R. No. 154599, January 21, 2004). The Constitution limits the original jurisdiction
of the Court to cases affecting ambassadors, other public ministers and consuls, and
over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.
(Sanlakas v. Executive Secretary [En Banc], G.R. No. 159085, February 3, 2004).
SPECIAL CIVIL ACTIONS
Rule 65
Certiorari, Prohibition and Mandamus
Grounds for Dismissal. (a) Moot and Academic. [i] An issue becomes moot and
academic when it ceases to present a justiciable controversy so that a declaration on the
issue would be of no practical use or value. In such cases, there is no actual substantial
relief to which petitioners would be entitled to and which would be negated by the
dismissal of the petition. (Vda. de Dabao v. Court of Appeals, G.R. No. 116526, March
23, 2004). [ii] Issue on exclusion of private respondent as party-defendant in a case
pending before the Sandiganbayan was rendered moot and academic with the dismissal
(with finality) of the case on the ground of lack of jurisdiction of the Sandiganbayan
over the subject matter thereof. For a court to exercise its power of adjudication, there
must be an actual case or controversy one which involves a conflict of legal rights, an
assertion of opposite legal claims susceptible of judicial resolution; the case must not be
moot or academic or based on extra-legal or other similar considerations not cognizable
by a court of justice. (Republic v. Tan, G.R. No. 145255, March 30, 2004). [iii] The
290 JOURNAL
Case Digest
issuance of Proclamation No. 435, declaring that the state of rebellion has ceased to
exist, has rendered the case moot. As a rule, courts do not adjudicate moot cases,
judicial power being limited to the determination of actual controversies. Nevertheless,
courts will decide a question, otherwise moot, if it is capable of repetition yet evading
review. (Sanlakas v. Executive Secretary [En Banc], G.R. No. 159085, February 3,
2004). However, this case has not been rendered moot either by the transfer and registration
of the FTAA to a Filipino-owned corporation or by the non-issuance of a temporary
restraining order or a preliminary injunction to stay the above-said July 23, 2002 decision
of the Office of the President. The validity of the transfer remains in dispute and awaits
final judicial determination. This assumes, of course, that such transfer cures the FTAAs
alleged unconstitutionality, on which question judgment is reserved. (La Bugal-Blaan
Tribal Association, Inc. v. Ramos [En Banc], G.R. No. 127882, January 27, 2004).
(b) Res judicata. In this case, the RTC dismissed outright the private respondents
petition for certiorari in Civil Case No. 36725 for failing to append certified copies of
the assailed orders of the MTC in Civil Case CV No. 20064. Hence, there was as yet no
judgment of the case on the merits. (David v. Spouses Navarro, G.R. No. 145284.
February 11, 2004).
(c) Forum Shopping. In the instant petition, the parties in this case and in the alleged
other pending cases are different individuals or entities; thus, forum-shopping cannot be
said to exist. Moreover, even assuming that those five petitions are indeed pending
before the RTC of Manila and the CA, the Court can only guess the causes of action
and issues raised before those courts, considering that the respondents failed to furnish
the Court with copies of the said petitions. (The Liga Ng Mga Barangay National v. The
City Mayor of Manila [En Banc], G.R. No. 154599, January 21, 2004; Paradero v.
Abragan, G.R. No. 158917, March 1, 2004).
(d) Heirarchy of Courts. Even assuming that petitioners recourse to certiorari is
correct, the same is still dismissible for disregarding the hierarchy of courts. While the
SC has concurrent jurisdiction with the RTCs and the CA to issue writs of certiorari,
this concurrence is not to be taken as an unrestrained freedom of choice as to which
court the application for the writ will be directed. There is after all a hierarchy of courts.
That hierarchy is determinative of the venue of appeals, and should also serve as a
general determinant of the appropriate forum for petitions for the extraordinary writs. A
direct invocation of the SCs original jurisdiction to issue these extraordinary writs is
allowed only when there are special and important reasons therefor, clearly and specifically
set out in the petition. (Paradero v. Abragan, G.R. No. 158917, March 1, 2004). A direct
invocation of the Courts original jurisdiction to issue these writs should be allowed only
291
Case Digest
when there are special and important reasons therefor, clearly and specifically set out in
the petition. This is a policy necessary to prevent inordinate demands upon the Courts
time and attention which are better devoted to those matters within its exclusive jurisdiction,
and to prevent further over-crowding of the Courts docket. The Court will not entertain
direct resort to it unless the redress desired cannot be obtained in the appropriate courts,
and exceptional and compelling circumstances justify the availment of the extraordinary
remedy of writ of certiorari, calling for the exercise of its primary jurisdiction. (The Liga
Ng Mga Barangay National v. The City Mayor of Manila [En Banc], G.R. No. 154599,
January 21, 2004).
Certiorari
Requisites. For the writ of certiorari to issue: (1) it must be directed against a
tribunal, board, or officer exercising judicial or quasi-judicial functions; (2) the tribunal,
board, or officer must have acted without or in excess of jurisdiction or with grave
abuse of discretion amounting lack or excess of jurisdiction; and (3) there is no appeal
or any plain, speedy, and adequate remedy in the ordinary course of law. (id.).
Judicial Function. Quasi-judicial Function. In this case, the respondents do not
fall within the ambit of tribunal, board, or officer exercising judicial or quasi-judicial
functions. The enactment by the City Council of Manila of the assailed ordinance and
the issuance by respondent Mayor of the questioned executive order were done in the
exercise of legislative and executive functions, respectively, and not of judicial or quasijudicial functions. On this score alone, certiorari will not lie. (The Liga Ng Mga Barangay
National v. The City Mayor of Manila [En Banc], G.R. No. 154599, January 21, 2004).
Lack or Excess of Jurisdiction. Where the questioned order is a patent nullity, or
where it was issued in excess or without jurisdiction, resort to certiorari may be allowed.
Here, the violation of the rule on forum shopping is obvious. Disregarding such fact
constituted grave abuse of discretion on the part of the trial court, amounting to lack or
excess of jurisdiction. The remedy of certiorari is therefore proper to assail the patently
null order of the Naga court which denied petitioners motion to dismiss. (Development
Bank of the Philippines, G.R. No. 145908, January 22, 2004). The burden is on the party
filing the petition to prove not merely reversible error, but grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of the public respondent. Grave
abuse of discretion is one that is so patent and gross as to amount to an evasion of a
positive duty, or a virtual refusal to perform the duty enjoined or to act in contemplation
of law, as where the power is exercised in an arbitrary and despotic manner by reason of
passion and personal hostility. (Heirs of Padilla v. Court Of Appeals, G.R. No. 147205,
292 JOURNAL
Case Digest
March 10, 2004). For certiorari to lie there must be a capricious, arbitrary and whimsical
exercise of power, the very antithesis of judicial prerogative in accordance with centuries
of both civil law and common law traditions. (Asia Traders Insurance Corporation v.
Court of Appeals, G.R. No. 152537, February 16, 2004).
Plain, speedy and adequate remedy. A remedy is considered as such if it will promptly
relieve the petitioner from the injurious effects of the judgment and the acts of the lower court
or agency. (Asian Transmission Corporation v. Court of Appeals, G. R. No. 144664, March
15, 2004). The availability to respondent of the remedy of a petition for review under Rule 43
effectively foreclosed his right to resort to a special civil action for certiorari. (Heirs of
Padilla v. Court Of Appeals, G.R. No. 147205, March 10, 2004).
Exceptions. There are instances where the extraordinary remedy of certiorari may
be resorted to despite the availability of an appeal. However, the long line of decisions
denying the special civil action for certiorari, either before appeal was availed of or in
instances where the appeal period had lapsed, far outnumbers the instances where
certiorari was given due course. The few significant exceptions were: when public
welfare and the advancement of public policy dictates, or when the broader interests of
justice so require, or when the writs issued are null, or when the questioned order
amounts to an oppressive exercise of judicial authority. (id.).
The denial of a motion to dismiss or to quash, being interlocutory, cannot be
questioned by certiorari; it cannot be the subject of appeal, until final judgment or order
is rendered. But this rule is not absolute. The Court held that [E]ven when appeal is available and is the proper remedy, the Supreme Court
has allowed a writ of certiorari (1) where the appeal does not constitute a speedy and
adequate remedy (Salvadades vs. Pajarillo, et al., 78 Phil. 77), as where 33 appeals were
involved from orders issued in a single proceeding which will inevitably result in a
proliferation of more appeals (PCIB vs. Escolin, et al., L-27860 and 27896, Mar. 29,
1974); (2) where the orders were also issued either in excess of or without jurisdiction
(Aguilar vs. Tan, L-23600, Jan. 30, 1970; Cf. Bautista, et al. vs. Sarmiento, et al., l45137, Sept. 23, 1985); (3) for certain special considerations, as public welfare or public
policy (See Jose vs. Zulueta, et al., L-16598, May 31, 1961 and cases cited therein); (4)
where in criminal actions, the court rejects rebuttal evidence for the prosecution as, in
case of acquittal there could be no remedy (People vs. Abalos, L-29039, Nov. 28,
1968); (5) where the order is a patent nullity (Marcelo vs. De Guzman, et al., L-29077,
June 29, 1982); and (6) where the decision in the certiorari case will avoid future litigations
(St. Peter Memorial Park, Inc. vs. Campos, et al., L-38280, Mar. 21, 1975).
293
Case Digest
It is the inadequacy not the mere absence of all other legal remedies and the
danger of failure of justice without the writ, that must usually determine the propriety of
certiorari. (Paradero v. Abragan, G.R. No. 158917, March 1, 2004). The availability of
the ordinary recourse of appeal does not bar a party from making use of the extraordinary
