EN BANC [G.R. No. 74930. February 13, 1989.

] RICARDO VALMONTE, OSWALDO CARBONELL, DOY DEL CASTILLO, ROLANDO BARTOLOME, LEO OBLIGAR, JUN GUTIERREZ, REYNALDO BAGATSING, JUN "NINOY" ALBA, PERCY LAPID, ROMMEL CORRO and ROLANDO FADUL, petitioners, vs. FELICIANOBELMONTE, JR., respondent.

Ricardo C. Valmonte for and in his own behalf and his co-petitioners. The Solicitor General for respondent.
SYLLABUS 1.ADMINISTRATIVE LAW; EXHAUSTION OF ADMINISTRATIVE REMEDIES BEFORE RESORT TO COURTS OF LAW MAY BE ALLOWED; EXCEPTIONS. A settled principles in administrative law is that before a party can be allowed to resort to the courts, he is expected to have exhausted all means of administrative redress available under the law. The courts for reasons of law, comity and convenience will not entertain a case unless the available administrative remedies have been resorted to and the appropriate authorities have been given opportunity to act and correct the errors committed in the administrative forum. However, the principle of exhaustion of administrative remedies is subject to settled exceptions, among which is when only a question of law is involved. 2.CONSTITUTIONAL LAW; RIGHT OF ACCESS TO INFORMATION; EFFECT OF DENIAL THEREOF. The cornerstone of this republican system of government is delegation of power by the people to the State. In this system, governmental agencies and institutions operate within the limits of the authority conferred by the people. Denied access to information on the inner workings of government, the citizenry can become prey to the whims and caprices of those to whom the power had been delegated. The postulate of public office as a public trust, institutionalized in the Constitution (in Art. XI, Sec. 1) to protect the people from abuse of governmental power, would certainly be mere empty words if access to such information of public concern is denied, except under limitations prescribed by implementing legislation adopted pursuant to the Constitution. 3.ID.; ID.; NOT RESTRICTED BY THE EXERCISE OF THE FREEDOM OF SPEECH AND OF THE PRESS. The right to information is an essential premise of a meaningful right to speech and expression. But this is not to say that the right to information is merely an adjunct of and therefore restricted in application by the exercise of the freedoms of speech and of the press. Far from it. The right to information goes hand-in-hand with the constitutional policies of full public disclosure and honesty in the public service. It is meant to enhance the widening role of the citizenry in governmental decision-making as well in checking abuse in government. 4.ID.; ID.; NOT ABSOLUTE. Like all the constitutional guarantees, the right to information is not absolute. The people's right to information is limited to "matters of public concern", and is further "subject to such limitations as may be provided by law." Similarly, the State's policy of full disclosure is limited to "transactions involving public interest", and is "subject to reasonable conditions prescribed by law." 5.ID.; RIGHT OF PRIVACY; CANNOT BE INVOKED BY A JURIDICAL ENTITY; RIGHT IS PURELY PERSONAL IN NATURE. When the information requested from the government intrudes into the privacy of a citizen, a potential conflict between the rights to information and to privacy may arise. The right to privacy belongs to the individual in his private capacity, and not to public and governmental agencies like the GSIS. A corporation has no right to privacy since the entire basis of the right to privacy is injury to the feelings and sensibilities of the party and a corporation would have no such ground for relief. Neither can the GSIS through its General Manager, the respondent, invoke the right to privacy of its borrowers. The right is purely personal in nature. 6.ID.; RIGHT OF ACCESS TO INFORMATION; GOVERNMENT AGENCY PERFORMING PROPRIETARY FUNCTIONS, NOT EXCLUDED FROM THE COVERAGE. The government, whether carrying out its sovereign attributes or running some business, discharges the same function of service to the people. Consequently, that the GSIS, in granting the loans, was exercising a proprietary function would not justify the exclusion of the transactions from the coverage and scope of the right to information.

7.ID.; ID.; LIMITATION. The consideration in guaranting access to information on matters of public concern does not however, accord to citizen the right to compel custodian of public records to prepare lists, abstracts, summaries and the like in their desire to acquire such information. 8.REMEDIAL LAW; SPECIAL CIVIL ACTION; MANDAMUS; REQUISITES FOR ISSUANCE OF WRIT. It must be stressed that it is essential for a writ of mandamus to issue that the applicant has a well-defined, clear and certain legal right to the thing demanded and that it is the imperative duty of defendant to perform the act required. The corresponding duty of the respondent to perform the required act must be clear and specific.

DECISION

CORTES, J p: Petitioners in this special civil action for mandamus with preliminary injunction invoke their right to information and pray that respondent be directed: (a)to furnish petitioners the list of the names of the Batasang Pambansa members belonging to the UNIDO and PDP-Laban who were able to secure clean loans immediately before the February 7 election thru the intercession/marginal note of the then First Lady Imelda Marcos; and/or (b)to furnish petitioners with certified true copies of the documents evidencing their respective loans; and/or (c)to allow petitioners access to the public records for the subject information. [Petition, pp. 4-5; paragraphing supplied.] The controversy arose when petitioner Valmonte wrote respondent Belmonte the following letter: June 4, 1986 Hon. Feliciano Belmonte GSIS General Manager Arroceros, Manila. Sir: As a lawyer, member of the media and plain citizen of our Republic, I am requesting that I be furnished with the list of names of the opposition members of (the) Batasang Pambansa who were able to secure a clean loan of P2 million each on guaranty (sic) of Mrs. Imelda Marcos. We understand that OIC Mel Lopez of Manila was one of those aforesaid MPs. Likewise, may we be furnished with the certified true copies of the documents evidencing their loan. Expenses in connection herewith shall be borne by us. If we could not secure the above documents could we have access to them? We are premising the above request on the following provision of the Freedom Constitution of the present regime. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions or decisions, shall be afforded the citizen subject to such limitation as may be provided by law. (Art. IV, Sec. 6). We trust that within five (5) days from receipt hereof we will receive your favorable response on the matter. Very truly yours, (Sgd.) RICARDO C. VALMONTE [Rollo, p. 7.] To the aforesaid letter, the Deputy General Counsel of the GSIS replied: June 17, 1986 Atty. Ricardo C. Valmonte

108 E. Benin Street Caloocan City Dear Companero: Possibly because he must have thought that it contained serious legal implications, President & General Manager Feliciano Belmonte, Jr. referred to me for study and reply your letter to him of June 4, 1986 requesting a list of "the opposition members of Batasang Pambansa who were able to secure a clean loan of P2 million each on guaranty of Mrs. Imelda Marcos." My opinion in this regard is that a confidential relationship exists between the GSIS and all those who borrow from it, whoever they may be; that the GSIS has a duty to its customers to preserve this confidentiality; and that it would not be proper for the GSIS to breach this confidentiality unless so ordered by the courts. As a violation of this confidentiality may mar the image of the GSIS as a reputable financial institution, I regret very much that at this time we cannot respond positively to your request. Very truly yours, (Sgd.) MEYNARDO A. TIRO Deputy General Counsel [Rollo, p. 40.] On June 20, 1986, apparently not having yet received the reply of the Government Service and Insurance System (GSIS) Deputy General Counsel, petitionerValmonte wrote respondent another letter, saying that for failure to receive a reply "(W)e are now considering ourselves free to do whatever action necessary within the premises to pursue our desired objective in pursuance of public interest." [Rollo, p. 8.] On June 26, 1986, Valmonte, joined by the other petitioners, filed the instant suit. On July 19, 1986, the Daily Express carried a news item reporting that 137 former members of the defunct interim and regular Batasang Pambansa, including ten (10) opposition members, were granted housing loans by the GSIS [Rollo, p. 41.]. Separate comments were filed by respondent Belmonte and the Solicitor General. After petitioners filed a consolidated reply, the petition was given due course and the parties were required to file their memoranda. The parties having complied, the case was deemed submitted for decision. In his comment respondent raises procedural objections to the issuance of a writ of mandamus, among which is that petitioners have failed to exhaust administrative remedies. Respondent claims that actions of the GSIS General Manager are reviewable by the Board of Trustees of the GSIS. Petitioners, however did not seek relief from the GSIS Board of Trustees. It is therefore asserted that since administrative remedies were not exhausted, then petitioners have no cause of action. To this objection, petitioners claim that they have raised a purely legal issue, viz., whether or not they are entitled to the documents sought, by virtue of their constitutional right to information. Hence, it is argued that this case falls under one of the exceptions to the principle of exhaustion of administrative remedies. Among the settled principles in administrative law is that before a party can be allowed to resort to the courts, he is expected to have exhausted all means of administrative redress available under the law. The courts for reasons of law, comity and convenience will not entertain a case unless the available administrative remedies have been resorted to and the appropriate authorities have been given opportunity to act and correct the errors committed in the administrative forum. However, the principle of exhaustion of administrative remedies is subject to settled exceptions, among which is when only a question of law is involved [Pascual v. Provincial Board, 106 Phil. 466 (1959); Aguilar v. Valencia, et al., G.R. No. L-30396, July 30, 1971, 40 SCRA 210; Malabanan v. Ramento, G.R. No. L2270, May 21, 1984, 129 SCRA 359.] The issue raised by petitioners, which requires the interpretation of the scope of the constitutional right to information, is one which can be passed upon by the regular courts more competently than the GSIS or its Board of Trustees, involving as it does a purely legal question. Thus, the exception of this case from the application of the general rule on exhaustion of administrative remedies is warranted. Having disposed of this procedural issue, We now address ourselves to the issue of whether or not mandamus lies to compel respondent to perform the acts sought by petitioners to be done, in pursuance of their right to information.

We shall deal first with the second and third alternative acts sought to be done, both of which involve the issue of whether or not petitioners are entitled to access to the documents evidencing loans granted by the GSIS. This is not the first time that the Court is confronted with a controversy directly involving the constitutional right to information. In Tanada v. Tuvera, G.R. No. 63915, April 24, 1985, 136 SCRA 27 and in the recent case of Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987, 150 SCRA 530, the Court upheld the people's constitutional right to be informed of matters of public interest and ordered the government agencies concerned to act as prayed for by the petitioners. The pertinent provision under the 1987 Constitution is Art. 111, Sec. 7 which states: The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law. The right of access to information was also recognized in the 1973 Constitution, Art. IV Sec. 6 of which provided: The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, shall be afforded the citizen subject to such limitations as may be provided by law. An informed citizenry with access to the diverse currents in political, moral and artistic thought and data relative to them, and the free exchange of ideas and discussion of issues thereon, is vital to the democratic government envisioned under our Constitution. The cornerstone of this republican system of government is delegation of power by the people to the State. In this system, governmental agencies and institutions operate within the limits of the authority conferred by the people. Denied access to information on the inner workings of government, the citizenry can become prey to the whims and caprices of those to whom the power had been delegated. The postulate of public office as a public trust, institutionalized in the Constitution (in Art. XI, Sec. 1) to protect the people from abuse of governmental power, would certainly be mere empty words if access to such information of public concern is denied, except under limitations prescribed by implementing legislation adopted pursuant to the Constitution. Petitioners are practitioners in media. As such, they have both the right to gather and the obligation to check the accuracy of information they disseminate. For them, the freedom of the press and of speech is not only critical, but vital to the exercise of their professions. The right of access to information ensures that these freedoms are not rendered nugatory by the government's monopolizing pertinent information. For an essential element of these freedoms is to keep open a continuing dialogue or process of communication between the government and the people. It is in the interest of the State that the channels for free political discussion be maintained to the end that the government may perceive and be responsive to the people's will. Yet, this open dialogue can be effective only to the extent that the citizenry is informed and thus able to formulate its will intelligently. Only when the participants in the discussion are aware of the issues and have access to information relating thereto can such bear fruit. The right to information is an essential premise of a meaningful right to speech and expression. But this is not to say that the right to information is merely an adjunct of and therefore restricted in application by the exercise of the freedoms of speech and of the press. Far from it. The right to information goes hand-in-hand with the constitutional policies of full public disclosure ** and honesty in the public service. *** It is meant to enhance the widening role of the citizenry in governmental decision-making as well in checking abuse in government. Yet, like all the constitutional guarantees, the right to information is not absolute. As stated in Legaspi, The people's right to information is limited to "matters of public concern", and is further "subject to such limitations as may be provided by law." Similarly, the State's policy of full disclosure is limited to "transactions involving public interest", and is "subject to reasonable conditions prescribed by law." Hence, before mandamus may issue, it must be clear that the information sought is of "public interest" or "public concern", and is not exempted by law from the operation of the constitutional guarantee [Legaspi v. Civil Service Commission, supra, at p. 542.]. The Court has always grappled with the meanings of the terms "public interest" and "public concern". As observed in Legaspi: prcd In determining whether or not a particular information is of public concern there is no rigid test which can be applied. "Public concern" like "public interest" is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary

citizen. In the final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public. [ Ibid. at p. 541.] In the Taada case the public concern deemed covered by the constitutional right to information was the need for adequate notice to the public of the various laws which are to regulate the actions and conduct of citizens. In Legaspi, it was the "legitimate concern of citizens to ensure that government positions requiring civil service eligibility are occupied only by persons who are eligibles" [Supra at p. 539.]. The information sought by petitioners in this case is the truth of reports that certain Members of the Batasang Pambansa belonging to the opposition were able to secure "clean" loans from the GSIS immediately before the February 7, 1986 election through the intercession of the former First Lady, Mrs. Imelda R. Marcos. The GSIS is a trustee of contributions from the government and its employees and the administrator of various insurance programs for the benefit of the latter. Undeniably, its funds assume a public character. More particularly, Secs. 5(b) and 46 of P.D. 1146, as amended (the Revised Government Service Insurance Act of 1977), provide for annual appropriations to pay the contributions, premiums, interest and other amounts payable to GSIS by the government, as employer, as well as the obligations which the Republic of the Philippines assumes or guarantees to pay. Considering the nature of its funds, the GSIS is expected to manage its resources with utmost prudence and in strict compliance with the pertinent laws or rules and regulations. Thus, one of the reasons that prompted the revision of the old GSIS law (C.A No. 186, as amended) was the necessity "to preserve at all times the actuarial solvency of the funds administered by the Systems [Second Whereas Clause, P.D. No. 1146.] Consequently, as respondent himself admits, the GSIS "is not supposed to grant `clean loans'." [Comment, p. 8.] It is therefore the legitimate concern of the public to ensure that these funds are managed properly with the end in view of maximizing the benefits that accrue to the insured government employees. Moreover, the supposed borrowers were Members of the defunct Batasang Pambansa who themselves appropriated funds for the GSIS and were therefore expected to be the first to see to it that the GSIS performed its tasks with the greatest degree of fidelity and that all its transactions were above board. In sum, the public nature of the loanable funds of the GSIS and the public office held by the alleged borrowers make the information sought clearly a matter of public interest and concern. A second requisite must be met before the right to information may be enforced through mandamus proceedings, viz., that the information sought must not be among those excluded by law. Respondent maintains that a confidential relationship exists between the GSIS and its borrowers. It is argued that a policy of confidentiality restricts the indiscriminate dissemination of information. Yet, respondent has failed to cite any law granting the GSIS the privilege of confidentiality as regards the documents subject of this petition. His position is apparently based merely on considerations of policy. The judiciary does not settle policy issues. The Court can only declare what the law is, and not what the law should be. Under our system of government, policy issues are within the domain of the political branches of the government, and of the people themselves as the repository of all State power. Respondent however contends that in view of the right to privacy which is equally protected by the Constitution and by existing laws, the documents evidencing loan transactions of the GSIS must be deemed outside the ambit of the right to information. llcd There can be no doubt that right to privacy is constitutionally protected. In the landmark case of Morfe v. Mutuc [130 Phil. 415 (1968), 22 SCRA 424], this Court, speaking through then Mr. Justice Fernando, stated: . . . The right to privacy as such is accorded recognition independently of its identification with liberty; in itself, it is fully deserving of constitutional protection. The language of Prof. Emerson is particularly apt: "The concept of limited government has always included the idea that governmental powers stop short of certain intrusions into the personal life of the citizen. This is indeed one of the basic distinctions between absolute and limited government. Ultimate and pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute state. In contrast, a system of limited government safeguards a private sector, which belongs to the individual, firmly distinguishing it from the public sector, which the state can control. Protection of this private sector protection, in other words, of the dignity and integrity of the individual has become increasingly important as modern society has developed. All the forces of technological age industrialization, urbanization, and organization operate to narrow the area of privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and support this enclave of private life marks the difference between a democratic and a totalitarian society." [at pp. 444-445.]

When the information requested from the government intrudes into the privacy of a citizen, a potential conflict between the rights to information and to privacy may arise. However, the competing interests of these rights need not be resolved in this case. Apparent from the above-quoted statement of the Court inMorfe is that the right to privacy belongs to the individual in his private capacity, and not to public and governmental agencies like the GSIS. Moreover, the right cannot be invoked by juridical entities like the GSIS. As held in the case of Vassar College v. Loose Wills Biscuit Co. [197 F. 982 (1912)], a corporation has no right of privacy in its name since the entire basis of the right to privacy is an injury to the feelings and sensibilities of the party and a corporation would have no such ground for relief. Neither can the GSIS through its General Manager, the respondent, invoke the right to privacy of its borrowers. The right is purely personal in nature [Cf.Atkinson v. John Doherty & Co., 121 Mich 372, 80 N.W. 285, 46 L.R.A. 219 (1899); Schuyler v. Curtis, 147 N.Y. 434, 42 N.E. 22, 31 L.R.A. 286 (1895)], and hence may be invoked only by the person whose privacy is claimed to be violated. It may be observed, however, that in the instant case, the concerned borrowers themselves may not succeed if they choose to invoke their right to privacy, considering the public offices they were holding at the time the loans were alleged to have been granted. It cannot be denied that because of the interest they generate and their newsworthiness, public figures, most especially those holding responsible positions in government, enjoy a more limited right to privacy as compared to ordinary individuals, their actions being subject to closer public scrutiny [Cf. Ayer Productions Pty. Ltd. v. Capulong, G.R. Nos. 82380 and 82398, April 29, 1988; See also Cohen v. Marx, 211 P. 2d 321 (1949).]. Respondent next asserts that the documents evidencing the loan transactions of the GSIS are private in nature and hence, are not covered by the Constitutional right to information on matters of public concern which guarantees "(a)ccess to official records, and to documents, and papers pertaining to officialacts, transactions, or decisions" only. It is argued that the records of the GSIS, a government corporation performing proprietary functions, are outside the coverage of the people's right of access to official records. llcd It is further contended that since the loan function of the GSIS is merely incidental to its insurance function, then its loan transactions are not covered by the constitutional policy of full public disclosure and the right to information which is applicable only to "official" transactions. First of all, the "constituent ministrant" dichotomy characterizing government function has long been repudiated. In ACCFA v. Confederation of Unions and Government Corporations and Offices [G.R. Nos. L-21484 and L-23605, November 29, 1969, 30 SCRA 644], the Court said that the government, whether carrying out its sovereign attributes or running some business, discharges the same function of service to the people. Consequently, that the GSIS, in granting the loans, was exercising a proprietary function would not justify the exclusion of the transactions from the coverage and scope of the right to information. Moreover, the intent of the members of the Constitutional Commission of 1986, to include governmentowned and controlled corporations and transactions entered into by them within the coverage of the State policy of full public disclosure is manifest from the records of the proceedings: xxx xxx xxx THE PRESIDING OFFICER (Mr. Colayco). Commissioner Suarez is recognized. MR. SUAREZ.Thank you. May I ask the Gentleman a few question? MR. OPLE.Very gladly. MR. SUAREZ.Thank you. When we declare "a policy of full public disclosure of all its transactions" referring to the transactions of the State and when we say the "State" which I suppose would include all of the various agencies, departments, ministries and instrumentalities of the government. . . . MR. OPLE.Yes, and individual public officers, Mr. Presiding Officer. MR. SUAREZ.Including government-owned and controlled corporations. MR. OPLE.That is correct, Mr. Presiding Officer.

MR. SUAREZ.And when we say "transactions which should be distinguished from contracts, agreements, or treaties or whatever, does the Gentleman refer to the steps leading to the consummation of the contract, or does he refer to the contract itself? MR. OPLE.The "transactions" used here, I suppose, is generic and, therefore, it can cover both steps leading to a contract, and already a consummated contract, Mr. Presiding Officer. MR. SUAREZ.This contemplates inclusion of negotiations leading to the consummation of the transaction. MR. OPLE.Yes, subject only to reasonable safeguards on the national interest. MR. SUAREZ.Thank you. [V Record of the Constitutional Commission 24-25.] (Emphasis supplied.) Considering the intent of the framers of the Constitution which, though not binding upon the Court, are nevertheless persuasive, and considering further that government-owned and controlled corporations, whether performing proprietary or governmental functions are accountable to the people, the Court is convinced that transactions entered into by the GSIS, a government-controlled corporation created by special legislation are within the ambit of the people's right to be informed pursuant to the constitutional policy of transparency in government dealings. In fine, petitioners are entitled to access to the documents evidencing loans granted by the GSIS, subject to reasonable regulations that the latter may promulgate relating to the manner and hours of examination, to the end that damage to or loss of the records may be avoided, that undue interference with the duties of the custodian of the records may be prevented and that the right of other persons entitled to inspect the records may be insured [Legaspi v. Civil Service Commission, supra at p. 538, quoting Subido v. Ozaeta, 80 Phil. 383, 387.] The petition, as to the second and third alternative acts sought to be done by petitioners, is meritorious. However, the same cannot be said with regard to the first act sought by petitioners, i.e., "to furnish petitioners the list of the names of the Batasang Pambansa members belonging to the UNIDO and PDP-Laban who were able to secure clean loans immediately before the February 7 election thru the intercession/marginal note of the then First Lady Imelda Marcos." Although citizens are afforded the right to information and, pursuant thereto, are entitled to "access to official records," the constitution does not accord them a right to compel custodians of official records to prepare lists, abstracts, summaries and the like in their desire to acquire information or matters of public concern. cdrep It must be stressed that it is essential for a writ of mandamus to issue that the applicant has a well-defined, clear and certain legal right to the thing demanded and that it is the imperative duty of defendant to perform the act required. The corresponding duty of the respondent to perform the required act must be clear and specific [Lemi v. Valencia, G.R. No. L-20768, November 29, 1968, 126 SCRA 203; Ocampo v. Subido, G.R. No. L-28344, August 27, 1976, 72 SCRA 443.] The request of the petitioners fails to meet this standard, there being no duty on the part of respondent to prepare the list requested. WHEREFORE, the instant petition is hereby granted and respondent General Manager of the Government Service Insurance System is ORDERED to allow petitioners access to documents and records evidencing loans granted to Members of the former Batasang Pambansa, as petitioners may specify, inspection, not incompatible with this decision, as the GSIS may deem necessary. SO ORDERED.

Fernan C .J ., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, GrioAquino, Medialdea and Regalado, JJ ., concur.
Separate Opinions CRUZ, J ., concurring: Instead of merely affixing my signature to signify my concurrence, I write this separate opinion simply to say I have nothing to add to Justice Irene R. Cortes' exceptionally eloquent celebration of the right to information on matters of public concern.

EN BANC [A.M. No. RTJ-96-1347. June 14, 1996.] PROS. LEO C. TABAO, complainant, vs. JUDGE PEDRO E. ESPINA, respondent. [A.M. No. RTJ-96-1348. June 14, 1996.] REGIONAL STATE PROS. FRANCISCO Q. AURILLO, JR. complainant, vs. JUDGE PEDRO S. ESPINA, respondent. SYLLABUS 1.ADMINISTRATIVE LAW; PUBLIC OFFICERS; JUDGES; GRANTING BAIL TO AN ACCUSED CHARGED WITH AN OFFENSE PUNISHABLE BY LIFE IMPRISONMENT WITHOUT CONDUCTING A HEARING; FAILURE TO COMPLY WITH THE COURT'S RESOLUTION ORDERING THE FILING OF A COMMENT; A CASE OF GROSS IGNORANCE OF THE LAW AND GROSS MISCONDUCT. Respondent Judge Espina's failure to comment on this aspect of the complaint against him aggravates his situation. It will be recalled, in this connection, that respondent Judge Espina was also required in another administrative case to comment on the grant of bail to the accused without hearing the evidence of the prosecution. In that case, as in the present case, respondent judge did not comment on the averment that he had granted bail to the accused without hearing prosecution's evidence. The reason for respondent judge's failure to comment on accusations reflecting on his competence and integrity can only be surmised, but it is apparent that respondent either ignored this Court's resolution ordering him to comment on all the charges in the complaints or respondent judge does not realize the gravity of the accusation that he had granted bail without the required hearing. In the former case, it is gross misconduct, even outright disrespect for the Court, for respondent judge to exhibit indifference to the resolution requiring him to comment on the accusations in the complaints thoroughly and substantially, while in the latter case, not realizing the importance and indispensability of a bail hearing is, to be sure, gross ignorance of the law. In either case, respondent judge should be sanctioned accordingly. 2.ID.; ID.; ID.; IN THE EXERCISE OF THEIR DISCRETION, JUDGES ARE SWORN NOT ONLY TO UPHOLD THE LAW BUT ALSO TO DO WHAT IS FAIR AND JUST. In the exercise of their discretion, judges are sworn not only to uphold the law but also to do what is fair and just. The judicial gavel should not be wielded by one who has an unsound and distorted sense of justice and fairness. Respondent judge's conduct in the disposition of the criminal case subject of the present complaints leaves much to be desired. He miserably failed to exhibit the objectivity required of members of the bench which is necessary, even indispensable, to maintain the public's trust and confidence in the courts. 3.REMEDIAL LAW; CRIMINAL PROCEDURE; BAIL; A DENIAL OF THE PROSECUTION'S REQUEST TO ADDUCE EVIDENCE, DEPRIVES IT OF PROCEDURAL DUE PROCESS, A RIGHT TO WHICH IT IS EQUALLY ENTITLED AS THE DEFENSE. The Court has repeatedly stressed the ruling in People v. Dacudao (G.R. No. 81389, 21 February 1989, 170 SCRA 489) that a hearing is absolutely indispensable before a judge can properly determine whether the prosecution's evidence is weak or strong on the issue of whether or not to grant bail to an accused charged with a heinous crime where the imposable penalty is death, reclusion perpetua or life imprisonment. Hence, a denial of the prosecution's request to adduce evidence, deprives it of procedural due process, a right to which it is entitled equally as the defense. 4.ID.; ID.; ID.; THE HEARING FOR BAIL THOUGH SUMMARY IN NATURE IS NECESSARY TO AFFORD BOTH THE PROSECUTION AND THE DEFENSE AN OPPORTUNITY TO PROVE THEIR RESPECTIVE CONTENTIONS ON THE MATTER OF BAIL FOR THE ACCUSED. A hearing is required to afford the judge a basis for determining the existence of those factors set forth under Rule 114, Sec. 6, Rules of Court in granting or rejecting a plea for bail. The hearing for bail though summary in nature is necessary to afford both the prosecution and the defense an opportunity to prove their respective contentions on the matter of bail for the accused. 5.ID.; ID.; ID.; THE RULING IN PEOPLE VS. SIMON DID NOT ALTER MUCH LESS SET ASIDE THE STATE'S RIGHT TO A HEARING TO OPPOSE BAIL, NEITHER DID THE RULING CURE THE DEFECT OF LACK OF A BAIL HEARING IN CASE AT BAR. Respondent cannot rely on the ruling in People v. Simon since the issue in the present complaints is his having granted bail to an accused charged with an offense then punishable with life imprisonment, without giving the prosecution the opportunity to show that evidence of guilt is strong and that as a consequence, the accused is not entitled to bail. Under the Rules of Court, a hearing for bail is mandatory to afford the State its right to oppose the grant

of bail. The ruling in Simon did not alter much less set aside the State's right to a hearing to oppose bail. Neither did the ruling in Simon cure the defect of lack of a bail hearing in this case. 6.ID.; ID.; ID.; ANY DEVIATION FROM THE REGULAR COURSE OF THE TRIAL SHOULD ALWAYS TAKE INTO CONSIDERATION THE RIGHTS OF ALL PARTIES TO THE CASE, WHETHER IN THE PROSECUTION OR DEFENSE. On the issue regarding the manner of promulgation of the decision in Criminal Case No. 93-04-197, it is evident that respondent judge digressed from the regular course and procedure of rendering judgment, which must be done only after both the prosecution and the defense have rested their respective cases. In the subject criminal case, the defense had yet to rest its case when respondent judge rendered the judgment of acquittal. It is not difficult to imagine the grave injustice which would have resulted had respondent judge convicted the accused before the defense had rested its case. Of course, respondent judge acquitted the accused. But the questions now are: why the deliberate haste to acquit the accused, the same accused to whom bail had been granted by respondent judge without hearing the prosecution's evidence? And why was the prosecution denied the right to present rebuttal evidence when it had manifested its intention to present rebuttal evidence when informed of the promulgation of judgment? Judges should be reminded that each step in the trial process serves a specific purpose. In the trial of criminal cases, the constitutional presumption of innocence in favor of an accused requires that an accused be given sufficient opportunity to present his defense. So, with the prosecution as to its evidence. Hence, any deviation from the regular course of trial should always take into consideration the rights of all the parties to the case, whether in the prosecution or defense.

