G.R. No.

47800, December 02, 1940

MAXIMO CALALANG, PETITIONER, VS. A. D. WILLIAMS, ET
AL., RESPONDENTS.

DECISION

LAUREL, J.:

Maximo Calalang, in his capacity as a private citizen and as

a taxpayer of Manila, brought before this court this petition
for a writ of prohibition, against the respondents, A. D.
Williams, as Chairman of the National Traffic Commission;
Vicente Fragante, as Director of Public Works; Sergio Bayan,
as Acting Secretary of Public Works and Communications;
Eulogio Rodriguez, as Mayor of the City of Manila; and Juan
Dominguez, as Acting Chief of Police of Manila.

It is alleged in the petition that the National Traffic

Commission, in its resolution of July 17, 1940, resolved to
recommend to the Director of Public Works and to the
Secretary of Public Works and Communications that animal-
drawn vehicles be prohibited from passing along Rosario
Street extending from Plaza Calderon de la Barca to
Dasmarinas Street, from 7:30 a. m. to 12:30 p. m. and from
1:30 p. m. to 5:30 p. m.; and along Rizal Avenue extending
from the railroad crossing at Antipolo Street to' Echague
Street, from 7 a. m. to 11 p.m., for a period of one year from
the date of the opening of the Colgante Bridge to traffic; that
the Chairman of the National Traffic Commission, on July 18,
1940, recommended to the Director of Public Works the
adoption of the measure proposed in the resokjfeion
aforementioned, in pursuance of the provisions
orCommonwealth Act No. 548 which authorizes said
Director of Public Works, with the approval of the Secretary
of Public Works and Communications, to promulgate rules
and regulations to regulate and control the use of and traffic
on national roads^fiiat on August 2, 1940, the Director of
Public Works, in his first indorsement to the Secretary of
Public Works and Communications, recommended to the
latter the approval of the recommendation made by the
Chairman of the National Traffic Commission as aforesaid,
with the modification that the closing of Rizal Avenue to
traffic of animal-drawn vehicles be limited to the portion
thereof extending from the railroad crossing at Antipolo
Street to Azcarraga Street; that on August 10, 1940, the
Secretary of Public Works and Communications, in his
second indorsement addressed to the Director of Public
Works, approved the recommendation of the latter that
Rosario Street and Rizal Avenue be closed to traffic of
animal-drawn vehicles, between the points and during the
hours as above indicated, for a period of one year from the
date of the opening of the Colgante Bridge to traffic; that the
Mayor of Manila and the Acting Chief of Police of Manila
have enforced and caused to be enforced the rules and
regulations thus adopted; that as a consequence of such
enforcement, all animal-drawn vehicles are not now allowed
to pass and pick up passengers in the places above-
mentioned to the detriment not only of their owners but of
the riding public as well.

It is contended by the petitioner that Commonwealth Act No.

548 by which the Director of Public Works, with the approval
of the Secretary of Public Works and Communications, is
authorized to promulgate rules and regulations for the
regulation and control of the use of and traffic on national
roads and streets is unconstitutional because it constitutes
an undue delegation of legislative power. This contention is
untenable. As was observed by this court in Rubi vs.
Provincial Board of Mindoro (39 Phil, 660, 700), "The rule
has nowhere been better stated than in the early Ohio case
decided by Judge Ranney, and since followed in a multitude
of cases, namely: 'The true distinction therefore is between
the delegation of power to make the law, which necessarily
involves a discretion as to what it shall be, and conferring an
authority or discretion as to its execution, to be exercised
under and in pursuance of the law. The first cannot be done;
to the latter no valid objection can be made.' (Cincinnati, W.
& Z. R. Co. vs. Comm'rs. Clinton County, 1 Ohio St., 88.)
Discretion, as held by Chief Justice Marshall in Wayman vs.
Southard (10 Wheat., 1) may be committed by the
Legislature to an executive department or official. The
Legislature may make decisions of executive departments or
subordinate officials thereof, to whom it has committed the
execution of certain acts, final on questions of fact. (U. S. vs.
Kinkead, 248 Fed., 141.) The growing tendency in the
decisions is to give prominence to the 'necessity' of the
case."

Section 1 of Commonwealth Act No. 548 reads as follows:

"Section 1. To promote safe transit upon, and avoid
obstructions on, roads and streets designated as national
roads by acts of the National Assembly or by executive
orders of the President of the Philippines, the Director of
Public Works, with the approval of the Secretary of Public
Works and Communications, shall promulgate the necessary
rules and regulations to regulate and control the use of and
traffic on such roads and streets. Such rules and regulations,
with the approval of the President, may contain provisions
controlling or regulating the construction of buildings or
other structures within a reasonable distance from along the
national roads. Such roads may be temporarily closed to any
or all classes of traffic by the Director of Public Works and
his duly authorized representatives whenever the condition
of the road or the traffic thereon makes such action
necessary or advisable in the public convenience and
interest, or for a specified period, with the approval of the
Secretary of Public Works and Communications."
The above provisions of law do not confer legislative pOwer
upon the Director of Public Works and the Secretary of
Public Works and Communications. The authority therein
conferred upon them and under which they promulgated the
rules and regulations now complained of is not to determine
what public policy demands but merely to carry out the
legislative policy laid down by the National Assembly in said
Act, to wit, "to promote safe transit upon and avoid
obstructions on, roads and streets designated as national
roads by acts of the National Assembly or by executive
orders of the President of the Philippines" and to close them
temporarily to any or all classes of traffic "whenever the
condition of the road or the trafh'c makes such action
necessary or advisable in the public convenience and
interest."-/ The delegated power, if at all, therefore, is not
the determination of what the law shall be, but merely the
ascertainment of the facts and circumstances upon which
the application of said law is to be predicated. To promulgate
rules and regulations on the use of national roads and to
determine when and how long a national road should be
closed to traffic, in view of the condition of the road or the
traffic thereon and the requirements of public convenience
and interest, is an administrative function which cannot be
directly discharged by the National Assembly. It must
depend on the discretion of some other government official
to whom is confided the duty of determining whether the
proper occasion exists for executing the law. But it cannot be
said that the exercise of such discretion is the making of the
law. As was said in Locke's Appeal (72 Pa. 491) : "To assert
that a law is less than a law, because it is made to depend on
a future event or act, is to rob the Legislature of the power
to act wisely for the public welfare whenever a law is passed
relating to a state of affairs not yet developed, or to things
future and impossible to fully know." The proper distinction
the court said was this: "The Legislature cannot delegate its
power to make the law; but it can make a law to delegate a
power to determine some fact or state of things upon which
the law makes, or intends to make, its own action depend. To
deny this would be to stop the wheels of government. There
are many things upon which wise and useful legislation must
depend which cannot be known to the law-making power,
and, must, therefore, be a subject of inquiry and
determination outside of the halls of legislation." (Field v.
Clark, 143 U. S. 649, 694; 36 L. Ed. 294.)

In the case of People vs. Rosenthal and Osmeiia, G. it. Nos.

46076 and 46077, promulgated June 12, 1939, and in
Pangasinan Transportation vs. The Public Service
Commission, G. R. No. 47065, promulgated June 26, 1940,
this Court had occasion to observe that the principle of
separation of powers has been made to adapt itself to the
complexities of modern governments, giving rise to the
adoption, within certain limits, of the principle of
"subordinate legislation," not only in the United States and
England but in practically all modern governments.
Accordingly, with the growing complexity of modern life, the
multiplication of the subjects of governmental regulations,
and the increased difficulty of administering the laws, the
rigidity of the theory of separation of governmental powers
has, to a large extent, been relaxed by permitting the
delegation of greater powers by the legislative and vesting a
larger amount of discretion in administrative and executive
officials, not only in the execution of the laws, but also in the
promulgation of certain rules and regulations calculated to
promote public interest.

The petitioner further contends that the rules and

regulations promulgated by the respondents pursuant to the
provisions of Commonwealth Act No. 548 constitute an
unlawful interference with legitimate business or trade and
abridge the right to personal liberty and freedom of
locomotion. Commonwealth Act No. 548 was passed by the
National Assembly in the exercise of the paramount police
power of the state.
Said Act, by virtue of which the rules and regulations
icomplained of were promulgated, aims to promote safe
'transit upon_and avoid obstructions on national roads, in
the interest and convenience of the public. In enacting said
law, therefore, the National Assembly was prompted by
considerations of public convenience and welfare. It was
inspired by a desire to relieve congestion of traffic. which is,
to say the least, a menace to public safety. Public welfare,
then, lies at_ the bottom of the enactment of said law, and
the state in order to promote the general welfare may
interfere with personal liberty, with property, and with
business and occupations. Persons and property may be
subjected to all kinds of restraints and burdens, in order to
secure the general comfort, health, and
prosperity.,piJlje_state (U. S. vs. Gomez Jesus, 31 Phil., 218).
To this fundamental aim of our Government the rights of the
individual are subordinated. Liberty is a blessing without
which life is a misery, but liberty should not be made to
prevail over authority because then society will fall into
anarchy. Neither should authority be made to prevail over
liberty because then the individual will fall into slavery. The
citizen should achieve the required balance of liberty and
authority in his mind through education and personal
discipline, so that there may be established the resultant
equilibrium, which means peace and order and happiness for
all. The moment greater authority is conferred upon the
government, logically so much is withdrawn from the
residuum of liberty which resides in the people. The paradox
lies in the fact that the apparent curtailment of liberty is
precisely the very means of insuring its preservation.

The scope of police power keeps expanding as civilization

advances. As was said in the case of Dobbins vs. Los Angeles
(195 U. S. 223, 238; 49 L. ed. 169), "the right to exercise the
police power is a continuing one, and a business lawful today
may in the future, because of the changed situation, the
growth of population or other causes, become a menace to
the public health and welfare, and be required to yield to the
public good." And in People vs. Pomar (46 Phil., 440), it was
observed that "advancing civilization is bringing within the
police power of the state today things which were not
thought of as being within such power yesterday. The
development of civilization, the rapidly increasing
population, the growth of public opinion, with an increasing
desire on the part of the masses and of the government to
look after and care for the interests of the individuals of the
state, have brought within the police power many questions
for regulation which formerly were not so considered."

The petitioner finally avers that the rules and regulations

complained of infringe upon the constitutional precept
regarding the promotion of social justice to insure the well-
bring and economic security of all the people. The promotion
of social justice, however, is to be achieved not through a
mistaken sympathy towards any given group. Social justice
is "neither communism, nor despotism, nor atomism, nor
anarchy," but the humanization of laws and the equalization
of social and economic forces by the State so that justice in
its rational and objectively secular conception may at least
be approximated. Social justice means the promotion of the
welfare of ill the people, the adoption by the Government of
measures calculated to insure economic stability of all the
competent elements of society, through the maintenance of a
proper economic and social equilibrium in the interrelations
of the members of the community, constitutionally, through
the adoption of measures legally justifiable, or extra-
constitutionally, through the exercise of rowers underlying
the existence of all governments on th$ time-honored
principle of salus populi est suprema lex.

Social justice, therefore, must be founded on the recognition

of the necessity of interdependence among divers and
diverse units of a society and of the protection that should
be equally and evenly extended to all groups as a combined
force in our social and economic life, consistent with the
fundamental and paramount objective of the state of
promoting the health, comfort, and quiet of all persons, and
of bringing about "the greatest good to the greatest
number."

In view of the foregoing, the writ of prohibition prayed for is

hereby denied, with costs against the petitioner. So ordered.

Avancea, C.J., Imperial, Diaz, and Horrilleno, JJ., concur.

Writ denied.

EN BANC
G.R. No. 100113, September 03, 1991
RENATO L. CAYETANO, PETITIONER, VS. CHRISTIAN
MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON
APPOINTMENTS, AND HON. GUILLERMO CARAGUE, IN HIS
CAPACITY AS SECRETARY OF BUDGET AND MANAGEMENT,
RESPONDENTS.

DECISION

PARAS, J.:

We are faced here with a controversy of far-reaching

proportions. While ostensibly only legal issues are involved,
the Court's decision in this case would indubitably have a
profound effect on the political aspect of our national
existence.

The 1987 Constitution provides in Section 1 (1), Article IX-C:

"There shall be a Commission on Elections composed of a
Chairman and six Commissioners who shall be natural-born
citizens of the Philippines and, at the time of their
appointment, at least thirty-five years of age, holders of a
college degree, and must not have been candidates for any
elective position in the immediately preceding elections.
However, a majority thereof, including the Chairman, shall
be members of the Philippine Bar who have been engaged in
the practice of law for at least ten years." (Italics supplied)
The aforequoted provision is patterned after Section 1(1),
Article XII-C of the 1973 Constitution which similarly
provides:
"There shall be an independent Commission on Elections
composed of a Chairman and eight Commissioners who shall
be natural-born citizens of the Philippines and, at the time of
their appointment, at least thirty-five years of age and
holders of a college degree. However, a majority thereof,
including the Chairman, shall be members of the Philippine
Bar who have been engaged in the practice of law for at
least ten years." (Italics supplied)
Regrettably, however, there seems to be no jurisprudence as
to what constitutes practice of law as a legal qualification to
an appointive office.