remedy of certiorari where the ordinary appeal would not be a prompt and adequate
remedy, that is, a remedy which is equally beneficial, speedy and sufficient, not merely a
remedy which at some time in the future will bring about a revival of the judgment of the
lower court complained of in the certiorari proceeding, but a remedy which will promptly
relieve the petitioner from the injurious effects of that judgment and the acts of the
inferior court or tribunal. (Sps. Romero v. Tan, G.R. No. 147570, February 27, 2004).
Finality-of-acquittal doctrine as a safeguard against double jeopardy prohibits the
recourse in this case to the special civil action for certiorari. (People v. Court of Appeals,
G.R. No. 142051, February 24, 2004).
The CA erred in giving due course to and in granting respondents petition. The
filing of the certiorari suit, therefore, did not prevent the Decision and Resolution of the
Office of the President from becoming final. (Heirs of Padilla, G.R. No. 147205, March
10, 2004).
Period for Filing. Section 4, Rule 65, as amended by En Banc Resolution A.M.
No. 00-2-03-SC, September 1, 2000). (People v. Hon. Garfin, G.R. No. 153176, March
29, 2004). Procedural laws may be given retroactive effect to actions pending and
undetermined at the time of their passage, there being no vested rights in the rules of
procedure. (Embassy of the Islamic Republic of Iran v. FOP Corporation, G.R. No.
145043, February 13, 2004).
Prohibition
Prohibition seeks a judgment ordering the defendant to desist from continuing with
the commission of an act perceived to be illegal. The petition for prohibition at bar is
thus an appropriate remedy. While the execution of the contract itself may be fait accompli,
its implementation is not. Public respondents, in behalf of the Government, have
obligations to fulfill under said contract. Petitioners seek to prevent them from fulfilling
such obligations on the theory that the contract is unconstitutional and, therefore, void.
(La Bugal-Blaan Tribal Association, Inc. v. Ramos [En Banc], G.R. No. 127882, January
27, 2004).
294 JOURNAL
Case Digest
Rule 70
Ejectment
Two Kinds: forcible entry and unlawful detainer. In forcible entry, the plaintiff is
deprived of physical possession of his land or building by means of force, intimidation,
threat, strategy or stealth. In this light, the plaintiff must allege and prove prior physical
possession. In illegal detainer, the defendant unlawfully withholds possession after the
expiration or termination of his right thereto under any contract, express or implied.
What respondents filed is a complaint for unlawful detainer, where prior physical
possession is not required. (Del Rosario v. Sps. Manuel, G.R. No. 153652, January 16,
2004).
Who May Institute Proceedings and When. Under Section 1 of Rule 70, the oneyear period within which a complaint for unlawful detainer can be filed should be counted
from the date of demand, because only upon the lapse of that period does the possession
become unlawful. After the lapse of this period, the summary suit in the Metropolitan
Trial Court (MeTC) or the Municipal Trial Court (MTC) can no longer be availed of,
and the plaintiff must litigate in the RTC in an ordinary action to recover possession via
an accion publiciana. (Lopez v. David, Jr., G.R. No. 152145, March 30, 2004).
Immediate Execution on Appeal. Under Section 21 of Rule 70 of the Rules of
Court, the decision of the RTC on appeal shall be immediately executory, without prejudice
to a further appeal from the said decision. (David v. Spouses Navarro, G.R. No. 145284.
February 11, 2004).
Writ of Execution. If the judgment of the MTC is appealed to the RTC and the
decision of the latter is itself elevated to the CA, whose decision thereafter became final,
the case should be remanded through the RTC to the MTC for execution. The only
exception is the execution pending appeal, which can be issued by the RTC under Sec.
8 of Rule 70, or the CA, or the Court, under Sec. 10 of the same Rule. (Capacete v.
Arrellano, A.M. No. P-03-1700, February 23, 2004).
Damages. The only damages that can be recovered in an ejectment suit are the fair
rental value or the reasonable compensation for the use and occupation of the property.
The award of moral damages is likewise erroneous. (id.)
Supersedeas Bond. (Asia Traders Insurance Corporation v. Court of Appeals,
G.R. No. 152537, February 16, 2004).
295
Case Digest
Rule 71
Contempt
Indirect Contempt. Meycauayans defiance of the Courts Decision and Resolution
by filing an action for reconveyance, quieting of title and damages involving the same
parcels of land which the Court already decided with finality constitutes indirect contempt
under Section 3(d), Rule 71 of the Rules of Civil Procedure. (Heirs of Vda. de Roxas v.
Court of Appeals, G.R. No. 138660, February 5, 2004).
Direct Contempt. Forum Shopping. The filing by Meycauayan of an action to
re-litigate the title to the same property, which this Court had already adjudicated
with finality, is an abuse of the courts processes and constitutes direct contempt.
(id.).
Section 5 of Rule 7 of the Rules of Court provides that if the acts of the party
or his counsel clearly constitute willful and deliberate forum shopping, the same
shall be a ground for summary dismissal with prejudice and shall constitute direct
contempt, as well as a cause for administrative sanctions. The fact that Meycauayan
did mention in its certification of non-forum shopping its attempt to intervene in
G.R. No. 118436, which this Court denied, does not negate the existence of forum
shopping. This disclosure does not exculpate Meycauayan for deliberately seeking
a friendlier forum for its case and re-litigating an issue which this Court had already
decided with finality. (id.).
Rule 108
Cancellation or Correction of Entries in the Civil Registry
Entries Subject to Cancellation or Correction. Since the promulgation of the
Valencia ruling in 1986, the Court has repeatedly ruled that even substantial errors
in a civil registry may be corrected through a petition filed under Rule 108, with the
true facts established and the parties aggrieved by the error availing themselves of
the appropriate adversarial proceeding. (Barco, G.R. No. 120587, January 20, 2004).
Under Article 412 of the New Civil Code, no entry in a civil register shall be changed
or corrected without a judicial order. The law does not provide for a specific
procedure of law to be followed. But the Court approved Rule 108 of the Rules of
Court to provide for a procedure to implement the law. The entries envisaged in
Article 412 of the Civil Code are those provided in Articles 407 and 408 of the Civil
Code. Specific matters covered by the said provision include not only status but
296 JOURNAL
Case Digest
also nationality. (Tan Co v. Civil Register of Manila [En Banc], G.R. No. 138496,
February 23, 2004). The acts, events or factual errors envisaged in Article 407 of
the New Civil Code include even those that occur after the birth of the petitioner.
However, in such cases, the entries in the certificates of birth will not be corrected
or changed. The decision of the court granting the petition shall be annotated in the
certificates of birth and shall form part of the civil register in the Office of the Local
Civil Registrar. (id.).
Parties. Doubt may always be cast as to whether a petitioner under Rule 108
would know of all the parties whose interests may be affected by the granting of a
petition. For example, a petitioner cannot be presumed to be aware of all the legitimate
or illegitimate offsprings of his/her spouse or paramour. In this case, the fact that
Nadina amended her petition to implead Francisco and Gustilo indicates earnest
effort on her part to comply with Section 3 of Rule 108. Yet, even though Barco was
not impleaded in the petition, the defect was cured by compliance with Section 4,
Rule 108, which requires notice by publication, the purpose of which is precisely to
bind the whole world to the subsequent judgment on the petition. The sweep of the
decision would cover even parties who should have been impleaded under Section
3, Rule 108, but were inadvertently left out. (Barco v. Court of Appeals, G.R. No.
120587, January 20, 2004).
A petition for correction is an action in rem, an action against a thing and not
against a person. The decision on the petition binds not only the parties thereto but
the whole world. An in rem proceeding is validated essentially through publication.
Publication is notice to the whole world that the proceeding has for its object to bar
indefinitely all who might be minded to make an objection of any sort against the
right sought to be established. It is the publication of such notice that brings in the
whole world as a party in the case and vests the court with jurisdiction to hear and
decide it. (id.).
The proceedings in Rule 108 of the Rules of Court are summary if the entries in the
civil register sought to be corrected are clerical or innocuous in nature. However, where
such entries sought to be corrected or changed are substantial: i.e., the status and nationality
of the petitioners or the citizenship of their parents, the proceedings are adversarial in
nature as defined by this Court in Republic v. Valencia. (Tan Co [En Banc], G.R. No.
138496, February 23, 2004). In such a proceeding, the parties to be impleaded as
respective defendants are (a) the local civil registrar; and, (b) all persons who have
claims any interest which would be affected thereby. (id.).
297
Case Digest
CRIMINAL PROCEDURE
Rule 110
Prosecution of Offenses
Information. (Secs, 8 and 9). Under the 2000 Revised Rules of Criminal
Procedure (RRCP), aggravating circumstances, whether qualifying or generic, must
be alleged in the information before they can be considered by the court. These
new provisions apply even if the crime was committed prior to the effectivity of the
RRCP, since they are favorable to the accused. (People v. Torrecampo [En Banc],
G.R. No. 139297, February 23, 2004; People v. Sayaboc [En Banc], G.R. No.
147201, January 15, 2004; People v. Latayada [En Banc], G.R. No. 146865,
February 18, 2004). In the following cases, the aggravating circumstances though
proved were not considered, as they were not alleged in the information: [i] craft,
price or reward, and treachery. (Torrecampo [En Banc], G.R. No. 139297, February
23, 2004; Latayada [En Banc], G.R. No. 146865, February 18, 2004). [ii] no license
to possess the firearm used in the killing. (People v. Badajos, G.R. No. 139692,
January 15, 2004). [iii] Minority and Relationship in rape (People v. Blancaflor [En
Banc], G.R. No. 130586, January 29, 2004). Where no aggravating circumstances