DECISION

PER CURIAM p: In a sworn complaint dated 4 July 1995, First Assistant City Prosecutor for Tacloban City, Leo C. Tabao, accused Judge Pedro S. Espina then presiding judge, Regional Trial Court, Branch 7, Tacloban City of: (a) Gross Irregularity, (b) Abuse of Authority and (c) Bias in favor of the accused, in handling and deciding Criminal Case No. 93-04-197 entitled "People of the Philippines v. Salvador Padernal" a case for violation of Republic Act No. 6425 (Drug Pushing). In another sworn complaint dated 21 July 1995, Regional State Prosecutor Francisco Q. Aurillo, Jr. manifested his desire to be a co-complainant againstJudge Espina for his handling of the above-mentioned criminal case. Prosecutor Leo C. Tabao narrated Judge Espina's acts which allegedly merit disciplinary sanction, as follows: 1.On 19 April 1995, when accused Salvador Padernal finished testifying as the third and last witness for the defense in said Criminal Case No. 93-04-197, defense counsel Atty. Lauro G. Noel made a reservation to submit within five (5) days, documentary evidence consisting of the accused's alleged business licenses and permits and the defense's formal offer of exhibits, after which the defense would rest its case; 1 2.On 22 June 1995, the prosecution received a notice of promulgation of judgment in the said criminal case which was set on 27 June 1995; 3.On the same day, 22 June 1995, the prosecution filed an urgent manifestation seeking to postpone promulgation of judgment since the defense had not submitted its documentary evidence, formal offer of exhibits and rested its case. The prosecution also manifested its intention of adducing rebuttal evidence to the documentary exhibits to be submitted; 2 4.On 23 June 1995, Judge Espina nonetheless issued an order reiterating the notice setting the date of promulgation of judgment on 27 June 1995; 3 5.On 27 June 1995, Judge Espina promulgated a judgment in the said Criminal Case No. 93-04-197 entitled "People v. Salvador Padernal" acquitting the accused. The decision was dated 1 June 1995. Prosecutor Aurillo, aside from reiterating the grounds relied upon by Prosecutor Tabao for holding Judge Espina administratively liable, adds that he (Aurillo) had earlier assailed before the Court of Appeals an Order, dated 22 April 1993, issued by respondent judge granting bail to the accused in the same above-mentioned criminal case without giving the prosecution a chance to present evidence to oppose the grant of bail. 4 The Court of Appeals in a decision dated 30 August 1994 annulled Judge Espina's orders granting bail to the accused and denying the prosecution's motion for reconsideration of the order which granted bail. The dispositive part of the Court of Appeals decision which became final and executory on 19 September 1994 5 reads:

"WHEREFORE, for having been issued with grave abuse of discretion, and for lack of or in excess of jurisdiction, the Orders dated April 22, 1993 and June 23, 1993 issued in Criminal Case No. 93-04-197, are declared null and void and set aside. Consequently, the bail bond posted by accused-private respondent is ordered cancelled and respondent court is ordered to issue a warrant of arrest for the accused. We leave to the sound discretion of respondent Judge, the herein petitioner's prayer for inhibition as he has not been given the opportunity to rule on said motion. SO ORDERED." 6 that: On 22 September 1995, respondent Judge Pedro S. Espina filed comment on the first complaint, arguing

1.He proceeded to decide the case without the documentary evidence of the defense since such documents were not submitted within the period allowed; 2.He is of the opinion that the documentary evidence, consisting of business licenses and permits, even if offered to show that accused is gainfully employed, is immaterial to the innocence or guilt of the accused; 3.Respondent judge invokes Sections 3 and 4 of Rule 128 on the admissibility only of evidence relevant to the issue; 4.Finally, respondent judge invokes Section 3(m) of Rule 131 (not Sec. 5(m) of Rule 128 as erroneously referred to in the comment) that presumes that official duty was regularly performed unless the contrary is shown. On 19 December 1995, respondent Judge Espina filed a pleading entitled "Consolidated Comments" alleging: 1.He granted bail to the accused (Padernal) after the prosecuting fiscal in Criminal Case No. 93-04-197 agreed to submit the issue of bail for resolution after the prosecution filed an opposition to the petition for bail; 2.He granted bail in the amount of P200,000.00 a day after the prosecution filed said opposition; 3.He denied the prosecution's motion for reconsideration of the order granting bail on the ground that the order had become final; 4.The enactment into law of Republic Act No. 7659 on 31 December 1993 and the ruling of the Supreme Court in People v. Simon (G.R. No. 93028, 29 July 1994, 234 SCRA 555), giving the law (R.A. 7659) retroactive effect insofar as it is beneficial to the accused, now entitles the accused in the subject criminal case to bail as a matter of right; 5.It is an undue interference with the prerogative of the trial court to argue that the decision in the subject criminal case should not have been rendered (the way and form it was rendered); 6.It is the sole prerogative of the trial court, in the exercise of its authority to appreciate the evidence, to decide the relevance or irrelevance of evidence. On 6 February 1996, the Office of the Court Administrator submitted to the Court a recommendation to absolve respondent Judge Espina from any administrative liability, based on the opinion that respondent's acts constitute an exercise of judicial prerogative. We are not persuaded by the recommendation. The Court has repeatedly stressed the ruling in People v. Dacudao 7 that a hearing is absolutely indispensable before a judge can properly determine whether the prosecution's evidence is weak or strong on the

issue of whether or not to grant bail to an accused charged with a heinous crime where the imposable penalty is death, reclusion perpetua or life imprisonment. Hence, a denial of the prosecution's request to adduce evidence, deprives it of procedural due process, a right to which it is entitled equally as the defense. A hearing is required to afford the judge a basis for determining the existence of those factors set forth under Rule 114, Sec. 6, Rules of Court in granting or rejecting a plea for bail. The hearing for bail though summary in nature is necessary to afford both the prosecution and the defense an opportunity to prove their respective contentions on the matter of bail for the accused. The Court has never hesitated to impose sanctions on judges who had granted bail to an accused charge with a heinous crime punishable with death,reclusion perpetua or life imprisonment, without the required hearing. In Santos v. Ofilada 8 the Court expressing almost exasperation over repeated violations by judges in this regard stated that, "It is indeed lamentable that despite the series of its pronouncements on the same administrative

offense, this Court still has to contend with the same problem all over again and to impose once more the same sanction." In the present case, respondent Judge Espina's failure to comment on this aspect of the complaint against him aggravates his situation. It will be recalled, in this connection, that respondent Judge Espina was also required in another administrative case to comment on the grant of bail to the accused without hearing the evidence of the prosecution. 9 In that case, as in the present case, respondent judge did not comment on the averment that he had granted bail to the accused without hearing the prosecution's evidence. The reason for respondent judge's failure to comment on accusations reflecting on his competence and integrity can only be surmised, but it is apparent that respondent either ignored this Court's resolution ordering him to comment on all the charges in the complaints or respondent judge does not realize the gravity of the accusation that he had granted bail without the required hearing. In the former case, it is gross misconduct, even outright disrespect for the Court, for respondent judge to exhibit indifference to the resolution requiring him to comment on the accusations in the complaints thoroughly and substantially, while in the latter case, not realizing the importance and indispensability of a bail hearing is, to be sure, gross ignorance of the law. In either case, respondent judge should be sanctioned accordingly. Respondent cannot rely on the ruling in People v. Simon 10 since the issue in the present complaints is his having granted bail to an accused charged with an offense then punishable with life imprisonment, without giving the prosecution the opportunity to show that evidence of guilt is strong and that as a consequence, the accused is not entitled to bail. Under the Rules of Court, a hearing for bail is mandatory to afford the State its right to oppose the grant of bail. The ruling in Simon did not alter much less set aside the State's right to a hearing to oppose bail. Neither did the ruling in Simon cure the defect of lack of a bail hearing in this case. On the issue regarding the manner of promulgation of the decision in Criminal Case No. 93-04-197, it is evident that respondent judge digressed from the regular course and procedure of rendering judgment, which must be done only after both the prosecution and the defense have rested their respective cases. In the subject criminal case, the defense had yet to rest its case when respondent judge rendered the judgment of acquittal. It is not difficult to imagine the grave injustice which would have resulted had respondent judge convicted the accused before the defense had rested its case. Of course, respondent judge acquitted the accused. But the questions now are: why the deliberate haste to acquit the accused, the same accused to whom bail had been granted by respondent judgewithout hearing the prosecution's evidence? And why was the prosecution denied the right to present rebuttal evidence when it had manifested its intention to present rebuttal evidence when informed of the promulgation of judgment? Judges should be reminded that each step in the trial process serves a specific purpose. In the trial of criminal cases, the constitutional presumption of innocence in favor of an accused requires that an accused be given sufficient opportunity to present his defense. So, with the prosecution as to its evidence. Hence, any deviation from the regular course of trial should always take into consideration the rights of all the parties to the case, whether in the prosecution or defense. In the exercise of their discretion, judges are sworn not only to uphold the law but also to do what is fair and just. The judicial gavel should not be wielded by one who has an unsound and distorted sense of justice and fairness. Respondent judge's conduct in the disposition of the criminal case subject of the present complaints leaves much to be desired. He miserably failed to exhibit the objectivity required of members of the bench which is necessary, even indispensable, to maintain the public's trust and confidence in the courts. In sum, respondent judge should be penalized for gross ignorance of the law in granting bail to the accused in Criminal Case No. 93-04-197, where the then imposable penalty was life imprisonment, without hearing. He should also be accordingly sanctioned for having promulgated the decision in the same criminal case before the defense had rested and without according the prosecution an opportunity to present rebuttal evidence. For these two (2) acts constituting grave misconduct, ignorance of the law and gross incompetence, respondent Judge Pedro S. Espina, now Acting Presiding Judge of the Regional Trial Court, Branch 19, Malolos, Bulacan is hereby DISMISSED from the service, with forfeiture of all retirement benefits and accrued leave credits and with prejudice to re-employment in any branch or instrumentality of the government, including government-owned or controlled corporations. Let copies of this decision be furnished all trial courts in the country with a warning that further violations of the requirement of hearing prior to the grant of bail in cases where the imposable penalty is death, reclusion perpetua, of life imprisonment, will merit the same sanctions imposed in this case. This decision is immediately executory. SO ORDERED.

Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco, Hermosisima, Jr., Panganiban and Torres, Jr., JJ., concur.

Bellosillo, J., no part in deliberation.

SECOND DIVISION [G.R. No. L-39655. March 21, 1975.] ARROW TRANSPORTATION CORPORATION, petitioner, vs. BOARD OF TRANSPORTATION and SULTAN RENT-A-CAR, INC., respondents.

Manuel Imbong for petitioner. Solicitor General Estelito P. Mendoza and Assistant Solicitor General Reynato S. Puno for respondent Board. Pastor C. Bacani and Ernesto Ganiban for private respondent.
SYNOPSIS Private respondent was issued a provincial permit to operate a public utility bus without any publication. Pending a motion for reconsideration filed by petitioner, the latter filed this certiorari petition on ground that there having been no publication the Board did not acquire jurisdiction and therefore the issuance of the order is illegal or was performed without jurisdiction. The Supreme Court dismissed the petition holding that the procedure set forth in Presidential Decree 101 having been followed and the provisional authority to operate being based on the urgent public need, the contention of petitioner is untenable. SYLLABUS 1.CONSTITUTIONAL LAW; DUE PROCESS; EX PARTE HEARING SUFFICES FOR ISSUANCE OF PROVISIONAL PERMIT. It is a well settled doctrine that for a provisional permit an ex parte hearing suffices. The decisive consideration is the existence of the public need. 2.ID.; ID.; ID.; PURPOSE OF PROCEDURE UNDER EXECUTIVE ORDER 101. Under Executive Order 101 which prescribes the procedure to be followed by the Board of Transportation, it is the policy of the state, as swiftly as possible, to improve the deplorable condition of vehicular traffic, obtain maximum utilization of existing public motor vehicles and eradicate the harmful and unlawful trade of clandestine operators, as well as update the standards of those carrying such business, making it "imperative to provide, among other urgently needed measures, more expeditious methods in prescribing, redefining, or modifying the lines and mode of operation of public utility motor vehicles that now or thereafter, may operate in this country." 3.ADMINISTRATIVE LAW; JUDICIAL REVIEW; RIPENESS CONCEPT, EXCEPTIONS. Where a motion for reconsideration is pending with the court or administrative agency whose decision or order is assailed in a petition for certiorari, the resolution of said motion should ordinarily be awaited, and prior thereto an objection grounded on prematurity or ripeness of the certiorari petition can be raised. However, the Supreme Court would minimize the technical aspect of the ripeness concept where the issue raised is important and the matter to be resolved is impressed with strong public interest; in which event the Court would be impelled to go into the merits of the controversy and resolve what could be a debilitating uncertainty by working out a solution to the problem posed.

DECISION

FERNANDO, J p:

It must have been the realization that a challenge to a provisional permit issued by respondent Board of Transportation 1 based on the absence of a hearing is not likely to be attended with success that prompted petitioner to rely on another aspect of procedural due process, the infirmity alleged being traceable to what it considered lack of jurisdiction. 2 There is the invocation of Philippine Long Distance Telephone Company v. Medina 3 with its mention of both competitors and the public being notified. It does not suffice. Something more, much more, is necessary. The reliance is misplaced. Its applicability is by no means obvious. As was pointed out in the answer of respondent Board of Transportation, such a claim is hardly persuasive with the procedure set forth in Presidential Decree No. 101 being followed and the provisional authority to operate being based on an urgent public need. Such a contention merits the approval of the Court. The petition cannot prosper. Both petitioner and private respondent Sultan Rent-a-Car are domestic corporations. 4 The former has in his favor a certificate of public convenience to operate a public utility bus air-conditioned-auto-truck service from Cebu City to Mactan International Airport and vice-versa with the use of twenty (20) units. 5 Private respondent on September 12, 1974 filed a petition with the respondent Board for the issuance of a certificate of public convenience to operate a similar service on the same line. 6 Eight days later, without the required publication, the Board issued an order granting it provisional permit to operate such auto-truck service on the line applied for. 7 There was a motion for reconsideration and for the cancellation of such provisional permit filed on October 21, 1974, 8 but without awaiting final action thereon, this petition was filed. 9 This is the explanation: "That petitioner has not waited for the resolution of his Motion for Reconsideration before going to this Court considering that the question involved herein is purely a legal one, aside from the fact that the issuance of the Order without the Board having acquired jurisdiction of the case yet, is patently illegal or was performed without jurisdiction." 10 So it was set forth in the petition filed on November 16, 1974. As a preliminary injunction was likewise sought, a hearing was scheduled for November 29, 1974. It was cancelled, this Court issuing a resolution instead, requiring respondents to file an answer not later than December 6, 1974 and setting the hearing on the merits of the case on Wednesday, December 11, 1974. In the answer submitted the facts alleged were substantially admitted. 11 It denied the allegation that there must be a publication before a provisional permit can be issued, reference being made, as noted, to Presidential Decree No. 101, which authorized respondent Board to grant provisional permits when warranted by compelling circumstances and to proceed promptly along the method of legislative inquiry. 12 The case was then argued on December 11, 1974, Attorney Manuel Imbong appearing for petitioner and Assistant Solicitor General Reynato S. Puno appearing for respondent Board ofTransportation. 13 Thereafter, the parties were given twenty days to file their respective memoranda and an additional ten-day period to submit replies thereto if so minded. In time, all the pleadings were submitted, and the case was ready for decision. The petition, to repeat, cannot prosper. 1.It is to be admitted that the claim for relief on the asserted constitutional deficiency based on procedural due process, not from the standpoint of the absence of a hearing but from the lack of jurisdiction without the required publication having been made, was argued vigorously and developed exhaustively in the memoranda of petitioner. The arguments set forth, while impressed with plausibility, do not suffice to justify the grant of certiorari. Moreover, the doctrine announced in the Philippine Long Distance Telephone Company decision, heavily leaned on by petitioner is, at the most, a frail and insubstantial support and gives way to decisions of this Court that have an even more specific bearing on this litigation. 2.A barrier to petitioners's pretension, not only formidable but also insurmountable, is the well-settled doctrine that for a provisional permit, an ex parte hearing suffices. 14 The decisive consideration is the existence of the public need. 15 That was shown in this case, respondent Board, on the basis of demonstrable data, being satisfied of the pressing necessity for the grant of the provisional permit sought. There is no warrant for the nullification of what was ordered by it. It must have been, as already noted, this state of the law that did lead petitioner to harp on its interpretation of what for it is the teaching of the Philippine Long Distance Telephone Company decision. 16 There was therein stated that one of the compelling reasons that led this Court to hold that the defunct Public Service Commission did not acquire jurisdiction was that no provision was made for bringing in as parties thereto the competitors of the Philippine Long Distance Telephone Company. 17That is the basis for the objection on procedural due process ground. While no doubt such a holding was necessary for the decision of that case which dealt with a petition for the reexamination of a decision that was held to be final and executory, it finds no application to this controversy dealing with a provisional permit. This is made clear by this portion of the opinion of Justice Sanchez: "Araneta seeks reexamination of the rates approved by the Commission. Araneta avers that PLDT can carry out its improvement and expansion program at less onerous terms to the subscribers. But Araneta [University] was not a party to the rate-fixing case or to any of the other proceedings below. These rate-fixing and allied cases terminated with the final judgment of January 9, 1964. Not being a party, it could not have moved to reconsider said decision. Nor could it have appealed from that decision it had no standing in that case. Even if we treat Araneta's reexamination petition as one for reconsideration, the time therefor has long passed." 18 It was then stated: "The reexamination herein sought by Araneta, perforce seeks the fixing of new

and different rates." 19 Further: "Araneta, in effect, institutes a fresh petition for new rates, different from those already established. Such petition is a proceeding separate and distinct from those concluded by the final judgment of PSC of January 9, 1964." 20 The conclusion, therefore, necessarily follows: "We hold that the Public Service Commission may not reduce or increase rates established in a judgment that has become final, without proper notice; and that a Commission order reducing or increasing said rates without such notice is void." 21 Under the facts of that case, the procedural due process infirmity amounting to lack of jurisdiction is quite apparent. The opposite is true with this present petition which deals with a grant of provisional permit. It would be to lift out of context the reference made in the aforesaid opinion with reference to notification to the competitors to give a color of applicability to the situation before us. Clearly then, the allegation of a failure to follow the command of the due process guarantee is bereft of any legal foundation. 3.The question of whether the controversy is ripe for judicial determination was likewise argued by the parties. For it is undeniable that at the time the petition was filed, there was pending with the respondent Board a motion for reconsideration. Ordinarily, its resolution should be awaited. Prior thereto, an objection grounded on prematurity can be raised. Nonetheless, counsel for petitioner would stress that certiorari lies as the failure to observe procedural due process ousted respondent Board of whatever jurisdiction it could have had in the premises. This Court was impelled to go into the merits of the controversy at this stage, not only because of the importance of the issue raised but also because of the strong public interest in having the matter settled. As was set forth in Executive Order No. 101 which prescribes the procedure to be followed by respondent Board, it is the policy of the State, as swiftly as possible, to improve the deplorable condition of vehicular traffic, obtain maximum utilization of existing public motor vehicles and eradicate the harmful and unlawful trade of clandestine operators, as well as update the standards of those carrying such business, making it "imperative to provide, among other urgently needed measures, more expeditious methods in prescribing, redefining, or modifying the lines and mode of operation of public utility motor vehicles that now or thereafter, may operate in this country." 22 It is essential then both from the standpoint of the firms engaged as well as of the riding public to ascertain whether or not the procedure followed in this case and very likely in others of a similar nature satisfies the procedural due process requirement. Thus its ripeness for adjudication becomes apparent. To paraphrase what was said in Edu v. Ericta 23 where the validity of a legislation was passed upon in a certiorari proceeding to annul and set aside a writ of preliminary injunction, to so act would be to conserve both time and effort. Those desiring to engage in public utility business as well as the public are both vitally concerned with the final determination of the standards to be followed in the procedure that must be observed. There is, to repeat, a great public interest in a definitive outcome of the crucial issue involved. One of the most noted authorities on Administrative Law, Professor Kenneth Culp Davis, discussing the ripeness concept, is of the view that the resolution of what could be a debilitating uncertainty with the conceded ability of the judiciary to work out a solution of the problem posed is a potent argument for minimizing the emphasis laid on its technical aspect. 24 WHEREFORE, the petition for certiorari is dismissed. No costs.

Makalintal, C.J., Barredo, Antonio and Fernandez, JJ., concur.

N BANC [G.R. No. 85439. January 13, 1992.] KILUSANG BAYAN SA PAGLILINGKOD NG MGA MAGTITINDA NG BAGONG PAMILIHANG BAYAN NG MUNTINLUPA, INC., (KBMBPM), TERESITA A. FAJARDO, NADYESDA B. PONSONES, MA. FE V. BOMBASE, LOIDA D. LUCES, MARIO S. FRANCISCO, AMADO V. MANUEL, and ROLANDO G. GARCIA, incumbent members of the Board; AMADO G. PEREZ and MA. FE V. BOMBASE, incumbent General Manager and Secretary-Treasurer, respectively, petitioners, vs. HON. CARLOS G. DOMINGUEZ, Secretary of Agriculture, Regional Director of Region IV of the Department of Agriculture, ROGELIO P. MADRIAGA, RECTO CORONADO and Municipal Mayor IGNACIO R. BUNYE, both in his capacity as Municipal Mayor of Muntinlupa, Metro Manila and as Presiding Officer of Sangguniang Bayan ng Muntinlupa and John Does, respondents. [G.R. No. 91927. January 13, 1992.]

IGNACIO R. BUNYE, JAIME R. FRESNEDI, CARLOS G. TENSUAN, VICTOR E. AGUINALDO, ALEJANDRO I. MARTINEZ, EPIFANIO A. ESPELETA, REY E. BULAY, LUCIO B. CONSTANTINO, ROMAN E. NIEFES, NEMESIO O. MOZO, ROGER SMITH, RUFINO B. JOAQUIN, NOLASCO I. DIAZ, RUFINO IBE and NESTOR SANTOS, petitioners, vs. THE SANDIGANBAYAN, THE OMBUDSMAN, and ROGER C. BERBANO, Special Prosecutor III, respondents.

Jose O. Villanueva and Roberto B. Romanillos for petitioners in G.R. No. 85439. Alampay & Manhit Law Offices for petitioners in G.R. No. 91927.
SYLLABUS 1.THE PRINCIPLE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES DOES NOT APPLY TO ACTS OF THE DEPARTMENT SECRETARY. As to failure to exhaust administrative remedies, the rule is well-settled that this requirement does not apply where the respondent is a department secretary whose acts, as an alter ego of the President, bear the implied approval of the latter, unless actually disapproved by him. This doctrine of qualified political agency ensures speedy access to the courts when most needed, There was no need then to appeal the decision to the office of the President; recourse to the courts could be had immediately. 2.THE AUTHORITY OF THE SECRETARY OF AGRICULTURE UNDER P.D. NO. 175 TO SUPERVISE AND REGULATE COOPERATIVES DOES NOT INCLUDE THE POWER TO REMOVE THE DIRECTORS AND OFFICERS OFF COOPERATIVES. Respondent Secretary of Agriculture arrogated unto himself the power of the members of the KBMBPM who are authorized to vote to remove the petitioning directors and officers. He cannot take refuge under Section 8 of P.D. No. 175 which grants him authority to supervise and regulate all cooperatives. This section does not give him that right. An administrative officer has only such powers as are expressly granted to him and those necessarily implied in the exercise thereof. These powers should not be extended by implication beyond what may be necessary for their just and reasonable execution. 3.ADMINISTRATIVE SUPERVISION AND CONTROL, WHAT IT INCLUDES. Supervision and control include only the authority to: (a) act directly whenever a specific function is entrusted by law or regulation to a subordinate; (b) direct the performance of duty; restrain the commission of acts; (c) review, approve, reverse or modify acts and decisions of subordinate officials or units; (d) determine priorities in the execution of plans and programs; and (e) prescribe standards, guidelines, plans and programs. Specifically, administrative supervision is limited to the authority of the department or its equivalent to: (1) generally oversee the operations of such agencies and insure that they are managed effectively, efficiently and economically but without interference with day-to-day activities; (2) require the submission of reports and cause the conduct of management audit, performance evaluation and inspection to determine compliance with policies, standards and guidelines of the department; (3) take such action as may be necessary for the proper performance of official functions, including rectification of violations, abuses and other forms of mal-administration; (4) review and pass upon budget proposals of such agencies but may not increase or add to them. 4.PROCEDURAL DUE PROCESS IN ADMINISTRATIVE PROCEEDINGS INCLUDES RIGHT TO A HEARING. Due process is guaranteed by the Constitution and extends to administrative proceedings. In the landmark case of Ang Tibay vs. Court of Industrial Relations, this Court, through Justice Laurel, laid down the cardinal primary requirements of due process in administrative proceedings, foremost of which is the right to a hearing, which includes the right to present one's case and submit evidence in support thereof The need for notice and the opportunity to be heard is the heart of procedural due process, be it in either judicial or administrative proceedings. 5.DENIAL OF PROCEDURAL DUE PROCESS IS CURED BY THE OPPORTUNITY TO BE HEARD ON A SUBSEQUENT MOTION FOR RECONSIDERATION. Nevertheless, a plea of a denial of procedural due process does not lie where a defect consisting in an absence of notice of hearing was thereafter cured by the aggrieved party himself as when he had the opportunity to be heard on a subsequent motion for reconsideration. This is consistent with the principle that what the law prohibits is not the absence of previous notice but the absolute absence thereof and lack of an opportunity to be heard. 6.LACK OF PRELIMINARY INVESTIGATION NOT A GROUND TO QUASH COMPLAINT OR INFORMATION. If not waived, absence thereof may amount to a denial of due process. However, lack of preliminary investigation is not a ground to quash or dismiss a complaint or information. Much less does it affect the court's jurisdiction. In People vs. Casiano, this Court ruled: "Independently of the foregoing, the absence of such investigation [preliminary] did not impair the validity of the information or otherwise render it defective. Much less did it affect the jurisdiction of the court of first instance over the present case. Hence, had the defendant-appellee been entitled to another preliminary investigation, and had his plea

of not guilty upon arraignment not implied a waiver of said right, the court of first instance should have, either conducted such preliminary investigation, or ordered the Provincial Fiscal to make it, in pursuance of section 1687 of the Revised Administrative Code (as amended by Republic Act No. 732), or remanded the record for said investigation to the justice of the peace court, instead of dismissing the case, as it did in the order appealed from." 7.THE INFORMATION MAY BE AMENDED WITHOUT LEAVE OF COURT BEFORE ARRAIGNMENT; RELIANCE ON DOROMAL V. SANDIGANBAYAN (177 SCRA 354) IN THIS CASE IS MISPLACED. The prosecution may amend the information without leave of court before arraignment, and such does not prejudice the accused. Reliance on the pronouncements in Doromal vs. Sandiganbayan is misplaced as what obtained therein was the preparation of an entirely new information as contrasted with mere amendments introduced in the amended information, which also charges petitioners with violating Section 3 (e) of the Anti-Graft Law.