Black defines "practice of law" as:

"The rendition of services requiring the knowledge and the
application of legal principles and technique to serve the
interest of another with his consent. It is not limited to
appearing in court, or advising and assisting in the conduct
of litigation, but embraces the preparation of pleadings, and
other papers incident to actions and special proceedings,
conveyancing, the preparation of legal instruments of all
kinds, and the giving of all legal advice to clients. It
embraces all advice to clients and all actions taken for them
in matters connected with the law. An attorney engages in
the practice of law by maintaining an office where he is held
out to be an attorney, using a letterhead describing himself
as an attorney, counseling clients in legal matters,
negotiating with opposing counsel about pending litigation,
and fixing and collecting fees for services rendered by his
associate." (Black's Law Dictionary, 3rd ed.)
The practice of law is not limited to the conduct of cases in
court. (Land Title Abstract and Trust Co. v. Dworken, 129
Ohio St. 23, 193 N. E. 650) A person is also considered to be
in the practice of law when he:
"x x x for valuable consideration engages in the business of
advising person, firms, associations or corporations as to
their rights under the law, or appears in a representative
capacity as an advocate in proceedings pending or
prospective, before any court, commissioner, referee, board,
body, committee, or commission constituted by law or
authorized to settle controversies and there, in such
representative capacity performs any act or acts for the
purpose of obtaining or defending the rights of their clients
under the law. Otherwise stated, one who, in a
representative capacity, engages in the business of advising
clients as to their rights under the law, or while so engaged
performs any act or acts either in court or outside of court
for that purpose, is engaged in the practice of law." (State
ex. rel. Mckittrick v. C.S. Dudley and Co., 102 S.W. 2d 895,
340 Mo. 852)
This Court in the case of Philippine Lawyers Association v.
Agrava, (105 Phil. 173, 176-177) stated:

"The practice of law is not limited to the conduct of cases or

litigation in court; it embraces the preparation of pleadings
and other papers incident to actions and special
proceedings, the management of such actions and
proceedings on behalf of clients before judges and courts,
and in addition, conveying. In general, all advice to clients,
and all action taken for them in matters connected with the
law incorporation services, assessment and condemnation
services contemplating an appearance before a judicial body,
the foreclosure of a mortgage, enforcement of a creditor's
claim in bankruptcy and insolvency proceedings, and
conducting proceedings in attachment, and in matters of
estate and guardianship have been held to constitute law
practice, as do the preparation and drafting of legal
instruments, where the work done involves the
determination by the trained legal mind of the legal effect of
facts and conditions." (5 Am. Jr. p. 262, 263). (Italics
supplied)

"Practice of law under modern conditions consists in no

small part of work performed outside of any court and
having no immediate relation to proceedings in court. It
embraces conveyancing, the giving of legal advice on a large
variety of subjects, and the preparation and execution of
legal instruments covering an extensive field of business and
trust relations and other affairs. Although these
transactions may have no direct connection with court
proceedings, they are always subject to become involved in
litigation. They require in many aspects a high degree of
legal skill, a wide experience with men and affairs, and great
capacity for adaptation to difficult and complex situations.
These customary functions of an attorney or counselor at law
bear an intimate relation to the administration of justice by
the courts. No valid distinction, so far as concerns the
question set forth in the order, can be drawn between that
part of the work of the lawyer which involves appearance in
court and that part which involves advice and drafting of
instruments in his office. It is of importance to the welfare
of the public that these manifold customary functions be
performed by persons possessed of adequate learning and
skill, of sound moral character, and acting at all times under
the heavy trust obligations to clients which rests upon all
attorneys." (Moran, Comments on the Rules of Court, Vol. 3
[1953 ed.], p. 665-666, citing In re Opinion of the Justices
[Mass.], 194 N. E. 313, quoted in Rhode Is. Bar Assoc. v.
Automobile Service Assoc. [R.I.] 179 A. 139, 144]). (Italics
ours)
The University of the Philippines Law Center in conducting
orientation briefing for new lawyers (1974-1975) listed the
dimensions of the practice of law in even broader terms as
advocacy, counseling and public service.
"One may be a practicing attorney in following any line of
employment in the profession. If what he does exacts
knowledge of the law and is of a kind usual for attorneys
engaging in the active practice of their profession, and he
follows some one or more lines of employment such as this
he is a practicing attorney at law within the meaning of the
statute.'" (Barr v. Cardell, 155 NW 312)
Practice of law means any activity, in or out of court, which
requires the application of law, legal procedure, knowledge,
training and experience. "To engage in the practice of law is
to perform those acts which are characteristics of the
profession. Generally, to practice law is to give notice or
render any kind of service, which device or service requires
the use in any degree of legal knowledge or skill." (111 ALR
23)

The following records of the 1986 Constitutional Commission

show that it has adopted a liberal interpretation of the term
"practice of law."
"MR. FOZ. Before we suspend the session, may I make a
manifestation which I forgot to do during our review of the
provisions on the Commission on Audit. May I be allowed to
make a very brief statement?

"THE PRESIDING OFFICER (Mr. Jamir). The Commissioner

will please proceed.

"MR. FOZ. This has to do with the qualifications of the

members of the Commission on Audit. Among others, the
qualifications provided for by Section 1 is that 'They must be
Members of the Philippine Bar - I am quoting from the
provision 'who have been engaged in the practice of law
for at least ten years."

"To avoid any misunderstanding which would result in

excluding members of the Bar who are now employed in the
COA or Commission on Audit, we would like to make the
clarification that this provision on qualifications regarding
members of the Bar does not necessarily refer or involve
actual practice of law outside the COA. We have to interpret
this to mean that as long as the lawyers who are employed
in the COA are using their legal knowledge or legal talent in
their respective work within COA, then they are qualified to
be considered for appointment as members or
commissioners, even chairman, of the Commission on Audit.

"This has been discussed by the Committee on Constitutional

Commissions and Agencies and we deem it important to take
it up on the floor so that this interpretation may be made
available whenever this provision on the qualifications as
regards members of the Philippine Bar engaging in the
practice of law for at least ten years is taken up.

"MR. OPLE. Will Commissioner Foz yield to just one

question.

"MR. FOZ. Yes, Mr. Presiding Officer.

"MR. OPLE. Is he, in effect, saying that service in the COA

by a lawyer is equivalent to the requirement of a law
practice that is set forth in the Article on the Commission on
Audit?

"MR. FOZ. We must consider the fact that the work of COA,
although it is auditing, will necessarily involve legal work: it
will involve legal work. And, therefore, lawyers who are
employed in COA now would have the necessary
qualifications in accordance with the provision on
qualifications under our provisions on the Commission on
Audit. And, therefore, the answer is yes.

"MR. OPLE. Yes. So that the construction given to this is

that this is equivalent to the practice of law.

"MR. FOZ. Yes, Mr. Presiding Officer.

"Mr. OPLE, Thank you."

x x x (Italics supplied)
Section 1(1), Article IX-D of the 1987 Constitution, provides,
among others, that the Chairman and two Commissioners of
the Commission on Audit (COA) should either be certified
public accountants with not less than ten years of auditing
practice, or members of the Philippine Bar who have been
engaged in the practice of law for at least ten years. (Italics
supplied)

Corollary to this is the term "private practitioner" and which

is in many ways synonymous with the word "lawyer." Today,
although many lawyers do not engage in private practice, it
is still a fact that the majority of lawyers are private
practitioners. (Gary Munneke, Opportunities in Law Careers
[VGM Career Horizons: Illinois), 1986], p. 15]).

At this point, it might be helpful to define private practice.

The term, as commonly understood, means "an individual or
organization engaged in the business of delivering legal
services." (Ibid.). Lawyers who practice alone are often
called "sole practitioners." Groups of lawyers are called
"firms." The firm is usually a partnership and members of the
firm are the partners. Some firms may be organized as
professional corporations and the members called
shareholders. In either case, the members of the firm are
the experienced attorneys. In most firms, there are younger
or more inexperienced salaried attorneys called "associates."
(Ibid.).
The test that defines law practice by looking to traditional
areas of law practice is essentially tautologous, unhelpfully
defining the practice of law as that which lawyers do.
(Charles W. Wolfram, Modern Legal Ethics [West Publishing
Co.: Minnesota, 1986], p. 593). The practice of law is
defined as "the performance of any acts . . . in or out of
court, commonly understood to be the practice of law.
(State Bar Ass'n v. Connecticut Bank & Trust Co., 145 Conn.
222, 140 A.2d 863, 870 [1958] [quoting Grievance Comm. v.
Payne, 128 Conn. 325, 22 A.2d 623, 626 [1941]). Because
lawyers perform almost every function known in the
commercial and governmental realm, such a definition would
obviously be too global to be workable. (Wolfram, op. cit.).

The appearance of a lawyer in litigation in behalf of a client

is at once the most publicly familiar role for lawyers as well
as an uncommon role for the average lawyer. Most lawyers
spend little time in courtrooms, and a large percentage
spend their entire practice without litigating a case. (Ibid.,
p. 593). Nonetheless, many lawyers do continue to litigate
and the litigating lawyer's role colors much of both the
public image and the self-perception of the legal profession.
(Ibid.).

In this regard thus, the dominance of litigation in the public

mind reflects history, not reality. (Ibid.). Why is this so?
Recall that the late Alexander SyCip, a corporate lawyer,
once articulated on the importance of a lawyer as a business
counselor in this wise: "Even today, there are still
uninformed laymen whose concept of an attorney is one who
principally tries cases before the courts. The members of
the bench and bar and the informed laymen such as
businessmen, know that in most developed societies today,
substantially more legal work is transacted in law offices
than in the courtrooms. General practitioners of law who do
both litigation and non-litigation work also know that in most
cases they find themselves spending more time doing what
[is] loosely describe[d] as business counseling than in trying
cases. The business lawyer has been described as the
planner, the diagnostician and the trial lawyer, the surgeon.
I[t] need not [be] stress[ed] that in law, as in medicine,
surgery should be avoided where internal medicine can be
effective." (Business Star, "Corporate Finance Law," Jan. 11,
1989, p. 4).

In the course of a working day the average general

practitioner will engage in a number of legal tasks, each
involving different legal doctrines, legal skills, legal
processes, legal institutions, clients, and other interested
parties. Even the increasing numbers of lawyers in
specialized practice will usually perform at least some legal
services outside their specialty. And even within a narrow
specialty such as tax practice, a lawyer will shift from one
legal task or role such as advice-giving to an importantly
different one such as representing a client before an
administrative agency. (Wolfram, supra, p. 687).

By no means will most of this work involve litigation, unless

the lawyer is one of the relatively rare types a litigator
who specializes in this work to the exclusion of much else.
Instead, the work will require the lawyer to have mastered
the full range of traditional lawyer skills of client counseling,
advice-giving, document drafting, and negotiation. And
increasingly lawyers find that the new skills of evaluation
and mediation are both effective for many clients and a
source of employment. (Ibid.).

Most lawyers will engage in non-litigation legal work or in

litigation work that is constrained in very important ways, at
least theoretically, so as to remove from it some of the
salient features of adversarial litigation. Of these special
roles, the most prominent is that of prosecutor. In some
lawyers' work the constraints are imposed both by the
nature of the client and by the way in which the lawyer is
organized into a social unit to perform that work. The most
common of these roles are those of corporate practice and
government legal service. (Ibid.).

In several issues of the Business Star, a business daily,

hereinbelow quoted are emerging trends in corporate law
practice, a departure from the traditional concept of practice
of law.
We are experiencing today what truly may be called a
revolutionary transformation in corporate law practice.
Lawyers and other professional groups, in particular those
members participating in various legal-policy decisional
contexts, are finding that understanding the major emerging
trends in corporation law is indispensable to intelligent
decision-making.

Constructive adjustment to major corporate problems of

today requires an accurate understanding of the nature and
implications of the corporate law research function
accompanied by an accelerating rate of information
accumulation. The recognition of the need for such
improved corporate legal policy formulation, particularly
"model-making" and "contingency planning," has impressed
upon us the inadequacy of traditional procedures in many
decisional contexts.

In a complex legal problem the mass of information to be

processed, the sorting and weighing of significant
conditional factors, the appraisal of major trends, the
necessity of estimating the consequences of given courses of
action, and the need for fast decision and response in
situations of acute danger have prompted the use of
sophisticated concepts of information flow theory,
operational analysis, automatic data processing, and
electronic computing equipment. Understandably, an
improved decisional structure must stress the predictive
component of the policy-making process, wherein a "model",
of the decisional context or a segment thereof is developed
to test projected alternative courses of action in terms of
futuristic effects flowing therefrom.

Although members of the legal profession are regularly

engaged in predicting and projecting the trends of the law,
the subject of corporate finance law has received relatively
little organized and formalized attention in the philosophy of
advancing corporate legal education. Nonetheless, a cross-
disciplinary approach to legal research has become a vital
necessity.

Certainly, the general orientation for productive

contributions by those trained primarily in the law can be
improved through an early introduction to multi-variable
decisional contexts and the various approaches for handling
such problems. Lawyers, particularly with either a master's
or doctorate degree in business administration or
management, functioning at the legal-policy level of
decision-making now have some appreciation for the
concepts and analytical techniques of other professions
which are currently engaged in similar types of complex
decision-making.

Truth to tell, many situations involving corporate finance

problems would require the services of an astute attorney
because of the complex legal implications that arise from
each and every necessary step in securing and maintaining
the business issue raised. (Business Star, "Corporate
Finance Law," Jan. 11, 1989, p. 4).

In our litigation-prone country, a corporate lawyer is

assiduously referred to as the "abogado de campanilla." He
is the "big-time" lawyer, earning big money and with a
clientele composed of the tycoons and magnates of business
and industry.
Despite the growing number of corporate lawyers, many
people could not explain what it is that a corporate lawyer
does. For one, the number of attorneys employed by a single
corporation will vary with the size and type of the
corporation. Many smaller and some large corporations
farm out all their legal problems to private law firms. Many
others have in-house counsel only for certain matters. Other
corporations have a staff large enough to handle most legal
problems in-house.

A corporate lawyer, for all intents and purposes, is a lawyer

who handles the legal affairs of a corporation. His areas of
concern or jurisdiction may include, inter alia: corporate
legal research, tax laws research, acting out as corporate
secretary (in board meetings), appearances in both courts
and other adjudicatory agencies (including the Securities
and Exchange Commission), and in other capacities which
require an ability to deal with the law.

At any rate, a corporate lawyer may assume responsibilities

other than the legal affairs of the business of the corporation
he is representing. These include such matters as
determining policy and becoming involved in management.
(Italics supplied)

In a big company, for example, one may have a feeling of

being isolated from the action, or not understanding how
one's work actually fits into the work of the organization.
This can be frustrating to someone who needs to see the
results of his work first hand. In short, a corporate lawyer is
sometimes offered this fortune to be more closely involved in
the running of the business.

Moreover, a corporate lawyer's services may sometimes be

engaged by a multinational corporation (MNC). Some large
MNCs provide one of the few opportunities available to
corporate lawyers to enter the international law field. After
all, international law is practiced in a relatively small
number of companies and law firms. Because working in a
foreign country is perceived by many as glamorous, this is
an area coveted by corporate lawyers. In most cases,
however, the overseas jobs go to experienced attorneys
while the younger attorneys do their "international practice"
in law libraries. (Business Star, "Corporate Law Practice,"
May 25, 1990, p. 4).