were alleged in the information, no aggravating circumstances can be appreciated
against the appellant. (People v. Juan [En Banc], G.R. No. 152289, January 14,
2004).
Treachery is sufficiently alleged in the information which states: All contrary to
law, and with the attendant qualifying circumstance of treachery. Even after the RRCP,
qualifying circumstances need not be preceded by descriptive words such as qualifying
or qualified by to properly qualify an offense. (People v. Opuran, G.R. Nos. 14767475, March 17, 2004; People v. Sayaboc [En Banc], G.R. No. 147201, January 15, 2004).
Amendment or Substitution of Information (Section 14). (Poblete v. Justice Sandoval,
G.R. No. 150610, March 25, 2004).
Rule 112
Preliminary Investigation
An information filed by a state prosecutor without the prior written authority or
approval of the city or provincial prosecutor or chief state prosecutor does not confer
the court with jurisdiction over the case and should be dismissed, even after the accused
298 JOURNAL
Case Digest
has entered his plea under the information. Such jurisdictional defect cannot be cured;
hence, the respondent judge did not err in dismissing the case for lack of jurisdiction.
(Sections 3 and 9 of Rule 117, in relation to paragraph 3, Section 4 of Rule 112). (People
v. Hon. Garfin, G.R. No. 153176, March 29, 2004).
Regional State Prosecutor. Powers Under Presidential Decree No. 1275. Vested
only with the power of administrative supervision, and has no power to direct the city
and provincial prosecutors to inhibit from handling certain cases. Power of administrative
supervision distinguished from power of supervision and control. (id.).
Secretary of Justice. Designation of Special Counsels. Sec. 15. (id.).
Rule 113
Arrests
Question on the legality of an arrest should be raised prior to arraignment. Even
assuming that the arrest was illegal, their act of entering a plea during their arraignment
constituted a waiver of their right to question their arrest. (People v. Cachola [En Banc,
Per Curiam], G.R. Nos. 148712-15, January 21, 2004; People v. Hijada [En Banc] ,G.R.
No. 123696, March 11, 2004).
Warrantless Arrest (Section 5[a], Rule 113 of the 1985 Rules on Criminal Procedure.).
Accused is apprehended in flagrante delicto. (People v. Cadley, G.R. No. 150735,
March 15, 2004).
Rule 116
Arraignment and Plea
Plea of Guilty to Capital Offense. (Section 3). Searching Inquiry. (People v.
Besonia [En Banc], G.R. Nos. 151284-85, February 5, 2004). The judge must, in all
cases, fully convince himself that: (a) the accused, in pleading guilty, is doing so
voluntarily meaning, he was not coerced or threatened of physical harm, or placed
under a state of duress; and (b) that he is truly guilty on the basis of his testimony.
(People v. Segnar, Jr., [En Banc], G.R. No. 133380, February 18, 2004). Guidelines
as to how the trial court may conduct its searching inquiry: (1) Ascertain from the
accused himself [i] how he was brought into the custody of the law; [ii] whether he
had the assistance of a competent counsel during the custodial and preliminary
investigations; and [iii] under what conditions he was detained and interrogated
299
Case Digest
during the investigations. These the court shall do in order to rule out the possibility
that the accused has been coerced or placed under a state of duress either by actual
threats of physical harm coming from malevolent or avenging quarters. (2) Ask the
defense counsel a series of questions as to whether he had conferred with, and
completely explained to, the accused the meaning and consequences of a plea of
guilty. (3) Elicit information about the personality profile of the accused, such as his
age, socio-economic status, and educational background, which may serve as a
trustworthy index of his capacity to give a free and informed plea of guilty. (4)
Inform the accused the exact length of imprisonment or nature of the penalty under
the law and the certainty that he will serve such sentence. Not infrequently indeed an
accused pleads guilty in the hope of a lenient treatment or upon bad advice or
because of promises of the authorities or parties of a lighter penalty should he admit
guilt or express remorse. It is the duty of the judge to see to it that the accused does
not labor under these mistaken impressions. (5) Require the accused to fully narrate
the incident that spawned the charges against him or make him reenact the manner in
which he perpetrated the crime, or cause him to supply missing details or significance.
(People v. Ulit [En Banc], G.R. Nos. 131799-801, February 23, 2004).
Once an accused charged with a capital offense enters a plea of guilty, a regular
trial shall be conducted just the same as if no such plea was entered. The court
cannot, and should not, relieve the prosecution of its duty to prove the guilt of the
accused and the precise degree of his culpability by the requisite quantum of evidence.
The reason for such rule is to preclude any room for reasonable doubt in the mind
of the trial court, or the Court on review, as to the possibility that the accused might
have misunderstood the nature of the charge to which he pleaded guilty, and to
ascertain the circumstances attendant to the commission of the crime which may
justify or require either a greater or lesser degree of severity in the imposition of the
prescribed penalties. (id.).
Due Process. Denial of. In criminal cases where the imposable penalty may be
death, the presiding judge is called upon to see to it that the accused is made aware
of the consequences of not heeding the warning given by the trial court. The waiver
of the right to present defense evidence in the present cases was not even voluntary
nor upon the instance of the appellant but imposed by the trial court, apparently to
penalize appellant, after he and his counsel repeatedly moved for the postponements
of the scheduled hearings. (People vs. Macarang [En Banc], G.R. Nos. 151249-50,
February 26, 2004).
300 JOURNAL
Case Digest
Plea to a Lesser Offense. (Section 2). A plea to a lesser offense that is necessarily
included in the crime charged must be with the consent of the offended party and the
prosecutor. It is discretionary upon the trial court whether to allow him to make such
plea. (Besonia [En Banc], G.R. Nos. 151284-85, February 5, 2004).
Rule 117
Motion to Quash
Grounds. (Poblete v. Justice Sandoval, G.R. No. 150610, March 25, 2004).
Failure to Move to Quash. The defendant had pleaded to an information before he
filed a motion to quash based on the ground that the information was filed by the
investigating prosecutor, without the prior approval of the provincial or city prosecutor.
Under Section 10 of Rule 113 of the Rules of Court (now Section 9 of Rule 117 of the
RRCP), such plea did not amount to a waiver of the ground subsequently raised in the
motion to quash, because lack of authority of the officer to file the information does
not confer jurisdiction on the court, and this infirmity cannot be cured by silence or
waiver, acquiescence, or even by express consent. (Hon. Garfin, G.R. No. 153176,
March 29, 2004).
Rule 119
Trial
Demurrer to Evidence. In this case, the filing of the demurrer was clearly without
leave of court and was an unqualified waiver of the right to present evidence for the
accused. The trial court correctly applied Section 15, Rule 119 of the 1985 Rules of
Criminal Procedure, when it disallowed the abovementioned appellants to present evidence
on their behalf. The rationale for this rule is that when the accused moves for dismissal
on the ground of insufficiency of evidence of the prosecution evidence, he does so in
the belief that said evidence is insufficient to convict and, therefore, any need for him to
present any evidence is negated. (People v. Sayaboc [En Banc], G.R. No. 147201,
January 15, 2004; People v. Cachola [En Banc], G.R. Nos. 148712-15, January 21,
2004).
Discharge of Accused to be a State Witness. (Section 17). At the discretion of the
court. (People v. Martinez [En Banc, Per Curiam], G.R. No. 137519, March 16,
2004).
301
Case Digest
Rule 120
Judgment
From an Information charging petitioners with Frustrated Murder, a finding of guilt
for less serious physical injuries may be made. Similarly, an accused may be convicted
of slight, less serious or serious physical injuries in a prosecution for homicide or murder,
inasmuch as the infliction of physical injuries could lead to any of the latter offenses
when carried to its utmost degree despite the fact that an essential requisite of the crime
of homicide or murder - intent to kill - is not required in a prosecution for physical
injuries. (Aradillos v. Court of Appeals, G.R. No. 135619, January 15, 2004).
Rule 122
Appeal
Review De Novo. Appeal in a criminal case throws the whole case wide open for
review and it becomes the duty of the Court to correct such errors as may be found in
the judgment appealed from, whether they are assigned as errors or not. (People v.
Hormina, G.R. No. 144383, January 16, 2004; People v. Luceriano, G.R. No. 145223,
February 11, 2004; Aradillos v. Court of Appeals, G.R. No. 135619, January 15, 2004;
People v. Ulit [En Banc], G.R. Nos. 131799-801, February 23, 2004).
Notice of Appeal. Appellants Brief. A distinction should be made between the failure
to file a notice of appeal within the reglementary period and the failure to file a brief
within the period granted by the appellate court. The former results in the failure of the
appellate court to acquire jurisdiction over the appealed decision, resulting in its becoming
final and executory upon failure of the appellant to move for reconsideration. The latter
simply results in the abandonment of the appeal, which can lead to its dismissal upon
failure to move for its reconsideration. (Tamayo v. Court of Appeals, G.R. No. 147070,
February 17, 2004). While, as a general rule, a review on appeal is not a matter of right
but of sound judicial discretion and may be granted only when there are special and
important reasons therefor, still it must be remembered that appeal is an essential part of
our judicial system. Courts should thus proceed with extreme care so as not to deprive
a party of this right. The need to safeguard petitioners rights should caution courts
against motu proprio dismissals of appeals, specially in criminal cases where the liberty
of the accused is at stake. The rules allowing motu proprio dismissals merely confer a
power and does not impose a duty; and the same is not mandatory but merely directory,
which therefore requires a great deal of prudence, considering all the attendant
302 JOURNAL
Case Digest
circumstances. Moreover, dismissal of an appeal on purely technical grounds is frowned