DECISION

DAVIDE, JR., J p: These cases have been consolidated because they are closely linked with each other as to factual antecedents and issues. LexLib The first case, G.R. No. 85439 (hereinafter referred to as the Kilusang Bayan case), questions the validity of the Order of 28 October 1988 of then Secretary of Agriculture Hon. Carlos G. Dominguez which ordered: (1) the take-over by the Department of Agriculture of the management of the petitioner Kilusang Bayan sa Paglilingkod Ng Mga Magtitinda Ng Bagong Pamilihang Bayan ng Muntinlupa, Inc. (KBMBPM) pursuant to the Department's regulatory and supervisory powers under Section 8 of P.D. No. 175, as amended, and Section 4 of Executive Order No. 13, (2) the creation of a Management Committee which shall assume the management of KBMBPM upon receipt of the order, (3) the disbandment of the Board of Directors, and (4) the turn over of all assets, properties and records of the KBMBPM to the Management Committee. The second case, G.R. No. 91927 (hereinafter referred to as the Bunye case), seeks the nullification of the Resolution of 4 January 1990 of the Sandiganbayan admitting the Amended Information against petitioners in Criminal Case No. 13966 and denying their motion to order or direct preliminary investigation, and its Resolution of 1 February 1990 denying the motion to reconsider the former. The procedural and factual antecedents are not disputed. On 2 September 1985, the Municipal Government of Muntinlupa (hereinafter, Municipality), Metro Manila, thru its then Mayor Santiago Carlos, Jr., entered into a contract with the KILUSANG BAYAN SA PAGLILINGKOD NG MGA MAGTITINDA SA BAGONG PAMILIHANG BAYAN NG MUNTINLUPA, INC. (KBMBPM) represented by its General Manager, Amado Perez, for the latter's management and operation of the new Muntinlupa public market. The contract provides for a twenty-five (25) year term commencing on 2 September 1985, renewable for a like period, unless sooner terminated and/or rescinded by mutual agreement of the parties, at a monthly consideration of Thirty-Five Thousand Pesos (P35,000) to be paid by the KBMBPM within the first five (5) days of each month which shall, however, be increased by ten percent (10%) each year during the first five (5) years only. 1 The KBMBPM is a service cooperative organized by and composed of vendors occupying the New Muntinlupa Public Market in Alabang, Muntinlupa, Metro Manila pursuant to Presidential Decree No. 175 and Letter of Implementation No. 23; its articles of incorporation and by-laws were registered with the then Office of the Bureau of Cooperatives Development (thereafter the Bureau of Agricultural Cooperatives Development or BACOD and now the Cooperative Development Authority). 2 Following his assumption into office as the new mayor succeeding Santiago Carlos, Jr., petitioner Ignacio Bunye, claiming to be particularly scandalized by the "virtual 50-year term of the agreement, contrary to the provision of Section 143, paragraph 3 of Batas Pambansa Blg. 337," and the "patently inequitable rental," directed a review of the aforesaid contract. 3 He sought opinions from both the Commission on Audit and the Metro Manila Commission (MMC) on the validity of the instrument. In separate letters, these agencies urged that appropriate legal steps be taken towards its rescission. The letter of Hon. Elfren Cruz of the MMC even granted the Municipality authority "to take the necessary legal steps for the cancellation/rescission of the above cited contract and make representations with KBMBPM for the immediate transfer/takeover of the possession, management and operation of the New Muntinlupa Market to the Municipal Government of Muntinlupa." 4

Consequently, upon representations made by Bunye with the Municipal Council, the latter approved on 1 August 1988 Resolution No. 45 abrogating the contract. To implement this resolution, Bunye, together with his co-petitioners and elements of the Capital Command of the Philippine Constabulary, proceeded, on 19 August 1986, to the public market and announced to the general public and the stallholders thereat that the Municipality was taking over the management and operation of the facility, and that the stallholders should thenceforth pay their market fees to the Municipality, thru the Market Commission, and no longer to the KBMBPM. 5 On 22 August 1988, the KBMBPM filed with Branch 13 of the Regional Trial Court of Makati a complaint for breach of contract, specific performance and damages with prayer for a writ of preliminary injunction against the Municipality and its officers, which was docketed as Civil Case No. 88-1702. 6 The complaint was premised on the alleged illegal take-over of the public market effected "in excess of his (Bunye's) alleged authority" and thus "constitutes breach of contract and duty as a public official." The writ applied for having been denied, 7 the KBMBPM officers resisted the attempts of Bunye and company to complete the take-over; they continued holding office in the KBS building, under their respective official capacities. The matter having been elevated to this Court by way of certiorari, 8 We remanded the same to the Court of Appeals which docketed it as C.A.-G.R. No. L-16930. 9 On 26 August 1988, Amado Perez filed with the Office of the Ombudsman a letter-complaint charging Bunye and his copetitioners with oppression, harassment, abuse of authority and violation of the Anti-Graft and Corrupt Practices Act 10 for taking over the management and operation of the public market from KBMBPM. 11 In a subpoena dated 7 October 1988, prosecutor Mothalib C. Onos of the Office of the Special Prosecutor directed Bunye and his co-petitioners to submit within ten (10) days from receipt thereof counter-affidavits, affidavits of their witnesses and other supporting documents. 12 The subpoena and letter-complaint were received on 12 October 1988. On 20 October 1988, two (2) days before the expiration of the period granted to file said documents, Bunye, et al. filed by mail an urgent motion for extension of "at least fifteen (15) days from October 22, 1988" within which to comply 13 with the subpoena. Thereafter, the following transpired which subsequently gave rise to these petitions:

G.R. No. 85439

In the early morning of 29 October 1988, a Saturday, respondent Madriaga and Coronado, allegedly accompanied by Mayor Bunye and the latters' heavily armed men, both in uniform and in civilian clothes, together with other civilians, namely: Romulo Bunye II, Alfredo Bunye, Tomas Osias, Reynaldo Camilon, Benjamin Taguibao, Banjamin Bulos and other unidentified persons, allegedly through force, violence and intimidation, forcibly broke open the doors of the offices of petitioners located at the second floor of the KBS Building, new Muntinlupa Public Market, purportedly to serve upon petitioners the Order of respondent Secretary of Agriculture dated 28 October 1988, and to implement the same, by talking over and assuming the management of KBMBPM, disbanding the then incumbent Board of Directors for that purpose and excluding and prohibiting the General Manager and the other officers from exercising their lawful functions as such. 14 The Order of the Secretary reads as follows: 15 "O R D E R WHEREAS, the KILUSANG BAYAN SA PAGLILINGKOD NG MGA MAGTITINDA NG BAGONG PAMILIHANG BAYAN NG MUNTINLUPA, INC., (KBMBPM), Alabang, Muntinlupa, Metro Manila is a Cooperative registered under the provisions of Presidential Decree No. 175, as amended; WHEREAS, the Department of Agriculture is empowered to regulate and supervise cooperatives registered under the provisions of Presidential Decree No. 175, as amended: WHEREAS, the general membership of the KBMBPM has petitioned the Department of Agriculture for assistance in the removal of the members of the Board of Directors who were not elected by the general membership of said cooperative; WHEREAS, the on-going financial and management audit of the Department of Agriculture auditors show (sic) that the management of the KBMBPM is not operating that cooperative in accordance with P.D. 175, LOI No. 23, the Circulars issued by DA/BACOD and the provisions of the by-laws of KBMBPM; WHEREAS, the interest of the public so demanding it is evident and urgently necessary that the KBMBPM MUST BE PLACED UNDER MANAGEMENT TAKE-OVER of the Department of Agriculture in order to preserve the financial interest of the members of the cooperative and to enhance the cooperative development program of the government;

WHEREAS, it is ordered that the Department of Agriculture in the exercise of its regulatory and supervisory powers under Section 8 of PD 175, as amended, and Section 4 of Executive Order No. 113, take over the management of KBMBPM, under the following directives: 1.THAT a Management Committee is hereby created composed of the following: a)Reg. Dir. or OIC RD DA Region IV b)Atty. Rogelio P. Madriaga BACOD c)Mr. Recto Coronado KBMBPM d)Mrs. Nadjaida Ponsones KBMBPM e)One (1) from the Municipal Government of Muntinlupa to be designated by the Sangguniang Pambayan ng Muntinlupa. 2.THAT the Management Committee shall, upon receipt of this Order, assume the management of KBMBPM; 3.THAT the present Board of Directors is hereby disbanded and the officers and Manager of the KBMBPM are hereby directed to turnover all assets, properties and records of the KBMBPM to the Management Committee herein created: 4.THAT the Management Committee is hereby empowered to promulgate rules of procedure to govern its workings as a body; 5.THAT the Management Committee shall submit to the undersigned thru the Director of BACOD monthly reports on the operations ofKBMBPM; 6.THAT the Management Committee shall call a General Assembly of all registered members of the KBMBPM within Ninety (90) days from date of this Order to decide such matters affecting the KBMBPM, including the election of a new set of Board of Director (sic). This Order takes effect immediately and shall continue to be in force until the members of the Board of Directors shall have been duly elected and qualified. Done this 28th day of October, 1988 at Quezon City." As claimed by petitioners, the Order served on them was not written on the stationery of the Department, does not bear its seal and is a mere xerox copy. The so-called petition upon which the Order is based appears to be an unverified petition dated 10 October 1988 signed, according to Mayor Bunye, 16 by 371 members of the KBMBPM. On 2 November 1988, petitioners filed the petition in this case alleging, inter alia, that: (a)Respondent Secretary acted without or in excess of jurisdiction in issuing the Order for he arrogated unto himself a judicial function by determining the alleged guilt of petitioners on the strength of a mere unverified petition; the disbandment of the Board of Directors was done without authority of law since under Letter of Implementation No. 23, removal of officers, directors or committee members could be done only by the majority of the members entitled to vote at an annual or special general assembly and only after an opportunity to be heard at said assembly. (b)Respondent Secretary acted in a capricious, whimsical, arbitrary and despotic manner, so patent and gross that it amounted to a grave abuse of discretion. (c)The Order is a clear violation of the By-Laws of KBMBPM and is likewise illegal and unlawful for it allows or tolerates the violation of the penal provisions under paragraph (c), Section 9 of P.D. No. 175. (d)The Order is a clear violation of the constitutional right of the individual petitioners to be heard. 17 They pray that upon the filing of the petition, respondents, their agents, representatives or persons acting on their behalf be ordered to refrain, cease and desist from enforcing and implementing the questioned Order or from excluding the individual petitioners from the exercise of their rights as such officers and, in the event that said acts sought to be restrained were allegedly partially or wholly done, to immediately restore the management and operation of the public market to petitioners, order respondents to vacate the premises and, thereafter, preserve the status quo; and that, finally, the challenged Order be declared null and void. In the Resolution of 9 October 1988, 18 We required the respondents to Comment on the petition. Before any Comment could be filed, petitioners filed on 2 January 1989 an Urgent Ex-Parte Motion praying that respondent Atty. Rogelio Madriaga, who had assumed the position of Chairman of the Management Committee, be ordered to stop and/or cancel

the scheduled elections of the officers of the KBMBPM on 6 January 1989 and, henceforth, desist from scheduling any election of officers or Members of the Board of Directors thereof until further orders of the Court. 19 The elections were, nevertheless, held and a new board of directors was elected. So, on 19 January 1989, petitioners filed a supplemental motion 20 praying that respondent Madriaga and the "newly elected Board of Directors be ordered to cease and desist from assuming, performing or exercising powers as such, and or from removing or replacing the counsels of petitioners as counsels for KBMBPM and for Atty. Fernando Aquino, Jr., to cease and desist from unduly interfering with the affairs and business of the cooperative. Respondent Bunye, by himself, filed his Comment on 23 January 1989. 21 He denies the factual allegations in the petition and claims that petitioners failed to exhaust administrative remedies. A reply thereto was filed by petitioners on 7 February 1989. 22 Respondent Recto Coronado filed two (2) Comments. The first was filed on 6 February 1989 23 by his counsel, Atty. Fernando Aquino, Jr., and the second, which is for both him and Atty. Madriaga, was filed by the latter on 10 February 1989. 24 On 20 February 1989, petitioners filed a Reply to the first Comment of Coronado 25 and an Ex-Parte Motion for the immediate issuance of a cease and desist order 26praying that the so-called new directors and officers of KBMBPM, namely: Tomas M. Osias, Ildefonso B. Reyes, Paulino Moldez, Fortunato M. Medina, Aurora P. del Rosario, Moises Abrenica, and Lamberto Casalla, be ordered to immediately cease and desist from filing notices of withdrawals or motions to dismiss cases filed by the Cooperative now pending before the courts, administrative offices and the Ombudsman and Tanodbayan, and that if such motions or notices were already filed, to immediately withdraw and desist from further pursuing the same until further orders of this Court. The latter was precipitated by the Resolution No. 19 of the "new" board of directors withdrawing all cases filed by its predecessors against Bunye, et al., and more particularly the following cases: (a) G.R. No. 85439 (the instant petition), (b) Civil Case No. 88-1702, (c) OSP Case No. 88-2110 before the Ombudsman, (d) IBP Case No. 88-0119 before the Tanodbayan, and (e) Civil Case No. 88-118 for Mandamus. 27 On 1 March 1989, We required the Solicitor General to file his Comment to the petition and the urgent motion for the immediate issuance of a cease and desist order.28 A motion to dismiss the instant petition was filed on 30 March 1989. 29 On 19 April 1989, We resolved to dismiss the case and consider it closed and terminated. 30Thereupon, after some petitioners filed a motion for clarification and reconsideration, We set aside the dismissal order and required the new directors to comment on the Opposition to Motion to Dismiss filed by the former. 31 The new board, on 14 June 1989, prayed that its Manifestation of 6 June 1989 and Opposition dated 9 June 1989, earlier submitted in response to petitioners' motion for reconsideration of the order dismissing the instant petition, be treated as its Comment. 32 Both parties then continued their legal fencing, serving several pleadings on each other. In Our Resolution of 9 August 1989, 33 We gave the petition due course and required the parties to submit their respective Memoranda. On 14 August 1989, petitioners filed an urgent ex-parte motion for the immediate issuance of a cease and desist order 34 in view of the new board's plan to enter into a new management contract; the motion was noted by this Court on 23 August 1989. A second ex-parte motion, noted on 18 October 1989, was filed on 19 September 1989 asking this Court to consider the "Invitation to pre-qualify and bid" for a new contract published by respondent Bunye. 35 In a belated Comment 36 for the respondent Secretary of Agriculture filed on 22 September 1989, the Office of the Solicitor General asserts that individual petitioners, who were not allegedly elected by the members or duly designated by the BACOD Director, have no right or authority to file this case; the assailed Order of the Secretary was issued pursuant to P.D. No. 175, more particularly Section 8 thereof which authorizes him "(d) to suspend the operation or cancel the registration of any cooperative after hearing and when in its judgment and based on findings, such cooperative is operating in violation of this Decree, rules and regulations, existing laws as well as the by-laws of the cooperative itself;" the Order is reasonably necessary to correct serious flaws in the cooperative and provide interim measures until election of regular members to the board and the officers thereof; the elections conducted on 6 January 1989 are valid; and that the motion to dismiss filed by the new board of directors binds the cooperative. It prays for the dismissal of the petition. Respondent Secretary of Agriculture manifested on 22 September 1989 that he is adopting the Comment submitted by the Office of the Solicitor General as his memorandum; 37 petitioners and respondents Coronado and Madriaga filed their separate Memoranda on 6 November 1989; 38 while the new board of directors submitted its Memorandum on 11 December 1989. 39 The new KBMBPM board submitted additional pleadings on 16 February 1990 which it deemed relevant to the issues involved herein. Reacting, petitioners filed a motion to strike out improper and inadmissible pleadings and annexes and

sought to have the pleaders cited for contempt. Although We required respondents to comment, the latter did not comply. Nevertheless, a manifestation was filed by the same board on 25 February 1991 40 informing this Court of the holding, on 9 January 1991, of its annual general assembly and election of its board of directors for 1991. It then reiterates the prayer that the instant petition be considered withdrawn and dismissed. Petitioners filed a counter manifestation alleging that the instant petition was already given due course on 9 August 1989. 41 In its traverse to the counter manifestation, the new board insists that it "did not derive authority from the October 28, 1988 Order, the acts of the Management Committee, nor (sic) from the elections held in (sic) January 6, 1989," but rather from the members of the cooperative who elected them into office during the elections. Petitioners filed a rejoinder asserting that the election of new directors is not a supervening event independent of the main issue in the present petition and that to subscribe to the argument that the issues in the instant petition became moot with their assumption into office is to reward a wrong done.

G.R. No. 91927

Petitioners claim that without ruling on their 20 October 1988 motion for an extension of at least 15 days from 22 October 1988 within which to file their counter-affidavits, which was received by the Office of the Special Prosecutor on 3 November 1988, Special Prosecutor Onos promulgated on 11 November 1988 a Resolution finding the evidence on hand sufficient to establish a prima facie case against respondents (herein petitioners) and recommending the filing of the corresponding information against them before the Sandiganbayan. 42 Petitioners also claim that they submitted their counter-affidavits on 9 November 1988. 43 In their motion dated 2 December 1988, petitioners move for a reconsideration of the above Resolution, 44 which was denied by Onos 45 in his 18 January 1989 Order. The information against the petitioners was attached to this order. Upon submission of the records for his approval, the Ombudsman issued a first indorsement on 4 April 1989 referring to "Judge Gualberto J. de la Llana, Acting Director, IEO/RSSO, this Office, the within records of OSP Case No. 88-02110 . . . for further preliminary investigation . . ." 46 Thereafter, on 28 April 1989, Bunye and company received a subpoena from de la Llana requiring them to appear before the latter on 25 April 1989, 47 submit a report and file comment. After being granted an extension, Bunye and company submitted their comment on 18 May 1989. 48 On 22 August 1989, de la Llana recommended the filing of an information for violation of section 3 (e) of the Anti-Graft and Corrupt Practices Act. 49 The case was referred to special prosecuting officer Jose Parentela, Jr. who, in his Memorandum 50 to the Ombudsman through the Acting Special Prosecutor, likewise urged that an information be filed against herein petitioners. On 3 October 1989, the Ombudsman signed his conformity to the Memorandum and approved the 18 January information prepared by Onos, which was then filed with the Sandiganbayan. Consequently, Bunye, et al. were served arrest warrants issued by the Sandiganbayan. Detained at the NBI on 9 October 1989, they claim to have discovered only then the existence of documents recommending and approving the filing of the complaint and a memorandum by special prosecutor Bernardita G. Erum proposing the dismissal of the same. 51 Arraignment was set for 18 October 1989. 52 However, on 14 October 1989, petitioners filed with the Sandiganbayan an "Omnibus Motion to Remand to the Office of the Ombudsman; to Defer Arraignment and to Suspend Proceedings." 53 Subsequently, through new counsel, petitioners filed on 17 October 1989 a Consolidated Manifestation and Supplemental Motion 54 praying, inter alia, for the quashal of the information on the ground that they were deprived of their right to a preliminary investigation and that the information did not charge an offense. The Sandiganbayan issued an order on 18 October 1989 deferring arraignment and directing the parties to submit their respective memoranda, 55 which petitioners complied with on 2 November 1989. 56 On 16 November 1989, Special Prosecutor Berbano filed a motion to admit amended information. 57 On 17 November 1989, the Sandiganbayan handed down a Resolution 58 denying for lack of merit the Omnibus Motion to Remand the Case To The Office of the Ombudsman, to Defer Arraignment and to Suspend Proceedings. Petitioners then filed a motion to order a preliminary investigation 59 on the basis of the introduction by the amended information of new, material and substantive allegations, which the special prosecutor opposed, 60 thereby precipitating a rejoinder filed by petitioners. 61 On 4 January 1990, the Sandiganbayan handed down a Resolution 62 admitting the Amended Information and denying the motion to direct preliminary investigation. Their motion to reconsider this Resolution having been denied in the Resolution of 1 February 1990, 63 petitioners filed the instant petition on 12 February 1990.

Petitioners claim that respondent Sandiganbayan acted without or in excess of jurisdiction or with manifest grave abuse of discretion amounting to lack of jurisdiction in denying petitioners their right to preliminary investigation and in admitting the Amended Information. They then pray that: (a) the 4 January and 1 February 1990 Resolutions of the Sandiganbayan, admitting the amended information and denying the motion for reconsideration respectively, be annulled; (b) a writ be issued enjoining the Sandiganbayan from proceeding further in Criminal Case No. 13966; and (c) respondents be enjoined from pursuing further actions in the graft case. We required the respondents to Comment on the petition. On 21 February 1990, petitioners' counsel filed a motion to drop Epifanio Espeleta and Rey E. Dulay as petitioners, 64 and in the Comment they filed on 30 March 1990, in compliance with Our Resolution of 1 March 1990, they state that they do not interpose any objection to the motion. On 20 March 1990, the Office of the Solicitor General moved that it be excused from filing comment for the respondents as it cannot subscribe to the position taken by the latter with respect to the questions of law involved. 65 We granted this motion in the resolution of 8 May 1990. Respondent Berbano filed his comment on 10 September 1991 and petitioners replied on 20 December 1990, Berbano subsequently filed a Rejoinder thereto on 11 January 1991. 66 The Sandiganbayan then filed a manifestation proposing that it be excused from filing comment as its position on the matters in issue is adequately stated in the resolutions sought to be annulled. 67 On 7 March 1991, We resolved to note the manifestation and ordered the instant petition consolidated with G.R. No. 85439. The present dispute revolves around the validity of the antecedent proceedings which led to the filing of the original information on 18 January 1989 and the amended information afterwards.

THE ISSUES AND THEIR RESOLUTION

1.G.R. No. 85439 As adverted to in the introductory portion of this Decision, the principal issue in G.R. No. 85439 is the validity of the 28 October 1988 Order of respondent Secretary of Agriculture. The exordium of said Order unerringly indicates that its basis is the alleged petition of the general membership of the KBMBPM requesting the Department for assistance "in the removal of the members of the Board of Directors who were not elected by the general membership" of the cooperative and that the "ongoing financial and management audit of the Department of Agriculture auditors show (sic) that the management of the KBMBPM is not operating that cooperative in accordance with P.D. 175, LOI 23, the Circulars issued by DA/BACOD and the provisions and by-laws of KBMBPM." It is also professed therein that the Order was issued by the Department "in the exercise of its regulatory and supervisory powers under Section 8 of P.D. 175, as amended, and Section 4 of Executive Order No. 113." Respondents challenge the personality of the petitioners to bring this action, set up the defense of non-exhaustion of administrative remedies, and assert that the Order was lawfully and validly issued under the above decree and Executive Order. We find merit in the petition and the defenses interposed do not persuade Us. Petitioners have the personality to file the instant petition and ask, in effect, for their reinstatement as Section 3, Rule 65 of the Rules of Court, defining an action for mandamus, permits a person who has been excluded from the use and enjoyment of a right or office to which he is entitled, to file suit. 68 Petitioners, as ousted directors of the KBMBPM, are questioning precisely the act of respondent Secretary in disbanding the board of directors; they then pray that this Court restore them to their prior stations. As to failure to exhaust administrative remedies, the rule is well-settled that this requirement does not apply where the respondent is a department secretary whose acts, as an alter ego of the President, bear the implied approval of the latter, unless actually disapproved by him. 69 This doctrine of qualified political agency ensures speedy access to the courts when most needed, There was no need then to appeal the decision to the office of the President; recourse to the courts could be had immediately. Moreover, the doctrine of exhaustion of administrative remedies also yields to other exceptions, such as when the question involved is purely legal, as in the instant case, 70 or where the questioned act is patently illegal, arbitrary or oppressive. 71 Such is the claim of petitioners which, as hereinafter shown, is correct. And now on the validity of the assailed Order. Regulation 34 of Letter of Implementation No. 23 (implementing P.D. No. 175) provides the procedure for the removal of directors or officers of cooperatives, thus:

"An elected officer, director or committee member may be removed by a vote of majority of the members entitled to vote at an annual or special general assembly. The person involved shall have an opportunity to be heard." A substantially identical provision, found in Section 17, Article III of the KBMBPM's by-laws, reads: "SECTION 17.Removal of Directors and Committee Members. Any elected director or committee member may be removed from office for cause by a majority vote of the members in good standing present at the annual or special general assembly called for the purpose after having been given the opportunity to be heard at the assembly." Under the same article are found the requirements for the holding of both the annual general assembly and a special general assembly. Indubitably then, there is an established procedure for the removal of directors and officers of cooperatives. It is likewise manifest that the right to due process is respected by the express provision on the opportunity to be heard. But even without said provision, petitioners cannot be deprived of that right. The procedure was not followed in this case. Respondent Secretary of Agriculture arrogated unto himself the power of the members of the KBMBPM who are authorized to vote to remove the petitioning directors and officers. He cannot take refuge under Section 8 of P.D. No. 175 which grants him authority to supervise and regulate all cooperatives. This section does not give him that right. An administrative officer has only such powers as are expressly granted to him and those necessarily implied in the exercise thereof. 72 These powers should not be extended by implication beyond what may be necessary for their just and reasonable execution. 73 Supervision and control include only the authority to: (a) act directly whenever a specific function is entrusted by law or regulation to a subordinate; (b) direct the performance of duty; restrain the commission of acts; (c) review, approve, reverse or modify acts and decisions of subordinate officials or units; (d) determine priorities in the execution of plans and programs; and (e) prescribe standards, guidelines, plans and programs. Specifically, administrative supervision is limited to the authority of the department or its equivalent to: (1) generally oversee the operations of such agencies and insure that they are managed effectively, efficiently and economically but without interference with day-to-day activities; (2) require the submission of reports and cause the conduct of management audit, performance evaluation and inspection to determine compliance with policies, standards and guidelines of the department; (3) take such action as may be necessary for the proper performance of official functions, including rectification of violations, abuses and other forms of mal-administration; (4) review and pass upon budget proposals of such agencies but may not increase or add to them. 74 The power to summarily disband the board of directors may not be inferred from any of the foregoing as both P.D. No. 175 and the by-laws of the KBMBPM explicitly mandate the manner by which directors and officers are to be removed. The Secretary should have known better than to disregard these procedures and rely on a mere petition by the general membership of the KBMBPM and an on-going audit by Department of Agriculture auditors in exercising a power which he does not have, expressly or impliedly. We cannot concede to the proposition of the Office of the Solicitor General that the Secretary's power under paragraph (d), Section 8 of P.D. No. 175 above quoted to suspend the operation or cancel the registration of any cooperative includes the "milder authority of suspending officers and calling for the election of new officers." Firstly, neither suspension nor cancellation includes the take-over and ouster of incumbent directors and officers, otherwise the law itself would have expressly so stated. Secondly, even granting that the law intended such as postulated, there is the requirement of a hearing. None was conducted. Likewise, even if We grant, for the sake of argument, that said power includes the power to disband the board of directors and remove the officers of the KBMBPM, and that a hearing was not expressly required in the law, still the Order can be validly issued only after giving due process to the affected parties, herein petitioners. Due process is guaranteed by the Constitution 75 and extends to administrative proceedings. In the landmark case of Ang Tibay vs. Court of Industrial Relations, 76this Court, through Justice Laurel, laid down the cardinal primary requirements of due process in administrative proceedings, foremost of which is the right to a hearing, which includes the right to present one's case and submit evidence in support thereof. The need for notice and the opportunity to be heard is the heart of procedural due process, be it in either judicial or administrative proceedings. 77 Nevertheless, a plea of a denial of procedural due process does not lie where a defect consisting in an absence of notice of hearing was thereafter cured by the aggrieved party himself as when he had the opportunity to be heard on a subsequent motion for reconsideration. This is consistent with the principle that what the law prohibits is not the absence of previous notice but the absolute absence thereof and lack of an opportunity to be heard. 78