This brings us to the inevitable, i.e., the role of the lawyer in

the realm of finance. To borrow the lines of Harvard-
educated lawyer Bruce Wassertein, to wit: "A bad lawyer is
one who fails to spot problems, a good lawyer is one who
perceives the difficulties, and the excellent lawyer is one
who surmounts them." (Business Star, "Corporate Finance
Law," Jan. 11, 1989, p. 4)

Today, the study of corporate law practice direly needs a

"shot in the arm," so to speak. No longer are we talking of
the traditional law teaching method of confining the subject
study to the Corporation Code and the Securities Code but
an incursion as well into the intertwining modern
management issues.

Such corporate legal management issues deal primarily with

three (3) types of learning: (1) acquisition of insights into
current advances which are of particular significance to the
corporate counsel; (2) an introduction to usable disciplinary
skills applicable to a corporate counsel's management
responsibilities; and (3) a devotion to the organization and
management of the legal function itself.

These three subject areas may be thought of as intersecting

circles, with a shared area linking them. Otherwise known
as "intersecting managerial jurisprudence," it forms a
unifying theme for the corporate counsel's total learning.
Some current advances in behavior and policy sciences
affect the counsel's role. For that matter, the corporate
lawyer reviews the globalization process, including the
resulting strategic repositioning that the firms he provides
counsel for are required to make, and the need to think
about a corporation's strategy at multiple levels. The
salience of the nation-state is being reduced as firms deal
both with global multinational entities and simultaneously
with sub-national governmental units. Firms increasingly
collaborate not only with public entities but with each other
often with those who are competitors in other arenas.

Also, the nature of the lawyer's participation in decision-

making within the corporation is rapidly changing. The
modern corporate lawyer has gained a new role as a
stakeholder in some cases participating in the
organization and operations of governance through
participation on boards and other decision-making roles.
Often these new patterns develop alongside existing legal
institutions and laws are perceived as barriers. These trends
are complicated as corporations organize for global
operations. (Italics supplied)

The practicing lawyer of today is familiar as well with

governmental policies toward the promotion and
management of technology. New collaborative
arrangements for promoting specific technologies or
competitiveness more generally require approaches from
industry that differ from older, more adversarial
relationships and traditional forms of seeking to influence
governmental policies. And there are lessons to be learned
from other countries. In Europe, Esprit, Eureka and Race
are examples of collaborative efforts between governmental
and business Japan's MITI is world famous. (Italics supplied)

Following the concept of boundary spanning, the office of

the Corporate Counsel comprises a distinct group within the
managerial structure of all kinds of organizations.
Effectiveness of both long-term and temporary groups within
organizations has been found to be related to indentifiable
factors in the group-context interaction such as the groups
actively revising their knowledge of the environment,
coordinating work with outsiders, promoting team
achievements within the organization. In general, such
external activities are better predictors of team performance
than internal group processes.

In a crisis situation, the legal managerial capabilities of the

corporate lawyer vis-a-vis the managerial mettle of
corporations are challenged. Current research is seeking
ways both to anticipate effective managerial procedures and
to understand relationships of financial liability and
insurance considerations. (Underscoring supplied)

Regarding the skills to apply by the corporate counsel, three

factors are apropos:

First System Dynamics. The field of systems dynamics has

been found an effective tool for new managerial thinking
regarding both planning and pressing immediate problems.
An understanding of the role of feedback loops, inventory
levels, and rates of flow, enable users to simulate all sorts of
systematic problems physical, economic, managerial,
social, and psychological. New programming techniques
now make the systems dynamics principles more accessible
to managers including corporate counsels. (Italics
supplied)

Second Decision Analysis. This enables users to make better

decisions involving complexity and uncertainty. In the
context of a law department, it can be used to appraise the
settlement value of litigation, aid in negotiation settlement,
and minimize the cost and risk involved in managing a
portfolio of cases. (Italics supplied)

Third Modeling for Negotiation Management. Computer-

based models can be used directly by parties and mediators
in all kinds of negotiations. All integrated set of such tools
provide coherent and effective negotiation support, including
hands-on on instruction in these techniques. A simulation
case of an international joint venture may be used to
illustrate the point.

[Be this as it may,] the organization and management of the

legal function, concern three pointed areas of consideration,
thus:

Preventive Lawyering. Planning by lawyers requires special

skills that comprise a major part of the general counsel's
responsibilities. They differ from those of remedial law.
Preventive lawyering is concerned with minimizing the risks
of legal trouble and maximizing legal rights for such legal
entities at that time when transactional or similar facts are
being considered and made.

Managerial Jurisprudence. This is the framework within

which are undertaken those activities of the firm to which
legal consequences attach. It needs to be directly
supportive of this nation's evolving economic and
organizational fabric as firms change to stay competitive in a
global, interdependent environment. The practice and
theory of "law" is not adequate today to facilitate the
relationships needed in trying to make a global economy
work.

Organization and Functioning of the Corporate Counsel's

Office. The general counsel has emerged in the last decade
as one of the most vibrant subsets of the legal profession.
The corporate counsel bear responsibility for key aspects of
the firm's strategic issues, including structuring its global
operations, managing improved relationships with an
increasingly diversified body of employees, managing
expanded liability exposure, creating new and varied
interactions with public decision-makers, coping internally
with more complex make or by decisions.

This whole exercise drives home the thesis that knowing

corporate law is not enough to make one a good general
corporate counsel nor to give him a full sense of how the
legal system shapes corporate activities. And even if the
corporate lawyer's aim is not to understand all of the law's
effects on corporate activities, he must, at the very least,
also gain a working knowledge of the management issues if
only to be able to grasp not only the basic legal
"constitution" or make-up of the modern corporation.
(Business Star, "The Corporate Counsel," April 10, 1991, p.
4)..

The challenge for lawyers (both of the bar and the bench) is
to have more than a passing knowledge of financial law
affecting each aspect of their work. Yet, many would admit
to ignorance of vast tracts of the financial law territory.
What transpires next is a dilemma of professional security:
Will the lawyer admit ignorance and risk opprobrium?; or
will he feign understanding and risk exposure? (Business
Star, "Corporate Finance law," Jan. 11, 1989, p. 4).
Respondent Christian Monsod was nominated by President
Corazon C. Aquino to the position of Chairman of the
COMELEC in a letter received by the Secretariat of the
Commission on Appointments on April 25, 1991. Petitioner
opposed the nomination because allegedly Monsod does not
possess the required qualification of having been engaged in
the practice of law for at least ten years.

On June 5, 1991, the Commission on Appointments

confirmed the nomination of Monsod as Chairman of the
COMELEC. On June 18, 1991, he took his oath of office. On
the same day, he assumed office as Chairman of the
COMELEC.

Challenging the validity of the confirmation by the

Commission on Appointments of Monsod's nomination,
petitioner as a citizen and taxpayer, filed the instant petition
for Certiorari and Prohibition praying that said confirmation
and the consequent appointment of Monsod as Chairman of
the Commission on Elections be declared null and void.

Atty. Christian Monsod is a member of the Philippine Bar,

having passed the bar examinations of 1960 with a grade of
86.55%. He has been a dues paying member of the
Integrated Bar of the Philippines since its inception in 1972-
73. He has also been paying his professional license fees as
a lawyer for more than ten years. (p. 124, Rollo)

After graduating from the College of Law (U.P.) and having

hurdled the bar, Atty. Monsod worked in the law office of his
father. During his stint in the World Bank Group (1963-
1970), Monsod worked as an operations officer for about
two years in Costa Rica and Panama, which involved getting
acquainted with the laws of member-countries, negotiating
loans and coordinating legal, economic, and project work of
the Bank. Upon returning to the Philippines in 1970, he
worked with the Meralco Group, served as chief executive
officer of an investment bank and subsequently of a business
conglomerate, and since 1986, has rendered services to
various companies as a legal and economic consultant or
chief executive officer. As former Secretary-General (1986)
and National Chairman (1987) of NAMFREL, Monsod's,
work involved being knowledgeable in election law. He
appeared for NAMFREL in its accredition hearings before
the Comelec. In the field of advocacy, Monsod, in his
personal capacity and as former Co-Chairman of the Bishops
Businessmen's Conference for Human Development, has
worked with the under privileged sectors, such as the
farmer and urban poor groups, in initiating, lobbying for and
engaging in affirmative action for the agrarian reform law
and lately the urban land reform bill. Monsod also made use
of his legal knowledge as a member of the Davide
Commission, a guasi-judicial body, which conducted
numerous hearings (1990) and as a member of the
Constitutional Commission (1986-1987), and Chairman of its
Committee on Accountability of Public Officers, for which he
was cited by the President of the Commission, Justice
Cecilia-Munoz-Palma for "innumerable amendments to
reconcile government functions with individual freedoms
and public accountability and the party-list system for the
House of Representative." (pp. 128-129 Rollo) (Italics
supplied)

Just a word about the work of a negotiating team of which

Atty. Monsod used to be a member.
In a loan agreement, for instance, a negotiating panel acts as
a team, and which is adequately constituted to meet the
various contingencies that arise during a negotiation.
Besides top officials of the Borrower concerned, there are
the legal officer (such as the legal counsel), the finance
manager, and an operations officer (such as an official
involved in negotiating the contracts) who comprise the
members of the team. (Guillermo V. Soliven, "Loan
Negotiating Strategies for Developing Country Borrowers,"
Staff Paper No. 2, Central Bank of the Philippines, Manila,
1982, p. 11). (Underscoring supplied)

After a fashion, the loan agreement is like a country's

Constitution; it lays down the law as far as the loan
transaction is concerned. Thus, the meat of any Loan
Agreement can be compartmentalized into five (5)
fundamental parts: (1) business terms; (2) borrower's
representation; (3) conditions of closing; (4) covenants; and
(5) events of default. (Ibid., p. 13).
In the same vein, lawyers play an important role in any debt
restructuring program. For aside from performing the tasks
of legislative drafting and legal advising, they score national
development policies as key factors in maintaining their
countries' sovereignty. (Condensed from the work paper,
entitled "Wanted: Development Lawyers for Developing
Nations," submitted by L. Michael Hager, regional legal
adviser of the United States Agency for International
Development, during the Session on Law for the
Development of Nations at the Abidjan World Conference in
Ivory Coast, sponsored by the World Peace Through Law
Center on August 26-31, 1973). (Italics supplied)

Loan concessions and compromises, perhaps even more so

than purely renegotiation policies, demand expertise in the
law of contracts, in legislation and agreement drafting and
in renegotiation. Necessarily, a sovereign lawyer may work
with an international business specialist or an economist in
the formulation of a model loan agreement. Debt
restructuring contract agreements contain such a mixture of
technical language that they should be carefully drafted and
signed only with the advise of competent counsel in
conjunction with the guidance of adequate technical support
personnel. (See International Law Aspects of the Philippine
External Debts, an unpublished dissertation, U.S.T. Graduate
School of Law, 1987, p. 321). (Italics supplied)

A critical aspect of sovereign debt restructuring/contract

construction is the set of terms and conditions which
determines the contractual remedies for a failure to perform
one or more elements of the contract. A good agreement
must not only define the responsibilities of both parties, but
must also state the recourse open to either party when the
other fails to discharge an obligation. For a compleat debt
restructuring represents a devotion to that principle which
in the ultimate analysis is sine qua non for foreign loan
agreements an adherence to the rule of law in domestic
and international affairs of whose kind U.S. Supreme Court
Justice Oliver Wendell Holmes, Jr. once said; 'They carry no
banners, they beat no drums; but where they are, men learn
that bustle and bush are not the equal of quiet genius and
serene mastery. (See Ricardo J. Romulo, "The Role of
Lawyers in Foreign Investments," Integrated Bar of the
Philippine Journal, Vol. 15, Nos. 3 and 4, Third and Fourth
Quarters, 1977, p. 265).

Interpreted in the light of the various definitions of the term

"practice of law", particularly the modern concept of law
practice, and taking into consideration the liberal
construction intended by the framers of the Constitution,
Atty. Monsod's past work experiences as a lawyer-economist,
a lawyer-manager, a lawyer-entrepreneur of industry, a
lawyer-negotiator of contracts, and a lawyer-legislator of
both the rich and the poor - verily more than satisfy the
constitutional requirement - that he has been engaged in the
practice of law for at least ten years.
Besides in the leading case of Luego v. Civil Service
Commission, 143 SCRA 327, the Court said:
"Appointment is an essentially discretionary power and must
be performed by the officer in which it is vested according to
his best lights, the only condition being that the appointee
should possess the qualifications required by law. If he does,
then the appointment cannot be faulted on the ground that
there are others better qualified who should have been
preferred. This is a political question involving
considerations of wisdom which only the appointing
authority can decide." (italics supplied)
No less emphatic was the Court in the case of Central Bank
v. Civil Service Commission, 171 SCRA 744) where it stated:
"It is well-settled that when the appointee is qualified, as in
this case, and all the other legal requirements are satisfied,
the Commission has no alternative but to attest to the
appointment in accordance with the Civil Service Law. The
Commission has no authority to revoke an appointment on
the ground that another person is more qualified for a
particular position. It also has no authority to direct the
appointment of a substitute of its choice. To do so would be
an encroachment on the discretion vested upon the
appointing authority. An appointment is essentially within
the discretionary power of whomsoever it is vested, subject
to the only condition that the appointee should possess the
qualifications required by law." (Italics supplied)
The appointing process in a regular appointment as in the
case at bar, consists of four (4) stages: (1) nomination; (2)
confirmation by the Commission on Appointments; (3)
issuance of a commission (in the Philippines, upon
submission by the Commission on Appointments of its
certificate of confirmation, the President issues the
permanent appointment; and (4) acceptance e.g., oath-
taking, posting of bond, etc.... (Lacson v. Romero, No. L-
3081, October 14, 1949; Gonzales, Law on Public Officers, p.
200)

The power of the Commission on Appointments to give its

consent to the nomination of Monsod as Chairman of the
Commission on Elections is mandated by Section 1(2) Sub-
Article C, Article IX of the Constitution which provides:
"The Chairman and the Commissioners shall be appointed by
the President with the consent of the Commission on
Appointments for a term of seven years without
reappointment. Of those first appointed, three Members
shall hold office for seven years, two Members for five years,
and the last Members for three years, without
reappointment. Appointment to any vacancy shall be only
for the unexpired term of the predecessor. In no case shall
any Member be appointed or designated in a temporary or
acting capacity."
Anent Justice Teodoro Padilla's separate opinion, suffice it to
say that his definition of the practice of law is the traditional
or stereotyped notion of law practice, as distinguished from
the modern concept of the practice of law, which modern
connotation is exactly what was intended by the eminent
framers of the 1987 Constitution. Moreover, Justice Padilla's
definition would require generally a habitual law practice,
perhaps practised two or three times a week and would
outlaw say, law practice once or twice a year for ten
consecutive years. Clearly, this is far from the constitutional
intent.