upon since our general policy is to encourage hearings of appeals on their merits. This
Court is therefore constrained to relax the rules to give way to the paramount and
overriding interest of justice. (id.). See also (Fabrigar v. People, G.R. No. 150122,
February 6, 2004).
Change of Theory of the Defense. (People v. Hormina, G.R. No. 144383, January
16, 2004).
Effect of Appellants Escape. When an appellant escapes detention pending appeal,
the appeal is normally dismissed, and the lower courts judgment thus becomes final
and executory. However, this rule does not apply to death cases, in which an automatic
review is mandated by law, even if appellant has absconded. (People v. Latayada [En
Banc], G.R. No. 146865, February 18, 2004).
Automatic Review. Pursuant to Article 47 of the RPC, as amended by Republic Act
No. 7659. (People v. Torrecampo [En Banc], G.R. No. 139297, February 23, 2004).
Standards in Reviewing Rape Cases on Appeal. (People v. Ulit [En Banc], G.R.
Nos. 131799-801, February 23, 2004; People v. Antivola [En Banc], G.R. No. 139236,
February 3, 2004).
EVIDENCE
Rule 129
What Need Not Be Proved
All facts in issue and relevant facts must, as a general rule, be proven by evidence
except the following: (1) Allegations contained in the complaint or answer immaterial to
the issues. (2) Facts which are admitted or which are not denied in the answer, provided
they have been sufficiently alleged. (3) Those which are the subject of an agreed
statement of facts between the parties; as well as those admitted by the party in the
course of the proceedings in the same case. (4) Facts which are the subject of judicial
notice. (5) Facts which are legally presumed. (6) Facts peculiarly within the knowledge
of the opposite party. (Republic v. Vda. de Neri, G.R. No. 139588, March 4, 2004).
Judicial Notice. A court may take judicial notice of matters of public knowledge, or
those which are capable of unquestionable determination or ought to be known to judges
because of their judicial functions. With respect to disputed facts, however, the court
303
Case Digest
must receive evidence thereof, with notice to the parties. (Zamora v. Governor Caballero,
G.R. No. 147767, January 14, 2004).
Rule 130
Rules of Admissibility
Real Evidence
Physical evidence is mute but an eloquent manifestation of truth and rates highly in
the hierarchy of trustworthy evidence. It enjoys a far superior probative weight than
corroborative testimonies. In this case, the absence of physical injuries and medical
findings negate Glorias claim that she was hit by petitioner Galabo. (Aradillos v. Court
of Appeals, G.R. No. 135619, January 15, 2004).
Evidence as to the type of weapon used and manner it was used to inflict fatal injury
on the victim. (People v. Santos, G.R. No. 127492, January 16, 2004).
Parrafin Test. (People v. Cachola [En Banc], G.R. Nos. 148712-15, January 21,
2004; People v. Brecinio, G.R. No. 138534, March 17, 2004). Negating unlawful
aggression on the part of the victim. (Rugas v. People, G.R. No. 147789, January 14,
2004).
Physical evidence in crime involving dangerous drugs. (People v. Cadley, G.R. No.
150735, March 15, 2004; People v. Domingcil, G.R. No. 140679, January 14, 2004).
Flourescent Powder. The use of fluorescent powder and fingerprinting are neither
indispensable nor required in buy-bust operations. There is no law or rule of evidence
requiring the use of fluorescent powder or the taking of the culprits fingerprints from
the bag containing the shabu. (People v Wu Tuan Yuan, G.R. No. 150663, February 5,
2004).
Physical Injuries. Medical testimony on the nature and gravity of the wounds. The
prosecution claims that Galabo hit Gloria several times on the nape with a carpentry bag
and a piece of wood which caused her to fall face down. However, aside from the
prosecution witnesses testimonies, no other evidence was presented to support such
claim. No medical evidence was presented to confirm that Gloria sustained even a scratch
from said blows. The absence of physical injuries and medical findings negate Glorias
claim that she was hit by petitioner Galabo. (People v. Hormina, G.R. No. 144383,
January 16, 2004).
304 JOURNAL
Case Digest
Even if the guns were not presented as evidence, the appellants may still be convicted
for the crime charged solely on the evidence on record. Indeed, the physical evidence
on record shows that the victim was shot four (4) times. (People v. Allawan, G.R. No.
149887, February 13, 2004).
Documentary Evidence
Original Document. Public Document. Section 3, Rule 130, Rules of Court. Being
public documents, the death certificate of Lorenzo Pou, the marriage certificate of Allan
F. Poe and Bessie Kelly, and the birth certificate of FPJ, constitute prima facie proof of
their contents. Section 44, Rule 130. Entries in Official Records. (Tecson v. Commission
On Elections [En Banc], G.R. No. 161434, March 3, 2004).
Respondent did sign the promissory note and the accompanying disclosure statement
on loan/credit transaction. But said pieces of evidence proved only the existence of
such documents. The issue, however, was whether or not respondent actually received
the proceeds of the subject loan so as to make him liable therefor, a matter which should
have been ventilated before the trial court. A statement in a written instrument regarding
the payment of consideration is merely in the nature of a receipt and may be contradicted.
Respondent denied having received the proceeds of the loan and in fact presented
evidence showing that on the day petitioner claimed to have credited the subject amount,
it was again debited or withdrawn by petitioner, admittedly upon the instruction of the
officials from petitioners head office. Petitioner attempted to controvert this fact by
claiming that the proceeds of the loan were applied to respondents previous obligations
to the bank. But there is nothing in the records showing that respondent had other
obligations to which the proceeds of the loan could or should have been applied.
Moreover, petitioner failed to explain just exactly what said obligations were or to what
extent the purported proceeds were applied in satisfaction thereof. (Philippine Banking
Corporation v. Court of Appeals, G.R. No. 133710, January 13, 2004).
Testimonial Evidence
Qualification of Witnesses
Witnesses. (a) 14-year-old out-of-school youth who finished only Grade III. (People
v. Badajos, G.R. No. 139692, January 15, 2004). (b) 31-year old widow of the victim,
who finished only Grade VI, but her testimony and sworn statements are clear, positive
and full of details, including the identity of the appellant. (People v. Almazan, G.R. No.
133442, March 23, 2004). (c) sexagenarian mother. (People v. Santos, G.R. No. 127492,
January 16, 2004). (d) Child Witness. (People v. Daliray, G.R. Nos. 139751-52, January
305
Case Digest
26, 2004). Rape victim of tender or immature age deserves full credit. (People v. Blancaflor
[En Banc], G.R. No. 130586, January 29, 2004; People v. Malones, G.R. Nos. 12438890, March 11, 2004; People v. Andales, G.R. Nos. 152624-25, February 5, 2004; People
v. Tolentino[En Banc], G.R. No. 139351, February 23, 2004). (e) Rape victim. (People
v. Manambay, G.R. No. 130684, February 5, 2004). (f) Mentally Retarded. (People v.
De Jesus, G.R. Nos. 144080-81, January 26, 2004). (g) Police Character. While Leonel
admitted to being a pimp and Said had been a usual suspect in many incidents of
robberies, these circumstances do not necessarily make them or their testimonies ipso
facto incredible. (People v. Rugay, G.R. No. 145509, March 16, 2004). (h) Relationship
to the Victim or the Accused. The probative weight of the testimony of witnesses is not
diminished simply because they were under the victims employ. (People v. Allawan,
G.R. No. 149887, February 13, 2004). Mere relationship to one of the parties, without a
showing of any other improper motive, is not sufficient basis to impair the credibility of
the witness. (People vs. Gaudia [En Banc], G.R. No. 146111, February 23, 2004; Aradillos
v. Court of Appeals, G.R. No. 135619, January 15, 2004). Relationship does not
necessarily impair credibility of a witness, especially so when the witness was present at
the scene of the crime. (People v. Flores [En Banc], G.R. No. 137497, February 5,
2004).
Admissions and Confessions
Judicial Confession. (People v. Besonia [En Banc], G.R. Nos. 151284-85, February
5, 2004).
Extrajudicial Confession. Although the appellant was not assisted by counsel at the
time he gave his statement to the barangay chairman and when he signed the same, it is
still admissible in evidence against him because he was not under arrest nor under custodial
investigation when he gave his statement. (People v. Ulit [En Banc], G.R. Nos. 131799801, February 23, 2004).
Implied admission of guilt. (People v. Allawan, G.R. No. 149887, February 13,
2004). Evidence of guilt. (Flores [En Banc], G.R. No. 137497, February 5, 2004). Flight.
By fleeing from his house and concealing his whereabouts for more than one year from
the stabbing, the petitioner thereof implicably admitted his guilt. (Casitas v. People, G.R.
No. 152358, February 5, 2004). Affected the credibility of appellant. (People v. Badajos,
G.R. No. 139692, January 15, 2004). However, non-flight is not proof of innocence.
(Sumalinog, Jr., G.R. No. 128387, February 5, 2004).
Recantation. (People v. Brecinio, G.R. No. 138534, March 17, 2004).
306 JOURNAL
Case Digest
Res Inter Alios Acta. The actions of his parents cannot prejudice the appellant, since
he was not a party to the said conversation, nor was it shown that he was privy to the
offer of compromise made by them to the mother of the victim. (People v. Gaudia [En
Testimonial Knowledge
Hearsay Rule. The contents of the sworn statement of Lucelle are not hearsay,
simply because she did not testify on, and merely identified her signatures in said statement.
By hearsay evidence is meant that kind of evidence which does not derive its value
solely from the credence to be attributed to the witness herself but rests solely in part on
the veracity and competence of some persons from whom the witness has received the
information. It signifies all evidence which is not founded upon the personal knowledge
of the witness from whom it is elicited, and which, consequently, is not subject to crossexamination. The basis for the exclusion appears to lie in the fact that such testimony is
not subject to the test which can ordinarily be applied for the ascertainment of truth of
testimony, since the declarant is not present and available for cross-examination. In
criminal cases, the admission of hearsay evidence would be a violation of the constitutional
provision that the accused shall enjoy the right to confront and cross-examine the witness
testifying against him. Generally, the affidavits of persons who are not presented to
testify on the truth of the contents thereof are hearsay evidence. (Ulit [En Banc], G.R.
Nos. 131799-801, February 23, 2004). In this case, Lucelle testified on and affirmed the
truth of the contents of her sworn statement which she herself had given. As gleaned
from the said statement, she narrated how and when the appellant raped and subjected
her to lascivious acts. She was cross-examined by the appellants counsel and answered
the trial courts clarificatory questions. The prosecution offered her sworn statement as