In the instant case, there was no notice of a hearing on the alleged petition of the general membership of the KBMBPM; there was, as well, not even a semblance of a hearing. The Order was based solely on an alleged petition by the general membership of the KBMBPM. There was then a clear denial of due process. It is most unfortunate that it was done after democracy was restored through the peaceful people revolt at EDSA and the overwhelming ratification of a new Constitution thereafter, which preserves for the generations to come the gains of that historic struggle which earned for this Republic universal admiration. If there were genuine grievances against petitioners, the affected members should have timely raise these issues in the annual general assembly or in a special general assembly. Or, if such a remedy would be futile for some reason or another, judicial recourse was available. Be that as it may, petitioners cannot, however, be restored to their positions. Their terms expired in 1989, thereby rendering their prayer for reinstatement moot and academic. Pursuant to Section 13 of the by-laws, during the election at the first annual general assembly after registration, one-half plus one (4) of the directors obtaining the highest number of votes shall serve for two years, and the remaining directors (3) for one year; thereafter, all shall be elected for a term of two years. Hence, in 1988, when the board was disbanded, there was a number of directors whose terms would have expired the next year (1989) and a number whose terms would have expired two years after (1990). Reversion to the status quo preceding 29 October 1988 would not be feasible in view of this turn of events. Besides, elections were held in 1990 and 1991. 79 The affairs of the cooperative are presently being managed by a new board of directors duly elected in accordance with the cooperative's by-laws. cdll 2.G.R. No. 91927 The right of an accused to a preliminary investigation is not among the rights guaranteed him in the Bill of Rights. As stated in Marcos, et al. vs. Cruz, 80 "the preliminary investigation in criminal cases is not a creation of the Constitution; its origin is statutory and it exists and the right thereto can be invoked when so established and granted by law." It is so specifically granted by procedural law. 81 If not waived, absence thereof may amount to a denial of due process. 82 However, lack of preliminary investigation is not a ground to quash or dismiss a complaint or information. Much less does it affect the court's jurisdiction. In People vs. Casiano,83 this Court ruled: "Independently of the foregoing, the absence of such investigation [preliminary] did not impair the validity of the information or otherwise render it defective. Much less did it affect the jurisdiction of the court of first instance over the present case. Hence, had the defendant-appellee been entitled to another preliminary investigation, and had his plea of not guilty upon arraignment not implied a waiver of said right, the court of first instance should have, either conducted such preliminary investigation, or ordered the Provincial Fiscal to make it, in pursuance of section 1687 of the Revised Administrative Code (as amended by Republic Act No. 732), or remanded the record for said investigation to the justice of the peace court, instead of dismissing the case, as it did in the order appealed from." This doctrine was thereafter reiterated or affirmed in several cases. 84 In the instant case, even if it is to be conceded for argument's sake that there was in fact no preliminary investigation, the Sandiganbayan, per Doromal vs. Sandiganbayan, 85 "should merely suspend or hold in abeyance proceedings upon the questioned Amended Information and remand the case to the Office of the Ombudsman for him to conduct a preliminary investigation." It is Our view, however, that petitioners were not denied the right to preliminary investigation. They, nevertheless, insist that the preliminary investigation conducted by the Office of the Special Prosecutor existed more in form than in substance. This is anchored on the failure by prosecutor Onos to consider the counter-affidavits filed by petitioners. The same sin of omission is ascribed to Acting Director de la Llana who purportedly failed to consider the comments submitted by the petitioners pursuant to a subpoena dated 13 April 1989. The failure of special prosecutor Berbano to conduct a preliminary investigation before amending the information is also challenged. It is finally urged that the Sandiganbayan completely disregarded the "glaring anomaly that on its face the Information filed by the Office of the Special Prosecutor" was prepared and subscribed on 18 January 1989, while the records indicate that the preliminary investigation was concluded on 3 October 1989. In his Comment, respondent Berbano dispassionately traces the genesis of the criminal information filed before the Sandiganbayan. His assessment that a preliminary investigation sufficient in substance and manner was conducted prior to the filing of the information reflects the view of the Sandiganbayan, maintained in both the 17 November 1989 and 4 January 1990 resolutions, that there was compliance with the requirements of due process. Petitioners were provided a reasonable period within which to submit their counter-affidavits; they did not avail of the original period; they moved for an extension of at least fifteen (15) days from 22 October 1988. Despite the urgency of its nature, the motion was sent by mail. The extension prayed for was good up to 6 November 1988. But, as admitted by them, they filed the Counter-Affidavits only on 9 November 1988. Yet, they blamed Prosecutor Onos for promulgating the

11 November 1989 Resolution and for, allegedly, not acting on the motion. Petitioners then should not lay the blame on Onos; they should blame themselves for presuming that the motion would be granted. This notwithstanding, petitioners were able to file a Motion for Reconsideration on 13 December 1988 requesting that the reviewing prosecutor consider the belatedly filed documents; 86 thus, there is the recommendation of prosecutor Bernardita Erum calling for the dismissal of the charges on 2 March 1989, which, however, was not sustained upon subsequent review. The Sandiganbayan, in its 17 November 1989 Resolution, succinctly summed up the matter when it asserted that "even granting, for the sake of argument, that prosecutor Onos . . . failed to consider accused-movants' counter-affidavits, such defect was cured when a 'Motion for Reconsideration' was filed, and which . . . de la Llana took into account upon review." It may not then be successfully asserted that the counter-affidavits were not considered by the Ombudsman in approving the information. Perusal of the factual antecedents reveals that a second investigation was conducted upon the "1st Indorsement" of the Ombudsman of 4 April 1989. As a result, subpoenas were issued and comments were asked to be submitted, which petitioners did, but only after a further extension of fifteen (15) days from the expiration of the original deadline. From this submission the matter underwent further review. Moreover, in the 18 January 1989 Order of prosecutor Onos, there was an ample discussion of the defenses raised by the petitioners in their counter-affidavits, thus negating the charge that the issues raised by them were not considered at all. 87 It is indisputable that the respondents were not remiss in their duty to afford the petitioners the opportunity to contest the charges thrown their way. Due process does not require that the accused actually file his counter-affidavits before the preliminary investigation is deemed completed. All that is required is that he be given the opportunity to submit such if he is so minded. 88 In any event, petitioners did in fact, although belatedly, submit their counter-affidavits and as a result thereof, the prosecutors concerned considered them in subsequent reviews of the information, particularly in the re-investigation ordered by the Ombudsman. And now, as to the protestation of lack of preliminary investigation prior to the filing of the Amended Information. The prosecution may amend the information without leave of court before arraignment, 89 and such does not prejudice the accused. 90 Reliance on the pronouncements in Doromal vs. Sandiganbayan 91 is misplaced as what obtained therein was the preparation of an entirely new information as contrasted with mere amendments introduced in the amended information, which also charges petitioners with violating Section 3 (e) of the Anti-Graft Law. In Gaspar vs. Sandiganbayan, 92 We held that there is no rule or law requiring the Tanodbayan to conduct another preliminary investigation of a case under review by it. On the contrary, under P.D. No. 911, in relation to Rule 12, Administrative Order No. VII, the Tanodbayan may, upon review, reverse the findings of the investigator and thereafter "where he finds a prima facie case, to cause the filing of an information in court against the respondent, based on the same sworn statements or evidence submitted, without the necessity of conducting another preliminary investigation." Respondent Sandiganbayan did not then commit any grave abuse of discretion in respect to its Resolutions of 4 January 1990 and 1 February 1990. cdrep The petition then must fail. CONCLUSION WHEREFORE, judgment is hereby rendered:. 1.GRANTING the petition in G.R. No. 85439; declaring null and void the challenged Order of 28 October 1988 of the respondent Secretary of Agriculture; but denying, for having become moot and academic, the prayer of petitioners that they be restored to their positions in the KBMBPM. 2.DISMISSING, for lack of merit, the petition in G.R. No. 91927. No pronouncement as to costs. IT IS SO ORDERED.

Narvasa, C .J ., Melencio-Herrera, Cruz, Paras, Feliciano, Padilla, Bidin, Grio-Aquino, Medialdea, Regalado and Romero, JJ ., concur. Gutierrez, Jr., J ., took no part as son represented a party in a related case. Nocon, J ., took no part.

SECOND DIVISION [G.R. No. L-65718. June 30, 1987.] NATIONAL DEVELOPMENT COMPANY AND DOLE PHILIPPINES, INC., petitioners, vs. WILFREDO HERVILLA, respondent.

DECISION

PADILLA, J p: Assailed in this petition for review on certiorari is the decision 1 dated 10 November 1983 of the Intermediate Appellate Court (now Court of Appeals) in AC-G.R. No. CV-66215 entitled, "Wilfredo Hervilla, Plaintiff-Appellant, versus Dole Philippines, Inc., Candido de Pedro, and National Development Co., Defendants-Appellees," which reversed the decision of the Court of First Instance of South Cotabato, General Santos City, as well as its resolution dated 9 August 1985 denying the motion for reconsideration of said decision. The facts of the case, as gathered from the decision under review, are as follows: "An action for Recovery of Possession and Damages filed on December 20, 1973 by Wilfredo Hervilla against Dole Philippines, a duly registered corporation doing business in Polomolok, South Cotabato, involving Lots Nos. 3284, and 3288, GSS-269-D, each containing four (4) hectares, more or less, situated at Sitio Balisong, Palkan, Polomolok, South Cotabato, now in the possession of defendant corporation as Administrator of the properties of National DevelopmentCorporation (NDC) impleaded as party defendant (Records, p. 48). "On December 28, 1958, claimant Rolando Gabales, for a consideration of P450.00, sold to Hernane Hervilla all his rights and interest over a four-hectare land located in Palkan, Polomolok, South Cotabato but identified only by its boundaries: '. . . On the North, by the property of Teopisto Espaola; on the south, by Mr. Macarandan; on the east by Francisco Macarandan and on the west by Regina Fabrea . . .' (Exh. 'h'). "It was apparently on the strength of the Tax Declaration No. 1376 that Hernane Hervilla was induced to acquire it (Exh. 'L'). "On August 1, 1959, its adjoining occupant-claimant, Fernando Jabagat, for a consideration of P270.00, also sold his interest and rights to Hernane Hervillaover another four (4) hectares of land, situated at Balisong, Bo. Kablon, Tupi [later plotted in Palkan, Polomolok] South Cotabato, identified by its boundaries: '. . . On the North by the property of Candido de Pedro; on the south by the property of Santiago Macarandan; on the East by creek and on the West by the property of Hernane Hervilla . . .' (Exh. 'H'). "Undoubtedly, while adjoining each other, one of these is situated on Polomolok, South Cotabato, while the other is in Tupi, South Cotabato [the two lots were later plotted to be in Palkan, Polomolok]. For, at the time of these transfers, the boundary between these places had not definitely been settled. Hence, the discrepancy. "On June 1, 1961, Wilfredo Hervilla, claiming to be the successor-in-interest of his brother, Hernane Hervilla who vacated these properties, [in favor of the former], filed with the District Land Office of the Bureau of Lands in General Santos City Free Patent Application Nos. 2054 and 2054-A, respectively, over the lots, after the same were surveyed and designated as Lot Nos. 3264, GSS-269-D and 3166 (Exhs. 'A', 'A-7', 'B', 'B-4', tsn, p. 249). "On April 1, 1963, as claimant and occupant of Lots 3283 and 3284, GSS-269-D, situated at Balisong, Kablon, Tupi, South Cotabato since 1945, Candido de Pedro filed with the Bureau of Lands, Manila, his Free Patent Application, having planted it to abaca, coffee, banana, corn and other seasonal crops, erecting therein a farm house (Exhs. 'E', '2', '2-A', '2-B'). Land taxes from 1945 until 1963 were paid per

Official Receipts Nos. B-9134501 and B-913492 (Record, pp. 126, 131). Then, exactly four months after filing his application, Candido de Pedro ceded all his rights to the National Development Corporation, represented by Pedro Changco, Jr. (Exhs. 'J', 'J-1'). "On April 27, 1968, Wilfredo Hervilla who was then in Palawan, thru his wife, Emma V. Hervilla, filed an ejectment suit against Dole before the Municipal Court of Tupi, South Cotabato (then Cotabato) alleging that 'sometime in the early part of March 1968 defendant by means of threats, of force, intimidation, strategy and stealth and against the will of the plaintiffs, entered and occupied the entire parcels (lots Nos. 3264 and 3265, GSS-269-D) . . . constructing . . .' (Exh. 'F', Record, p. 109). This was dismissed, however, on September 30, 1970 for failure to state a cause of action and without the benefit of trying it upon the merits (Exh. 'H', Record, p. 195). "On July 28, 1972, as Lots 3264 and 3265 applied by plaintiff on June 1, 1961, had obviously been designated as Lots 3283 and 3284 initially applied on August 1, 1963 by Candido de Pedro, predecessor-in -interest of Dole, counsel for plaintiff's Wilfredo Hervilla wrote the District Land Officer of the Bureau of Lands, stationed in Koronadal, South Cotabato, requesting for an Investigation of these Lots (Exh. 'G'). "On January 30, 1975, Jesus Ma. Baltazar, supplied with verbal information by Wilfredo Hervilla in his occular inspection about the facts surrounding the claim of plaintiff, [in an investigation duly conducted with the aid of the map of the Bureau and in the presence of Candido de Pedro] submitted his report to the District Land Officer, recommending: '. . . that PPa, Nos. (VIII-4)-40 54 and (VII-4) 2054-A be amended accordingly such that it shall cover Lot No. 3284 and 3283, respectively both of GSS-269-D, Palkan, Polomolok, South Cotabato, instead of Lot Nos. 3264 and 3265, respectively, both of GSS-269-D, and Kablon, Tupi, South Cotabato (Exh. 'H', 'H1'). "On June 15, 1973, Hernando Jereos, Provincial Officer of Koronadal, South Cotabato, pursuant to the report of the Land Investigator, Jesus Ma. Baltazar, issued an order: 'That the Free Patent Application No. (VIII-4) 2054 and Free Patent Application No. (VIII-4) 2054-A of Wilfredo D. Hervilla for Lots Nos. 3264 and 3265, GSS-269-D, respectively, be, as hereby they are, modified in the sense that the disposition therein contained shall in the order named refer to Lots Nos. 3284 and 3283, GSS-269-D and, as thus modified, further action on the herein mentioned application held in abeyance pending the final determination of the adverse claim of Dolefil thereto' (Exh. 'D'). "So, on September 20, 1973, armed with that recommendation, counsel for plaintiff wrote Dolefil demanding the immediate return of Lots 3284 and 3283 to Wilfredo Hervilla as well as payment of actual and moral damages since the former's occupation and fencing of the land in March 1968, with a warning of a court suit if it failed (Exh. 'I', Record, p. 125). Falling on deaf ears, plaintiff instituted the present suit, engaged the services of a counsel in the sum of P2,000.00 (tsn, p. 115).' 2 On the basis of the foregoing facts, the court a quo rendered a decision in favor of the National Development Company (NDC, for short) and Dole Philippines, Inc., (Dolephil, for short), petitioners herein, by dismissing the herein private respondent's complaint against them. On 30 March 1979, private respondent (plaintiff in the trial court) appealed to the Intermediate Appellate Court which, on 10 November 1983, rendered the herein assailed decision, thus: "WHEREFORE, in view of all the foregoing considerations, the decision appealed from is hereby REVERSED and set aside and another one entered herein; 1.Declaring that plaintiff-appellant, Wilfredo Hervilla, the rightful possessor of the subject lots or lots designated as Lots Nos. 3283 and 3284, GSS-269-D, situated at Palkan, Polomolok, South Cotabato; 2.Ordering the NDC and DOLE to vacate the said lots and deliver possession thereof to the said plaintiff-appellant; 3.Ordering the defendants-appellees: Dole (Philippines, Inc.); Candido de Pedro and National Development Co. (NDC), jointly and severally to pay Wilfredo Hervilla P700.00 per annum, representing the value of the yearly harvest of the land at the time it was taken, with legal interest from the time of judicial demand until fully paid; and 4.Ordering the said defendants-appellees jointly and severally to pay P5,000.00 in the concept of attorney's fees and to pay the costs. 3

A motion for reconsideration was timely filed by herein petitioners and on 9 January 1984, a Supplement to the Motion for Reconsideration with Motion for New Trial was filed praying that the case be reopened and a new trial conducted for the purpose of submitting original certificate of Title Nos. 26651 and 26653. Petitioners alleged therein that, on 5 December 1980, or while the case was pending with respondent Court, the Bureau of Lands issued the free patents in favor of Petitioners' predecessor-in-interest. On 9 August 1985, respondent Court issued a resolution denying the Motion for Reconsideration and Supplement to the Motion for Reconsideration with Motion for New Trial, stating thus: "Finding that all the grounds and arguments raised in the Motion for Reconsideration are practically the same or at least included, considered and passed upon adversely against movant by this Court in its decision now sought to be reconsidered, the Court RESOLVED to DENY the Motion for Reconsideration. Regarding the Supplement to the Motion for Reconsideration with Motion for New Trial, in which defendants-appellees now claim that the "issue of possession and ownership have been conclusively determined in favor of defendant-appellee National Development Co. "per patents OCTs Nos. p-26651 and p-26653 both recently dated December 5, 1980, as Annexes "1" & "2", We do not think the Bureau of Lands could validly make a pronouncement on the issue of possession over the subject land upon which rested the issuance of the patents in favor of defendants-appellee, as against the prior finding of this Court that the plaintiff-appellant had the prior, superior and physical possession thereof, since said issue is the very same issue litigated in this case submitted by the parties to the court of justice. In other words, when the Bureau of Lands issued the patents and OCT's in question, the case was already pending in court; hence, subjudice. The issuance of the patents and Original Certificates of Title over the subject land, therefore, is null and void, the same having been issued, while the case is still pending in court. In view thereof, this Court likewise hereby RESOLVES to DENY the Supplement to the Motion for Reconsideration with Motion for New Trial, for being unmeritorious. 4 Hence, the present petition interposed by the National Development Company (NDC). There is no question that the authority given to the Lands Department over the disposition of public lands 5 does not exclude the courts from their jurisdiction over possessory actions, the public character of the land notwithstanding 6 and that the exercise by the courts of such jurisdiction is not an interference with the alienation, disposition and control of public lands. 7 The question that is raised by petitioner NDC before this Court is: "May the Court in deciding a case involving recovery of possession declare null and void title issued by an administrative body or office during the pendency of such case? Specifically, is the Bureau of Lands precluded, on the ground that the matter is subjudice, from issuing a free patent during the pendency of a case in court for recovery of possession?" The questions are answered in the negative. It is now well settled that the administration and disposition of public lands are committed by law to the Director of Lands primarily, and, ultimately, to the Secretary of Agriculture and Natural Resources. 8 The jurisdiction of the Bureau of Lands is confined to the determination of the respective rights of rival claimants to public lands 9 or to cases which involve disposition and alienation of public lands. 10 The jurisdiction of courts in possessory actions involving public lands is limited to the determination of who has the actual, physical possession or occupation of the land in question (in forcible entry cases, before municipal courts) or, the better right of possession (in accion publiciana in cases before Courts of First Instance, now Regional Trial Courts). 11 In forcible entry cases, moreover, title is not in issue; as a matter of fact, evidence thereof is expressly barred, except to prove the nature of the possession. 12 In any event, petitioners' possession of the lands in question has been confirmed by the issuance of Free Patents in favor of their predecessor-in-interest. By this act, nothing more is left for the courts to pursue. Thus, the private respondent's cause of action has been rendered moot and academic by the decision of the Director of Lands. In Rallon vs. Ruiz, 13 this Court said: "The reason then for possessory actions in court, namely, to "facilitate adjudication" by the Lands Department of a dispute over public land no longer exists. For, defendants' applications are no longer pending investigation. Defendants' possession of the lands disputed, for purposes of the free patents, has been confirmed in the administrative case. The administrative branch of the government has thus already spoken. Its action has lapsed into finality. Accordingly, plaintiffs' claim of possession is lost. Since plaintiffs' protests, in reference to possession, has already been resolved adversely against them by the Lands Department, nothing more is left for the courts to pursue." In Realiza vs. Duarte, 14 this Court stated:

"The land on which Duarte settled may be initially presumed as public land, his homestead application over it having been approved by the Director of Lands. It is our considered opinion that the approval of his homestead application legalized his possession, and such approval constitutes a justifiable defense against the action for revival of judgment as it necessarily affects the appellee's right of possession of the land from which Duarte was ordered ejected." The principle was reiterated in De los Santos vs. Rodriguez 15 thus: "At the time of the rendition of the decision in CA-G.R. No. 18912-R, the question of whether or not said portion was to be part of her homestead had not as yet been definitely settled. Accordingly, it became necessary to determine in that case who shall meanwhile be in possession. The aforementioned question was finally decided in favor of Rodriguez, in the order of the Director of Fisheries, dated February 27, 1959. Thereafter he is, therefore, the party entitled to said possession. In other words, the decision in CA-G.R. 18912-R may no longer he executed, not because the decision in CA-G.R. 32970-R has annulled it, but because of events subsequent to the first decision, which events have changed materially the situation between the parties. Thus, in Hernandez vs. Clapis, this Court, speaking through then Chief Justice Paras, said: "In our opinion the present appeal is meritorious. While the decision in the forcible entry and detainer case is final, it can no longer be executed at least in so far as the possession of the land in question is concerned, because, under section 4 of Commonwealth Act No. 141, the Director of Lands has direct executive control of the survey, classification, lease, sale or any other form of concession of disposition and management of the lands of the public domain, and his decisions as to questions of fact are conclusive when approved by the Secretary of Agriculture; and because the latter had already cancelled the right of plaintiff Maria L. Hernandez to administer the land in question and rejected both her sales application and that of her husband, plaintiff Antonio Hernandez, at the same time giving the defendants the preferential right to apply for said land in virtue of the provisions of Republic Act No. 65. The correctness of the final decision of the Secretary of Agriculture is not herein involved, but it is valid and binding until reversed in a proper proceeding by the court. The situation is not that the judgment in the forcible entry and detainer case has lost its virtuality. but that the plaintiffs had subsequently ceased to be entitled to the relief awarded by said judgment." (Emphasis supplied.) Moreover, records do not show that private respondent Wilfredo Hervilla ever filed a motion for reconsideration of the decision of the Director of Lands issuing free patent over the lands in dispute in favor of petitioners' predecessor-ininterest. Neither did he appeal said decision to the Secretary of Agriculture and Natural Resources, nor did he appeal to the office of the President of the Philippines. In short, Hervilla failed to exhaust administrative remedies, a flaw which, to our mind, is fatal to a court review. The decision of the Director of Lands has now become final. The Courts may no longer interfere with such decision. 16 WHEREFORE, the decision dated 10 November 1983 and the resolution dated 9 August 1985 of the respondent Appellate Court are hereby reversed and set aside. The decision of the court a quo dated 28 February 1979 is hereby ordered reinstated. No costs. SO ORDERED. Fernan, Gutierrez, Jr., Paras, Bidin and Cortes, JJ., concur. FIRST DIVISION [G.R. No. L-75501. September 15, 1987.] ATLAS CONSOLIDATED MINING AND DEVELOPMENT CORPORATION, petitioner, vs. Hon. FULGENCIO S. FACTORAN, JR., in his capacity as Deputy Executive Secretary, and ASTERIO BUQUERON, respondents.

DECISION

PARAS, J p :

This is a petition for review on certiorari, seeking to set aside the decision rendered by public respondent Deputy Executive Secretary Fulgencio S. Factoran, Jr., by authority of the President, reinstating and confirming the decision dated April 17, 1978 of the Director of Mines and Geo Sciences, and setting aside the decision of the Minister of Natural Resources. Cdpr The undisputed facts of this case are as follows: On February 9, 1972, Atlas Consolidated Mining and Development Corporation registered the location of its "Master VII Fr." mining claim with the Mining Recorder of Toledo City. On September 10, 1973, private respondent Asterio Buqueron registered the declarations of location of his "St. Mary Fr." and "St. Joseph Fr." mining claims with the same Mining Recorder. On October 15, 1973, Atlas registered the declarations of location of its "Carmen I Fr." to "Carmen V. Fr." with the same Mining Recorder. cdrep Buqueron's "St. Mary Fr." and "St. Joseph Fr." were surveyed and the survey plans thereof were duly approved by the Director of Mines and Geo Sciences. Notice of Buqueron's lease application was published in the February 22 and 28, 1977 issues of the Evening Post. cdll During the said period of publication, petitioner filed an adverse claim against private respondent's mining claims on the ground that they allegedly overlapped its own mining claims. After hearing, the Director of Mines rendered a decision, dated April 17, 1978, the dispositive portion of which reads: "VIEWED IN THE LIGHT OF THE FOREGOING, respondent (Buqueron) is hereby given the preferential right to possess, lease, explore, exploit and operate the areas covered by his "St. Mary Fr." and "St. Joseph Fr." mining claims, except the area covered thereby which is in conflict with adverse claimant's (Atlas) "Master VII Fr." Adverse claimant (Atlas) on the other hand, is given the preferential right to possess, lease, explore, exploit and operate the area covered by its "Master VII Fr." claim." Atlas appealed to the Minister of Natural Resources who rendered a decision dated November 10, 1978, the dispositive portion of which reads as follows: "PREMISES CONSIDERED, the decision of the Director of Mines dated April 17, 1978, should be, as hereby it is, set aside. In lieu thereof, it is hereby declared that the "St. Mary Fr." and "St. Joseph Fr." mining claims of Asterio Buqueron are null and void, that the "Carmen I Fr." to "Carmen V. Fr." mining claims ofAtlas Consolidated Mining and Development Corporation are valid, and that it be given the preferential right to possess, explore, exploit, lease and operate the areas covered thereby." (Decision, Office of the President; Rollo, pp. 52-57; Decision of the Minister of Natural Resources, Rollo, pp. 47-51; Comment of Public Respondent, Rollo, pp. 88-90: Decision, Director of Mines, Rollo, pp. 157-160). As aforestated, on further appeal, the Deputy Executive Secretary, Office of the President, reversed the decision of the Minister of Natural Resources and reinstated the decision of the Director of Mines and Geo Sciences. Hence, this petition. Briefly stated, petitioner's assignment of errors may be combined into the following issues: (1) Whether or not private respondent's appeal to the Office of the President was time-barred; (2) Whether or not there was a valid location and discovery of the disputed mining claims. The Second Division of this Court without giving due course to the petition, required respondents to comment in the resolution of October 6, 1986 (Rollo, p. 76). Both private respondent and public respondent filed their respective comments on November 17, 1986 (Rollo, pp. 81-86; pp. 88-95). On December 8, 1986 (Rollo, p. 104) this Court required the respondents to file a rejoinder to the consolidated reply filed by counsel for petitioner dated November 4, 1986 (Rollo, pp. 97-102). Said rejoinder was filed on February 6, 1987 (Rollo, pp. 108-111), by the Solicitor General for public respondent, after which petitioner filed a sur-rejoinder thereto on March 13, 1987 (Rollo, pp. 113-116). Thereafter the Court in the resolution of March 30, 1987 gave due course to the petition and required both parties to file their respective memoranda. llcd Counsel for public respondent filed a Manifestation/Motion praying to be allowed to adopt its comment dated November 2, 1986 and Rejoinder dated February 4, 1987 as the memorandum for public respondent. Petitioner filed its memorandum on May 25, 1987 (Rollo, p. 136). The petition is devoid of merit. I.