Upon the other hand, the separate opinion of Justice Isagani

Cruz states that in my written opinion, I made use of a
definition of law practice which really means nothing
because the definition says that law practice "... is what
people ordinarily mean by the practice of law." True I cited
the definition but only by way of sarcasm as evident from my
statement that the definition of law practice by "traditional
areas of law practice is essentially tautologous" or defining a
phrase by means of the phrase itself that is being defined.

Justice Cruz goes on to say in substance that since the law

covers almost all situations, most individuals, in making use
of the law, or in advising others on what the law means, are
actually practicing law. In that sense, perhaps, but we
should not lose sight of the fact that Mr. Monsod is a lawyer,
a member of the Philippine Bar, who has been practicing law
for over ten years. This is different from the acts of persons
practicing law, without first becoming lawyers.

Justice Cruz also says that the Supreme Court can even
disqualify an elected President of the Philippines, say, on the
ground that he lacks one or more qualifications. This matter,
I greatly doubt. For one thing, how can an action or petition
be brought against the President? And even assuming that
he is indeed disqualified, how can the action be entertained
since he is the incumbent President?

We now proceed:
The Commission on the basis of evidence submitted during
the public hearings on Monsod's confirmation, implicitly
determined that he possessed the necessary qualifications as
required by law. The judgment rendered by the Commission
in the exercise of such an acknowledged power is beyond
judicial interference except only upon a clear showing of a
grave abuse of discretion amounting to lack or excess of
jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only
where such grave abuse of discretion is clearly shown shall
the Court interfere with the Commission's judgment. In the
instant case, there is no occasion for the exercise of the
Court's corrective power, since no abuse, much less a grave
abuse of discretion, that would amount to lack or excess of
jurisdiction and would warrant the issuance of the writs
prayed, for has been clearly shown.

Additionally, consider the following:

(1) If the Commission on Appointments rejects a nominee
by the President, may the Supreme Court reverse the
Commission, and thus in effect confirm the
appointment? Clearly, the answer is in the negative.

(2) In the same vein, may the Court reject the nominee,
whom the Commission has confirmed? The answer is
likewise clear.

(3) If the United States Senate (which is the confirming

body in the U.S. Congress) decides to confirm a
Presidential nominee, it would be incredible that the
U.S. Supreme Court would still reverse the U.S.
Senate.

Finally, one significant legal maxim is:

"We must interpret not by the letter that killeth, but by the
spirit that giveth life."
Take this hypothetical case of Samson and Delilah. Once,
the procurator of Judea asked Delilah (who was Samson's
beloved) for help in capturing Samson. Delilah agreed on
condition that
"No blade shall touch his skin; No blood shall flow from his
veins."
When Samson (his long hair cut by Delilah) was captured,
the procurator placed an iron rod burning white-hot two or
three inches away from in front of Samson's eyes. This
blinded the man. Upon hearing of what had happened to her
beloved, Delilah was beside herself with anger, and fuming
with righteous fury, accused the procurator of reneging on
his word. The procurator calmly replied: "Did any blade
touch his skin? Did any blood flow from his veins?" The
procurator was clearly relying on the letter, not the spirit of
the agreement.

IN VIEW OF THE FOREGOING, this petition is hereby

DISMISSED.

G.R. No. 119190, January 16, 1997

CHI MING TSOI,PETITIONER, VS. COURT OF APPEALS AND
GINA LAO-TSOI, RESPONDENTS.
DECISION

TORRES, JR., J.:

Man has not invented a reliable compass by which to steer a

marriage in its journey over troubled waters. Laws are
seemingly inadequate. Over time, much reliance has been
placed in the works of the unseen hand of Him who created
all things.

Who is to blame when a marriage fails?

This case was originally commenced by a distraught wife

against her uncaring husband in the Regional Trial Court of
Quezon City (Branch 89) which decreed the annulment of
the marriage on the ground of psychological incapacity.
Petitioner appealed the decision of the trial court to
respondent Court of Appeals (CA-G.R. CV No. 42758) which
affirmed the Trial Court's decision on November 29, 1994
and correspondingly denied the motion for reconsideration
in a resolution dated February 14, 1995.

The statement of the case and of the facts made by the trial
court and reproduced by the Court of Appeals[1] in its
decision are as follows:
"From the evidence adduced, the following facts were
preponderantly established:

"Sometime on May 22, 1988, the plaintiff married the

defendant at the Manila Cathedral, xxx Intramuros Manila,
as evidenced by their Marriage Contract. (Exh. "A")

"After the celebration of their marriage and wedding

reception at the South Villa, Makati, they went and
proceeded to the house of defendant's mother.

"There, they slept together on the same bed in the same

room for the first night of their married life.

"It is the version of the plaintiff, that contrary to her

expectations, that as newlyweds they were supposed to
enjoy making love, or having sexual intercourse, with each
other, the defendant just went to bed, slept on one side
thereof, then turned his back and went to sleep. There was
no sexual intercourse between them during the first night.
The same thing happened on the second, third and fourth
nights.

"In an effort to have their honeymoon in a private place

where they can enjoy together during their first week as
husband and wife, they went to Baguio City. But, they did so
together with her mother, an uncle, his mother and his
nephew. They were all invited by the defendant to join them.
[T]hey stayed in Baguio City for four (4) days. But, during
this period, there was no sexual intercourse between them,
since the defendant avoided her by taking a long walk during
siesta time or by just sleeping on a rocking chair located at
the living room. They slept together in the same room and on
the same bed since May 22, 1988 until March 15, 1989. But
during this period, there was no attempt of sexual
intercourse between them. [S]he claims, that she did not
even see her husband's private parts nor did he see hers.

"Because of this, they submitted themselves for medical

examinations to Dr. Eufemio Macalalag, a urologist at the
Chinese General Hospital, on January 20, 1989.

The results of their physical examinations were that she is

healthy, normal and still a virgin, while that of her husbands
examination was kept confidential up to this time. While no
medicine was prescribed for her, the doctor prescribed
medications for her husband which was also kept
confidential. No treatment was given to her. For her
husband, he was asked by the doctor to return but he never
did.

"The plaintiff claims, that the defendant is impotent, a closet

homosexual as he did not show his penis. She said, that she
had observed the defendant using an eyebrow pencil and
sometimes the cleansing cream of his mother. And that,
according to her, the defendant married her, a Filipino
citizen, to acquire or maintain his residency status here in
the country and to publicly maintain the appearance of a
normal man.

"The plaintiff is not willing to reconcile with her husband.

"On the other hand, it is the claim of the defendant that if
their marriage shall be annulled by reason of psychological
incapacity, the fault lies with his wife.

"But, he said that he does not want his marriage with his
wife annulled for several reasons, viz: (1) that he loves her
very much; (2) that he has no defect on his part and he is
physically and psychologically capable; and, (3) since the
relationship is still very young and if there is any differences
between the two of them, it can still be reconciled and that,
according to him, if either one of them has some
incapabilities, there is no certainty that this will not be
cured. He further claims, that if there is any defect, it can be
cured by the intervention of medical technology or scienceK

"The defendant admitted that since their marriage on May

22, 1988, until their separation on March 15, 1989, there
was no sexual contact between them. But, the reason for
this, according to the defendant, was that everytime he
wants to have sexual intercourse with his wife, she always
avoided him and whenever he caresses her private parts, she
always removed his hands. The defendant claims, that he
forced his wife to have sex with him only once but he did not
continue because she was shaking and she did not like it. So
he stopped.

"There are two (2) reasons, according to the defendant, why

the plaintiff filed this case against him, and these are: (1)
that she is afraid that she will be forced to return the pieces
of jewelry of his mother, and, (2) that her husband, the
defendant, will consummate their marriage.

"The defendant insisted that their marriage will remain valid

because they are still very young and there is still a chance
to overcome their differences.

"The defendant submitted himself to a physical examination.

His penis was examined by Dr. Sergio Alteza, Jr., for the
purpose of finding out whether he is impotent. As a result
thereof, Dr. Alteza submitted his Doctor's Medical Report.
(Exh. "2"). It is stated there, that there is no evidence of
impotency (Exh. "2-B"), and he is capable of erection. (Exh.
"2-C")

"The doctor said, that he asked the defendant to masturbate

to find out whether or not he has an erection and he found
out that from the original size of two (2) inches, or five (5)
centimeters, the penis of the defendant lengthened by one
(1) inch and one centimeter. Dr. Alteza said, that the
defendant had only a soft erection which is why his penis is
not in its full length. But, still is capable of further erection,
in that with his soft erection, the defendant is capable of
having sexual intercourse with a woman.

"In open Court, the Trial Prosecutor manifested that there is

no collusion between the parties and that the evidence is not
fabricated.[2]
After trial, the court rendered judgment, the dispositive
portion of which reads:
"ACCORDINGLY, judgment is hereby rendered declaring as
VOID the marriage entered into by the plaintiff with the
defendant on May 22, 1988 at the Manila Cathedral, Basilica
of the Immaculate Conception, Intramuros, Manila, before
the Rt. Rev. Msgr. Melencio de Vera. Without costs. Let a
copy of this decision be furnished the Local Civil Registrar of
Quezon City. Let another copy be furnished the Local Civil
Registrar of Manila.
"SO ORDERED. "

On appeal, the Court of Appeals affirmed the trial court's

decision.

Hence, the instant petition.

Petitioner alleges that the respondent Court of Appeals
erred:

in affirming the conclusions of the lower court that there

was no sexual intercourse between the parties without
making any findings of fact.

II

in holding that the refusal of private respondent to have

sexual communion with petitioner is a psychological
incapacity inasmuch as proof thereof is totally absent.

III

in holding that the alleged refusal of both the petitioner and

the private respondent to have sex with each other
constitutes psychological incapacity of both.

IV

in affirming the annulment of the marriage between the

parties decreed by the lower court without fully satisfying
itself that there was no collusion between them.
We find the petition to be bereft of merit.

Petitioner contends that being the plaintiff in Civil Case No.

Q-89-3141, private respondent has the burden of proving the
allegations in her complaint; that since there was no
independent evidence to prove the alleged non-coitus
between the parties, there remains no other basis for the
court's conclusion except the admission of petitioner; that
public policy should aid acts intended to validate marriage
and should retard acts intended to invalidate them; that the
conclusion drawn by the trial court on the admissions and
confessions of the parties in their pleadings and in the
course of the trial is misplaced since it could have been a
product of collusion; and that in actions for annulment of
marriage, the material facts alleged in the complaint shall
always be proved.[3]

Section 1, Rule 19 of the Rules of Court reads:

"Section 1. Judgment on the pleadings. - Where an answer
fails to tender an issue, or otherwise admits the material
allegations of the adverse party's pleading, the court may, on
motion of that party, direct judgment on such pleading. But
in actions for annulment of marriage or for legal separation
the material facts alleged in the complaint shall always be
proved."
The foregoing provision pertains to a judgment on the
pleadings. What said provision seeks to prevent is annulment
of marriage without trial. The assailed decision was not
based on such a judgment on the pleadings. When private
respondent testified under oath before the trial court and
was cross-examined by oath before the trial court and was
cross-examined by the adverse party, she thereby presented
evidence in the form of a testimony. After such evidence was
presented, it became incumbent upon petitioner to present
his side. He admitted that since their marriage on May 22,
1988, until their separation on March 15, 1989, there was no
sexual intercourse between them.

To prevent collusion between the parties is the reason why,

as stated by the petitioner, the Civil Code provides that no
judgment annulling a marriage shall be promulgated upon a
stipulation of facts or by confession of judgment (Arts. 88
and 101[par. 2]) and the Rules of Court prohibit such
annulment without trial (Sec. 1, Rule 19).

The case has reached this Court because petitioner does not
want their marriage to be annulled. This only shows that
there is no collusion between the parties. When petitioner
admitted that he and his wife (private respondent) have
never had sexual contact with each other, he must have been
only telling the truth. We are reproducing the relevant
portion of the challenged resolution denying petitioner's
Motion for Reconsideration, penned with magisterial lucidity
by Associate Justice Minerva Gonzaga-Reyes, viz:

"The judgment of the trial court which was affirmed by this

Court is not based on a stipulation of facts. The issue of
whether or not the appellant is psychologically incapacitated
to discharge a basic marital obligation was resolved upon a
review of both the documentary and testimonial evidence on
record. Appellant admitted that he did not have sexual
relations with his wife after almost ten months of
cohabitation, and it appears that he is not suffering from any
physical disability. Such abnormal reluctance or
unwillingness to consummate his marriage is strongly
indicative of a serious personality disorder which to the
mind of this Court clearly demonstrates an 'utter
insensitivity or inability to give meaning and significance to
the marriage' within the meaning of Article 36 of the Family
Code (See Santos vs. Court of Appeals, G.R. No. 112019,
January 4, 1995)."[4]

Petitioner further contends that respondent court erred in

holding that the alleged refusal of both the petitioner and
the private respondent to have sex with each other
constitutes psychological incapacity of both. He points out as
error the failure of the trial court to make "a categorical
finding about the alleged psychological incapacity and an in-
depth analysis of the reasons for such refusal which may not
be necessarily due to psychological disorders" because there
might have been other reasons, - i.e., physical disorders,
such as aches, pains or other discomforts, - why private
respondent would not want to have sexual intercourse from
May 22, 1988 to March 15, 1989, in a short span of 10
months.
First, it must be stated that neither the trial court nor the
respondent court made a finding on who between petitioner
and private respondent refuses to have sexual contact with
the other. The fact remains, however, that there has never
been coitus between them. At any rate, since the action to
declare the marriage void may be filed by either party, i.e.,
even the psychologically incapacitated, the question of who
refuses to have sex with the other becomes immaterial.

Petitioner claims that there is no independent evidence on

record to show that any of the parties is suffering from
psychological incapacity. Petitioner also claims that he
wanted to have sex with private respondent; that the reason
for private respondent's refusal may not be psychological but
physical disorder as stated above.