part of her testimony and the court admitted the same for the said purpose without
objection on the part of the appellant. (People v. Gaudia [En Banc], G.R. No. 146111,
February 23, 2004).
Exceptions to the Hearsay Rule
Dying Declaration. Pertains to the victims statement, made under consciousness
of impending death, on the cause and the surrounding circumstances thereof. To be
admissible in evidence, it must be shown that: [iI death was imminent and the declarant
was conscious of that fact; [ii] the declaration refers to the cause and the surrounding
circumstances of the death; [iii] the declaration relates to facts that the victim was
competent to testify on; [iv] the declarant thereafter died; and [v] the declaration is being
offered in a criminal case in which the declarants death is the subject of inquiry. In this
307
Case Digest
case, the victim made no express statement showing that he was conscious of his
impending death. The law, however, does not require the declarant to state explicitly a
perception of the inevitability of death. The foreboding may be gleaned from surrounding
circumstances, such as the nature of the declarants injury and conduct that would
justify a conclusion that there was consciousness of impending death. (People v. Latayada
Res Gestae. Utterances made immediately after a startling occurrence. Requisites to
be admissible: (1) the statements were spontaneous; (2) they were made immediately
before, during and after the startling occurrence; and (3) they related the circumstances
thereof. (People v. Latayada [En Banc], G.R. No. 146865, February 18, 2004).
Rule 131
Burden of Proof and Presumptions
Proof Beyond Reasonable Doubt. In criminal law, the prosecution has the burden
of proving the guilt of the accused beyond reasonable doubt. If the prosecution fails to
discharge that burden, the accused need not present any evidence. (People v. De Jesus,
G.R. Nos. 144080-81, January 26, 2004; People v. Cachola [En Banc, Per Curiam],
G.R. Nos. 148712-15, January 21, 2004). Accusation is not equivalent to proof. In this
case, the prosecutions accusations do not jibe with their proofs. As such, the Court
has no other recourse but to disbelieve the tale as presented by the prosecution. (Aradillos
v. Court of Appeals, G.R. No. 135619, January 15, 2004). The evidence for the
prosecution proves only the first charge of rape. The victims testimony on the
commission of the eight other charges does not satisfy the standard of proof beyond
reasonable doubt to justify the appellants conviction. The simple assertion that the
subsequent rapes occurred in exactly the same manner as in previous incidents is clearly
inadequate and grossly insufficient to establish to a degree of moral certainty the guilt of
the appellants insofar as the eight rape charges are concerned. (De la Torre, G.R. Nos.
121213 and 121216-23, January 13, 2004).
In the final analysis, the party upon whom the ultimate burden lies is to be determined
by the pleadings, not by who is the plaintiff or the defendant. The test for determining
where the burden of proof lies is to ask which party to an action or suit will fail if he
offers no evidence competent to show the facts averred as the basis for the relief he
seeks to obtain, and based on the result of an inquiry, which party would be successful
if he offers no evidence. (Republic v. Vda. de Neri, G.R. No. 139588, March 4, 2004).
308 JOURNAL
Case Digest
Burden of Evidence. Proving that the subject bond is spurious rests with the petitioner.
This is based on the principle that he who alleges a fact has the burden of proving it.
(Asia Traders Insurance Corporation v. Court of Appeals, G.R. No. 152537, February
16, 2004). In ordinary civil cases, the plaintiff has the burden of proving the material
allegations of the complaint which are denied by the defendant, and the defendant has
the burden of proving the material allegations in his case where he sets up a new matter.
All facts in issue and relevant facts must, as a general rule, be proven by evidence.
(Republic v. Vda. de Neri, G.R. No. 139588. March 4, 2004).
Presumption. The effect of a presumption upon the burden of proof is to create the
need of presenting evidence to overcome the prima facie case created thereby which, if
no proof to the contrary is offered, will prevail; it does not shift the burden of proof.
(Republic v. Vda. de Neri, G.R. No. 139588, March 4, 2004). The courts cannot accept
in every instance the police officers alleged rotten reputation as sole basis for acquittal.
The presumption that police officers involved in a buy-bust operation have performed
their duties regularly can be overturned if clear and convincing evidence is presented to
prove either of two things: (1) that they were not properly performing their duty, or (2)
that they were inspired by any improper motive. (People v Wu Tuan Yuan, G.R. No.
150663, February 5, 2004).
Rule 132
Presentation of Evidence
The public prosecutor has the discretion as to the witnesses he will present as well
as the course of presenting the case for the prosecution. The prosecution is not burdened
to present all eyewitnesses of the crime on the witness stand during the trial. The
testimony of only one eyewitness may suffice so long as it is credible and trustworthy.
(People v. Badajos, G.R. No. 139692, January 15, 2004). Failure to Present the Informant
in cases relating to dangerous drugs does not weaken the case for the prosecution.
(People v. Domingcil, G.R. No. 140679, January 14, 2004). As for the non-presentation
by the prosecution of the confidential informant, it is well-settled that except when the
appellant vehemently denies selling prohibited drugs and there are material inconsistencies
in the testimonies of the arresting officers, or there are reasons to believe that the arresting
officers had motives to testify falsely against appellant, or that only the informant was
the poseur-buyer who actually witnessed the entire transaction, the testimony of the
informant may be dispensed with as it would merely be corroborative of the apprehending
officers eyewitness testimonies. (People v. Cadley, G.R. No. 150735, March 15, 2004).
309
Case Digest
Offer and Objection. As a rule, the court shall not consider evidence which has not
been formally offered. (Cayana v. Court Of Appeals, G.R. No. 125607, March 18,
2004). Respondents contend that since they had already alleged the failure of the complaint
to state a cause of action as an affirmative defense in their answer, there was no further
need for them to raise an objection at the time the evidence was introduced. HELD:
Respondents failure to object to the evidence at the time it is presented in court is fatal
to their cause inasmuch as whatever perceived defect the complaint had was cured by
the introduction of petitioners evidence proving actual loss sustained by petitioner due
to payment made by it to PNB. (Philippine Export and Foreign Loan Guarantee
Corporation v. Philippine Infrastructures, Inc., G.R. No. 120384, January 13, 2004).
Rule 133
Weight and Sufficiency of Evidence
Judicial Confession. (People v. Besonia [En Banc], G.R. Nos. 151284-85, February
5, 2004).
Extrajudicial Confession. Although the appellant was not assisted by counsel at the
time he gave his statement to the barangay chairman and when he signed the same, it is
still admissible in evidence against him because he was not under arrest nor under custodial
investigation when he gave his statement. The barangay chairman is not deemed a law
enforcement officer for purposes of applying Section 12(1) and (3) of Article III of the
Constitution. (People v. Ulit [En Banc], G.R. Nos. 131799-801, February 23, 2004).
Extrajudicial Admissions. (People v. Darilay, G.R. Nos. 139751-52, January 26,
2004; People v. Hijada [En Banc] ,G.R. No. 123696, March 11, 2004).
Circumstantial Evidence
Sufficient for conviction when: [i] there is more than one circumstances established;
[ii] the facts from which the inferences are derived have been proved; and [iii] the
combination of all the circumstances is such as to produce a conviction beyond reasonable
doubt. (People v. Sayaboc [En Banc], G.R. No. 147201, January 15, 2004; People vs.
Gaudia [En Banc], G.R. No. 146111, February 23, 2004).). While there was no eyewitness
to the killing of Virginia, pieces of circumstantial evidence indubitably established that
the victims husband was responsible for her brutal demise. A judgment of conviction
based on circumstantial evidence can be upheld when the circumstances established
would lead to a fair and reasonable conclusion pointing to the accused, to the exclusion
of all others, as being the author of the crime. (People v. Bao, G.R. No. 148710,
310 JOURNAL
Case Digest
January 15, 2004). The circumstances proved should constitute an unbroken chain,
which leads to one fair and reasonable conclusion pointing to the accused, to the exclusion
of all others, as the guilty person. (People v. Torrecampo [En Banc], G.R. No. 139297,
February 23, 2004). For circumstantial evidence to be sufficient to support a conviction,
all the circumstances must be consistent with each other, consistent with the hypothesis
that accused is guilty and at the same time inconsistent with the hypothesis that he is
innocent, and with every other rational hypothesis except that of guilt. (Darilay, G.R.
Nos. 139751-52, January 26, 2004).
Established: [i] parricide. (People v. Bao, G.R. No. 148710, January 15, 2004); [ii]
rape with homicide. (People v. Daliray, G.R. Nos. 139751-52, January 26, 2004). [iii]
statutory rape. (People vs. Tolentino[En Banc], G.R. No. 139351, February 23, 2004).
MISCELLANEOUS PRINCIPLES
Credibility of Testimony
Testimonial evidence to be credible should not only come from the mouth of a
credible witness, but must also be credible in itself such that common experience and
observation of mankind lead to the inference of its probability under the circumstances.
(People v. Domingcil, G.R. No. 140679, January 14, 2004; People v. Hormina, G.R.
No. 144383, January 16, 2004; Aradillos v. Court of Appeals, G.R. No. 135619, January
15, 2004). The test to determine the value of the testimony of a witness is whether or not
such is in conformity with human knowledge and consistent with the experience of
mankind. (People v. Cachola [En Banc, Per Curiam], G.R. Nos. 148712-15, January 21,
2004). The credibility of witnesses can also be assessed on the basis of the substance of
their testimony and the surrounding circumstances. (People v. De la Torre, G.R. Nos.
121213 and 121216-23, January 13, 2004). In criminal prosecution, the court is always
guided by evidence that is tangible, verifiable and in harmony with the usual course of
human experience and not by mere conjecture or speculation. (Domingcil, G.R. No.
140679, January 14, 2004).
Biased Testimony. (People v. Antivola [En Banc], G.R. No. 139236, February 3,
2004).
Conjecture. The appellant indulged in sheer conjectures by claiming that the lacerations
on the hymen of the victim were caused by horseback riding or bicycling, as there is no
evidence that the victim had ridden a bicycle or rode on a horseback. Mere speculations
and surmises are not evidence. (People v. Antivola [En Banc], G.R. No. 139236, February
3, 2004).
311
Case Digest
Uncorroborated Testimony. No rule requires that the testimony of a witness must be