It is not disputed that private respondent received a copy of the decision of the Minister of Natural Resources dated November 10, 1978 on November 27, 1978 and that under Section 50 of Presidential Decree No. 463, the decision of the Minister is appealable to the Office of the President within five (5) days from receipt thereof. In the case at bar, the 5-day period expired on December 2, 1978, a Saturday, private respondent filed his appeal on December 4, 1978, a Monday. LexLib Petitioner contends that the appeal was filed out of time and therefore, the Office of the President did not acquire jurisdiction over the case and should have dismissed the same outright (Rollo, pp. 20-21). This contention is untenable. Petitioner and private respondent are in accord on the fact that at the time of the filing of the questioned appeal, Saturday was observed as a legal holiday in the Office of the President pursuant to Section 29 of the Revised Administrative Code as amended. The same law provides: "Section 31. Pretermission of holiday. Where the day, or the last day, for doing any act required or permitted by law falls on a holiday, the act may be done on the next succeeding business day." Apart from the fact that the law is clear and needs no interpretation, this Court in accordance therewith has invariably held that in case the last day for doing an act is a legal holiday, it does not have the effect of making the preceding day, the last day for doing the same; the act may be done on the next succeeding business day (Gonzaga v. Ce David, 110 Phil. 463464 [1960]; Calano v. Cruz, 91 Phil. 247 [1952]; Austria, et al. v. The Solicitor General, et al., 71 Phil. 288 [1941]). prLL Coming back to the case at bar, as the next working day after December 2, 1978 was December 4, 1978 a Monday, it is evident that private respondent's appeal was filed on time. II. It is apparent that the second issue as to whether or not there was a valid location and discovery of the disputed mining claims is a question of fact best left to the determination of the administrative bodies charged with the implementation of the law they are entrusted to enforce. As uniformly held by the Court, it is sufficient that administrative findings of fact are supported by evidence, or negatively stated, it is sufficient that findings of fact are not shown to be unsupported by evidence. Substantial evidence is all that is needed to support an administrative finding of fact, and substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." (Ang Tibay v. Court of Industrial Relations, 69 Phil. 635, 642; Police Commission v. Lood, 127 SCRA 762 [1984]). prcd In the case at bar, the record amply shows that the Director of Mines' decision was supported by substantial evidence. Petitioner claimed that it is a registered surface land owner and locator of six (6) lode claims duly registered with the Office of the Mining Recorder as above stated and that in derogation of its established possessory rights, private respondent Asterio Buqueron, without its written permission, caused the "table" location and survey and applied for the lease of his alleged mining claims known as "St. Mary Fr." and "St. Joseph Fr." lode claims. In his answer, private respondent denied the material allegations of the adverse claim and by way of affirmative defense alleged that all of petitioner's claims including a portion of Master VII Fr. are null and void for having been located in areas which were closed to mining location in open and gross violation of paragraph 1 (d) of Section 28 and of Section 60 of the Mining Act as amended. prcd The main thrust of petitioner's claim is that all of the mining claims of both petitioner and private respondent are located inside the premises or properties of the former, so that it is hardly possible for private respondent to have conducted the requisite location and survey without having been seen or noticed by petitioner and its personnel. LexLib The Director of Mines established that there is in fact an overlapping of mining claims of petitioner and private respondent and that as a matter of record petitioner's mining claims were registered subsequent to those of private respondent with the exception of Master VII Fr. which was registered on February 9, 1972 or prior to the registration of the mining claims of private respondent. In ruling as to who, between the parties shall be given preferential right to lease the area in question, the Director of Mines' findings are as follows: "Adverse claimant in its attempt to impugn the validity of the mining claims of respondent alleged that said mining claims were the result of table locations and survey and in support thereof submitted the sworn statements of its Chief Geologist and Chief Security. On the other hand, respondent asserted that he, through his authorized representative actually and validly performed all the acts of discovery and location required by law and the field survey of his

mining claims was actually conducted by Geodetic Engineer Salvador Aligaen from December 16 to 18, 1974. In support of this assertion, respondent submitted in evidence affidavit of the authorized agent (Annex "D" of the answer) and another affidavit of Geodetic Engineer Salvador Aligaen (Annex "F" of the answer). Respondent also submitted in evidence Bureau of Forestry map and Bureau of Coast and Geodetic Survey map of the total area (Exhs. "9" to "10") which embraces the area in question. These maps tend to prove that the Atlas main gate is not the only point of ingress and egress such that one can enter the area in question for the purpose of mining location and survey without being noticed by any of the personnel of Atlas. After a careful appraisal of the evidence submitted, and cognizant as we are of the provisions of Presidential Decree No. 99-A, we are of the view that adverse claimant failed to adduce sufficient evidence to nullify the prior claims of respondent. Stated differently, the evidence submitted are not sufficient to destroy the prima facie character of the sworn declarations of location of respondent's mining claims which were duly registered on the date herein before stated. Thus "A location notice certificate or statement when recorded is prima facie evidence of all the facts the statute requires it to contain and which were sufficiently set forth" (40 C.J. pp. 811-812) and constitute notice to all persons and to the whole world of the contents of the same (Sec. 56 of the Mining Act, as amended). It is, therefore, pertinent to quote hereunder Sections 28(d) and 60 of the Mining Act, as amended, as well as Section 1 of Presidential Decree No. 99-A: "SEC. 28 No Prospecting shall be Allowed: (d) In lands which have been located for mining leases by other prospectors under the provisions of this Act." "SEC. 60. No valid mining claim or any part thereof, may be located by others until the original locator or his successors in interest abandons the claim or forfeits his rights on the same under the provisions of this Act." SEC. 1. Whenever there is any conflict between claim owners over any mining claims whether mineral or non-mineral, the locator of the claim who first registered his claim with the proper mining registrar, notwithstanding any defect in form or technicality, shall have the exclusive right to possess, exploit, explore, develop and operate such mining claims. . . ." In the light of the aforequoted provisions of law applicable on the matter, and in view of our findings, earlier discussed, the subsequent mining claims of adverse claimant insofar as they conflict the prior claims of respondent are hereby declared null and void. On the other hand, it is also our view that respondent failed to adduce sufficient evidence to prove that the prior claim of adverse claimant (Master VII Fr.) is null and void. Considering that this mining claim is prior in point of location and registration, it follows that this claim will have to prevail over that of respondent. For the same reason, therefore, that the subsequent claims of adverse claimant were declared null and void insofar as they conflict with the prior claims of respondent, the mining claims of respondent insofar as they conflict with "Master VII Fr." claim of adverse claimant are likewise declared null and void." (Decision, Director of Mines; rollo, pp. 157-160). As earlier stated the above findings, although reversed by the Minister of Natural Resources, were affirmed by the Office of the President. However, petitioner would have this Court look into the said findings because of the open divergence of views and findings by the adjudicating authorities in this mining conflict involving highly contentious issues which warrant appellate review (Rollo, p. 18). This Court has repeatedly ruled that judicial review of the decision of an administrative official is of course subject to certain guideposts laid down in many decided cases. Thus, for instance, findings of fact in such decision should not be disturbed if supported by substantial evidence, but review is justified when there has been a denial of due process, or mistake of law or fraud, collusion or arbitrary action in the administrative proceeding (L-21588 Atlas Development and Acceptance Corp. v. Gozon, etc. et al., 64 O.G. 11511 (1967]), where the procedure which led to factual findings is irregular; when palpable errors are committed; or when a grave abuse of discretion, arbitrariness, or capriciousness is manifest (Ateneo de Manila University v. CA, 145 SCRA 100-101 [1986]; International Hardwood and Veneer Co., of the Philippines v. Leogardo, 117 SCRA 967; Baguio Country Club Corporation v. National Labor Relations Commission, 118 SCRA 557; Sichangco v. Commissioner of Immigration, 94 SCRA 61; and Eusebio v. Sociedad Agricola de Balarin, 16 SCRA 569). prcd

A careful study of the records shows that none of the above circumstances is present in the case at bar, which would justify the overturning of the findings of fact of the Director of Mines which were affirmed by the Office of the President. On the contrary, in accordance with the prevailing principle that "in reviewing administrative decisions, the reviewing Court cannot reexamine the sufficiency of the evidence as if originally instituted therein, and receive additional evidence, that was not submitted to the administrative agency concerned," the findings of fact in this case must be respected. As ruled by the Court, they will not be disturbed so long as they are supported by substantial evidence, even if not overwhelming or preponderant (Police Commission v. Lood, supra). PREMISES CONSIDERED, this petition is hereby DENIED and the assailed decision of the Office of the President, is hereby AFFIRMED. SO ORDERED.

Teehankee, C.J., Narvasa and Cruz, JJ., concur. Gancayco, J., is on leave.
EN BANC [G.R. No. 96409. February 14, 1992.] CITIZEN J. ANTONIO M. CARPIO, petitioner, vs. THE EXECUTIVE SECRETARY, THE SECRETARY OF LOCAL GOVERNMENTS, THE SECRETARY OF NATIONAL DEFENSE, and THE NATIONAL TREASURER, respondents. SYLLABUS 1.POLITICAL LAW; STATUTES; REPUBLIC ACT NO. 6975; DATE OF EFFECTIVITY. With the aforequoted provision in mind, Congress passed Republic Act No. 6975 entitled "AN ACT ESTABLISHING THE PHILIPPINE NATIONAL POLICE UNDER A REORGANIZED DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, AND FOR OTHER PURPOSES" as the consolidated version of House Bill No. 23614 and Senate Bill No. 463. The Act took effect after fifteen days following its publication, or on January 1, 1991. 2.CONSTITUTIONAL LAW; THE PRESIDENT HAS CONTROL POWERS OVER THE EXECUTIVE BRANCH OF THE GOVERNMENT; DOCTRINE OF QUALIFIED POLITICAL AGENCY AS COROLLARY RULE THERETO. It is a fundamentally accepted principle in Constitutional Law that the President has control of all executive departments, bureaus, and offices. Equally well accepted, as a corollary rule to the control powers of the President, is the "Doctrine of Qualified Political Agency". As the President cannot be expected to exercise his control powers all at the same time and in person, he will have to delegate some of them to his Cabinet members, who in turn and by his authority, control the bureaus and other offices under their respective jurisdictions in the executive department. 3.ID.; ID.; THE PRESIDENT, AS COMMANDER-IN-CHIEF, IS NOT A MEMBER OF THE ARMED FORCES. The President, as Commander-in-Chief, is not a member of the Armed Forces. He remains a civilian whose duties under the Commanderin-Chief provision "represent only a part of the organic duties imposed upon him. All his other functions are clearly civil in nature." His position as a civilian Commander-in-Chief is consistent with, and a testament to, the constitutional principle that "civilian authority is, at all times, supreme over the military." (Article II, Section 3, 1987 Constitution.) 4.POLITICAL LAW; PLACEMENT OF NAPOLCOM AND PHILIPPINE NATIONAL POLICE (PNP) UNDER THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, MERELY AN ADMINISTRATIVE REALIGNMENT. The circumstance that the NAPOLCOM and the PNP are placed under the reorganized Department of the Interior and Local Government is merely an administrative realignment that would bolster a system of coordination and cooperation among the citizenry, local executives and the integrated law enforcement agencies and public safety agencies created under the assailed Act, the funding of the PNP being in large part subsidized by the national government. 5.ID.; NATIONAL POLICE FORCE; ADMINISTERED AND CONTROLLED BY NATIONAL POLICE COMMISSION; LOCAL EXECUTIVES ACT ONLY AS REPRESENTATIVES OF NAPOLCOM. The national police force shall be administered and controlled by a national police commission as at any rate, and in fact, the Act in question adequately provides for administration and control at the commission level. We agree, that "there is no usurpation of the power of control of the NAPOLCOM under Section 51 because under this very same provision, it is clear that the local executives are only acting as representatives of the NAPOLCOM. As such deputies, they are answerable to the NAPOLCOM for their actions in the exercise of their functions under that section. Thus, unless countermanded by the NAPOLCOM, their acts are valid and

binding as acts of the NAPOLCOM." It is significant to note that the local officials, as NAPOLCOM representatives, will choose the officers concerned from a list of eligibles (those who meet the general qualifications for appointment to the PNP) to be recommended by PNP officials. The same holding is true with respect to the contention on the operational supervision and control exercised by the local officials. These officials would simply be acting as representatives of the Commission. 6.ID.; ID.; INVOLVEMENT OF CIVIL SERVICE COMMISSION UNDERSCORES ITS CIVILIAN CHARACTER. As regards the assertion involving the Civil Service Commission, suffice it to say that the questioned provisions, which read: "Sec. 31. Appointment of PNP Officers and Members. The Appointment of the officers and members of the PNP shall be effected in the following manner: a.) Police Officer I to Senior Police Officer IV. Appointed by the PNP regional director for regional personnel or by the Chief of the PNP for national headquarters personnel and attested by the Civil Service Commission; b.) Inspector to Superintendent Appointed by the Chief of the PNP, as recommended by their immediate superiors, and attested by the Civil Service Commission; c.) Senior Superintendent to Deputy Director-General Appointed by the President upon recommendation of the Chief of the PNP, with proper endorsement by the Chairman of the Civil Service Commission . . . . Sec. 32. Examinations for Policemen. The Civil Service Commission shall administer the qualifying entrance examinations for policemen on the basis of the standards set by the NAPOLCOM." precisely underscore the civilian character of the national police force, and will undoubtedly professionalize the same. 7.ID.; ID.; DOES NOT FALL UNDER THE COMMANDER-IN-CHIEF POWERS OF THE PRESIDENT; REASON AND CONSEQUENCE THEREOF. It thus becomes all too apparent then that the provision herein assailed precisely gives muscle to and enforces the proposition that the national police force does not fall under the Commander-in-Chief powers of the President. This is necessarily so since the police force, not being integrated with the military, is not a part of the Armed Forces of the Philippines. As a civilian agency of the government, it properly comes within, and is subject to, the exercise by the President of the power of executive control. Consequently, Section 12 does not constitute abdication of commander-in-chief powers. It simply provides for the transition period or process during which the national police would gradually assume the civilian function of safeguarding the internal security of the State. Under this instance, the President, to repeat, abdicates nothing of his war powers. 8.ID.; NATIONAL POLICE COMMISSION (NAPOLCOM); EXERCISES APPELLATE JURISDICTION THRU REGIONAL APPELLATE BOARDS. Pursuant to the Act, the Commission exercises appellate jurisdiction, thru the regional appellate boards, over decisions of both the PLEB and the said mayors. This is so under Section 20(c). Furthermore, it is the Commission which shall issue the implementing guidelines and procedures to be adopted by the PLEB for the conduct of its hearings, and it may assign NAPOLCOM hearing officers to act as legal consultants of the PLEBs (Section 43-d4, d5). 9.ID.; CONSTITUTIONAL CONSTRUCTION; EVERY PRESUMPTION INDULGED IN FAVOR OF CONSTITUTIONALITY. We find light in the principle of constitutional construction that every presumption should be indulged in favor of constitutionality and the court in considering the validity of the statute in question should give it such reasonable construction as can be reached to bring it within the fundamental law." 10.ID.; PEOPLE'S LAW ENFORCEMENT BOARDS (PLEB); PURPOSE FOR ITS CREATION. As a disciplinary board primarily created to hear and decide citizen's complaints against erring officers and members of the PNP, the establishment of PLEBs in every city and municipality would all the more help professionalize the police force. 11.ID.; SPECIAL OVERSIGHT COMMITTEE; SOLE FUNCTION THEREOF. The Special Oversight Committee is simply an ad hoc or transitory body, established and tasked solely with planning and overseeing the immediate "transfer, merger and/or absorption" into the Department of the Interior and Local Governments of the "involved agencies." This it will undertake in accordance with the phases of implementation already laid down in Section 85 of the Act and once this is carried out, its functions as well as the committee itself would cease altogether. As an ad hoc body, its creation and the functions it exercises, decidedly do not constitute an encroachment and in diminution of the power of control which properly belongs to the President. What is more, no executive department, bureau or office is placed under the control or authority of the committee. 12.CONSTITUTIONAL LAW; INDEPENDENT CONSTITUTIONAL COMMISSIONS; NOT UNDER THE CONTROL OF THE CHIEF EXECUTIVE. Under the Constitution, there are the so-called independent Constitutional Commissions, namely: The Civil Service Commission, Commission on Audit, and the Commission on Elections. (Article IX-A, Section 1). As these Commissions perform vital governmental functions, they have to be protected from external influences and political pressures. Hence, they were made constitutional bodies, independent of and not under any department of the government. Certainly, they are not under the control of the President. The Constitution also created an independent office called the "Commission on Human Rights." (Article XIII, Section 17[1]). However, this Commission is not on the same level as the Constitutional Commissions under Article IX, although it is independent like the latter Commissions. It still had to be constituted thru Executive Order No. 163 (dated May 5, 1987). In contrast, Article XVI, Section 6 thereof, merely mandates the statutory creation of a national police commission that will administer and control the national police force to be established thereunder. This commission is, for obvious reasons, not in the same category

as theindependent Constitutional Commissions of Article IX and the other constitutionally created independent Office, namely, the Commission on Human Rights.

DECISION

PARAS, J p: At the very outset, it should be well to set forth the constitutional provision that is at the core of the controversy now confronting us, thus: Article XVI, Section 6: "The State shall establish and maintain one police force, which shall be national in scope and civilian in character, to be administered and controlled by a national police commission. The authority of local executives over the police units in their jurisdiction shall be provided by law." 1 With the aforequoted provision in mind, Congress passed Republic Act No. 6975 entitled "AN ACT ESTABLISHING THE PHILIPPINE NATIONAL POLICE UNDER A REORGANIZED DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, AND FOR OTHER PURPOSES" as the consolidated version of House Bill No. 23614 and Senate Bill No. 463. LibLex Following the said Act's approval by President Corazon C. Aquino on December 13, 1990, it was published on December 17, 1990. 2 Presently, however, petitioner as citizen, taxpayer and member of the Philippine Bar sworn to defend the Constitution, filed the petition now at bar on December 20, 1990, seeking this Court's declaration of unconstitutionality of RA 6975 with prayer for temporary restraining order. Cdpr But in an en banc resolution dated December 27, 1990, We simply required the public respondents to file their Comment, without however giving due course to the petition and the prayer therein. Hence, the Act took effect after fifteen days following its publication, or on January 1, 1991. 3 Before we settle down on the merits of the petition, it would likewise be well to discuss albeit briefly the history of our police force and the reasons for the ordination of Section 6, Article XVI in our present Constitution. During the Commonwealth period, we had the Philippine Constabulary as the nucleus of the Philippine Ground Force (PGF), now the Armed Forces of the Philippines (AFP). The PC was made part of the PGF but its administrative, supervisory and directional control was handled by the then Department of the Interior. After the war, it remained as the "National Police" under the Department of National Defense, as a major service component of the AFP. 4 Later, the Integration Act of 1975 5 created the Integrated National Police (INP) under the Office of the President, with the PC as the nucleus, and the local police forces as the civilian components. The PC-INP was headed by the PC Chief who, as concurrent Director-General of the INP, exercised command functions over the INP. 6 The National Police Commission 7 (NAPOLCOM) exercised administrative control and supervision while the local executives exercised operational supervision and direction over the INP units assigned within their respective localities. 8 The set-up whereby the INP was placed under the command of the military component, which is the PC, severely eroded the INP's civilian character and the multiplicity in the governance of the PC-INP resulted in inefficient police service. 9 Moreover, the integration of the national police forces with the PC also resulted in inequities since the military component had superior benefits and privileges. 10 The Constitutional Commission of 1986 was fully aware of the structural errors that beset the system. Thus, Com. Teodulo C. Natividad explained that: xxx xxx xxx "MR. NATIVIDAD. x x x The basic tenet of a modern police organization is to remove it from the military. 11 xxx xxx xxx Here in our draft Constitution, we have already made a constitutional postulate that the military cannot occupy any civil service position [in Section 6 of the Article on the Civil Service 12 ]. Therefore, in keeping with this and because of the universal acceptance that a police force is a civilian function, a

public service, and should not be performed by military force, one of the basic reforms we are presenting here is that it should be separated from the military force which is the PC. 13 xxx xxx xxx Furthermore: xxx xxx xxx . . . the civilian police cannot blossom into full profession because most of the key positions are being occupied by the military. So, it is up to this Commission to remove the police from such a situation so that it can develop into a truly professional civilian police . . . ." 14 Hence, the "one police force, national in scope, and civilian in character" provision that is now Article XVI, Section 6 of the 1987 Constitution. And so we now come to the merits of the petition at hand. In the main, petitioner herein respectfully advances the view that RA 6975 emasculated the National Police Commission by limiting its power "to administrativecontrol" over the Philippine National Police (PNP), thus, " control" remained with the Department Secretary under whom both the National Police Commission and the PNP were placed. 15 We do not share this view. To begin with, one need only refer to the fundamentally accepted principle in Constitutional Law that the President has control of all executive departments, bureaus, and offices 16 to lay at rest petitioner's contention on the matter. This presidential power of control over the executive branch of government extends over all executive officers from Cabinet Secretary to the lowliest clerk 17 and has been held by us, in the landmark case of Mondano vs. Silvosa, 18 to mean "the power of [the President] to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former with that of the latter." It is said to be at the very "heart of the meaning of Chief Executive." 19 Equally well accepted, as a corollary rule to the control powers of the President, is the "Doctrine of Qualified Political Agency". As the President cannot be expected to exercise his control powers all at the same time and in person, 20 he will have to delegate some of them to his Cabinet members. Under this doctrine, which recognizes the establishment of a single executive, 21 "all executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive is required by the Constitution or law to act in person on the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of

the Secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive presumptively the acts of the Chief Executive ." 22(emphasis ours).

Thus, and in short, "the President's power of control is directly exercised by him over the members of the Cabinet who, in turn, and by his authority, control the bureaus and other offices under their respective jurisdictions in the executive department." 23 Additionally, the circumstance that the NAPOLCOM and the PNP are placed under the reorganized Department of the Interior and Local Government is merely an administrative realignment that would bolster a system of coordination and cooperation among the citizenry, local executives and the integrated law enforcement agencies and public safety agencies created under the assailed Act, 24 the funding of the PNP being in large part subsidized by the national government. LLjur Such organizational set-up does not detract from the mandate of the Constitution that the national police force shall be administered and controlled by a national police commission as at any rate, and in fact, the Act in question adequately provides for administration and control at the commission level, as shown in the following provisions, to wit: "Sec. 14.Powers and Functions of the Commission. The Commission shall exercise the following powers and functions: xxx xxx xxx (i)Approve or modify plans and programs on education and training, logistical requirements, communications, records, information systems, crime laboratory, crime prevention and crime reporting; (j)Affirm, reverse or modify, through the National Appellate Board, personnel disciplinary actions involving demotion or dismissal from the service imposed upon members of the Philippine National Police by the Chief of the PNP;

(k)Exercise appellate jurisdiction through the regional appellate boards over administrative cases against policemen and over decisions on claims for police benefits; LibLex xxx xxx xxx Sec. 26.The Command and direction of the PNP shall be vested in the Chief of the PNP. . . . Such command and direction of the Chief of the PNP may be delegated to subordinate officials with respect to the units under their respective commands, in accordance with the rules and regulations prescribed by the Commission. x x x xxx xxx xxx Sec. 35.. . . To enhance police operational efficiency and effectiveness, the Chief of the PNP may constitute such other support units as may be necessary subject to the approval of the Commission. . . . xxx xxx xxx Sec. 37.. . . There shall be established a performance evaluation system which shall be administered in accordance with the rules, regulations and standards, and a code of conduct promulgated by the Commission for members of the PNP. . . . xxx xxx xxx Petitioner further asserts that in manifest derogation of the power of control of the NAPOLCOM over the PNP, RA 6975 vested the power to choose the PNP Provincial Director and the Chiefs of Police in the Governors and Mayors, respectively; the power of "operational supervision and control" over police units in city and municipal mayors; in the Civil Service Commission, participation in appointments to the positions of Senior Superintendent to Deputy Director-General as well as the administration of qualifying entrance examinations; disciplinary powers over PNP members in the "People's Law Enforcement Boards" and in city and municipal mayors. 25 Once more, we find no real controversy upon the foregoing assertions. It is true that when the Constitutional Commissioners of 1986 provided that the authority of local executives over the police units in their jurisdiction shall be provided by law, they intended that the day-to-day functions of police work like crime investigation, crime prevention activities, traffic control, etc., would be under the operational control of the local executives as it would not be advisable to give full control of the police to the local executives. 26 They reasoned that in the past, this gave rise to warlordism, bossism, and sanctuaries for vices and abuses. 27 It would appear then that by vesting in the local executives the power to choose the officers in question, the Act went beyond the bounds of the Constitution's intent. Not so. We find light in the principle of constitutional construction that every presumption should be indulged in favor of constitutionality and the court in considering the validity of the statute in question should give it such reasonable construction as can be reached to bring it within the fundamental law." 28 Under the questioned provisions, which read as follows: "D.PARTICIPATION OF LOCAL EXECUTIVES IN THE ADMINISTRATION OF THE PNP. Sec. 51.Powers of Local Government Officials over the PNP Units or Forces. Governors and mayors shall be deputized as representatives of the Commission in their respective territorial jurisdictions. As such, the local executives shall discharge the following functions: a.)Provincial Governor (1) . . . The provincial governor shall choose the provincial director from a list of three (3) eligibles recommended by the PNP Regional Director. 4). . . City and municipal mayors shall have the following authority over the PNP units in their respective jurisdictions: i.)Authority to choose the chief of police from a list of five (5) eligibles recommended by the Provincial Police Director. . . . (Underscoring ours). full control remains with the National Police Commission. We agree, and so hold, with the view of the Solicitor General that "there is no usurpation of the power of control of the NAPOLCOM under Section 51 because under this very same provision, it is clear that the local executives are only acting

as representatives of the NAPOLCOM. x x x As such deputies, they are answerable to the NAPOLCOM for their actions in the exercise of their functions under that section. Thus, unless countermanded by the NAPOLCOM, their acts are valid and binding as acts of the NAPOLCOM." 29 It is significant to note that the local officials, as NAPOLCOM representatives, will choose the officers concerned from a list of eligibles (those who meet the general qualifications for appointment to the PNP) 30 to be recommended by PNP officials. The same holding is true with respect to the contention on the operational supervision and control exercised by the local officials. These officials would simply be acting as representatives of the Commission. As regards the assertion involving the Civil Service Commission, suffice it to say that the questioned provisions, which read: "Sec. 31.Appointment of PNP Officers and Members. The Appointment of the officers and members of the PNP shall be effected in the following manner: a.)Police Officer I to Senior Police Officer IV. Appointed by the PNP regional director for regional personnel or by the Chief of the PNP for national headquarters personnel and attested by the Civil Service Commission; b.)Inspector to Superintendent Appointed by the Chief of the PNP, as recommended by their immediate superiors, and attested by the Civil Service Commission; c.)Senior Superintendent to Deputy Director-General Appointed by the President upon recommendation of the Chief of the PNP, with proper endorsement by the Chairman of the Civil Service Commission. . . . Sec. 32.Examinations for Policemen. The Civil Service Commission shall administer the qualifying entrance examinations for policemen on the basis of the standards set by the NAPOLCOM." precisely underscore the civilian character of the national police force, and will undoubtedly professionalize the same. cdrep The grant of disciplinary powers over PNP members to the "People's Law Enforcement Boards" (or the PLEB) and city and municipal mayors is also not in derogation of the Commission's power of control over the PNP. Pursuant to the Act, the Commission exercises appellate jurisdiction, thru the regional appellate boards, over decisions of both the PLEB and the said mayors. This is so under Section 20(c). Furthermore, it is the Commission which shall issue the implementing guidelines and procedures to be adopted by the PLEB for the conduct of its hearings, and it may assign NAPOLCOM hearing officers to act as legal consultants of the PLEBs (Section 43-d4, d5). As a disciplinary board primarily created to hear and decide citizen's complaints against erring officers and members of the PNP, the establishment of PLEBs in every city and municipality would all the more help professionalize the police force. Petitioner would likewise have this Court imagine that Section 12 of the questioned Act, the pertinent portion of which reads: "Section 12.Relationship of the Department with the Department of National Defense . During a period of twenty-four (24) months from the effectivity of this Act, the Armed Forces of the Philippines (AFP) shall continue its present role of preserving the internal and external security of the State: Provided, that said period may be extended by the President, if he finds it justifiable, for another period not exceeding twenty-four (24) months, after which, the Department shall automatically take over from the AFP the primary role of preserving internal security, leaving to the AFP its primary role of preserving external security." xxx xxx xxx constitutes an "encroachment upon, interference with, and an abdication by the President of, executive control and commander-in-chief powers." That We are not disposed to do for such is not the case at all here. A rejection thus of petitioner's submission anent Section 12 of the Act should be in order in the light of the following exchanges during the CONCOM deliberations of Wednesday, October 1, 1986: xxx xxx xxx "MR. RODRIGO. Just a few questions. The President of the Philippines is the Commander-in-Chief of all the armed forces.