We do not agree. Assuming it to be so, petitioner could have

discussed with private respondent or asked her what is
ailing her, and why she balks and avoids him everytime he
wanted to have sexual intercourse with her. He never did. At
least, there is nothing in the record to show that he had tried
to find out or discover what the problem with his wife could
be. What he presented in evidence is his doctor's Medical
Report that there is no evidence of his impotency and he is
capable of erection.[5] Since it is petitioner's claim that the
reason is not psychological but perhaps physical disorder on
the part of private respondent, it became incumbent upon
him to prove such a claim.
"If a spouse, although physically capable but simply refuses
to perform his or her essential marriage obligations, and the
refusal is senseless and constant, Catholic marriage
tribunals attribute the causes to psychological incapacity
than to stubborn refusal. Senseless and protracted refusal is
equivalent to psychological incapacity. Thus, the prolonged
refusal of a spouse to have sexual intercourse with his or her
spouse is considered a sign of psychological incapacity."[6]
Evidently, one of the essential marital obligations under the
Family Code is "To procreate children based on the universal
principle that procreation of children through sexual
cooperation is the basic end of marriage." Constant non-
fulfillment of this obligation will finally destroy the integrity
or wholeness of the marriage. In the case at bar, the
senseless and protracted refusal of one of the parties to
fulfill the above marital obligation is equivalent to
psychological incapacity.

As aptly stated by the respondent court,

"An examination of the evidence convinces Us that the

husband's plea that the wife did not want carnal intercourse
with him does not inspire belief. Since he was not physically
impotent, but he refrained from sexual intercourse during
the entire time (from May 22, 1988 to March 15, 1989) that
he occupied the same bed with his wife, purely out of
sympathy for her feelings, he deserves to be doubted for not
having asserted his rights even though she balked (Tompkins
vs. Tompkins, 111 Atl. 599, cited in I Paras, Civil Code, at p.
330). Besides, if it were true that it is the wife who was
suffering from incapacity, the fact that defendant did not go
to court and seek the declaration of nullity weakens his
claim. This case was instituted by the wife whose normal
expectations of her marriage were frustrated by her
husband's inadequacy. Considering the innate modesty of the
Filipino woman, it is hard to believe that she would expose
her private life to public scrutiny and fabricate testimony
against her husband if it were not necessary to put her life in
order and put to rest her marital status.

"We are not impressed by defendant's claim that what the

evidence proved is the unwillingness or lack of intention to
perform the sexual act, which is not psychological incapacity,
and which can be achieved "through proper motivation."
After almost ten months of cohabitation, the admission that
the husband is reluctant or unwilling to perform the sexual
act with his wife whom he professes to love very dearly, and
who has not posed any insurmountable resistance to his
alleged approaches, is indicative of a hopeless situation, and
of a serious personality disorder that constitutes
psychological incapacity to discharge the basic marital
covenants within the contemplation of the Family Code. [7]

While the law provides that the husband and the wife are
obliged to live together, observe mutual love, respect and
fidelity (Art. 68, Family Code), the sanction therefor is
actually the "spontaneous, mutual affection between
husband and wife and not any legal mandate or court order"
(Cuaderno vs. Cuaderno, 120 Phil. 1298). Love is useless
unless it is shared with another. Indeed, no man is an island,
the cruelest act of a partner in marriage is to say "I could
not have cared less." This is so because an ungiven self is an
unfulfilled self. The egoist has nothing but himself. In the
natural order, it is sexual intimacy which brings spouses
wholeness and oneness. Sexual intimacy is a gift and a
participation in the mystery of creation. It is a function
which enlivens the hope of procreation and ensures the
continuation of family relations.

It appears that there is absence of empathy between

petitioner and private respondent. That is - a shared feeling
which between husband and wife must be experienced not
only by having spontaneous sexual intimacy but a deep sense
of spiritual communion. Marital union is a two-way process.
An expressive interest in each other's feelings at a time it is
needed by the other can go a long way in deepening the
marital relationship. Marriage is definitely not for children
but for two consenting adults who view the relationship with
love amor gignit amorem, respect, sacrifice and a continuing
commitment to compromise, conscious of its value as a
sublime social institution.
This Court, finding the gravity of the failed relationship in
which the parties found themselves trapped in its mire of
unfulfilled vows and unconsummated marital obligations,
can do no less but sustain the studied judgment of
respondent appellate court.

IN VIEW OF THE FOREGOING PREMISES, the assailed

decision of the Court of Appeals dated November 29, 1994 is
hereby AFFIRMED in all respects and the petition is hereby
DENIED for lack of merit.
SO ORDERED.

G.R. No. 5272, March 19, 1910

THE UNITED STATES, PLAINTIFF AND APPELLEE, VS. AH
CHONG, DEFENDANT AND APPELLANT.

DECISION

CARSON, J.:

The evidence as to many of the essential and vital facts in

this case is limited to the testimony of the accused himself,
because from the very nature of these facts and from the
circumstances surrounding the incident upon which these
proceedings rest, no other evidence as to these facts was
available either to the prosecution or to the defense. We
think, however, that, giving the accused the benefit of the
doubt as to the weight of the evidence touching those
details of the incident as to which there can be said to be
any doubt, the following statement of the material facts
disclosed by the record may be taken to be substantially
correct:

The defendant, Ah Chong, was employed as a cook at

"Officers' quarters, No. 27," Fort McKinley, Rizal Province,
and at the same place Pascual Gualberto, deceased, was
employed as a house boy or muchacho. "Officers' quarters
No. 27" is a detached house situated some 40 meters from
the nearest building, and in August, 1908, was occupied
solely as an officers' mess or club. No one slept in the
house except the two servants, who jointly occupied a small
room toward the rear of the building, the door of which
opened upon a narrow porch running along the side of the
building, by which communication was had with the other
part of the house. This porch was covered by a heavy
growth of vines for its entire length and height. The door of
the room was not furnished with a permanent bolt or lock,
and the occupants, as a measure of security, had attached
a small hook or catch on the inside of the door, and were in
the habit of reinforcing this somewhat insecure means of
fastening the door by placing against it a chair. In the room
there was but one small window, which, like the door,
opened on the porch. Aside from the door and window,
there were no other openings of any kind in the room.

On the night of August 14, 1908, at about 10 o'clock, the

defendant, who had retired for the night, was suddenly
awakened by someone trying to force open the door of the
room. He sat up in bed and called out twice, "Who is
there?" He heard no answer and was convinced by the
noise at the door that it was being pushed open by someone
bent upon forcing his way into the room. Due to the heavy
growth of vines along the front of the porch, the room was
very dark, and the defendant, fearing that the intruder was
a robber or a thief, leaped to his feet and called out. "If you
enter the room, I will kill you." At that moment he was
struck just above the knee by the edge of the chair which
had been placed against the door. In the darkness and
confusion the defendant thought that the blow had been
inflicted by the person who had forced the door open,
whom he supposed to be a burglar, though in the light of
after events, it is probable that the chair was merely
thrown back into the room by the sudden opening of the
door against which it rested. Seizing a common kitchen knife
which he kept under his pillow, the defendant struck out
wildly at the intruder who, it afterwards turned out, was
his roommate, Pascual. Pascual ran" out upon the porch
and fell down on the steps in a desperately wounded
condition, followed by the defendant, who immediately
recognized him in the moonlight. Seeing that Pascual was
wounded, he called to his employers who slept in the next
house, No. 28, and ran back to his room to secure bandages
to bind up Pascual's wounds.

There had been several robberies in Fort McKinley not long

prior to the date of the incident just described, one of which
took place in a house in which the defendant was employed
as cook; and as defendant alleges, it was because of these
repeated robberies he kept a knife under his pillow for his
personal protection.

The deceased and the accused, who roomed together and

who appear to have been on friendly and amicable terms
prior to the fatal incident, had an understanding that when
either returned at night, he should knock at the door and
acquaint his companion with his identity. Pascual had left
the house early in the evening and gone for a walk with his
friends, Celestino Quiambao and Mariano Ibanez, servants
employed at officers' quarters No. 28, the nearest house to
the mess hall. The three returned from their walk at about
10 o'clock, and Celestino and Mariano stopped at their room
at No. 28, Pascual going on to his room at No. 27. A few
moments after the party separated, Celestino and Mariano
heard cries for assistance and upon returning to No. 27
found Pascual sitting on the back steps fatally wounded in
the stomach, whereupon one of them ran back to No. 28 and
called Lieutenants Jacobs and Healy, who immediately went
to the aid of the wounded man.
The defendant then and there admitted that he had stabbed
his roommate, but said that he did it under the impression
that Pascual was "a ladron" because he forced open the
door of their sleeping room, despite defendant's warnings.

No reasonable explanation of the remarkable conduct on the

part of Pascual suggests itself, unless it be that the boy in
a spirit of mischief was playing a trick on his Chinese
roommate, and sought to frighten him by forcing his way
into the room, refusing to give his name or say who he
was, in order to make Ah Chong believe that he was being
attacked by a robber.

Defendant was placed under arrest forthwith, and Pascual

was conveyed to the military hospital, where he died from
the effects of the wound on the following day.

The defendant was charged with the crime of assassination,

tried, and found guilty by the trial court of simple homicide,
with extenuating circumstances, and sentenced to six years
and one day presidio mayor, the minimum penalty prescribed
by law.

At the trial in the court below the defendant admitted that

he killed his roommate, Pascual Gualberto, but insisted that
he struck the fatal blow without any intent to do a wrongful
act, in the exercise of his lawful right of self-defense.

Article 8 of the Penal Code provides that -

"The following are not delinquent and are therefore
exempt from criminal liability:

"4. He who acts in defense of his person or rights, provided

there are the following attendant circumstances:

"(1) Illegal aggression.

"(2) Reasonable necessity of the means employed to
prevent or repel it.

"(3) Lack of sufficient provocation on the part of the person

defending himself."
Under these provisions we think that there can be no doubt
that defendant would be entitled to complete exemption
from criminal liability for the death of the victim of his fatal
blow, if the intruder who forced open the door of his room
had been in fact a dangerous thief or "ladron," as the
defendant believed him to be. No one, under such
circumstances, would doubt the right of the defendant to
resist and repel such an intrusion, and the thief having
forced open the door notwithstanding defendant's thrice-
repeated warning to desist, and his threat that he would kill
the intruder if he persisted in his attempt, it will not be
questioned that in the darkness of the night, in a small
room, with no means of escape, with the thief advancing
upon him despite his warnings, defendant would have been
wholly justified in using any available weapon to defend
himself from such an assault, and in striking promptly,
without waiting for the thief to discover his whereabouts
and deliver the first blow.

But the evidence clearly discloses that the intruder was not a
thief or a "ladron." That neither the defendant nor his
property nor any of the property under his charge was in
real danger at the time when he struck the fatal blow. That
there was no such "unlawful aggression" on the part of a
thief or "ladron" as defendant believed he was repelling and
resisting, and that there was no real "necessity" for the use
of the knife to defend his person or his property or the
property under his charge.

The question then squarely presents itself, whether in this

jurisdiction one can be held criminally responsible who, by
reason of a mistake as to the facts, does an act for which he
would be exempt from criminal liability if the facts were as
he supposed them to be, but which would constitute the
crime of homicide or assassination if the actor had known
the true state of the facts at the time when he committed the
act. To this question we think there can be but one answer,
and we hold that under such circumstances there is no
criminal liability, provided always that the alleged
ignorance or mistake of fact was not due to negligence or
bad faith.

In broader terms, ignorance or mistake of fact, if such

ignorance or mistake of fact is sufficient to negative a
particular intent which under the law is a necessary
ingredient of the offense charged (e. g., in larceny, animus
furendi; in murder, malice; in crimes and misdemeanors
generally some degree of criminal intent) "cancels the
presumption of intent," and works an acquittal; except in
those cases where the circumstances demand a conviction
under the penal provisions touching criminal negligence;
and in cases where, under the provisions of article 1 of the
Penal Code one voluntarily committing a crime or
misdemeanor incurs criminal liability for any wrongful act
committed by him, even though it be different from that
which he intended to commit. (Wharton's Criminal Law,
sec. 87 and cases cited; McClain's Crim. Law, sec. 133 and
cases cited; Pettit vs. S., 28 Tex. Ap., 240; Commonwealth
vs. Power, 7 Met., 596; Yates vs. People, 32 N. Y., 509; Isham
vs. State, 38 Ala., 213; Commonwealth vs. Rogers, 7 Met.,
500.)

The general proposition thus stated hardly admits of

discussion, and the only question worthy of consideration is
whether malice or criminal intent is an essential element or
ingredient of the crimes of homicide and assassination as
defined and penalized in the Penal Code. It has been said
that since the definitions there given of these as well as
most other crimes and offenses therein defined, do not
specifically and expressly declare that the acts constituting
the crime or offense must be committed with malice or with
criminal intent in order that the actor may be held
criminally liable, the commission of the acts set out in the
various definitions subjects the actor to the penalties
described therein, unless it appears that he is exempted
from liability under one or other of the express provisions of
article 8 of the code, which treats of exemptions. But while
it is true that contrary to the general rule of legislative
enactment in the United States, the definitions of crimes
and offenses as set out in the Penal Code rarely contain
provisions expressly declaring that malice or criminal intent
is an essential ingredient of the crime, nevertheless, the
general provisions of article 1 of the code clearly indicate
that malice, or criminal intent in some form, is an essential
requisite of all crimes and offenses therein defined, in the
absence of express provisions modifying the general rule,
such as are those touching liability resulting from acts
negligently or imprudently committed, and acts done by one
voluntarily committing a crime or misdemeanor, where the
act committed is different from that which he intended to
commit. And it is to be observed that even these exceptions
are more apparent than real, for "There is little distinction,
except in degree, between a will to do a wrongful thing and
indifference whether it is done or not. Therefore
carelessness is criminal, and within limits supplies the place
of the affirmative criminal intent" (Bishop's New Criminal
Law, vol. 1, s. 313) ; and, again, "There is so little
difference between a disposition to do a great harm and a
disposition to do harm that one of them may very well be
looked upon as the measure of the other. Since, therefore,
the guilt of a crime consists in the disposition to do harm,
which the criminal shows by committing it, and since this
disposition is greater or less in proportion to the harm
which is done by the crime, the consequence is that the
guilt of the crime follows the same proportion; it is greater
or less according as the crime in its own nature does greater
or less harm" (Ruth. Ints. C. 18, p. 11); or, as it has been
otherwise stated, the thing done, having proceeded from a
corrupt mind, is to be viewed the same whether the
corruption was of one particular form or another.