corroborated before evidentiary weight is assigned to it. Truth is not established by the
number of witnesses but by the quality of their testimonies. (People v. Rugay, G.R. No.
145509, March 16, 2004). The testimony of a single witness may suffice for conviction
if found trustworthy and reliable. (Badajos, G.R. No. 139692, January 15, 2004). More
so, in cases of rape. (People v. Torres [En Banc], G. R. No. 149557, March 16, 2004;
People v. Malones, G.R. Nos. 124388-90, March 11, 2004).
Inconsistencies. Inconsistencies in the testimonies of witnesses that do not pertain
to the actual act constitutive of the offense charged do not affect the credibility of the
witnesses and their testimonies. (People v. Estado [En Banc], G.R. No. 150867, February
5, 2004; Cadley, G.R. No. 150735, March 15, 2004; People v. Cachola [En Banc, Per
Curiam], G.R. Nos. 148712-15, January 21, 2004; People v. Alicnas, G.R. No. 142855,
March 17, 2004; People v. Santos, G.R. No. 127492, January 16, 2004; People vs.
Alzaga, G.R. No. 144937, February 26, 2004; People v. Martinez [En Banc, Per Curiam],
G.R. No. 137519, March 16, 2004). Such minor inconsistencies even have the effect of
enhancing the credibility of the witnesses, as they remove any suspicion that the
testimonies of the witnesses were coached or rehearsed. (Borbon, G.R. No. 143085,
March 10, 2004; People vs. Tolentino[En Banc], G.R. No. 139351, February 23, 2004).
Minor Inconsistencies between the affidavit executed by the witness and her testimony
in open court. (People v. Muros, G.R. No. 142511, February 16, 2004).
In this case, it is pointed out that Jessies identification of Cachola and Amay runs
counter to Roberts testimony that the armed men were wearing bonnets. HELD: From
their testimonies, it is apparent that the brothers saw different men. Besides, Robert also
stated that one of the men did not have his head covered. As to the alleged improbability
of the lookouts wearing bonnets while the principal shooters were unmasked, or of the
malefactors sparing Jessie, suffice it to say that such circumstances are not so incredible
as to cast reasonable doubt on the truth of the narrated events. In sum, none of the
alleged inconsistencies, minor as they are, could leave doubt that Jessie was present in
his house and saw armed men shoot his relatives. Barely two hours had passed since he
witnessed the gruesome murders when Jessie identified appellants Cachola and Amay as
the malefactors. Reasonably, the memory of their faces was still fresh on his mind.
Moreover, Jessie identified the two appellants two times more at the police station and
once in open court, and he never faltered in his identification. (People v. Cachola [En
Banc], G.R. Nos. 148712-15, January 21, 2004).
it is perfectly natural for different witnesses testifying on the occurrence of a crime
to give varying details as there may be more details which one witness may notice while
312 JOURNAL
Case Digest
the other may not observe or remember. Segments of a crime before, during and after
its commission may have been seen or heard by a witness, while other witnesses may
have been oblivious thereof. It is entirely possible that the witnesses who saw the crime
committed may be able to testify only as to certain segments of the crime which they
saw. To ascertain the truth, the testimonies of all the witnesses of the prosecution must
be considered in their entirety and not independently of one another. (People v. Allawan,
G.R. No. 149887, February 13, 2004).
It is not unnatural for inconsistencies to in fact creep into the testimony of a rape
victim in recounting the details of a harrowing experience. (People v. Torres [En Banc],
G. R. No. 149557, March 16, 2004). Rape is a traumatic experience, and the shock
concomitant with it may linger. It is an understandable human frailty not to be able to
recount with facility all the details of a dreadful and harrowing experience, and minor
lapses in the testimony of a rape victim can be expected. (People v. Tolentino[En
Incompleteness of Narration. Reference is made on what Erlinda did not mention in
her sworn statement. This is not an inconsistency but merely an incompleteness of
narration. Sworn statements, being taken ex parte, are almost always incomplete and
often inaccurate for various reasons, sometimes from partial suggestion or for want of
suggestion and inquiries. There is no rule of evidence to the effect that omission of
certain particulars in a sworn statement would estop an affiant from making an elaboration
thereof or from correcting inaccuracies during the trial. (People v. Torrecampo [En
Selectivity. Courts may believe one part of the testimony of a witness and disbelieve
other parts, depending on its inherent credibility or the corroborative evidence in the
record. (People v. Almazan, G.R. No. 133442, March 23, 2004; People v. Torrecampo
Positive Testimony. Prevails over negative testimony. (People v. Sampaga, G.R. No.
139823. March 12, 2004). Appellants claim that the witness did not actually see who
fired the shots is a negative assertion. It is outweighed by the positive and candid declaration
of the witness under oath. (People v. Hormina, G.R. No. 144383, January 16, 2004).
Reaction or Conduct of Witnesses. The intimidation of the victim may be so
overpowering as to prevent her from making an outcry, hence, her failure to shout for
help does not negate the commission of rape. (People v. Muros, G.R. No. 142511,
February 16, 2004). Conduct During and/or After the Offense. (People v. Antivola [En
313
Case Digest
Banc], G.R. No. 139236, February 3, 2004; De la Torre, G.R. Nos. 121213 and 12121623, January 13, 2004; People v. Malones, G.R. Nos. 124388-90, March 11, 2004).
Different people may react differently to a given stimulus or type of situation and
there is no standard form of behavior and response when one is confronted with a
shocking or a startling experience. In this case, the witness was so shocked and livid
with anger at the appellants sudden assault on her hapless husband that, instead of
fleeing, she alighted from the vehicle, frantically shouted for help, confronted appellant
and hurled stones at him, even as the latter aimed his gun at her and pulled the trigger.
Had the gun fired, she would have died too. But said witness did not flee. She chose to
stay with her husband. (People v. Allawan, G.R. No. 149887, February 13, 2004). It is
not proper to judge the actions of children who have undergone traumatic experience by
the norms of behavior expected from adults under similar circumstances. (Malones,
G.R. Nos. 124388-90, March 11, 2004).
Reaction of mother of rape victim. (People v. Malones, G.R. Nos. 124388-90, March
11, 2004).
Factual Findings of Trial Court
Generally, an assessment made by the trial judge of the credibility of witnesses
will not be disturbed on appeal. But when it is shown that some facts or circumstances
of weight and substance which would affect the result of the case have been
overlooked, misunderstood or misapplied, the Court will not hesitate to make its
own evaluation of the evidence. (Aradillos v. Court of Appeals, G.R. No. 135619,
January 15, 2004; People v. Badajos, G.R. No. 139692, January 15, 2004; People v.
Hormina, G.R. No. 144383, January 16, 2004; People v. Cachola [En Banc], G.R.
Nos. 148712-15, January 21, 2004; People v. Darilay, G.R. Nos. 139751-52, January
26, 2004; People v. De Jesus, G.R. Nos. 144080-81, January 26, 2004; People v.
Blancaflor [En Banc], G.R. No. 130586, January 29, 2004; People v. Antivola [En
Banc], G.R. No. 139236, February 3, 2004; People v Wu Tuan Yuan, G.R. No.
150663, February 5, 2004; People v. Malones, G.R. Nos. 124388-90, March 11,
2004; Rugay, G.R. No. 145509, March 16, 2004; People v. Rugay, G.R. No. 145509,
March 16, 2004; People v. Brecinio, G.R. No. 138534, March 17, 2004; People v.
Alicnas, G.R. No. 142855, March 17, 2004;). The findings of fact and the assessment
of the credibility of witnesses is a matter best left to the trial court because of its
unique opportunity to observe the witnesss deportment on the stand while testifying,
an opportunity denied the appellate court. (De la Torre, G.R. Nos. 121213 and
121216-23, January 13, 2004; People v. Domingcil, G.R. No. 140679, January 14,
314 JOURNAL
Case Digest
2004; People v. Abujan [En Banc], G.R. No. 140870, February 11, 2004; People v.
Tolentino[En Banc], G.R. No. 139351, February 23, 2004; People v. Sampaga,
G.R. No. 139823, March 12, 2004; People v. Santos [En Banc], G.R. Nos. 13782833, March 23, 2004; People v. Genita, Jr., G.R. No. 126171, March 11, 2004; People
v. Hijada [En Banc] ,G.R. No. 123696, March 11, 2004; People v. Martinez [En
Banc, Per Curiam], G.R. No. 137519, March 16, 2004; People v. Manambay, G.R.
No. 130684, February 5, 2004). When the issue of credibility of witnesses is in
question, the findings of facts of the trial court, its calibration of the testimonies of
witnesses and its assessment of the probative weight thereof, as well as its
conclusions anchored on said findings are accorded by the appellate court high
respect if not conclusive effect, unless the trial court has overlooked, misconstrued
or misinterpreted cogent facts of substance which if considered might affect the
result of the case. (People v. Abolidor, G.R. No. 147231, February 18, 2004).
(Alzaga, G.R. No. 144937, February 26, 2004).
Factual Issue. Whether or not the accused acted in self-defense, complete or
incomplete, is a factual issue. Factual findings of the trial court and its calibration of the
testimonies of the witnesses and its conclusions anchored on its findings are accorded
by the appellate court high respect, if not conclusive effect, more so when affirmed by
the CA. (Casitas v. People, G.R. No. 152358, February 5, 2004).
Positive Identification of the Accused
Appellants contention that after the lapse of two and a half years, the witness could
no longer positively identify him in open court as the gunman - is devoid of sufficient
basis. On record, the witness positively identified him as the assailant. She knew appellant
very well as they lived in the same neighborhood. Appellant does not adduce any reason
why the witness memory should suddenly fail her in court. (People v. Hormina, G.R.
No. 144383, January 16, 2004).
When extraordinary circumstances take place, it is natural for persons to remember
many of the important details. The most natural reaction of victims of criminal
violence is to strive to see the features and faces of their assailants and observe the
manner in which the crime is committed. The witness testified that he saw the faces
of his abductors because the headlights of his car were focused on them when they
alighted from their car. This enabled him to clearly see their faces. All too often, the
face of the assailant and his body movements create a lasting impression on the
victims mind and cannot thus be easily erased from his memory. (People v. Martinez
[En Banc, Per Curiam], G.R. No. 137519, March 16, 2004). A rape victim can
315
Case Digest
easily identify her assailant especially if he is known to her because during the rape,
she is physically close to her assailant, enabling her to have a good look at the
latters physical features. (People v. Antivola [En Banc], G.R. No. 139236, February
3, 2004).
Neither law nor jurisprudence requires that a prosecution witness be familiar with
the perpetrator of a crime for such witness to make a positive identification. The evidence
shows that the witness was able to observe the incident, as well as the perpetrators
thereof, as he stood only two meters away from where it took place. (People v. Santos,
G.R. No. 127492, January 16, 2004).
Where conditions of visibility are favorable and the eyewitness assertion as to the
identity of the assailant is not tainted with bias, said assertion as to the identity of the
malefactor can very well be accepted. (Hormina, G.R. No. 144383, January 16, 2004).
The lights on the drivers seat of the truck were on. Considering the lighting condition in
the truck and the proximity of the appellant to Alsagar, it was easy for the latter to have
identified the appellant. (People v. Alicnas, G.R. No. 142855, March 17, 2004). The two
prosecution witnesses, Ellyn and Roselyn, positively identified appellant as the one who
shot the victim. Although the incident occurred during nighttime, the house of the victim
was sufficiently illuminated by the kerosene lamp placed near the head of the victim,
which provided enough light for purposes of identifying the killers. (People v. Abolidor,
G.R. No. 147231, February 18, 2004). Moreover, Roselyn testified that she was familiar
with the voice of the appellant. The voice of a person is an acceptable means of
identification where it is established that the witness and the accused knew each other
personally and closely for a number of years. Once a person has gained familiarity with
another, identification becomes quite an easy task even from a considerable distance.
(id.).
Applying the totality of circumstances test, the identification of the appellant by
the victim at the police station must be sustained. It is irrelevant whether the victim knew
or could not mention the appellants name when she regained consciousness, since
persons are identified not solely through their names. In determining whether an out-ofcourt identification is positive or derivative, the totality of circumstances test considers
the following factors: [i] the witnesss opportunity to view the criminal at the time of the
crime; [ii] the witnesss degree of attention at that time; [iii] the accuracy of any prior
description given by the witness; [iv] the level of certainty demonstrated by the witness
at the identification; [v] the length of time between the crime and the identification; and
[vi] the suggestiveness of the identification procedure. (People v. Tolentino [En Banc],
G.R. No. 139351, February 23, 2004).
316 JOURNAL
Case Digest
There is no law requiring a police line-up as essential to a proper identification. In