MR. NATIVIDAD. Yes, Madam President. MR. RODRIGO. Since the national police is not integrated with the armed forces, I do not suppose they come under the Commander-in-Chief powers of the President of the Philippines. cdtai MR. NATIVIDAD. They do, Madam President. By law they are under the supervision and control of the President of the Philippines. MR. RODRIGO. Yes, but the President is not the Commander-in-Chief of the national police. MR. NATIVIDAD. He is the President. MR. RODRIGO. Yes, the Executive. But they do not come under that specific provision that the President is Commander-in-Chief of all the armed forces. MR. NATIVIDAD. No, not under the Commander-in-Chief provision. MR. RODRIGO. There are two other powers of the President. The President has control over departments, bureaus and offices, and supervision over local governments. Under which does the police fall, under control or under supervision? MR. NATIVIDAD. Both, Madam President. MR. RODRIGO. Control and Supervision. MR. NATIVIDAD. Yes, in fact, the National Police Commission is under the Office of the President." (CONCOM RECORDS, Vol. 5, p. 296). It thus becomes all too apparent then that the provision herein assailed precisely gives muscle to and enforces the proposition that the national police force does not fall under the Commander-in-Chief powers of the President. This is necessarily so since the police force, not being integrated with the military, is not a part of the Armed Forces of the Philippines. As a civilian agency of the government, it properly comes within, and is subject to, the exercise by the President of the power of executive control. cdrep Consequently, Section 12 does not constitute abdication of commander-in-chief powers. It simply provides for the transition period or process during which the national police would gradually assume the civilian function of safeguarding the internal security of the State. Under this instance, the President, to repeat, abdicates nothing of his war powers. It would bear to here state, in reiteration of the preponderant view, that the President, as Commander-in-Chief, is not a member of the Armed Forces. He remains a civilian whose duties under the Commander-in-Chief provision "represent only a part of the organic duties imposed upon him. All his other functions are clearly civil in nature." 31 His position as a civilian Commander-in-Chief is consistent with, and a testament to, the constitutional principle that "civilian authority is, at all times, supreme over the military." (Article II, Section 3, 1987 Constitution.). Finally, petitioner submits that the creation of a "Special Oversight Committee" under Section 84 of the Act, especially the inclusion therein of some legislators as members (namely: the respective Chairmen of the Committee on Local Government and the Committee on National Defense and Security in the Senate, and the respective Chairmen of the Committee on Public Order and Security and the Committee on National Defense in the House of Representatives) is an "unconstitutional encroachment upon and a diminution of, the President's power of control over all executive departments, bureaus and offices." But there is not the least interference with the President's power of control under Section 84. The Special Oversight Committee is simply an ad hoc or transitory body, established and tasked solely with planning and overseeing the

immediate "transfer, merger and/or absorption" into the Department of the Interior and Local Governments of the "involved agencies." This it will undertake in accordance with the phases of implementation already laid down in Section 85 of the Act and once this is carried out, its functions as well as the committee itself would cease altogether. 32 As an ad hoc body, its creation and the functions it exercises, decidedly do not constitute an encroachment and in diminution of the power of control which properly belongs to the President. What is more, no executive department, bureau or office is placed under the control or authority of the committee. 33 As a last word, it would not be amiss to point out here that under the Constitution, there are the socalled independent Constitutional Commissions, namely: The Civil Service Commission, Commission on Audit, and the Commission on Elections. (Article IX-A, Section 1). As These Commissions perform vital governmental functions, they have to be protected from external influences and political pressures. Hence, they were made constitutional bodies, independent of and not under any department of the government. 34 Certainly, they are not under the control of the President. The Constitution also created an independent office called the "Commission on Human Rights." (Article XIII, Section 17[1]). However, this Commission is not on the same level as the Constitutional Commissions under Article IX, although it is independent like the latter Commissions. 35 It still had to be constituted thru Executive Order No. 163 (dated May 5, 1987). In contrast, Article XVI, Section 6 thereof, merely mandates the statutory creation of a national police commission that will administer and control the national police force to be established thereunder. This commission is, for obvious reasons, not in the same category as the independent Constitutional Commissions of Article IX and the other constitutionally createdindependent Office, namely, the Commission on Human Rights. LLpr By way of resume, the three Constitutional Commissions (Civil Service, Audit, Elections) and the additional commission created by the Constitution (Human Rights) are all independent of the Executive; but the National Police Commission is not. 36 In fact, it was stressed during the CONCOM deliberations that this commission would be under the President, and hence may be controlled by the President, thru his or her alter ego, the Secretary of the Interior and Local Government. WHEREFORE, having in view all of the foregoing holdings, the instant petition is hereby DISMISSED for lack of merit. SO ORDERED.

Narvasa, C .J ., Melencio-Herrera, Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, Grio-Aquino, Medialdea, Regalado, Davide, Jr., Romero and Nocon, JJ ., concur.
THIRD DIVISION [G.R. No. 67195. May 29, 1989.] HEIRS OF EUGENIA V. ROXAS, INC., BENIGNA V. ROXAS, JULITA N. ROXAS, VICTORIA R. VALLARTA, JUANITA ROXAS, and MARGARITA R. TIOSECO, petitioners, vs. INTERMEDIATE APPELLATE COURT, REBECCA BOYER-ROXAS, GUILLERMO LUIS ROXAS, JUDITH ROXAS and MARIA PILAR ROXAS, respondents. [G.R. No. 78618. May 29, 1989.] HEIRS OF EUGENIA V. ROXAS, INC., petitioners, vs. HON. JOSE ANTONIO U. GONZALES, in his capacity as Secretary of Tourism, SOSTENES L. CAMPILLO, JR., in his capacity as Undersecretary of Tourism Services, both of the Department of Tourism and GUILLERMO ROXAS, doing business under the name and style "MJB Food and Services", respondents. [G.R. Nos. 78619-20. May 29, 1989.] HEIRS OF EUGENIA V. ROXAS, INC., petitioners, vs. HON. ODILON I. BAUTISTA, Judge Presiding over Branch 37 of the Regional Trial Court of Calamba, Laguna, HON. JAIME

GASAPOS, in his capacity as OIC Calauan, Laguna, and GUILLERMO ROXAS, doing business under the name and style MJB FOOD and SERVICES, respondents.

Benito P. Fabie for petitioners. Conrado L. Manicad for respondents. Ramon C. Fernandez for private respondents.
SYLLABUS 1.REMEDIAL LAW; PROVISIONAL REMEDIES; PRELIMINARY INJUNCTION; DEFINED. At times referred to as the "Strong Arm of Equity," the writ of preliminary injunction, whether prohibitory or mandatory, is sought for the protection of the rights of a party before the final determination of his rights vis-a-vis others' in a pending case before the court. 2.ID.; ID.; ID.; GROUNDS FOR ISSUANCE. It will issue only upon a showing that there exists a clear and present right to be protected and that the facts upon which the writ is to be directed are violative of said right [Angela Estate Inc., et al. v. CFI of Negros Occidental, et al., G.R. No. L-27084, July 31, 1968, 24 SCRA 500; Locsin v. Climaco G.R. No. L-27319, January 31, 1969, 26 SCRA 816; Buayan Cattle Co., Inc. v. Quintillan, G.R. No. L-26970, March 19, 1984, 128 SCRA 276.] It cannot be over-emphasized that the mere prayer for the preservation of the status quo pending the appellate court's adjudication of the issues is not sufficient to warrant the issuance of this writ. "The possibility of irreparable damage, without proof of violation of an actually existing right, is no ground for an injunction, being a mere damnum obsque injuria". 3.ID.; SPECIAL CIVIL ACTION; CERTIORARI; ISSUANCE OF A WRIT OF PRELIMINARY INJUNCTION IN THE ABSENCE OF A CLEAR AND PRESENT RIGHT, AN ABUSE OF DISCRETION; CASE AT BAR. After a careful consideration of the undisputed facts and the arguments of the parties, the Court finds that the IAC acted without or in excess of jurisdiction and/or with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the writ of preliminary injunction. Private respondents failed to establish a clear and present right to continue operating the restaurant and liquor concession at the resort considering that they, who were then incorporated and doing business under HVABR, had NO license or authorization from the MOT to operate the restaurant and liquor concession in the resort. Without a license private respondents cannot legally continue to operate the restaurant, and therefore they cannot claim a right which could be protected by a writ of preliminary injunction. 4.ID.; PROVISIONAL REMEDIES; PRELIMINARY INJUNCTION; WRIT ISSUED ALLOWING CONTINUANCE OF OPERATION OF RESTAURANT AND LIQUOR CONCESSION WITHOUT THE REQUIRED MOT LICENSE, DECLARED NULL AND VOID. The Court is compelled to declare null and void the writ issued by the IAC which allowed private respondents to continue their operation of the restaurant and liquor concession despite absence of the requisite MOT license permitting them to do so, thereby sanctioning their illegal operation. 5.ID.; ACTIONS, MOOT AND ACADEMIC; CONSTRUED. A case is considered moot and academic when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy, or where no practical relief can be granted. 6.ID.; SPECIAL CIVIL ACTION; PROHIBITION; FUNCTION OF THE WRIT. The function of the writ of prohibition is to prevent the doing of some act which is about to be done. It is not intended to provide a remedy for acts already accomplished. 7.ID.; ACTIONS; CAUSE OF ACTION; DETERMINED BY SUBSTANCE AND AVERMENTS, NOT THE TITLE OR CAPTION, OF PLEADINGS. It is not the title or caption of a pleading, but the substance and averments thereof that is controlling; so that, in the interest of justice, although a petition is styled "Prohibition", it may be considered a petition for certiorari if the facts alleged make out a case for the issuance of the latter writ. 8.ID.; EVIDENCE; FINDINGS OF FACT OF EXECUTIVE AGENCIES AND ADMINISTRATIVE BODIES, GENERALLY NOT INTERFERED WITH BY THE COURTS; EXCEPTIONS. Courts of justice will generally not interfere in executive and administrative matters which are addressed to the sound discretion of government agencies, such as, the grant of licenses, permits, leases, or the approval, rejection or revocation of applications therefor. However, there is a limit to the deference accorded by the courts to the actions of such agencies. Jurisprudence is replete with cases wherein the Supreme Court expounded on the exception to the general rule as there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government. [Article VIII, Sec. 1, par. 2.] 9.ID.; ID.; ID.; ID.; CASE AT BAR. The Court holds that it was an arbitrary and capricious exercise of discretion on the part of public respondents to have issued, and thereafter to have refused to revoke, the restaurant license in favor of

Guillermo Roxas and or MJBFS knowing that: (1) the latter was not the owner of the restaurant for which the license was sought; (2) the latter's right to possess the same was being disputed by no less than petitioner as restaurant owner; and, (3) the subject restaurant was already leased to Valley Resort Corporation pursuant to a contract of lease approved by the department. 10.ID.; PROVISIONAL REMEDIES; INJUNCTION; GRANT THEREOF LIES WITHIN THE SOUND DISCRETION OF THE COURT. Whether or not a writ of injunction will issue lies exclusively within the discretion of respondent judge, and this Court will not interfere with the exercise of respondent judge's discretion unless there is a showing of grave abuse. 11.ID.; SPECIAL CIVIL ACTION; CONTEMPT; AN ACT TO BE CONTUMACIOUS MUST BE CLEARLY CONTRARY OR PROHIBITED BY THE COURT. "Well-settled is the rule that an act to be considered contemptuous must be clearly contrary or prohibited by the order of the Court. 'A person cannot, for disobedience, be punished for contempt unless the act which is forbidden or required to be done is clearly and exactly defined, so that there can be no reasonable doubt or uncertainty as to what specific act or thing is forbidden or required'".

DECISION

CORTES, J p: These consolidated cases relate to various incidents in the long running dispute between the heirs of Eufrocino and Eugenia Roxas regarding the operation of a restaurant within the Hidden Valley Springs Resort in Calauan, Laguna. All of the instant petitions filed by the petitioners arise from the same factual antecedents and are bound by petitioners' singular intent of enjoining private respondents from operating the restaurant at the Hidden Valley Springs Resort. It must be clear, however, that the issue as to who has the legal right to operate the subject restaurant is not for this Court to decide in these petitions, for such issue is the crux of the appeal pending before the Court of Appeals. For the present, the Court is only called upon to determine whether or not grave abuse of discretion as would vitiate the jurisdiction of the public respondents and would warrant the annulment of their assailed resolutions and or orders, was committed. FACTS OF THE CASE Petitioner corporation, Heirs of Eugenia V. Roxas, Inc. (hereinafter referred to as HEVR), was incorporated on December 4, 1962 by the late Eufrocino Roxas and his seven children (Pedro, Benigna, Julita, Antonio, Ramon, Victoria and Eriberto), with the primary purpose of owning and developing the properties of Eufrocino Roxas and the estate of his late wife, Doa Eugenia V. Roxas, located in the Province of Laguna. Petitioners Benigna V. Roxas, Julita N. Roxas, Victoria R. Vallarta, Juanita Roxas and Margarita R. Tioseco are some of the surviving heirs of Eufrocino and Eugenia Roxas. In 1971, its articles of incorporation were amended to include the operation of a resort among its purposes. In early 1972, it opened to the public the Hidden Valley Springs Resort, situated in Calauan, Laguna. Eufrocino Roxas was Chairman of the Board of Directors and President of HEVR until the time of his death on August 28, 1979. One of his sons, Eriberto, a director, was manager of the resort until his death in 1980. He also succeeded his father as President upon the latter's demise. Private respondents are the heirs of Eriberto Roxas: Rebecca Boyer-Roxas, his wife; Guillermo Luis and Maria Pilar, his children: and Judith Roxas, his daughter-in-law. Eriberto Roxas and his family had been exclusively operating the restaurant and liquor concession at the resort under an "Agreement" dated May 27, 1975 executed between Eufrocino Roxas, as President of HEVR, and Eriberto Roxas, in his behalf and that of his family. When Eriberto Roxas was taken ill a few months before his death, Guillermo Roxas took it upon himself to take over all the corporate duties and assume the authority of his father pertaining to the resort. After Eriberto Roxas' death on December 4, 1980, private respondents continued the operations of the restaurant and liquor concession. In 1981, they incorporated under the name "Hidden Valley Agri-Business and Restaurant, Inc." (hereinafter referred to as HVABR), and through this entity they continued to carry on the concession. The HEVR held a stockholders' and Board of Directors' meeting on January 31, 1981, elected members of the Board and appointed officers of the corporation. The Board then set up a management committee and commenced an inquiry into the financial status of the resort, requiring Guillermo Roxas to submit documents relative to its earnings and

expenditures. Steps were subsequently taken to restrict private respondents' previously unlimited access to the corporate funds. Not surprisingly, private respondents were defiant. In the Board meeting of July 30, 1981, the treasurer of HEVR reported that the income of the resort could not satisfy its payroll requirements and loan amortizations. It appeared that the resort's financial difficulty was due to the fact that the biggest profit center, the restaurant therein, was not managed and operated by HEVR itself and that the concession fee paid by private respondents was not even enough to pay for the interest and amortizations on the loan secured by HEVR to upgrade the restaurant and kitchen facilities. It was suggested that HEVR should take over the operation of the restaurant. Hence, the Board of Directors adopted Resolution No. 3-81 authorizing the President to notify HVABR of its intent to take over the operation of the restaurant, and in the event the latter refuses or fails to peaceably vacate the premises within thirty (30) days from notice, to close the resort for an indefinite period of time to prevent further losses to the corporation, and finally to order a financial, legal and management audit of the operations of the resort [Rollo, G.R. No. 67195, p. 99]. The President then sent a letter dated August 13, 1981 to private respondents informing them of the above resolution, and asking them to vacate the restaurant premises and to turn over possession thereof to HEVR. cdrep Private respondents consequently filed on September 18, 1981 an action for injunction with a prayer for preliminary injunction and or restraining order against HEVR and the other petitioners, including Rafael J. Roxas, in the Regional Trial Court (RTC) of San Pablo, Laguna, docketed as Civil Case No. SP-1920, to prevent the closure of the resort and the unilateral termination by HEVR of the concession agreement. The petitioners, in their answer, prayed for the dismissal of the complaint, the declaration of the nullity of the concession agreement, and for an order requiring private respondents to vacate and surrender the restaurant premises. In the meantime, HVABR filed with the Bureau of Tourism Services of the Ministry of Tourism (MOT) a petition to increase the food and beverage prices at the resort restaurant. HEVR, being the holder of a license to operate the resort, contested this petition by impugning the authority of HVABR to file the petition and to continue operating the restaurant. Pending resolution of HVABR's petition in the MOT, the RTC, on June 13, 1983, dismissed private respondent's complaint. The concession agreement between Eriberto and Eufrocino Roxas was declared null and void for being ultra vires since it was neither authorized nor ratified by the Board of HEVR, and for being violative of the doctrine of corporate opportunity as embodied in Section 34 of the Corporation Code. 1 The trial court also upheld Resolution No. 3-81 as a valid and reasonable exercise of corporate power by the Board of Directors of HEVR [ Id. at pp. 88-113]. With the decision of the trial court to support them, HEVR immediately caused the temporary closure of the resort. Private respondents, on the other hand, appealed to the Intermediate Appellate Court (IAC) on June 27, 1983 (AC-G.R. CV No. 00764), and in an "Urgent Omnibus Motion" 2 prayed for the issuance of a writ of preliminary injunction to prohibit petitioners from closing the resort [Id. at pp. 114-126.]. On July 22, 1983, the IAC granted a temporary restraining order (TRO) which not only directed petitioners to refrain from further commission of "acts that will tend to interfere, impede, frustrate and obstruct the operation by plaintiffs-appellants [private respondents herein] of the restaurant and liquor concession at the Hidden Valley Springs Resort," but also "to undo such acts" if already done [Id. at p. 131.]. Immediately thereafter, petitioners filed a Comment to the appellants' "Urgent Omnibus Motion", praying for the lifting of the TRO [Id. at pp. 134-143.]. Meanwhile, the MOT promulgated on July 28, 1983 its resolution dismissing HVABR's petition, finding inter alia that HVABR was operating the restaurant and liquor facilities of the resort without the requisite MOT license. The dispositive portion of the resolution provides in part: WHEREFORE, in view of the foregoing considerations, we hereby resolved to: xxx xxx xxx 2.The Heirs of Eugenia V. Roxas, Inc. (HEVR) is hereby ORDERED TO TAKE OVER IMMEDIATELY the active management and operation of the RESTAURANT and WINE outlets of the Hidden Valley Springs Resort from the Hidden Valley AgriBusiness & Restaurant, Inc. (HVABR). 3.The Hidden Valley Agri-Business & Restaurant Inc. (HVABR) and/or any person claiming under it the management and operation of the RESTAURANT and WINE outlets of the Hidden Valley Springs Resort, Inc. is hereby ORDERED to CEASE and DESIST from and to TURN OVER IMMEDIATELY to the Heirs of Eugenia V. Roxas, Inc. (HEVR), the MANAGEMENT and OPERATION of the RESTAURANT and WINE outlets of the Hidden Valley Springs Resort; 4.The Director of the Bureau of Tourism Services is hereby ORDERED NOT TO ISSUE in favor of the Hidden Valley AgriBusiness Inc. (HVABR) a Provisional Authority to operate the restaurant outlet of the Hidden Valley Springs Resort; xxx xxx xxx

9.Considering that the rightful owner/operator of the Hidden Valley Springs Resort, the Heirs of Eugenia V. Roxas, Inc. (HEVR), has been deprived of its right to operate and or manage the restaurant and wine outlets of the resort for a considerable length of time already and the added fact that the present operator of said outlets of the resort has been operating the same illegally for quite a long period of time already notwithstanding the mandate of the Rules of this Ministry that only licensed operators may operate the same, to immediately stop such illegal act, this Resolution is hereby declared IMMEDIATELY EXECUTORY. SO ORDERED. [Id. at pp. 153-155.] Private respondents filed a Manifestation (actually a motion for reconsideration) seeking to hold in abeyance the execution of the aforementioned judgment. However, the MOT subsequently issued its Order dated August 3, 1983 reiterating its findings and emphasizing the final and executory nature of its directive [ Id. at pp. 202-205.] Petitioners then filed on August 31, 1983 with the IAC a Manifestation inviting the attention of the appellate court to the above MOT resolution and Order [Id. at pp. 199-201.] In the following month, petitioners filed a motion to dismiss the appeal and an application for a writ of preliminary injunction alleging that private respondents had no right to operate the restaurant per the August 3, 1983 MOT Order, and that in fact they had ceased operating the same since September 8, 1983, thereby rendering the appealed injunction case moot and academic [Id. at pp. 206-212.] However, on October 3, 1983, the IAC promulgated a resolution whereby petitioners were enjoined from disturbing the status quo or from doing acts that tend to frustrate, impede, obstruct, disturb or interfere with the operation by private respondents of the restaurant and liquor concession. The IAC opined: Since, the complaint filed by the plaintiffs-appellants was for the purpose of seeking to enjoin and restrain the defendantappellees from closing the subject resort, the issue is thus the object of the appeal which is perfected and now pending before us. To allow defendants-appellees to close the resort in question would thus amount to execution of the decision pending appeal, and, "Execution pending appeal, being an exception to the general rule that execution may issue only after the decision in any case has become executory, may issue only upon allegation and proof of the existence of a special reason therefor." (De la Rea v. Subido, G.R. No. L-26082, March 1, 1968, 22 SCRA 953). The decision in the main case was rendered on June 13, 1983 and plaintiffs-appellants filed their Notice of Appeal on June 18, 1983. The appeal was given due course on July 6, 1983 and is now before this Court. No special reason is cited for immediate execution pending appeal nor is such execution pending appeal properly applied for. [ Id.at p. 78.] llcd Then Associate Appellate Justice Bidin 3 dissented, stressing the failure of private respondents to establish a clear right to continue operating the restaurant in view of the dismissal of their action in the lower court and the MOT resolution of July 28, 1983. Petitioners filed a motion for reconsideration with the IAC on October 13, 1983. On November 3, 1983, the MOT denied private respondents' motion for reconsideration [Id. at pp. 277-300.] Thus, petitioners once again filed a Manifestation dated November 5, 1983 with the IAC, informing it of this denial [ Id. at pp. 275-276.] On November 17, 1983, petitioners filed another Manifestation and Motion with the IAC, bringing to said court's attention an October 27, 1983 decision of the Bureau of Domestic Trade rendered in C.A.D. Case No. 343, wherein the Bureau found that HVABR was operating the restaurant in violation of the Retail Trade Nationalization Law (Republic Act No. 1180, as amended) because one of its stockholders, Rebecca Boyer-Roxas, was a foreigner actually participating in the operation and management of the restaurant [Id. at pp. 301-303.] This notwithstanding, the IAC promulgated its April 4, 1984 resolution denying petitioner's motion for reconsideration and motion to dismiss the appeal, with Justice Bidin dissenting once again [ Id. at pp. 82-87.] Aggrieved by the IAC resolutions, petitioners, with the exception of Rafael J. Roxas, brought a petition for certiorari, prohibition and mandamus with preliminary injunction in this Court docketed as G.R. No. 67195. On May 16, 1984, the Court issued a temporary restraining order to stop the IAC from enforcing and or carrying out the resolutions dated October 3, 1983 and April 4, 1984 and its writ of preliminary injunction [ Id. at pp. 350-351.]