Article 1 of the Penal Code is as follows:

"Crimes or misdemeanors are voluntary acts and omissions
punished by law.

"Acts and omissions punished by law are always presumed

to be voluntary unless the contrary shall appear.

"Any person voluntarily committing a crime or

misdemeanor shall incur criminal liability, even though the
wrongful act committed be different from that which he had
intended to commit."
The celebrated Spanish jurist Pacheco, discussing the
meaning of the word "voluntary" as used in this article, says
that a voluntary act is a free, intelligent, and intentional act,
and roundly asserts that without intention (intention to do
wrong or criminal intention) there can be no crime; and that
the word "voluntary" implies and includes the words "con
malicia," which were expressly set out in the definition of the
word "crime" in the code of 1822, but omitted from the code
of 1870, because, as Pacheco insists, their use in the former
code was redundant, being implied and included in the word
"voluntary." (Pacheco, Codigo Penal, vol. 1, p. 74.)

Viada, while insisting that the absence of intention to

commit the crime can only be said to exempt from criminal
responsibility when the act which was actually intended to
be done was in itself a lawful one, and in the absence of
negligence or imprudence, nevertheless admits and
recognizes in his discussion of the provisions of this article
of the code that in general without intention there can be no
crime. (Viada, vol. 1, p. 16.) And, as we have shown
above, the exceptions insisted upon by Viada are more
apparent than real.

Silvela, in discussing the doctrine herein laid down, says:

"In fact, it is sufficient to remember the first article, which
declares that where there is no intention there is no crime *
* * in order to affirm, without fear of mistake, that under
our code there can be no crime if there is no act, an act
which must fall within the sphere of ethics if there is no
moral injury." (Vol. 2, The Criminal Law, folio 169.)
And to the same effect are various decisions of the supreme
court of Spain, as, for example in its sentence of May 31,
1882, in which it made use of the following language:
"It is necessary that this act, in order to constitute a
crime, involve all the malice which is supposed from the
operation of the will and an intent to cause the injury
which may be the object of the crime."
And again in its sentence of March 16, 1892, wherein it held
that "considering that, whatever may be the civil effects of
the inscription of his three sons, made by the appellant in
the civil registry and in the parochial church, there can be
no crime because of the lack of the necessary element or
criminal intention, which characterizes every action or
omission punished by law; nor is he guilty of criminal
negligence."

And to the same effect in its sentence of December 30,

1896, it made use of the following language:
" * * * Considering that the moral element of the crime,
that is, intent or malice or their absence in the commission
of an act denned and punished by law as criminal, is not a
necessary question of fact submitted to the exclusive
judgment and decision of the trial court."
That the author of the Penal Code deemed criminal intent or
malice to be an essential element of the various crimes and
misdemeanors therein defined becomes clear also from an
examination of the provisions of article 568, which are as
follows:
"He who shall execute through reckless negligence an act
that, if done with malice, would constitute a grave crime,
shall be punished with the penalty of arresto mayor in its
maximum degree, to prision correccional in its minimum
degree, and with arresto mayor in its minimum and medium
degrees if it shall constitute a less grave crime.

"He who in violation of the regulations shall commit a crime

through simple imprudence or negligence shall incur the
penalty of arresto mayor in its medium and maximum
degrees.

"In the application of these penalties the courts shall

proceed according to their discretion, without being subject
to the rules prescribed in article 81.

"The provisions of this article shall not be applicable if the

penalty prescribed for the crime is equal to or less than
those contained in the first paragraph thereof, in which
case the courts shall apply the next one thereto in the
degree which they may consider proper."
The word "malice" in this article is manifestly substantially
equivalent to the words "criminal intent," and the direct
inference from its provisions is that the commission of the
acts contemplated therein, in the absence of malice
(criminal intent), negligence, and imprudence, does not
impose any criminal liability on the actor.

The word "voluntary" as used in article 1 of the Penal Code

would seem to approximate in meaning the word "willful" as
used in English and American statutes to designate a form
of criminal intent. It has been said that while the word
"willful" sometimes means little more than intentionally or
designedly, yet it is more frequently understood to extend a
little further and approximate the idea of the milder kind of
legal malice; that is, it signifies an evil intent without
justifiable excuse. In one case it was said to mean,, as
employed in a statute in contemplation, "wantonly" or
"causelessly;" in another, "without reasonable grounds to
believe the thing lawful." And Shaw, C. J., once said that
ordinarily in a statute it means "not merely 'voluntarily' but
with a bad purpose; in other words, corruptly." In English
and the American statutes defining crimes "malice,"
"malicious," "maliciously," and "malice aforethought" are
words indicating intent, more purely technical than
"willful" or "willfully," but "the difference between them is
not great;" the word "malice" not often being understood to
require general malevolence toward a particular individual,
and signifying rather the intent from which flows any
unlawful and injurious act committed without legal
justification. (Bishop's New Criminal Law, vol. 1, sees. 428
and 429, and cases cited.)

But even in the absence of express words in a statute,

setting out a condition in the definition of a crime that it be
committed "voluntarily," "willfully," "maliciously," "with
malice aforethought," or in one of the various modes
generally construed to imply a criminal intent, we think that
reasoning from general principles it will always be found
that, with the rare exceptions hereinafter mentioned, to
constitute a crime evil intent must combine with an act. Mr.
Bishop, who supports his position with numerous citations
from the decided cases, thus forcefully presents this
doctrine:
"In no one thing does criminal jurisprudence differ more
from civil than in the rule as to the intent. In controversies
between private parties the quo animo with which a thing
was done is sometimes important, not always; but crime
proceeds only from a criminal mind. So that -

"There can be no crime, large or small, without an evil

mind. In other words, punishment is the sequence of
wickedness, without which it can not be. And neither in
philosophical speculation nor in religious or moral sentiment
would any people in any age allow that a man should be
deemed guilty unless his mind was so. It is therefore a
principle of our legal system, as probably it is of every
other, that the essence of an offense is the wrongful intent,
without which it can not exist. We find this doctrine
confirmed by -

"Legal maxims. - The ancient wisdom of the law, equally with

the modern, is distinct on this subject. It consequently has
supplied to us such maxims as Actus non facit reum nisi
mens sit rea, 'the act itself does not make a man guilty
unless his intention were so;' Actus me invito factus non est
meus actus, 'an act done by me against my will is not my
act;' and others of the like sort. In this, as just said, criminal
jurisprudence differs from civil. So also -

"Moral science and moral sentiment teach the same thing.

'By reference to the intention, we inculpate or exculpate
others or ourselves without any respect to the happiness or
misery actually produced. Let the result of an action be
what it may, we hold a man guilty simply on the ground of
intention; or, on the same ground, we hold him innocent.'
The calm judgment of mankind keeps this doctrine among
its jewels. In times of excitement, when vengeance takes
the place of justice, every guard around the innocent is cast
down. But with the return of reason comes the public voice
that where the mind is pure, he who differs in act from his
neighbors does not offend. And -

"In the spontaneous judgment which springs from the

nature given by God to man, no one deems another to
deserve punishment for what he did from an upright mind,
destitute of every form of evil. And whenever a person is
made to suffer a punishment which the community deems
hot his due, so far from its placing an evil mark upon him, it
elevates him to the seat of the martyr. Even infancy itself
spontaneously pleads the want of bad intent in justification
of what has the appearance of wrong, with the utmost
confidence that the plea, if its truth is credited, will be
accepted as good. Now these facts are only the voice of
nature uttering one of her immutable truths. It is, then, the
doctrine of the law, superior to all other doctrines, because
first in nature from which the law itself proceeds, that no
man is to be punished as a criminal unless his intent is
wrong." (Bishop's New Criminal Law, vol. 1, sees. 286 to
290.)
Compelled by necessity, "the great master of all things," an
apparent departure from this doctrine of abstract justice
results from the adoption of the arbitrary rule that
Ignorantia juris non excusat ("Ignorance of the law excuses
no man"), without which justice could not be administered
in our tribunals; and compelled also by the same doctrine of
necessity, the courts have recognized the power of the
legislature to forbid, in a limited class of cases, the doing of
certain acts, and to make their commission criminal without
regard to the intent of the doer. Without discussing these
exceptional cases at length, it is sufficient here to say that
the courts have always held that unless the intention of the
lawmaker to make the commission of certain acts criminal
without regard to the intent of the doer is clear and beyond
question the statute will not be so construed (cases cited
in Cyc, vol. 12, p. 158, notes 76 and 77) ; and the rule that
ignorance of the law excuses no man has been said not to be
a real departure from the law's fundamental principle that
crime exists only where the mind is at fault, because "the
evil purpose need not be to break the law, and it suffices if it
is simply to do the thing which the law in fact forbids."
(Bishop's New Criminal Law, sec. 300, and cases cited.)

But, however this may be, there is no technical rule, and no

pressing necessity therefor, requiring mistake in fact to be
dealt with otherwise than in strict accord with the
principles of abstract justice. On the contrary, the maxim
here is Ignorantia facti excusat ("Ignorance or mistake in
point of fact is, in all cases of supposed offense, a sufficient
excuse"). (Brown's Leg. Max., 2d ed., 190.)

Since evil intent is in general an inseparable element in

every crime, any such mistake of fact as shows the act
committed to have proceeded from no sort of evil in the
mind necessarily relieves the actor from criminal liability,
provided always there is no fault or negligence on his part;
and as laid down by Baron Parke, "The guilt of the accused
must depend on the circumstances as they appear to him."
(Reg. vs. Thurborn, 1 Den. C. C, 387; P. vs. Anderson, 44
Cal., 65; P. vs. Lamb, 54 Barb., 342; Yates vs. P., 32 N. Y.,
509; Patterson vs. P., 46 Barb., 625;. Reg. vs. Cohen, 8 Cox
C. C, 41; P. vs. Miles, 55 Cal., 207, 209; Nalley vs. S., 28 Tex.
Ap., 387.) That is to say, the question as to whether he
honestly, in good faith, and without fault or negligence fell
into the mistake is to be determined by the circumstances as
they appeared to him at the time when the mistake was
made, and the effect which the surrounding circumstances
might reasonably be expected to have on his mind, in
forming the intent, criminal or otherwise, upon which he
acted.
"If, in language not uncommon in the cases, one has
reasonable cause to believe the existence of facts which will
justify a killing - or, in terms more, nicely in accord with
the principles on which the rule is founded, if without fault
or carelessness he does believe them - he is legally
guiltless of the homicide; though he mistook the facts, and
so the life of an innocent person is unfortunately
extinguished. In other words, and with reference to the
right of self-defense and the not quite harmonious
authorities, it is the doctrine of reason, and sufficiently
sustained in adjudication, that notwithstanding some
decisions apparently adverse, whenever a man undertakes
self-defense, he is justified in acting on the facts as they
appear to him. If, without fault or carelessness, he is
misled concerning them, and defends himself correctly
according to what he thus supposes the facts to be, the law
will not punish him though they are in truth otherwise, and
he has really no occasion for the extreme measure."
(Bishop's New Criminal Law, sec. 305, and large array of
cases there cited.)
The common illustration in the American and English
textbooks of the application of this rule is the case where a
man, masked and disguised as a footpad, at night and on a
lonely road, "holds up" his friend in a spirit of mischief, and
with leveled pistol demands his money or his life, but is
killed by his friend under the mistaken belief that the attack
is a real one, that the pistol leveled at his head is loaded, and
that his life and property are in imminent danger at the
hands of the aggressor. No one will doubt that if the facts
were such as the slayer believed them to be he would be
innocent of the commission of any crime and wholly exempt
from criminal liability, although if he knew the real state of
the facts when he took the life of his friend he would
undoubtedly be guilty of the crime of homicide or
assassination. Under such circumstances, proof of his
innocent mistake of the facts overcomes the presumption of
malice or criminal intent, and (since malice or criminal
intent is a necessary ingredient of the "act punished by
law" in cases of homicide or assassination) overcomes at the
same time the presumption established in article 1 of the
code, that the "act punished by law" was committed
"voluntarily."

Parsons, C. J., in the Massachusetts court, once said: "If the

party killing had reasonable grounds for believing that the
person slain had a felonious design against him, and under
that supposition killed him, although it should afterwards
appear that there was no such design, it will not be murder,
but it will be either manslaughter or excusable homicide,
according to the degree of caution used and the probable
grounds of such belief." (Charge to the grand jury in Self
ridge's case, Whart. Horn., 417, 418, Lloyd's report of the
case, p. 7.)