this case, any doubt as to the appellants identification at the police line-up was dispelled
by the witness who identified in open court the appellant as the malefactor. (People v.
Tolentino[En Banc], G.R. No. 139351, February 23, 2004; People v. Muros, G.R. No.
142511, February 16, 2004). The victims failure to disclose the name of the person who
raped her to her parents or to the barangay officers does not make her subsequent
identification of the accused dubious. Identification of a person is not solely through
knowledge of his name. In fact, familiarity with physical features, especially those of the
face, is the best way to identify a person, for one may be familiar with the face but not
necessarily the name. It does not follow, that to be able to identify a person, one must
necessarily know his name. (People v. Tolentino[En Banc], G.R. No. 139351, February
23, 2004).
Although it was only about 5:00 a.m., there were already streaks of light in Puritas
room. Besides, there was a lamp on the table which illuminated the room. (People v.
Santiago[En Banc], G.R. No. 147314, February 6, 2004). Identification through voice
and illumination from lightning flashes. (Intong, En Banc G. R. No. 145034-35, February
5, 2004). While the incident took place at around 2:00 a.m., it is not disputed that there
was a lighted electric post nearby. Light from the stars or the moon, it has been held, can
give ample illumination to enable a person to identify or recognize another. A fortiori,
this Court is convinced that the illumination from the electric post sufficed for Cabag,
who was near the locus criminis, to enable him to recognize appellant. The victim
positively and categorically identified the appellant to be her assailant. She had a fairly
good look at his face, with not slightest attempt on his part to cover or shield himself at
any time before, during and after the assault. (People v. Torres [En Banc], G. R. No.
149557, March 16, 2004). The weight of the eyewitness account should be on the fact
that the witness saw the accused commit the crime and was positive of the latters
physical identification. (People v. Alicnas, G.R. No. 142855, March 17, 2004).
By challenging his identification by the witnesses of the prosecution, as one of the
assailants of the victim, the appellant attacks the credibility of said witnesses and the
probative weight of their testimonies. (People v. Abolidor, G.R. No. 147231, February
18, 2004).
Alibi
The defense of alibi may not be successfully invoked where the identity of the
assailant has been established by witnesses. Furthermore, to establish alibi, the appellant
must show that it was impossible for him to have been at the place where the crime was
317
Case Digest
committed. (People v. Santos, G.R. No. 127492, January 16, 2004; People v. Bao,
G.R. No. 148710, January 15, 2004; People v. Martinez [En Banc, Per Curiam], G.R.
No. 137519, March 16, 2004; People v. Torres [En Banc], G. R. No. 149557, March 16,
2004; People v. Alicnas, G.R. No. 142855, March 17, 2004; People v. Almazan, G.R.
No. 133442, March 23, 2004). For alibi to be considered, it must be supported by
credible corroboration, preferably from disinterested witnesses who will swear that they
saw or were with the accused somewhere else when the crime was being committed.
(People v. Antivola [En Banc], G.R. No. 139236, February 3, 2004). Physical impossibility
refers to the distance between the place where the accused was when the crime was
committed and the place where the crime was committed; as well as the facility of the
access between the two places. (People v. Tolentino [En Banc], G.R. No. 139351,
February 23, 2004). For alibi to be considered, it must be supported by credible
corroboration, preferably from disinterested witnesses who will swear that they saw, or
were with, the accused somewhere else, when the crime was being committed. Alibi is
commonly regarded as weak, if it is sought to be established wholly or mainly by the
accused himself or his relatives. (Antivola [En Banc], G.R. No. 139236, February 3,
2004; Borbon, G.R. No. 143085, March 10, 2004; People v. Malones, G.R. Nos.
124388-90, March 11, 2004; People v. Sumalinog, Jr., G.R. No. 128387, February 5,
2004). Alibi was rejected: [i] where the identity of the appellant has been established by
witnesses; and [ii] the appellant fails to show that it was impossible for him to have been
at the place where the crime was committed. (People v. Santos, G.R. No. 127492,
January 16, 2004; People v. Martinez [En Banc, Per Curiam], G.R. No. 137519, March
16, 2004; Intong, En Banc G. R. No. 145034-35, February 5, 2004; Flores [En Banc],
G.R. No. 137497, February 5, 2004; Alzaga, G.R. No. 144937, February 26, 2004). Alibi
cannot prevail over the positive identification of the accused by a credible witness.
(People v. Hijada [En Banc] ,G.R. No. 123696, March 11, 2004; People v. Padilla [En
Banc, Per Curiam], G.R. No. 142899, March 31, 2004; People v. Tolentino[En Banc],
G.R. No. 139351, February 23, 2004). Denial and alibi not given credence in rape.
(People v. Dimacuha; People v. Sampaga, G.R. No. 139823. March 12, 2004; People v.
Santos [En Banc], G.R. Nos. 137828-33, March 23, 2004). Denial. (People v. Domingcil,
G.R. No. 140679, January 14, 2004; People v. Padilla [En Banc, Per Curiam], G.R. No.
142899, March 31, 2004). Denial. Not given credence. (People v. Malones, G.R. Nos.
124388-90, March 11, 2004; People v. Badajos, G.R. No. 139692, January 15, 2004).
Denial not given credence. (Andales, G.R. Nos. 152624-25, February 5, 2004;
People v. Badajos, G.R. No. 139692, January 15, 2004; People v. Antivola [En Banc],
G.R. No. 139236, February 3, 2004).
318 JOURNAL
Case Digest
Frame-up
Like alibi, frame-up as a defense has invariably been viewed with disfavor. Clear
and convincing evidence is required to prove this defense. (People v. Cadley, G.R. No.
150735, March 15, 2004).
Ill-Motive
Where there is no evidence that the principal witnesses of the prosecution were
actuated by ill-motives, their testimony is entitled to full faith and credit. (People v.
Badajos, G.R. No. 139692, January 15, 2004; People v. Bao, G.R. No. 148710, January
15, 2004; People v. Brecinio, G.R. No. 138534, March 17, 2004; People v. Santos,
G.R. No. 127492, January 16, 2004; People v. Cachola [En Banc], G.R. Nos. 14871215, January 21, 2004; People v. Blancaflor, En Banc [G.R. No. 130586, January 29,
2004; People v. Antivola [En Banc], G.R. No. 139236, February 3, 2004; People v.
Martinez [En Banc, Per Curiam], G.R. No. 137519, March 16, 2004; People vs.
Tolentino[En Banc], G.R. No. 139351, February 23, 2004; People v. Muros, G.R. No.
142511, February 16, 2004; People v. Dimacuha; De la Torre, G.R. Nos. 121213 and
121216-23, January 13, 2004; People v. Malones, G.R. Nos. 124388-90, March 11,
2004; Andales, G.R. Nos. 152624-25, February 5, 2004; People v. Padilla [En Banc,
Per Curiam], G.R. No. 142899, March 31, 2004; People v. Torres [En Banc], G. R. No.
149557, March 16, 2004; People v. Wu Tuan Yuan, G.R. No. 150663, February 5,
2004).
Delay In Reporting Crime
Did not affect the credibility of the witness as the same had been sufficiently
explained. (People v. Blancaflor [En Banc], G.R. No. 130586, January 29, 2004;
Alzaga, G.R. No. 144937, February 26, 2004; Manambay, G.R. No. 130684, February
5, 2004).
Place of Commission of Rape
Lust is no respecter of time and place. Rape can be committed even in places
which, to many, would appear unlikely and high risk venues for its commission. (People
v. Malones, G.R. Nos. 124388-90, March 11, 2004).
319
Case Digest
TAXATION
INCOME TAX
Tax Assessment
Must be sent to the taxpayer. (Estate of Vda. De Gabriel v. Commissioner of Internal
Revenue, G.R. No. 155541, January 27, 2004).
Notice of Tax Assessment. Not validly served after the taxpayers death. Since there
was never any valid notice of this assessment, it could not have become final, executory
and incontestable, and, for failure to make the assessment within the five-year period
provided in Section 318 of the National Internal Revenue Code of 1977, respondents
claim against the petitioner Estate is barred. (id.).
Retirement Plan
Tax-Exemption. (Development Bank of the Philippines v. Commission On Audit
ESTATE TAX
Notice Of Death. Section 104 of the National Internal Revenue Code of 1977 has
absolutely no applicability to a case for deficiency income tax. More so, in this case
because Philtrust was never the executor, administrator of the decedents estate, and, as
such, had no legal obligation to inform the Commissioner of Internal Revenue (CIR) of
her death. (Estate of Vda. De Gabriel, G.R. No. 155541, January 27, 2004).
Failure of the administrator of the estate to inform the CIR of the decedents death is
subject to penal sanctions as provided in Section 119 of the National Internal Revenue
Code of 1977. These do not include the indefinite tolling of the prescriptive period for
making deficiency tax assessments, or the waiver of the notice requirement for such
assessments. (id.).
______
320 JOURNAL
______
Case Digest
IBP Board of Governors
Na
tional Officers
National
Jose Anselmo I. Cadiz
Jose Anselmo I. Cadiz
Chairman
Leonard S. De Vera
Vice Chairman and Governor for Eastern Mindanao
Romulo A. Rivera
National President
Leonard S. De Vera
Executive Vice President
Ma. Teresa M. Trinidad