On September 2, 1985, HEVR entered into a contract of lease with Valley Resort Corporation, whereby the latter leased the Hidden Valley Springs Resort, with all the equipment, vehicles, facilities and structures used in the resort operation, including the subject restaurant premises, for a term of ten (10) years. After the contract was approved by the MOT on September 4, 1985, a MOT license to operate the Hidden Valley Springs Resort was issued to Valley Resort Corporation effective until July 31, 1987 [Rollo, G.R. No. 78618, pp. 92-104.] On the other hand, during the pendency of G.R. No. 67195, respondent Guillermo Roxas doing, business under the name and style "MJB Food and Services" (hereinafter referred to as MJBFS), obtained on March 23, 1987 a license dated March 3, 1987 from the Department of Tourism (DOT) to operate the restaurant at the Hidden Valley Springs Resort as a "Class A-De Luxe" restaurant [Id. at p. 110.] Various letters were sent by HEVR to the DOT contesting the issuance of the license alleging, inter alia, that Guillermo Roxas was not authorized to possess and operate the restaurant [ Id. at pp. 105121.] No response was heard from the DOT until the Secretary of Tourism sent a letter to HEVR dated June 1, 1987 refusing to reconsider the issuance of the license to MJBFS. Hence, HEVR filed the herein second petition docketed as G.R. No. 78618, on June 11, 1987, seeking the nullification of the license issued to MJBFS. A temporary restraining order was issued by the Court on June 22, 1987. The order restrained the Secretary of Tourism from "allowing respondent Guillermo Roxas from utilizing the license in question to operate the restaurant inside the Hidden Valley Springs Resort and in the restaurant building/premises owned by petitioner, and from further granting license to said respondent Roxas under any business name he may use to apply therefor" [ Id. at pp. 124-125.] Prior to the filing of the second petition, a mayor's permit to engage in the restaurant business was issued by Hon. Jaime Gasapos, the Officer-in-Charge (OIC) of Calauan, Laguna, to Guillermo Roxas/MJBFS on March 30, 1987, despite protests by HEVR. Thus, HEVR filed a complaint for injunction on April 6, 1987 in the Regional Trial Court (RTC) of Calamba, Laguna, docketed as Civil Case No. 1086-87-C, against the OIC and Guillermo Roxas from utilizing the mayor's permit in order to operate the resort restaurant. In its Order dated April 29, 1987, the trial court denied HEVR's prayer for the issuance of a writ of preliminary injunction. HEVR's subsequent motion for reconsideration was likewise denied. Consequently, HERV filed a third petition in this Court, docketed as G.R. Nos. 78619-78620, assailing the RTC Orders in Civil Case No. 1086-87-C. LibLex The Court issued a temporary restraining order on June 23, 1987 restraining respondent Guillermo Roxas and/or MJBFS from utilizing the Mayor's permit to operate the subject restaurant [Rollo, G.R. Nos. 78619-78620, pp. 183-184.] Incidentally, on March 31, 1987 a motion to declare Guillermo Roxas in contempt of court in G.R. No. 67195 was filed by petitioners therein, on the ground that he violated the Court's temporary restraining order dated May 16, 1984 when he obtained the DOT license to operate the resort restaurant [Rollo, G.R. No. 67195, pp. 510-525.] On June 22, 1987, G.R. Nos. 78619-78620 were ordered consolidated with G.R. No. 67195 [Rollo, G.R. Nos. 7861978620, p. 182.] On July 27, 1987, G.R. No. 78618 was ordered consolidated with G.R. No. 61795 and G.R. Nos. 7861978620 [Rollo, G.R. No. 78618, p. 157.] G.R. No. 67195 In this petition for certiorari, prohibition and mandamus with preliminary injunction, petitioners pray for the nullification of the October 3, 1983 and the April 4, 1984 Resolutions of the IAC. The issues raised in this petition may be paraphrased as follows: I.Whether or not Respondent IAC gravely abused its discretion tantamount to lack of or excess of jurisdiction in granting the writ of preliminary injunction; and II.Whether or not Respondent IAC gravely abused its discretion tantamount to lack of or excess of jurisdiction in denying the petitioner's Motion to Dismiss the Appeal. I At times referred to as the "Strong Arm of Equity," the writ of preliminary injunction, whether prohibitory or mandatory, is sought for the protection of the rights of a party before the final determination of his rights vis-a-vis others' in a pending case before the court. It will issue only upon a showing that there exists a clear and present right to be protected and that the facts upon which the writ is to be directed are violative of said right [Angela Estate Inc., et al. v. CFI of Negros Occidental, et al., G.R. No. L-27084, July 31, 1968, 24 SCRA 500; Locsin v. Climaco G.R. No. L-27319, January 31, 1969, 26 SCRA 816; Buayan Cattle Co., Inc. v. Quintillan, G.R. No. L-26970, March 19, 1984, 128 SCRA 276.] It cannot be overemphasized that the mere prayer for the preservation of the status quo pending the appellate court's adjudication of the issues is not sufficient to warrant the issuance of this writ. "The possibility of irreparable damage, without proof of violation of an actually existing right, is no ground for an injunction, being a mere damnum obsque injuria" [BacolodMurcia Milling Co., Inc., et al. v. Capitol Subdivision, Inc., et al., G.R. No. L-25887, July 26, 1966, 17 SCRA 731, 737.]

With these principles in mind, and after a careful consideration of the undisputed facts and the arguments of the parties, the Court finds that the IAC acted without or in excess of jurisdiction and/or with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the writ of preliminary injunction. Private respondents failed to establish a clear and present right to continue operating the restaurant and liquor concession at the resort considering that they, who were then incorporated and doing business under HVABR, had NO license or authorization from the MOT to operate the restaurant and liquor concession in the resort. Without a license private respondents cannot legally continue to operate the restaurant, therefore they cannot claim a right which could be protected by a writ of preliminary injunction. Petitioners invited the attention of the IAC to the July 28, 1983 MOT Resolution finding that HVABR lacked the requisite license to operate the restaurant and liquor facilities in the resort, and the August 3, 1983 MOT Order directing HVABR to desist from operating the restaurant and to effect its closure [See Petitioners' Manifestation, Rollo, G.R. No. 67195, pp. 199-201.] The IAC nevertheless promulgated its October 3, 1983 Resolution granting private respondents' prayer for a writ of preliminary injunction. Subsequently, petitioners brought to the attention of the IAC the MOT resolution denying HVABR's motion for reconsideration as well as the Bureau of Domestic Trade decision finding that HVABR's restaurant business violated the Retail Trade Nationalization Law [See Petitioners' Manifestation and Motions, Id. at pp. 275-276; 301-304.] Once again, the IAC denied petitioners' motions in its April 4, 1984 Resolution. LLjur Contrary to the IAC's opinion, the July 28, 1983 MOT Resolution was not based on the trial court's conclusion that the disputed concession agreement was invalid. As correctly pointed out by the petitioners, the MOT Resolution and Order were based on the undisputed fact that HVABR was operating the restaurant and liquor facilities of the resort without the requisite license. More importantly, the IAC ignored the basic implication of these circumstances that HVABR's unlicensed restaurant business was in gross violation of the Rules of the MOT and tantamount to a criminal offense punishable under Sec. 19 (b) and (c) of PD 1463. 4 In fact, the MOT, in its August 3, 1983 Order denying private respondent's manifestation (motion for reconsideration), opined that: . . . to grant the prayer contained in the Manifestation (actually motion) under consideration would sweep away the barrier erected by the law against unlicensed operators of tourism-oriented establishment [sic]. Indeed, even by the greatest violence of construction of our powers and extravagant exercise of our discretion, we cannot, without being prodigal in our actuation, grant the said prayer of the movant; which could be dangerous influence with respect to subsequent cases that may come before us for resolution. Again, to grant the prayer contained in the Manifestation under consideration would amount to a condonnation [sic] of the illegal act that has been and still is, being committed by the management of the HIDDEN VALLEY AGRI-BUSINESS & RESTAURANT INC. (HVABR) and thus give a premium to a violation of the law. Precisely we declared our resolution "IMMEDIATELY EXECUTORY' so as to put an immediate stop to its illegal act. Movant is thus plainly in error in claiming that "the same is not yet final and executory." [Id. at p. 204.] Consequently, the Court is compelled to declare null and void the writ issued by the IAC which allowed private respondents to continue their operation of the restaurant and liquor concession despite absence of the requisite MOT license permitting them to do so, thereby sanctioning their illegal operation [ See Suarez v. Reyes, G.R. No. L-19828, February 28, 1963, 7 SCRA 461 ; Utleg v. Arca, G.R. No. L-25026, August 31, 1971, 40 SCRA 597.] II Petitioners allege that the aforementioned MOT resolutions as well as the decision of the Bureau of Domestic Trade which declared private respondents' restaurant business violative of the Retail Trade Nationalization Law, rendered the main issue in the injunction case on appeal before the IAC moot and academic. The above contention springs from an erroneous analysis of the issues and must be rejected. A case is considered moot and academic when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy, or where no practical relief can be granted [Meralco Workers Union v. Yatco, G.R. No. L-19785, January 30, 1967, 19 SCRA 177; Bongat v. BLR, G.R. No. L-41039, April 30, 1985, 136 SCRA 225.] The issue in the injunction case, which is now raised on appeal before the IAC, hinges on a determination of the contractual relationship between the petitioners and private respondents as heirs of Eufrocino and Eugenia Roxas vis-a-

vis the operation and management of the restaurant and liquor concession in the resort. Its resolution rests on a judicial

declaration of the validity or nullity of the disputed concession agreement between the parties. This issue is unaffected by the fact that private respondents have no license to operate the restaurant, or that the participation of Rebecca BoyerRoxas in HVABR's activities was violative of the Retail Trade Nationalization Law, for the rights between the parties remain largely unsettled. G.R. No. 78618 In this petition for prohibition with preliminary injunction, petitioner HEVR seeks to nullify MJBFS' license to operate the restaurant in the Hidden Valley Springs Resort and to prohibit the DOT from issuing any other license to respondent Guillermo Roxas. The function of the writ of prohibition is to prevent the doing of some act which is about to be done. It is not intended to provide a remedy for acts already accomplished [Cabanero v. Torres, 61 Phil. 522 (1935); Agustin, et al. v. de la Fuente, 84 Phil. 515 (1949); Navarro v. Lardizabal, G.R. No. L-25361, September 28, 1968, 25 SCRA 370.] Cdpr As a license to operate the restaurant had already been issued to private respondents, a writ of prohibition cannot issue. Nevertheless, it does not mean that no other affirmative relief may be given to petitioner if found to be deserving. For it is not the title or caption of a pleading, but the substance and averments thereof that is controlling; so that, in the interest of justice, although a petition is styled "Prohibition", it may be considered a petition for certiorari if the facts alleged make out a case for the issuance of the latter writ [Cajefe, et al. v. Fernandez, et al., 109 Phil. 743 (1960); See also Concepcion v. Vera, et al., 67 Phil. 122 (1939); Tambunting de Tengco v. San Jose, et al., 97 Phil. 491 (1955).] The Court will treat the instant petition as if it were a special civil action for certiorari. It is a recognized principle that courts of justice will generally not interfere in executive and administrative matters which are addressed to the sound discretion of government agencies, such as, the grant of licenses, permits, leases, or the approval, rejection or revocation of applications therefor [Manuel v. Villena, G.R. No. L-28218, February 27, 1971, 37 SCRA 745.] However, there is a limit to the deference accorded by the courts to the actions of such agencies. Jurisprudence is replete with cases wherein the Supreme Court expounded on the exception to the general rule. 5 In laying down the guidelines for the review of decisions of administrative agencies in the exercise of their quasi-judicial powers, the Supreme Court, in the oft-cited case of Pajo, et al. v. Ago, et al., 108 Phil. 905 (1960), stated that: cdll In general, courts have no supervising power over the proceedings and actions of the administrative departments of the government. This is generally true with respect to acts involving the exercise of judgment or discretion, and findings of fact. Findings of fact by an administrative board or officials, following a hearing, are binding upon the courts and will not be disturbed except where the board or official has gone beyond his statutory authority, exercised unconstitutional powers or clearly acted arbitrarily and without regard to his duty or with grave abuse of discretion. And we have repeatedly held that there is grave abuse of discretion justifying the issuance of the writ of certiorari only when there is capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction . . . as where the power is exercised in an arbitrary or despotic manner by reason of passion, prejudice, or personal hostility amounting to an evasion of positive duty, or to a virtual refusal to perform the duty enjoined, or to act at all in contemplation of law . . . [ Id. at pp. 915-916.] This standard has been unequivocally embraced in the 1987 Constitution, which affirms the power of the judiciary 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 the government. [Article VIII, Sec. 1, par. 2.] In the instant case, petitioner contends that public respondents acted with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the contested restaurant license despite the failure of Guillermo Roxas and or MJBFS to satisfy the conditions mandated by the "Rules and Regulations governing the Business and Operations of All Resorts in the Philippines," such as, the submission of a contract of lease or written permit from the petitioner as resort and restaurant owner allowing MJBFS to operate the subject restaurant. Petitioner further contends that pursuant to Section 21, Chapter IV of the rules and regulations on resorts, 6 Valley Resort Corporation as lessee and holder of the license to operate the resort must be deemed licensed to operate the subject restaurant [Rollo, G.R. No. 78615, pp. 11-14.] Public respondents, on the other hand, argue that no grave abuse of discretion was committed by them because under the "Rules and Regulations Governing the Business and Operation of all restaurants in the Philippines," MJBFS was not required to submit a contract of lease or written permit from petitioner, the restaurant owner, allowing the former to operate the latter's restaurant. Moreover, they contend that the issuance of the license in favor of MJBFS was predicated on the favorable recommendation of a DOT Team of Inspectors 7 that evaluated MJBFS' application and inspected the premises of the subject restaurant in accordance with Section 8, Chapter IV of the rules and regulations on restaurants. Public respondents likewise contend that Section 21, Chapter IV of the rules and regulations on resorts was inapplicable

because Valley Resort Corporation does not "own and operate" the subject restaurant, therefore it cannot be deemed licensed to operate the same by virtue of its resort license alone. And inasmuch as no previous license had been issued to petitioner or Valley Resort Corporation to operate the subject restaurant, and in fact no party was operating the restaurant pending the approval of the application of Guillermo Roxas and/or MJBFS, no grave abuse of discretion attended the issuance of a restaurant license in favor of the latter [ Id. at pp. 248-258.] The Court, after a careful study of the various pleadings submitted by the parties, and the DOT rules and regulations governing the operation of restaurants and resorts in the country, holds that public respondents acted arbitrarily and capriciously and, therefore, with grave abuse of discretion amounting to lack or excess of jurisdiction in the issuance of the restaurant license in favor of MJBFS. Although the premises of public respondents' arguments cannot be disputed, the conclusion drawn therefrom is misplaced in view of the fact that public respondents undeniably had knowledge prior to the issuance of the license to Guillermo Roxas and or MJBFS that the subject restaurant was owned by petitioner and presently leased to Valley Resort Corporation, and that Guillermo Roxas and/or MJBFS' right to possess and operate the restaurant was the subject of a pending litigation. prcd As far back as 1983, the MOT records show that the department was aware of the controversy between petitioner and Guillermo Roxas, et al., who were then doing business under the name HVABR, regarding the restaurant and liquor concession at the resort. In fact, the MOT resolutions promulgated on July 28, 1983 and November 3, 1983 in MOT Appealed Case #83-1 precisely addressed petitioner's charge impugning the alleged right of Guillermo Roxas, et al. to operate its resort restaurant, the subject restaurant in this case. The judgment rendered by the RTC in Civil Case No. SP1920 finding that Guillermo Roxas, et al. had no contractual right to operate the restaurant and liquor concession in the resort was noted by the department in that MOT case. Moreover, the Director of the Bureau of Tourism Services was ordered not to issue in favor of HVABR a provisional authority to operate the subject restaurant on the finding that it had no contractual right to manage and/or operate the same [See MOT Resolution and MOT Order promulgated on July 28, 1983 and August 3, 1983, respectively, in MOT Appealed Case No. 83-1, Rollo, G.R. No. 67195, pp. 144-155, 202-205; MOT Resolution on the Motion for Reconsideration promulgated on November 3, 1983, Id. at pp. 277-300.]. On September 4, 1985, the MOT, after appropriate proceedings, duly approved the ten-year contract of lease between petitioner and Valley Resort Corporation, whereby the latter, as LESSEE, was granted not only the exclusive right to possess, enjoy and use the Hidden Valley Springs resort, and all its equipment, vehicles, facilities and structures, including the subject restaurant, but also "the right and privilege to make use of the license and registration rights of the LESSOR over the resort . . . and, in addition, the LESSEE shall have the exclusive right, during the period that the lease is in full force and effect, to make use of the tradename and tradestyle `HIDDEN VALLEY SPRINGS RESORT' . . . [Rollo, G.R. No. 78618, p. 95.] Subsequently, Valley Resort Corporation was issued a license to operate the Hidden Valley Springs resort by the MOT effective until July 31, 1987. Incidentally, in that same contract was included a provision regarding the civil cases between petitioner and Guillermo Roxas, et al., pending before the IAC and Supreme Court concerning the rights of the parties to operate the subject restaurant covered by the lease, to the effect that petitioner warranted that it would continue to pursue with vigor the pending cases and other cases relative thereto, and that for the duration in which Valley Resort Corporation would be unable to utilize the restaurant, rental payment would be reduced by 50% [ Id. at pp. 9697.] Then, even prior to the release of MJBFS' license to operate the restaurant on March 26, 1987, the DOT received petitioner's letter dated March 9, 1987 opposing the issuance of that license and reminded the DOT that, inter alia, the issue of whether or not Guillermo Roxas, et al., had the right to operate petitioner's restaurant was still pending resolution before the courts and that the subject restaurant was covered by the MOT-approved contract of lease between petitioner and Valley Resort Corporation. Petitioner reiterated its grounds for opposition in its letters dated March 27, 1987, April 28, 1987 and May 28, 1987 to public respondent Secretary. Public respondents make much of the fact that petitioner's letters objecting to the application for a MJBFS restaurant license were not under oath as required under Section 17 of Chapter IV of the rules and regulations on restaurants. 8 The Court holds that this defect was not fatal to the cause of petitioner for the simple reason that the essential facts upon which petitioner's opposition was based were readily apparent from DOT registration and licensing department records. Moreover, by virtue of the approval by the MOT of the abovementioned contract of lease and the subsequent issuance of a resort license in favor of Valley Resort Corporation, the department had acknowledged the right of Valley Resort Corporation to operate the resort business and to possess, use and enjoy all the resort facilities, including the subject restaurant, which under department records has always been considered a facility of the Hidden Valley Springs Resort and a part of the resort business [Rollo, G.R. No. 67195, p. 152; Rollo, G.R. No. 78618, pp. 93-103.] Under the above

circumstances, the party entitled to a DOT license to operate the subject restaurant is either Valley Resort Corporation, as lessee, or any other party clearly authorized by petitioner, as restaurant owner, to possess and use the same. cdphil In fine, the Court holds that it was an arbitrary and capricious exercise of discretion on the part of public respondents to have issued, and thereafter to have refused to revoke, the restaurant license in favor of Guillermo Roxas and or MJBFS knowing that: (1) the latter was not the owner of the restaurant for which the license was sought; (2) the latter's right to possess the same was being disputed by no less than petitioner as restaurant owner; and, (3) the subject restaurant was already leased to Valley Resort Corporation pursuant to a contract of lease approved by the department. Public respondents' action, which contravenes the acceptable standards of justice and reason, is indicative of grave abuse of discretion amounting to lack or excess of jurisdiction. G.R. Nos. 78619-78620 Petitioner HEVR prays for the nullification of the RTC Orders of April 29, 1987 and May 8, 1987 denying its prayer for the issuance of a writ of preliminary injunction against Guillermo Roxas, enjoining the latter from using and enjoying the mayor's permit to operate the restaurant of the Hidden Valley Springs Resort. Petitioner alleges grave abuse of discretion amounting to lack of jurisdiction on the part of respondent judge, on the main premise that his Orders allowed private respondent to operate the subject restaurant in violation of the restraining order issued by this Court on May 16, 1984 in G.R. No. 67195. The denial of petitioner's prayer for the issuance of the writ was predicated on the failure of petitioner to establish a present and clear right to operate the subject restaurant, since the issue as to who among the parties had a better right to operate the restaurant is still being litigated in the IAC [RTC Order of April 29, 1987; Rollo, G.R. No. 78619-78620, pp. 29-31.] Furthermore, the denial was held not to be in violation of the Supreme Court's restraining order issued in G.R. No. 67195, since such order neither expressly prohibited Guillermo Roxas from operating the restaurant nor gave the petitioner a right to operate the restaurant [RTC Order of May 8, 1987, Id. at pp. 32-34.] The Court does not find merit in the instant petition. Whether or not a writ of injunction will issue lies exclusively within the discretion of respondent judge, and this Court will not interfere with the exercise of respondent judge's discretion unless there is a showing of grave abuse [North Negros Sugar Co. v. Hidalgo, 63 Phil. 664 (1936); Rodulfa v. Alfonsol, 76 Phil. 225 (1946); Yaptinchay v. Torres, G.R. No. L26462, June 9, 1969, 28 SCRA 489.] In the instant case, there is no indication that respondent judge acted with manifest abuse of his discretion in denying the issuance of the writ that would compel this Court to set aside his orders. Firstly, petitioner herein failed to establish a clear and present right justifying the issuance of a writ of preliminary injunction considering that its right to operate the subject restaurant to the exclusion of private respondent is still under litigation in AC-G.R. CV No. 00764. Secondly, at the inception of the action below, private respondent was a holder of a DOT license and a mayor's permit to operate the restaurant which were regular on their face. LLpr The Court's conclusion is not necessarily in conflict with that in G.R. No. 67195. Although both cases involve the issuance of a writ of preliminary injunction, in G.R. No. 67195 the Court declared that the writ of preliminary injunction cannot issue to protect the illegal restaurant business of private respondents in view of the fact that the latter was not then licensed by the MOT to operate the subject restaurant. The Court did not in any way attempt to resolve the issue of who among the parties had the right to operate the subject restaurant. Furthermore, this Court finds that the assailed RTC Orders did not violate its May 16, 1984 restraining order enjoining the IAC from enforcing and carrying out the October 3, 1984 and April 4, 1984 resolutions and its writ of preliminary injunction. Petitioner claims that the implication of this restraining order was to prohibit private respondent from operating the subject restaurant and to affirm the right of petitioner to operate the restaurant, pending resolution of G.R. No. 67195. This contention is unsound. The October 3, 1984 and April 4, 1984 IAC resolutions and its writ of preliminary injunction responded to private respondents' prayer to enjoin petitioner from closing the restaurant, disturbing the status quo and frustrating, impeding, obstructing, disturbing or interfering with private respondent's right to operate the restaurant and liquor concession. LLphil Consequently, this Court's restraining order had the effect of staying the writ of preliminary injunction and permitting petitioner to close the resort over and above the protests of private respondent. It did not ipso facto create and affirm a right on the part of petitioner to operate the restaurant. In addition, considering the thrust of the above holding, it is appropriate at this point to declare petitioner's motion to cite private respondent in contempt filed in G.R. No. 67195, charging as contumacious the act of private respondent in

applying for a restaurant license with the DOT under the business name MJBFS (in order to operate the subject resort restaurant as MJB Restaurant), without merit. "Well-settled is the rule that an act to be considered contemptuous must be clearly contrary or prohibited by the order of the Court. `A person cannot, for disobedience, be punished for contempt unless the act which is forbidden or required to be done is clearly and exactly defined, so that there can be no reasonable doubt or uncertainty as to what specific act or thing is forbidden or required'" [Cua v. Lecaros, G.R. No. 71909, May 24, 1988, citing Anglo-Fil Trading Corporation v. Lazaro, G.R. No. L-54958, September 2, 1983, 124 SCRA 494, 525.] Once again it must be noted that this Court's restraining order of May 16, 1984 was addressed to the IAC and had the effect of staying the writ of preliminary injunction issued by the latter. The only clear import of the restraining order was to allow petitioner as resort owner to close the resort. It did not prohibit private respondent from applying for a restaurant license with the DOT. However, the Court, in upholding the assailed orders of respondent judge herein, does not in any way purport to declare that private respondent has a clear and established right to operate the subject restaurant, and that he can, in fact, operate the same to the exclusion of the petitioner. It must be stressed that the issue of who among the parties has the right to operate the restaurant is still pending resolution before the Court of Appeals in the Civil Case AC-G.R. CV No. 00764. LibLex WHEREFORE, the Court rules: (1)In G.R. No. 67195, the October 3, 1983 Resolution of the IAC is SET ASIDE. The April 4, 1984 Resolution of the IAC is AFFIRMED insofar as it denies petitioners' motion to dismiss the appeal; but REVERSED insofar as it denies petitioners' motion for reconsideration of the October 3, 1983 Resolution seeking to set aside the writ of preliminary injunction issued by the IAC. In view of the Court's decision in G.R. Nos. 78619-78620, the motion to cite Guillermo Roxas in contempt of court is DENIED. The temporary restraining order issued by this Court on May 16, 1984, whereby the IAC was restrained from enforcing and or carrying out its resolutions dated October 3, 1983 and April 4, 1984, and its writ of preliminary injunction, shall remain in force and effect pending the resolution of Civil Case AC-G.R. CV No. 00764. (2)The petition in G.R. No. 78618 is GRANTED. The license to operate the subject restaurant in the Hidden Valley Springs Resort issued by the DOT in favor of MJB Food and Services (or Guillermo Roxas) is NULLIFIED. The temporary restraining order issued by this Court on June 22, 1987, whereby public respondents were restrained from further granting a similar license to respondent Guillermo Roxas under any business name he may use to apply therefor, shall remain in force and effect pending the final resolution of Civil Case AC-G.R. CV No. 00764. (3)The petition for certiorari and prohibition in G.R. Nos. 78619-78620 is DISMISSED for lack of merit. The temporary restraining order issued by this Court on June 23, 1987 is hereby SET ASIDE. SO ORDERED. Fernan (C.J.), Gutierrez, Jr., and Feliciano, JJ., concur. Bidin, J., No part, having participated in the assailed resolutions as a member of respondent court. FIRST DIVISION [G.R. No. L-29171. April 15, 1988.] INDUSTRIAL POWER SALES, INC., petitioner-appellant, vs. HON. DUMA SINSUAT, etc., et al., respondents-appellees.

Norberto J. Quisumbing for petitioner-appellant. Emerito M. Salva Law Offices and Juan B. Diaz for private respondents-appellees. The Solicitor General for public respondent.
SYLLABUS

1.REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI AND PROHIBITION; ACTS OF ADMINISTRATIVE OFFICERS OR AGENCIES. The rules in international jurisprudence governing review, thru certiorari or prohibition, of the acts of administrative officer are the following: (a) that before said actions may be entertained in the courts of justice, it must be shown that all the administrative remedies prescribed by law or ordinance have been exhausted; and (b) that the administrative decision may properly be annulled or set aside only upon a clear showing that the administrative official or tribunal has acted without or in excess of jurisdiction, or with grave abuse of discretion. ( Jao Igco v. Shuster, 10 Phil. 448; and other cases cited.) 2.ADMINISTRATIVE LAW; EXHAUSTION OF ADMINISTRATIVE REMEDIES; EXCEPTIONS. There are exceptions to the principle known as exhaustion of administrative remedies, these being: (1) where the issue is purely a legal one, (2) where the controverted act is patently illegal or was done without jurisdiction or in excess of jurisdiction; (3) where the respondent is a department secretary whose acts as an alter ego of the President bear the latter's implied or assumed approval, unless actually disapproved; or (4) where there are circumstances indicating the urgency of judicial intervention.