In this case, Parker, J., charging the petit jury, enforced the
doctrine as follows:
"A, in the peaceable pursuit of his affairs, sees B rushing
rapidly toward him, with an outstretched arm and a pistol
in his hand, and using violent menaces against his life as he
advances. Having approached near enough in the same
attitude, A, who has a club in his hand, strikes B over the
head before or at the instant the pistol is discharge; and of
the wound B dies. It turns out the pistol was loaded with
powder only, and that the real design of B was only to terrify
A. Will any reasonable man say that A is more criminal than
he would have been if there had been a bullet in the pistol?
Those who hold such doctrine must require that a man so
attacked must, before he strikes the assailant, stop and
ascertain how the pistol is loaded - a doctrine which would
entirely take away the essential right of self- defense. And
when it is considered that the jury who try the cause, and
not the party killing,.are to judge of the reasonable grounds
of his apprehension, no danger can be supposed to flow
from this principle." (Lloyd's Rep., p. 160.)
To the same effect are various decisions of the supreme
court of Spain, cited by Viada, a few of which are here set
out in full because the facts are somewhat analogous to
those in the case at bar.
"Question III. When it is shown that the accused was sitting
at his hearth, at night, in company only of his wife, without
other light than that reflected from the fire, and that the
man with his back to the door was attending to the fire,
there suddenly entered a person whom he did not see or
know, who struck him one or two blows, producing a
contusion on the shoulder, because of which he turned,
seized the person and took from him the stick with which he
had undoubtedly been struck, and gave the unknown person
a blow, knocking him to the floor, and afterwards striking
him another blow on the head, leaving the unknown lying on
the floor, and left the house. It turned out the unknown
person was his father-in-law, to whom he rendered
assistance as soon as he learned his identity, and who died in
about six days in consequence of cerebral congestion
resulting from there blow. The accused, who confessed the
facts, had always sustained pleasant relations with his
father-in-law, whom he visited during his sickness,
demonstrating great grief over the occurrence. Shall he be
considered free from criminal responsibility, as having acted
in self-defense, with all the circumstances related in
paragraph 4, article 8, of the Penal Code? The criminal
branch of the Audiencia of Valladolid found that he was an
illegal aggressor, without sufficient provocation, and that
there did not exist rational necessity for the employment of
the force used, and in accordance with articles 419 and 87 of
the Penal Code condemned him to twenty months of
imprisonment, with accessory penalty and costs. Upon
appeal by the accused, he was acquitted by the supreme
court, under the following sentence: 'Considering, from the
facts found by the sentence to have been proven, that the
accused was surprised from behind, at night, in his house
beside his wife, who was nursing her child, was attacked,
struck, and beaten, without being able to distinguish the
person or persons attacking, nor the instruments with which
they might have executed their criminal intent, because of
the fact that the attack was made from behind and
because there was no other than fire light in the room, and
considering that in such a situation and when the acts
executed demonstrated that they might endanger his
existence, and possibly that of his wife and child, more
especially because his assailant was unknown, he should
have defended himself, and in doing so with the same stick
with which he was attacked, he did not exceed the limits of
self-defense, nor did he use means which were not rationally
necessary, particularly because the instrument with which
he killed was the one which he took from his assailant, and
was capable of producing death, and in the darkness of the
house and the consternation which naturally resulted from
such strong aggression, it was not given him to know or
distinguish whether there was one or more assailants, nor
the arms which they might bear, nor that which they might
accomplish, and considering that the lower court did not
find from the accepted facts that there existed rational
necessity for the means employed, and that it did not
apply paragraph 4 of article 8 of the Penal Code, it erred,
etc.' (Sentence of supreme court of Spain, February 28,
1876.)" (Viada, Vol. I, p. 266.)

"Question XIX. A person returning, at night, to his house,

which was situated in a retired part of the city, upon
arriving at a point where there was no light, heard the voice
of a man, at a distance of some 8 paces, saying: 'Face down,
hand over your money!' because of which, and almost at the
same moment, he fired two shots from his pistol,
distinguishing immediately the voice of one of his friends
(who had before simulated a different voice) saying, 'Oh!
they have killed me,' and hastening to his assistance, finding
the body lying upon the ground, he cried, 'Miguel, Miguel,
speak, for God's sake, or I am ruined,' realizing that he had
been the victim of a joke, and not receiving a reply, and
observing that his friend was a corpse, he retired from the
place. Shall he be declared exempt in toto from
responsibility as the author of this homicide, as having
acted in just self-defense under the circumstances defined in
paragraph 4, article 8, Penal Code ? The criminal branch of
the Audiencia of Malaga did not so find, but only found in
favor of the accused two of the requisites of said article, but
not that of the reasonableness of the means employed to
repel the attack, and, therefore, condemned the accused to
eight years and one day of prision mayor, etc. The supreme
court acquitted the accused on his appeal from this
sentence, holding that the accused was acting under a
justifiable and excusable mistake of fact as to the identity of
the person calling to him, and that under the
circumstances, the darkness and remoteness, etc., the
means employed were rational and the shooting justifiable.
(Sentence supreme court, March 17, 1885.)" (Viada, Vol. I,
p. 136.)

"Question VI. The owner of a mill, situated in a remote spot,

is awakened, at night, by a large stone thrown against his
window - at this, he puts his head out of the window and
inquires what is wanted, and is answered 'the delivery of all
of his money, otherwise his house would be burned' -
because of which, and observing in an alley adjacent to the
mill four individuals, one of whom addressed him with
blasphemy, he fired his pistol at one of the men, who, on the
next morning was found dead on the same spot. Shall this
man be declared exempt from criminal responsibility as
having acted in just self-defense with all of the requisities of
law? The criminal branch of the Audiencia of Zaragoza finds
that there existed in favor of the accused a majority of the
requisites to exempt him from criminal responsibility, but
not that of reasonable necessity for the means, employed,
and condemned the accused to twelve months of prision
correccional for the homicide committed. Upon appeal, the
supreme court acquitted the condemned, finding that the
accused, in firing at the malefactors, who attacked his mill
at night in a remote spot by threatening robbery and
incendiarism, was acting in just self-defense of his person,
property, and family. (Sentence of May 23, 1877)." (I Viada,
p. 128.)
A careful examination of the facts as disclosed in the case at
bar convinces us that the defendant Chinaman struck the
fatal blow alleged in the information in the firm belief that
the intruder who forced open the door of his sleeping room
was a thief, from whose assault he was in imminent peril,
both of his life and of his property and of the property
committed to his charge; that in view of all the
circumstances, as they must have presented themselves to
the defendant at the time, he acted in good faith, without
malice, or criminal intent, in the belief that he was doing no
more than exercising his legitimate right of self-defense; that
had the facts been as he believed them to be he would have
been wholly exempt from criminal liability on account of his
act; and that he can not be said to have been guilty of
negligence or recklessness or even carelessness in falling
into his mistake as to the facts, or in the means adopted by
him to defend himself from the imminent danger which he
believed threatened his person and his property and the
property under his charge.

The judgment of conviction and the sentence imposed by

the trial court should be reversed, and the defendant
acquitted of the crime with which he is charged and his bail
bond exonerated, with the costs of both instances de
oficio. So ordered.

G.R. No. 104037, May 29, 1992

REYNALDO V. UMALI, PETITIONER, VS. HON. JESUS P.
ESTANISLAO, SECRETARY OF FINANCE, AND HON. JOSE U.
ONG, COMMISSIONER OF INTERNAL REVENUE,
RESPONDENTS.

[G.R. NO. 104069. MAY 29, 1992]

RENE B. GOROSPE, LEIGHTON R. SIAZON, MANUEL M.

SUNGA, PAUL D. UNGOS, BIENVENIDO T. JAMORALIN, JR.,
JOSE D. FLORES, JR., EVELYN G. VILLEGAS, DOMINGO T.
LIGOT, HENRY E. LARON, PASTOR M. DALMACION, JR. AND,
JULIUS NORMAN C. CERRADA, PETITIONERS, VS.
COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

DECISION

PADILLA, J.:
These consolidated cases are petitions for mandamus and
prohibition, premised upon the following undisputed facts:

Congress enacted Rep. Act 7167, entitled "AN ACT

ADJUSTING THE BASIC PERSONAL AND ADDITIONAL
EXEMPTIONS ALLOWABLE TO INDIVIDUALS FOR
INCOME TAX PURPOSES TO THE POVERTY THRESHOLD
LEVEL, AMENDING FOR THE PURPOSE SECTION 29,
PARAGRAPH (L), ITEMS (1) AND (2) (A) OF THE NATIONAL
INTERNAL REVENUE CODE, AS AMENDED, AND FOR
OTHER PURPOSES." It provides as follows:

"SECTION (1). The first paragraph of item (1), paragraph (1)

of Section 29 of the National Internal Revenue Code, as
amended, is hereby further amended to read as follows:
(1) Personal Exemptions allowable to individuals (1) Basic
personal exemption as follows:

'For single individual or married individual judicially decreed

as legally separated with no qualified dependents P9,000

For head of a family .. P12,000

For married individual........................... P18,000

Provided, That husband and wife electing to compute their

income tax separately shall be entitled to a personal
exemption of P9,000 each.

SEC. 2. The first paragraph of item (2) (A), paragraph (1) of

Section 29 of the same Code, as amended, is hereby further
amended to read as follows:

(2) Additional exemption.

(A) Taxpayers with dependents. A married

individual or a head of family shall be
allowed an additional exemption of Five
 Thousand Pesos (P5,000) for each
dependent: Provided, That the total number
of dependents for which additional
exemptions may be claimed shall not exceed
four dependents: Provided, further, That an
additional exemption of One Thousand Pesos
(1,000) shall be allowed for each child who
otherwise qualified as dependent prior to
January 1, 1980: Provided, finally, That the
additional exemption for dependents shall be
claimed by only one of the spouses in case of
married individuals electing to compute
their income tax liabilities separately.

SEC. 3. This act shall take effect upon its approval.

Approved. [1]

The said act was signed and approved by the President on 19

December 1991 and published on 14 January 1992 in
"Malaya" a newspaper of general circulation.

On 26 December 1992, respondents promulgated Revenue

Regulations No. 1-92, the pertinent portions of which read as
follows:

"SEC. 1. SCOPE Pursuant to Sections 245 and 72 of the

National Internal Revenue Code in relation to Republic Act
No. 7167, these Regulations are hereby promulgated
prescribing the collection at source of income tax on
compensation income paid on or after January 1, 1992 under
the Revised Withholding Tax Tables (ANNEX "A") which take
into account the increase of personal and additional
exemptions.
x x x x x
SEC. 3. Section 8 of Revenue Regulations No. 6-82 as
amended by Revenue Regulations No. 1-86 is hereby further
amended to read as follows:
'Section 8. Right to claim the following exemptions. x x x

Each employee shall be allowed to claim the following

amount of exemption with respect to compensation paid on
or after January 1, 1992.

x x x x x
SEC. 5. EFFECTIVITY. These regulations shall take effect
on compensation income from January 1, 1992."

On 27 February 1992, the petitioner in G.R. No. 104037, a

taxpayer and a resident of Gitnang Bayan Bongabong,
Oriental Mindoro, filed a petition for mandamus for himself
and in behalf of all individual Filipino taxpayers, to COMPEL
the respondents to implement Rep. Act 7167 with respect to
taxable income of individual taxpayers earned or received on
or after 1 January 1991 or as of taxable year ending 31
December 1991.

On 28 February 1992, the petitioners in G.R. No. 104069

likewise filed a petition for mandamus and prohibition on
their behalf as well as for those other individual taxpayers
who might be similarly situated, to compel the Commissioner
of Internal Revenue to implement the mandate of Rep. Act
7167 adjusting the personal and additional exemptions
allowable to individuals for income tax purposes in regard to
income earned or received in 1991, and to enjoin the
respondents from implementing Revenue Regulations No.1-
92.

In the Court's resolution of 10 March 1992, these two (2)

cases were consolidated. Respondents were required to
comment on the petitions, which they did within the
prescribed period.

The principal issues to be resolved in these cases are: (1)

whether or not Rep. Act 7167 took effect upon its approval
by the President on 19 December 1991, or on 30 January
1992, i.e., after fifteen (15) days following its publication on
14 January 1992 in the "Malaya" a newspaper of general
circulation; and (2) assuming that Rep. Act 7167 took effect
on 30 January 1992, whether or not the said law nonetheless
covers or applies to compensation income earned or
received during calendar year 1991.

In resolving the first issue, it will be recalled that the Court

in its resolution in Caltex (Phils.), Inc. vs. The Commissioner
of Internal Revenue, G.R. No. 97282, 26 June1991 -- which is
on all fours with this case as to the first issue -- held:

"The central issue presented in the instant petition is the

effectivity of R.A 6965 entitled 'An Act Revising The Form of
Taxation on Petroleum Products from Ad Valorem to Specific,
Amending For the Purpose Section 145 of the National
Internal Revenue Code, As amended by Republic Act
Numbered Sixty Seven Hundred Sixty Seven.
Section 3 of R.A. 6965 contains the effectivity clause which
provides, This Act shall take effect upon its approval'
R.A. 6965 was approved on September 19, 1990. It was
published in the Philippine Journal, a newspaper of general
circulation in the Philippines, on September 20, 1990.
Pursuant to the Act, an implementing regulation was issued
by the Commissioner of Internal Revenue, Revenue
Memorandum Circular 85-90, stating that R.A. 6965 took
effect on October 5, 1990. Petitioner took exception thereof
and argued that the law took effect on September 20, 1990
instead.
Pertinent is Article 2 of the Civil Code (as amended by
Executive Order No. 200) which provides:

'Article. 2. Laws shall take effect after fifteen days following

the completion of their publication either in the official
Gazette or in a newspaper of general circulation in the
Philippines, unless it is otherwise provided. x x x
In the case of Tanada vs. Tuvera (L-63915, December 29,
1986, 146 SCRA 446, 452) we construed Article 2 of the Civil
Code and laid down the rule:

'x x x: the) clause unless it is otherwise provided refers to

the date of effectivity and not to the requirement of
publication itself, which cannot in any event be omitted. This
clause does not mean that the legislator may make the law
effective immediately upon approval, or on any other date
without its previous publication.

'Publication is indispensable in every case, but the

legislature may in its discretion provide that the usual
fifteen-day period shall be shortened or extended. x x x

Inasmuch as R.A. 6965 has no specific date for its effectivity

and neither can it become effective upon its approval
notwithstanding its express statement, following Article 2 of
the Civil Code and the doctrine enunciated in Tanada, supra,
R.A. 6965 took effect fifteen days after September 20, 1990,
or specifically, on October 5,1990."

Accordingly, the Court rules that Rep. Act 7167 took effect
on 30 January 1992, which is after fifteen (15) days following
its publication on 14 January 1992 in the "Malaya."

Coming now to the second issue, the Court is of the

considered view that Rep. Act 7167 should cover or extend
to compensation income earned or received during calendar
year 1991.

Sec. 29, par. (L), Item No. 4 of the National Internal Revenue
Code, as amended, provides:

"Upon the recommendation of the Secretary of Finance, the

President shall automatically adjust not more often than
once every three years, the personal and additional
exemptions taking into account, among others, the
movement in consumer price indices, levels of minimum
wages, and bare subsistence levels."

As the personal and additional exemptions of individual

taxpayers were last adjusted in 1986, the President, upon
the recommendation of the Secretary of Finance, could have
adjusted the personal and additional exemptions in 1989 by
increasing the same even without any legislation providing
for such adjustment. But the President did not.

However, House Bill 28970, which was subsequently enacted

by Congress as Rep. Act 7167, was introduced in the House
of Representatives in 1989 although its passage was delayed
and it did not become effective law until 30 January 1992. A
perusal, however, of the sponsorship remarks of
Congressman Hernando B. Perez, Chairman of the House
Committee on Ways and Means, on House Bill 28970,
provides an indication of the intent of Congress in enacting
Rep. Act 7167. The pertinent legislative journal contains the
following.