National Secretary
Governor for Northern Luzon
Ester Sison Cruz
Dante G. Ilaya
Jaime M. Vibar
Governor for Central Luzon
Puro Angelica Y. Santiago

Governor for Southern Luzon
Rosario T. Setias-Reyes
National Treasurer
Executive Director-Operations
Llewellyn L. Llanillo
Executive Director-Planning
Ivan John E. Uy
Assistant National Secretary
Governor for Greater Manila
Maria Teresita C. Sison Go
Jose Vicente B. Salazar
Bienvenido I. Somera, Jr.
Governor for Bicolandia
Manuel M. Monzon
Governor for Eastern Visayas
Assistant National Treasurer
National Director for Legal Aid
Rogelio A. Vinluan
National Director for Bar Discipline
Orlando E. Mendiola
Immanuel L. Sodusta
General Counsel
Governor for Western Visayas
Augusto A. San Pedro, Jr.

Deputy General Counsel
Carlos L. Valdez, Jr.

Governor for Western Mindanao
Rose Marie M. King
Editor-in-Chief, IBP Journal
Emerico O. De Guzman
Managing Editor, IBP Journal
Antonio A. Oposa, Jr.
Chairman, National Environmental Action Team
321

IBP Vol.30 - No.2 - 2004

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

IBP Vol.30 - No.2 - 2004

Uploaded by

Copyright:

Available Formats

JOURNAL

3rd and 4th Quarters 2004

Political Law to Legal Ethics

Meghan G. de Guia and

A Critical Analysis of Leading Cases

An Overview of the Expanded

Mark Anthony A. Gutierrez

Power Industry Reform

Child Sexual Abuse and the Rule of

Salient Features of the Jury Trial

Legal Ethics and Good Moral Character

Notes and Materials

Copyright 2004 by The Integrated Bar of the Philippines

The Promise of Parliament: Challenging the Foundations

Meghan G. de Guia and Gwen G. de Vera*

JOURNAL of the Integrated Bar of the Philippines

JOURNAL of the Integrated Bar of the Philippines

JOURNAL of the Integrated Bar of the Philippines

JOURNAL of the Integrated Bar of the Philippines

1987 CONSTITUTION, Article VIII, Section 1.

JOURNAL of the Integrated Bar of the Philippines

2. The Prime Minister and members of the Cabinet do not have a

JOURNAL of the Integrated Bar of the Philippines

Given the basic structure of a parliamentary form of government, it is argued to

JOURNAL of the Integrated Bar of the Philippines

JOURNAL of the Integrated Bar of the Philippines

same powers as a regular legislative body. In a subsequent amendment, the powers of

JOURNAL of the Integrated Bar of the Philippines

workers belonged to unions, most of which were company or

JOURNAL of the Integrated Bar of the Philippines

These fluctuations, however, though constant and disturbing,

On the other face, however, a constitution is a covenant

JOURNAL of the Integrated Bar of the Philippines

Simply put, it is a guarantee against an arbitrary exercise of power, to make it

1987 CONSTITUTION, Article VI, Section 27.

JOURNAL of the Integrated Bar of the Philippines

is a relative theory of government. There is more truism and actuality

Planas v.Gil, 67 Phil. 62, 73-74 (1939).

JOURNAL of the Integrated Bar of the Philippines

conjunction with the political structure set up by the Constitution

The framers of the Constitution had never intended to create

To understand well the true meaning of the principle of

405 SCRA 614, 701-702 (2003).

JOURNAL of the Integrated Bar of the Philippines

JOURNAL of the Integrated Bar of the Philippines

Independent Judiciary, it is a basic institutional safeguard of

JOURNAL of the Integrated Bar of the Philippines

JOURNAL of the Integrated Bar of the Philippines

JOURNAL of the Integrated Bar of the Philippines

Supra., note 42, at 122.

JOURNAL of the Integrated Bar of the Philippines

Supra. note 28, p. 121.

JOURNAL of the Integrated Bar of the Philippines

JOURNAL of the Integrated Bar of the Philippines

That parliamentarism will effectively render people power unnecessary should

Such mobility, however, is still limited to a narrow range of

Not Very Representative in THE RULEMAKERS: HOW

JOURNAL of the Integrated Bar of the Philippines

WELL-BORN DOMINATE CONGRESS (Philippine Center for

in the legislature. Despite this, however, Congress remains a

JOURNAL of the Integrated Bar of the Philippines

The Edsa event and its exaltation of people power influenced

J. Bernas, People Power: To What Extent? in TODAY, July 28, 1996.