DECISION

NARVASA, J p: Certain universally accepted axioms govern judicial review through the extraordinary actions of certiorari or prohibition of determinations of administrative officers or agencies: first, that before said actions may be entertained in the courts of justice, it must be shown that all the administrative remedies prescribed by law or ordinance have been exhausted; and second, that the administrative decision may properly be annulled or set aside only upon a clear showing that the administrative official or tribunal has acted without or in excess of jurisdiction, or with grave abuse of discretion. 1 There are however exceptions to the principle known as exhaustion of administrative remedies, these being: (1) where the issue is purely a legal one, (2) where the controverted act is patently illegal or was done without jurisdiction or in excess of jurisdiction; (3) where the respondent is a department secretary whose acts as an alter ego of the President bear the latter's implied or assumed approval, unless actually disapproved; or (4) where there are circumstances indicating the urgency of judicial intervention. 2 Application of these established precepts to the undisputed facts, hereunder briefly set out, 3 impels the grant of the writ of certiorari to annul the administrative decision complained of in the proceedings at bar. In April of 1965 two (2) Invitations To Bid were advertised by the Bureau of Supply Coordination of the Department of General Services. The first, dated April 6, 1965, called for "eight (8) units TRUCKS, Line Construction, left-hand drive, complete and special factory built, series of 1965, brand new, for the use of the Bureau of Telecommunications pursuant to Requisition No. 18792 dated March 9, 1965." The Invitation to Bid as well as the requisition itself contained a proviso limiting the offers to foreign made products on a CIF basis, Port of Manila. The second, dated April 29, 1965, amended the first notice on the basis of suggestions contained in letters of Industrial Power Sales, Inc. sent on April 7 and 13, 1965, which were evidently found worth considering. Those letters proposed that the invitation include not only foreign made products on a CIF-Manila basis but alsothose of local manufacture on an FOB-Manila basis. Concerning this, Acting Undersecretary of Public Works & Communications Lachica addressed a 3rd Indorsement to the Director of Supply Coordination, dated April 22, 1965. 4 " . . . advising that this Office would not have any objection to locally manufactured utility truck bodies provided they conform to the approved technical specification of this Office as well as to the manufacturer's standard product specification, since this type of body manufacture has been acceptable in most government vehicles . . (and in view thereof) it may therefore be necessary that both CIF and FOB Manila quotations be considered." The second Invitation to Bid thus announced that both CIF Port of Manila and FOB Manila quotations would be accepted and made part of bid requirements. The bidding took place on May 11, 1965, as scheduled. Among the bidders were Industrial Power Sales, Inc. and Delta Motor Corporation, hereafter respectively referred to simply as IPSI and DELTA.

The bids were deliberated on by the Committee on Awards. In attendance at the deliberations, at the Chairman's explicit request, were two (2) authorized representatives of the Bureau of Telecommunications, the requisitioner of the vehicles. 5 The Committee thereafter recommended. "Award to Industrial Power Sales at P52,500 each, FOB Manila as the same is the lowest complying; the offer in dollars is higher. The lowest offer at $10,688.77 is non-complying." On the strength thereof, Letter-Order No. B-207495 was drawn up in IPSI's favor, dated June 10, 1965 and signed by the acting Director of Supply, Conrado L. Ledda. cdll DELTA protested the award to IPSI, by telegram sent to the Bureau of Telecommunications on June 11, 1965. It claimed that the trucks offered by IPSI were not factory built, as stipulated in the specifications contained in the requisition itself and in the Invitation to Bid. The telegraphic protest of DELTA was considered and adjudicated adversely to it by the Acting Director of Supply Coordination. In his decision dated June 23, 1965, the Director ruled that the bidding had been made in strict compliance with the technical specifications and requirements stated by the Bureau of Telecommunications as modified by the Chairman, Committee on Specifications Review of Equipment, Plant and Machinery of the Department of Public Works and Communications; and that after due deliberation on the different bids received, the Committee on Awards, with the concurrence of the requisitioner's duly authorized representatives, had resolved to award the contract in IPSI's favor. On the same date, the Acting Director of Supply informed the Acting Director of the Bureau of Telecommunications of the Letter-Order dated June 10, 1965 in IPSI's favor, and that delivery of the units was to be made within sixty (60) working days from date of receipt of that order. 6 On July 16, 1965, however, Acting Undersecretary Lachica tried to reverse himself. He wrote to the Director of Bureau of Supply Coordination recalling his 3rd indorsement of April 22, in which he had expressed his office's absence of objection to offers of trucks with locally manufactured utility bodies, it having been "found out that the requisition as approved by the Secretary calls for special factory built, Line Construction Trucks, and not merely utility trucks." 7 The reply of the Acting Director of Supply dated July 27, 1965 8 however reiterated and reaffirmed the conclusions in his Decision of June 23, 1965 just mentioned, i.e., that IPSI's bid conformed strictly to all declared requirements and specifications and had thus been correctly accepted. The director further made the point 9 that "The term 'special' as stated in the . . . (Undersecretary's) basic letter, which qualified the (description) factory built line construction trucks was not originally required in the specifications and requirements submitted by the Bureau of Telecommunications, which specifications and requirement were approved by that Department, hence, not included in the bid advertisement. Requirements that

are not contained in the advertisement for bids could not be entertained as they violate Rule 46 (7) of the Department of General Services Order No. 32, Series of 1963.
"It may not be amiss to inform in this connection that based on the results of public bidding the offer of Industrial Power Sales for eight (8) Utility Construction trucks at P52,000.00 each net all taxes included, delivered at site, conforms to the specifications and requirements and the price is the lowest as against Delta Motor Corporation's $14,000.00 each, CIF Port of Manila, (which) excludes government taxes, banking charges, local arrastre and wharfage fees." This letter of the Director of Supply was forwarded by the Undersecretary to the Director of Telecommunications. The latter wrote back to the Undersecretary on August 18, 1965, 10 expressing his concurrence with the views set forth in said letter of the Director of Supply. He also stressed his Bureau's "dire need" for the vehicles; "further postponement" of their acquisition "will contribute greatly to the delay in the early completion of our projects to be derived from expected income." Obviously satisfied, the Undersecretary transmitted the Telecommunications Director's letter to the Acting Director of Supply (by 4th Indorsement dated August 20, 1965), making no reference to his recall of his 3rd Indorsement of April 22, 1965. 11 DELTA's next move was to file with the Office of the Secretary of General Services a letter of protest against the proposed award to IPSI, accompanied by a protest bond in the amount of P44,000.00 executed by the Meridian Assurance Corporation. DELTA's position was that IPSI's offer of locally assembled trucks was not in accordance with the bid specification for brand new, complete and factory-built trucks. 12 Acting thereon, Secretary Duma Sinsuat, in his 1st Indorsement dated September 3, 1965 addressed to the Director of the Bureau of Supply, opined that " . . . only Delta Motor Corporation has complied with the technical specifications originally called for in Requisition No. 198792 dated March 9, 1965, duly approved by Secretary Abad. The award of the eight (8) line construction trucks called for . . . should, therefore, be made to Delta . . . at a price equal to that offered by the Industrial Power Sales, Inc., as manifested by the protestant in its letter-protest and as provided for in Rule 45 of Department Order No. 32, Series of 1963."

In Secretary Sinsuat's view, when Acting Director Lachica agreed to announce and advertise a supplemental or amended Invitation to Bid, which would admit offers of trucks with locally manufactured utility bodies," the latter had violated a department rule 13 that "Any subsequent alteration or modification made separately or on the requisition itself by any subordinate official should bear the approval of the Department Head concerned, pursuant to Section 2048 of the Revised Administrative Code, or of the Undersecretary if so delegated." Sinsuat asserted that as there was no showing that Undersecretary Lachica had been authorized to approve any modifications of the requisition, the modification sanctioned by him in his aforesaid 3rd Indorsement of April 22, 1965 was null and void; besides, Lachica had afterwards withdrawn his approval thereof in his letter of July 16, 1965. llcd Replying to Secretary Sinsuat, the Acting Director of Supply, by 2nd Indorsement dated September 7, 1965, drew attention to the fact that DELTA's quoted price of U.S. $13,425.00 per unit, CIF-Manila computed on the basis of FOB Manila, to place it on a parity with IPSI's bid and would then like IPSI's have to include banking charges, duties and taxes, etc. would in Philippine Currency amount to P65,467.88 and, therefore, would not be equal to IPSI's tendered price of P52,500.00. Secretary Sinsuat however wrote back the following day, September 8, 1965 (3rd Indorsement), and told the Acting Director that the Department had already approved DELTA's price of $13,425.00, CIF-Manila, per unit of Toyota Line Construction Trucks and categorically directed him to award to DELTA the purchase order for the eight Line Construction Trucks with the least possible delay. In view thereof, Letter-Order No. B-210230 was forthwith made by Acting Supply Director Ledda, and approved and signed by Secretary of General Services Duma Sinsuat. Even at this time, one other dissenting voice still made itself heard. The Senior Buyer of the Committee on Awards wrote to the Committee Chairman on September 9, 1965, confessing himself "at a loss in framing out the legend of the order (in DELTA's favor) and also the minutes of the Committee's deliberation," and stating that he would "refrain in the award in favor of the Delta Motor Corporation." 14 IPSI lost no time in appealing from Secretary Sinsuat's decision to award the purchase contract to DELTA. It appealed on September 9, 1965 to the Office of the President 15 as well as to the Office of the Auditor General. 16 The latter acted just as promptly. By 1st Indorsement dated September 10, 1965 of the Deputy Auditor General, the Secretary of General Services was required to comment on IPSI's letter-appeal and to forward the pertinent papers to the General Auditing Office for final consideration. 17 The appeal notwithstanding, the Letter-Order in favor of DELTA was released to it on September 17, 1965. 18 IPSI then filed with the Quezon City Court of First Instance on September 21, 1965, a petition for certiorari, prohibition and mandamus, with application for preliminary prohibitory and mandatory injunction, which was docketed as Case No. Q-9477. 19 The injunction prayed for issued upon a bond in the amount of P100,000.00 given by Capitol Insurance & Surety Co., Inc. The verdict went against IPSI, however. After trial, the Court rendered judgment dismissing IPSI's petition and sentencing it and its surety, on the counterclaim, to pay damages to DELTA. The dispositive portion of that judgment reads: "WHEREFORE, judgment is hereby rendered in favor of respondent Delta Motors Corporation and its co-respondents and against the petitioner IndustrialPower Sales, Inc., dismissing the latter's petition for certiorari, prohibition and mandamus, dated September 20, 1965, and dissolving the preliminary injunction issued in this case, and ordering petitioner Industrial Power Sales; "1.To pay P400,000.00, jointly and severally with the Capital Insurance and Surety Co., Inc., the latter, to the extent of P100,000.00 only, as damages to respondent Delta Motors Corporation by reason of the writ of preliminary injunction issued in this case; "2.To pay attorney's fees in the sum of P20,000.00, and "3.To pay the costs of this suit." From this judgment IPSI has appealed to this Court, contending that the Trial Court erred 1)in not holding that regardless of the validity of the modification approved by Undersecretary Lachica, local manufacturers cannot be lawfully excluded from the bidding even under the original invitation to bid because mandatorily required by law; 2)in holding that IPSI is not a local manufacturer or domestic entity entitled to 15% preference over DELTA; 3)in not holding that Secretary Sinsuat exceeded his jurisdiction in giving due course to DELTA's appeal although filed beyond the reglementary period therefor; 4)in not holding that even if DELTA's appeal were timely perfected, Secretary Sinsuat gravely abused his discretion or exceeded his jurisdiction in not affording IPSI a right to be heard on that appeal;

5)in not holding that Secretary Sinsuat had gravely abused his discretion in reversing the decision to award the contract to IPSI and ruling that Undersecretary's approval of the modification of the bidding terms was unauthorized; 6)in not holding that Secretary Sinsuat gravely abused his discretion in permitting DELTA to reduce its price to equal that of IPSI, the latter's bid not being defective, and in insisting on approval of DELTA's reduced price although higher than IPSI's; 7)in not holding that the award in DELTA's favor violated the Retail Trade Nationalization Law; 8)in denying IPSI's claim for damages; and 9)in awarding excessive damages to DELTA, the evidence to justify the same being insufficient and said award being, in any case, against the law. It appears that respondent Secretary of General Services disregarded certain material facts, or considered them as of no consequence, these being: 1)the amended notice to bidders or Invitation to Bid was duly advertised; 2)it was clear from that advertised, modified Invitation to Bid that offers not only of foreign made or factory-built trucks but also of trucks with bodies of local manufacture, or offers of trucks either CIF-Manila, or FOB-Manila, would be acceptable; 3)the modification had been favorably considered by the Bureau of Supply Coordination and approved by the Undersecretary of Public Works & Communications, who had observed on that occasion that "this type of body manufacture (i.e., "locally manufactured utility truck bodies") has been acceptable in most government vehicles;" 4)no protest whatever had been made by DELTA to the terms set forth in that second Invitation to Bid, prior to the scheduled bidding on May 11, 1965; 5)all bids submitted were studied and weighed by the Committee on Awards, with the participation of two (2) representatives of the requisitioning agency; and thereafter, the Committee, in a reasoned report, unanimously declared IPSI's bid as the winning bid and recommended award to it of the contract; 6)the recommendation of the Awards Committee was approved by the Director of Supply; 7)that approval was reaffirmed by the Director of Supply in his decision on the protest of DELTA, which it filed after learning that it had lost in the bidding asserting that the bidding had been done in strict compliance with all relevant requisites, and the award given not only after due deliberations, but also with the concurrence of the representatives of the requisitioning bureau; 8)although the Undersecretary of Public Works & Communications had subsequently tried to recall his approval of the modification (for acceptance of bids, FOB-Manila, or of trucks with locally manufactured bodies), supra, he had abandoned that attempt after receiving communications from a)the Director of Supply, reiterating his stand on the propriety of the bidding and the award to IPSI; and b)the Director of the requisitioning agency, the Bureau of Telecommunications, concurring with the position of the Director of Supply, and requesting quick action on the award in view of the Bureau's "dire need" therefor; 9)the Senior Buyer of the Committee on Awards refused to go along with the award to DELTA; 10)in fine, all the Government agencies concerned were agreed on the correctness of the award to IPSI: the requisitioner, the Bureau of Telecommunications, the Department of Public Works & Communications to which said Bureau of Telecommunications pertains, the Bureau of Supply, which had direct supervision and control of the bidding, and of course, the Committee on Awards. These material circumstances were, to repeat, considered of no moment by respondent Secretary of General Services. He ignored, too, the additional circumstance ofestoppel as regards DELTA.. For DELTA, with full knowledge of the amendment of the notice to bidders (making acceptable bids for trucks with locally manufactured bodies, or FOB-Manila) made no protest at all but, on the contrary, participated in the bidding under said advertised terms, objecting thereto only after its bid had been rejected by the Committee on Awards and the other Government offices concerned. LibLex Respondent Secretary's justification for doing so is that (1) the modification had not been validly approved by the Undersecretary of Public Works & Communications, because there was "no showing that the latter . . . (had been) authorized by (the) Secretary . . . to make the modifications;" and (2) said Undersecretary had subsequently withdrawn "his approval to the modification."

It should at once be apparent that the second ground of justification is not borne out by the facts. As already above stated, the Undersecretary did not persist in but implicitly abandoned his attempt to withdraw his approval of the modification. As to the first ground, it being a legal presumption that official duty has been regularly performed, 20 it must be assumed, no evidence having been adduced to destroy the presumption, that Undersecretary Lachica indeed possessed the requisite authority to approve the modifications in question. In any event, his possession of that authority may be demonstrated by Department Order No. 82 dated November 30, 1964 by which the Secretary of Public Works & Communications delineated the powers of his two undersecretaries and the chiefs of offices in relation to his own. 21 Apart from material facts, also ignored were applicable provisions of law conferring preferential status to locally manufactured equipment and supplies, etc., and to domestic, as distinguished from foreign, entities. Republic Act No. 4164, the Appropriations Act relevant to the time in question, provided 22 that all appropriations for the purchase of equipment, supplies and materials authorized thereunder shall be available only for locally manufactured equipment, parts, accessories, supplies and materials, unless none be available in the market, or the price of the locally manufactured article exceed those determined by the Flag Law by 10%. The applicability of the provision in IPSI's favor seems indisputable. The Flag Law, 23 on the other hand, provides that whenever several bidders participate in a bidding for supplying articles, materials, and equipment for any office of the government for public use . . . or public works, the award shall be made to the domestic entity making the lowest bid, provided it is not more than 15% in excess of the lowest bid made by a bidder other than a domestic entity. While DELTA was organized under Philippine laws, it was acting in this case merely as agent of a foreign company; it was the latter which to all intents and purposes was the bidder; hence, as between it and IPSI, IPSI should be considered the preferred bidder. The plea made in behalf of respondent Secretary that IPSI had gone to Court without first exhausting all administrative remedies cannot be sustained in view of the doctrines set out in the opening paragraph of this opinion. LLphil There is merit in IPSI's appeal, therefore. The respondent Secretary had indeed acted with grave abuse of discretion amounting to lack or excess of jurisdiction. His acts must be nullified, and the Trial Court's judgment upholding those acts must be set aside. WHEREFORE, the decision of the Trial Court subject of the appeal is REVERSED AND SET ASIDE and another entered NULLIFYING the orders of respondent Secretary of General Services embodied in his 1st Indorsement dated September 8, 1965 and those in affirmance and implementation thereof, and SENTENCING defendant-appellee Delta Motor Corporation to pay the sum of P20,000.00 to plaintiff-appellant Industrial Power Sales, Inc. as and for attorney's fees, and the costs of the suit.

Teehankee, C.J., Cruz, Gancayco and Grio-Aquino, JJ., concur.

EN BANC [G.R. No. L-19180. October 31, 1963.] NATIONAL DEVELOPMENT COMPANY, ET AL., petitioners-appellees, vs. THE COLLECTOR OF CUSTOMS OF MANILA, respondent-appellant.

Ross, Selph & Carrascoso for petitioners-appellees. Solicitor General for respondent-appellant.
SYLLABUS 1.CONSTITUTIONAL LAW; RIGHT TO PROCESS; APPLIES TO ADMINISTRATIVE PROCEEDINGS. Even in administrative proceedings, due process should be observed because that is a right enshrined in our Constitution. 2.COURTS; JURISDICTION; COURT OF FIRST INSTANCE, NOT COURT OF TAX APPEALS, HAS JURISDICTION OVER QUESTION OF DUE PROCESS IN IMPOSITION OF FINE UNDER TARIFF AND CUSTOMS CODE. Where the question involved is not whether the imposition of the fine by the Collector of Customs on the operator of the ship is correct or not, but whether he acted properly in imposing said fine without first giving the operator an opportunity to be heard, it is heldthat the Court of First Instance acted correctly in assuming jurisdiction over the case.

3.TARIFF AND CUSTOMS CODE; UNMANIFESTED CARGO UNDER SECTION 2521, TARIFF AND CUSTOMS CODE; NECESSITY OF OPPORTUNITY FOR HEARING BEFORE IMPOSITION OF FINE. Where the customs authorities found that the vessel carried on board an unmanifested cargo consisting of one television set, and respondent Collector of Customs sent, a written notice to the operator of the vessel, and the latter answered that the television set was not cargo and so was not required to be manifested and requesting investigation and hearing but respondent finding this explanation not satisfactory imposed on the vessel a fine of P5,000.00, ordering said fine to be paid within 48 hours from receipt, with a threat that the vessel would be denied clearance and a warrant of seizure would be issued if the fine will not be paid, it is held that the respondent Collector committed a grave abuse of discretion because the petitioner was not given an opportunity to prove that the television set involved is not a cargo that needs to be manifested. 4.ADMINISTRATIVE LAW; EXHAUSTION OF ADMINISTRATIVE REMEDIES; EXCEPTION, DISREGARD OF DUE PROCESS. Exhaustion of administrative remedies is not required where the appeal to the administrative superior is not a plain, speedy or adequate remedy in the ordinary course of law, as where it is undisputed that respondent officer has acted in utter disregard of the principle of due process.

DECISION

BAUTISTA ANGELO, J p: The National Development Company which is engaged in the shipping business under the name of "Philippine National Lines" is the owner of steamship "S.S. Doa Nati" whose local agent in Manila is A. V. Rocha. On August 4, 1960, the Collector of Customs sent a notice to C. F. Sharp & Company as alleged operator of the vessel informing it that said vessel was apprehended and found to have committed a violation of the customs laws and regulations and that it carried an unmanifested cargo consisting of one RCA Victor TV set 21" in violation of Section 2521 of the Tariff and Customs Code. Inserted in said notice is a note of the following tenor: "The above article was being carried away by Dr. Basilio de Leon y Mendez, official doctor of M/S 'Doa Nati' who readily admitted ownership of the same." C. F. Sharp & Company was given 48 hours to show cause why no administrative fine should be imposed upon it for said violation. C. F. Sharp & Company, not being the agent or operator of the vessel, referred the notice to A. V. Rocha, the agent and operator thereof, who on August 8, 1960, answered the notice stating, among other things, that the television set referred to therein was not a cargo of the vessel and, therefore, was not required by law to be manifested. Rocha stated further: "If this explanation is not sufficient, we request that this case be set for investigation and hearing in order to enable the vessel to be informed of the evidence against it to sustain the charge and to present evidence in its defense." The Collector of Customs replied to Rocha on August 9, 1960 stating that the television set in question was a cargo on board the vessel and that he does not find his explanation satisfactorily enough to exempt the vessel from liability for violating Section 2521 of the Tariff and Customs Code. In said letter, the collector imposed a fine of P5,000.00 on the vessel and ordered payment thereof within 48 hours with a threat that he will deny clearance to said vessel and will issue a warrant of seizure and detention against it if the fine is not paid. And considering that the Collector of Customs has exceeded his jurisdiction or committed a grave abuse of discretion in imposing the fine of P5,000.00 on the vessel without the benefit of an investigation or hearing as requested by A. V. Rocha, the National Development Company, as owner of the vessel, as well as A. V. Rocha, as agent and operator thereof, filed the instant special civil action of certiorari with preliminary injunction before the Court of First Instance of Manila against the official abovementioned. The court, finding the petition for injunction sufficient in form and substance, issued ex parte the writ prayed for upon the filing of a bond in the amount of P5,000.00. Respondent set up the following special defenses: (1) the court a quo has no jurisdiction to act on matters arising from violations of the Customs Law, but the Court of Tax Appeals; (2) assuming that it has, petitioners have not exhausted all available administrative remedies, one of which is to appeal to the Commissioner of Customs; (3) the requirements of administrative due process have already been complied with and that the written notice given by respondent to petitioner Rocha clearly specified the nature of the violation complained of and that the defense set up by Rocha constitutes merely a legal issue which does not require further investigation; and (4) the investigation conducted by the customs authorities showed that the television set in question was unloaded by the ship's doctor without going thru the custom house as required by law and was not declared either in the ship's manifest or in the crew declaration list. On the basis of the stipulation of facts submitted by the parties, the court a quo rendered decision setting aside the ruling of respondent which imposes a fine of P5,000.00 on the vessel Doa Nati payable within 48 hours from receipt thereof.

The court stated that said ruling appears to be unjust and arbitrary because the party affected has not been accorded the investigation it requested from the Collector of Customs. Respondent interposed the present appeal. When the customs authorities found that the vessel Doa Nati carried on board an unmanifested cargo consisting of one RCA Victor TV set 21" in violation of Section 2521 of the Tariff and Customs Code, respondent sent a written notice to C. F. Sharp & Company, believing it to be the operator or agent of the vessel, and the latter referred the notice to A. V. Rocha, the real operator of the vessel, for such step as he may deem necessary to take, the latter answered the letter stating that the television set was not cargo and so was not required by law to be manifested, and he added to his answer the following: "If this explanation is not sufficient, we request that this case be set for investigation and hearing in order to enable the vessel to be informed of the evidence against it to sustain the charge and to present evidence in its defense." Respondent, however, replied to this letter saying that said television was a cargo within the meaning of the law and so he does not find his explanation satisfactory and then and there imposed on the vessel a fine of P5,000.00. Respondent even went further. He ordered that said fine be paid within 48 hours from receipt with a threat that the vessel would be denied clearance and a warrant of seizure would be issued if the fine will not be paid. Considering this to be a grave abuse of discretion, petitioners commenced the present action for certiorari before the court a quo. We find this action proper for it really appears that petitioner Rocha was not given an opportunity to prove that the television set complained of is not a cargo that needs to be manifested as required by Section 2521 of the Tariff and Customs Code. Under said section, in order that an imported article or merchandise may be considered a cargo that should be manifested it is first necessary that it be so established for the reason that there are other effects that a vessel may carry that are excluded from the requirement of the law, among which are the personal effects of the members of the crew. The fact that the set in question was claimed by the customs authorities not to be within the exception does not automatically make the vessel liable. It is still necessary that the vessel, its owner or operator, be given a chance to show otherwise. This is precisely what petitioner Rocha has requested in his letter. Not only was he denied this chance, but respondent collector immediately imposed upon the vessel the huge fine of P5,000.00. This is a denial of the elementary rule of due process. True it is that the proceedings before the Collector of Customs insofar as the determination of any act or irregularity that may involve a violation of any customs law or regulation is concerned, or of any act arising under the Tariff and Customs Code, are not judicial in character, but merely administrative, where the rules of procedure are generally disregarded, but even in the administrative proceedings due process should be observed because that is a right enshrined in our Constitution. The right to due process is not merely statutory. It is a constitutional right. Indeed, our Constitution provides that "No person shall be deprived of life, liberty, or property without due process of law", which clause epitomizes the principle of justice which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial. That this principle applies with equal force to administrative proceedings was well elaborated upon by this Court in the Ang Tibay case as follows: ". . . The fact, however, that the Court of Industrial Relations may be said to be free from the rigidity of certain procedural requirements does not mean that it can, in justifiable cases coming before it, entirely ignore or disregard the fundamental and essential requirements of due process in trials and investigations of an administrative character. ". . . There are cardinal primary rights which must be respected even in proceedings of this character. The first of these rights is the right to a hearing, which includes the right of the party interested or affected to present his own case and submit evidence in support thereof. Not only must the party be given an opportunity to present his case and to adduce evidence tending to establish the rights which he asserts but the tribunal must consider the evidence presented. While the duty to deliberate does not impose the obligation to decide right, it does imply a necessity which cannot be disregarded, namely, that of having something to support its decision. Not only must there be some evidence to support a finding or conclusion, but the evidence must be substantial. The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected. The Court of Industrial Relations or any of its judges, therefore, must act on its or his own independent consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving at a decision. The Court of Industrial Relations should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved, and the reasons for the decisions rendered. The performance of this duty is inseparable from the authority conferred upon it." (Ang Tibay, et al. vs. The Court of Industrial Relations, et al., 40 O.G., No. 11, 7th Supp. p. 29).

There is, therefore, no point in the contention that the court a quo has no jurisdiction over the present case because what is here involved is not whether the imposition of the fine by the Collector of Customs on the operator of the ship is correct or not but whether he acted properly in imposing said fine without first giving the operator an opportunity to be heard. Here we said that he acted improvidently and so the action taken against him is in accordance with Rule 67 of our Rules of Court. Another point raised is that petitioners have brought this action prematurely for they have not yet exhausted all the administrative remedies available to them, one of which is to appeal the ruling to the Commissioner of Customs. This may be true, but such step we do not consider a plain, speedy or adequate remedy in the ordinary course of law as would prevent petitioners from taking the present action, for it is undisputed that respondent collector has acted in utter disregard of the principle of due process. WHEREFORE, the decision appealed from is affirmed. No costs.

Bengzon, C . J ., Padilla, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala and Makalintal, JJ ., concur.