"At the outset, Mr. Perez explained that the Bill Provides for
increased personal additional exemptions to individuals in
view of the higher standard of living.
"The Bill, he stated, limits the amount of income of
individuals subject to income tax to enable them to spend for
basic necessities and have more disposable income.
xxx xxx xxx
"Mr. Perez added that inflation has raised the basic
necessities and that it had been three years since the last
exemption adjustment in 1986.
xxx xxx xxx
"Subsequently, Mr. Perez stressed the necessity of passing
the measure to mitigate the effects of the current inflation
and of the implementation of the salary standardization law.
Stating that it is imperative for the government to take
measures to ease the burden of the individual income tax
filers, Mr. Perez then cited specific examples of how the
measure can help assuage the burden to the taxpayers.
"He then reiterated that the increase in the prices of
commodities has eroded the purchasing power of the peso
despite the recent salary increases and emphasized that the
Bill will serve to compensate the adverse effects of inflation
on the taxpayers. x x x." (Journal of the House of
Representatives, May 23, 1990, pp. 32-33).

It will also be observed that Rep. Act 7167 speaks of the

adjustments that it provides for, as adjustments "to the
poverty threshold level". Certainly, "the poverty threshold
level" is the poverty threshold level at the time Rep. Act
7167 was enacted by Congress, not poverty threshold levels
in futuro, at which time there may be need of further
adjustments in personal exemptions. Moreover, the Court
can not lose sight of the fact that these personal and
additional exemptions are fixed amounts to which an
individual taxpayer is entitled, as a means to cushion the
devastating effects of high prices and a depreciated
purchasing power of the currency. In the end, it is the lower-
income and the middle-income groups of taxpayers (not the
high-income taxpayers) who stand to benefit most from the
increase of personal and additional exemptions provided for
by Rep. Act 7167. To that extent, the act is a social
legislation intended to alleviate in part the present economic
plight of the lower income taxpayers. It is intended to
remedy the inadequacy of the heretofore existing personal
and additional exemptions for individual taxpayers.

And then, Rep. Act 7167 says that the increased personal
exemptions that it provides for shall be available
thenceforth, that is, after Rep. Act 7167 shall have become
effective. In other words, these exemptions are available
upon the filing of personal income tax returns which is,
under the National Internal Revenue Code, done not later
than the 15th day of April after the end of a calendar year.
Thus, under Rep. Act 7167, which became effective, as
aforestated, on 30 January 1992, the increased exemptions
are literally available on or before 15 April 1992 (though not
before 30 January 1992). But these increased exemptions
can be available on 15 April 1992 only in respect of
compensation income earned or received during the
calendar year 1991.

The personal exemptions as increased by Rep. Act 7167

cannot be regarded as available in respect of compensation
income received during the 1990 calendar year; the tax due
in respect of said income had already accrued, and been
presumably paid, by 15 April 1991 and by 15 July 1991, at
which time Rep. Act 7167 had not been enacted. To make
Rep. Act 7167 refer back to income received during 1990
would require language explicitly retroactive in purport and
effect, language that would have to authorize the payment of
refunds of taxes paid on 15 April 1991 and 15 July 1991:
such language is simply not found in Rep. Act 7167.

The personal exemptions as increased by Rep. Act 7167

cannot be regarded as available only in respect of
compensation income received during 1992, as the
implementing Revenue Regulations No. 1-92 purport to
provide. Revenue Regulations No. 1-92 would in effect
postpone the availability of the increased exemptions to 1
January-15 April 1993, and thus literally defer the effectivity
of Rep. Act 7167 to 1 January 1993. Thus, the implementing
regulations collide frontally with Section 3 of Rep. Act 7167
which states that the statute shall take effect upon its
approval." The objective of the Secretary of Finance and the
Commissioner of Internal Revenue in postponing through
Revenue Regulations No. 1-92 the legal effectivity of Rep.
Act 7167 is, of course, entirely understandable -- to defer to
1993 the reduction of governmental tax revenues which
irresistibly follows from the application of Rep. Act 7167. But
the law-making authority has spoken and the Court can not
refuse to apply the law-maker's words. Whether or not the
government can afford the drop in tax revenues resulting
from such increased exemptions was for Congress (not this
Court) to decide.

WHEREFORE, Sections 1, 3 and 5 of Revenue Regulations

No. 1-92 which provide that the regulations shall take effect
on compensation income earned or received from 1 January
1992 are hereby SET ASIDE. They should take effect on
compensation income earned or received from 1 January
1991.

Since this decision promulgated after 15 April 1992, the

individual taxpayers entitled to the increased exemptions on
compensation income earned during calendar year 1991 who
may have filed their income tax returns on or before 15 April
1992 (later extended to 24 April 1992) without the benefit of
such increased exemptions, are entitled to the
corresponding tax refunds and/or credits, and respondents
are ordered to effect such refunds and/or credits. No costs.

SO ORDERED.

G.R. No. 166676, September 12, 2008

REPUBLIC OF THE PHILIPPINES, PETITIONER, VS.
JENNIFER B. CAGANDAHAN, RESPONDENT.

DECISION

QUISUMBING, J.:

This is a petition for review under Rule 45 of the Rules of

Court raising purely questions of law and seeking a reversal
of the Decision[1] dated January 12, 2005 of the Regional
Trial Court (RTC), Branch 33 of Siniloan, Laguna, which
granted the Petition for Correction of Entries in Birth
Certificate filed by Jennifer B. Cagandahan and ordered the
following changes of entries in Cagandahan's birth
certificate: (1) the name "Jennifer Cagandahan" changed to
"Jeff Cagandahan" and (2) gender from "female" to "male."

The facts are as follows.

On December 11, 2003, respondent Jennifer Cagandahan

filed a Petition for Correction of Entries in Birth Certificate [2]
before the RTC, Branch 33 of Siniloan, Laguna.

In her petition, she alleged that she was born on January 13,
1981 and was registered as a female in the Certificate of
Live Birth but while growing up, she developed secondary
male characteristics and was diagnosed to have Congenital
Adrenal Hyperplasia (CAH) which is a condition where
persons thus afflicted possess both male and female
characteristics. She further alleged that she was diagnosed
to have clitoral hyperthropy in her early years and at age six,
underwent an ultrasound where it was discovered that she
has small ovaries. At age thirteen, tests revealed that her
ovarian structures had minimized, she has stopped growing
and she has no breast or menstrual development. She then
alleged that for all interests and appearances as well as in
mind and emotion, she has become a male person. Thus, she
prayed that her birth certificate be corrected such that her
gender be changed from female to male and her first name
be changed from Jennifer to Jeff.

The petition was published in a newspaper of general

circulation for three (3) consecutive weeks and was posted
in conspicuous places by the sheriff of the court. The
Solicitor General entered his appearance and authorized the
Assistant Provincial Prosecutor to appear in his behalf.

To prove her claim, respondent testified and presented the

testimony of Dr. Michael Sionzon of the Department of
Psychiatry, University of the Philippines-Philippine General
Hospital. Dr. Sionzon issued a medical certificate stating that
respondent's condition is known as CAH. He explained that
genetically respondent is female but because her body
secretes male hormones, her female organs did not develop
normally and she has two sex organs - female and male. He
testified that this condition is very rare, that respondent's
uterus is not fully developed because of lack of female
hormones, and that she has no monthly period. He further
testified that respondent's condition is permanent and
recommended the change of gender because respondent has
made up her mind, adjusted to her chosen role as male, and
the gender change would be advantageous to her.

The RTC granted respondent's petition in a Decision dated

January 12, 2005 which reads:
The Court is convinced that petitioner has satisfactorily
shown that he is entitled to the reliefs prayed [for].
Petitioner has adequately presented to the Court very clear
and convincing proofs for the granting of his petition. It was
medically proven that petitioner's body produces male
hormones, and first his body as well as his action and
feelings are that of a male. He has chosen to be male. He is a
normal person and wants to be acknowledged and identified
as a male.

WHEREFORE, premises considered, the Civil Register of

Pakil, Laguna is hereby ordered to make the following
corrections in the birth [c]ertificate of Jennifer Cagandahan
upon payment of the prescribed fees:

a) By changing the name from Jennifer Cagandahan to JEFF

CAGANDAHAN; and

b) By changing the gender from female to MALE.

It is likewise ordered that petitioner's school records, voter's

registry, baptismal certificate, and other pertinent records
are hereby amended to conform with the foregoing
corrected data.

SO ORDERED.[3]
Thus, this petition by the Office of the Solicitor General
(OSG) seeking a reversal of the abovementioned ruling.

The issues raised by petitioner are:

THE TRIAL COURT ERRED IN GRANTING THE PETITION
CONSIDERING THAT:
I.

THE REQUIREMENTS OF RULES 103 AND 108 OF THE

RULES OF COURT HAVE NOT BEEN COMPLIED WITH;
AND,

II.

CORRECTION OF ENTRY UNDER RULE 108 DOES NOT

ALLOW CHANGE OF "SEX" OR "GENDER" IN THE BIRTH
CERTIFICATE, WHILE RESPONDENT'S MEDICAL
CONDITION, i.e., CONGENITAL ADRENAL HYPERPLASIA
DOES NOT MAKE HER A "MALE."[4]
Simply stated, the issue is whether the trial court erred in
ordering the correction of entries in the birth certificate of
respondent to change her sex or gender, from female to
male, on the ground of her medical condition known as CAH,
and her name from "Jennifer" to "Jeff," under Rules 103 and
108 of the Rules of Court.

The OSG contends that the petition below is fatally defective

for non-compliance with Rules 103 and 108 of the Rules of
Court because while the local civil registrar is an
indispensable party in a petition for cancellation or
correction of entries under Section 3, Rule 108 of the Rules
of Court, respondent's petition before the court a quo did not
implead the local civil registrar.[5] The OSG further contends
respondent's petition is fatally defective since it failed to
state that respondent is a bona fide resident of the province
where the petition was filed for at least three (3) years prior
to the date of such filing as mandated under Section 2(b),
Rule 103 of the Rules of Court.[6] The OSG argues that Rule
108 does not allow change of sex or gender in the birth
certificate and respondent's claimed medical condition
known as CAH does not make her a male.[7]

On the other hand, respondent counters that although the

Local Civil Registrar of Pakil, Laguna was not formally
named a party in the Petition for Correction of Birth
Certificate, nonetheless the Local Civil Registrar was
furnished a copy of the Petition, the Order to publish on
December 16, 2003 and all pleadings, orders or processes in
the course of the proceedings,[8] respondent is actually a
male person and hence his birth certificate has to be
corrected to reflect his true sex/gender,[9] change of sex or
gender is allowed under Rule 108,[10] and respondent
substantially complied with the requirements of Rules 103
and 108 of the Rules of Court.[11]

Rules 103 and 108 of the Rules of Court provide:

Rule 103
CHANGE OF NAME

SECTION 1. Venue. - A person desiring to change his name

shall present the petition to the Regional Trial Court of the
province in which he resides, [or, in the City of Manila, to the
Juvenile and Domestic Relations Court].

SEC. 2. Contents of petition. - A petition for change of name

shall be signed and verified by the person desiring his name
changed, or some other person on his behalf, and shall set
forth:
(a) That the petitioner has been a bona fide resident of the
province where the petition is filed for at least three (3)
years prior to the date of such filing;

(b) The cause for which the change of the petitioner's name
is sought;

(c) The name asked for.

SEC. 3. Order for hearing. - If the petition filed is sufficient

in form and substance, the court, by an order reciting the
purpose of the petition, shall fix a date and place for the
hearing thereof, and shall direct that a copy of the order be
published before the hearing at least once a week for three
(3) successive weeks in some newspaper of general
circulation published in the province, as the court shall deem
best. The date set for the hearing shall not be within thirty
(30) days prior to an election nor within four (4) months
after the last publication of the notice.

SEC. 4. Hearing. - Any interested person may appear at the

hearing and oppose the petition. The Solicitor General or the
proper provincial or city fiscal shall appear on behalf of the
Government of the Republic.

SEC. 5. Judgment. - Upon satisfactory proof in open court on

the date fixed in the order that such order has been
published as directed and that the allegations of the petition
are true, the court shall, if proper and reasonable cause
appears for changing the name of the petitioner, adjudge
that such name be changed in accordance with the prayer of
the petition.

SEC. 6. Service of judgment. - Judgments or orders rendered

in connection with this rule shall be furnished the civil
registrar of the municipality or city where the court issuing
the same is situated, who shall forthwith enter the same in
the civil register.

Rule 108
CANCELLATION OR CORRECTION OF ENTRIES
IN THE CIVIL REGISTRY

SECTION 1. Who may file petition. - Any person interested in

any act, event, order or decree concerning the civil status of
persons which has been recorded in the civil register, may
file a verified petition for the cancellation or correction of
any entry relating thereto, with the Regional Trial Court of
the province where the corresponding civil registry is
located.

SEC. 2. Entries subject to cancellation or correction. - Upon

good and valid grounds, the following entries in the civil
register may be cancelled or corrected: (a) births; (b)
marriages; (c) deaths; (d) legal separations; (e) judgments of
annulments of marriage; (f) judgments declaring marriages
void from the beginning; (g) legitimations; (h) adoptions; (i)
acknowledgments of natural children; (j) naturalization; (k)
election, loss or recovery of citizenship; (l) civil interdiction;
(m) judicial determination of filiation; (n) voluntary
emancipation of a minor; and (o) changes of name.

SEC. 3. Parties. - When cancellation or correction of an entry

in the civil register is sought, the civil registrar and all
persons who have or claim any interest which would be
affected thereby shall be made parties to the proceeding.

SEC. 4. Notice and publication. - Upon the filing of the

petition, the court shall, by an order, fix the time and place
for the hearing of the same, and cause reasonable notice
thereof to be given to the persons named in the petition. The
court shall also cause the order to be published once a week
for three (3) consecutive weeks in a newspaper of general
circulation in the province.

SEC. 5. Opposition. - The civil registrar and any person

having or claiming any interest under the entry whose
cancellation or correction is sought may, within fifteen (15)
days from notice of the petition, or from the last date of
publication of such notice, file his opposition thereto.

SEC. 6. Expediting proceedings. - The court in which the

proceedings is brought may make orders expediting the
proceedings, and may also grant preliminary injunction for
the preservation of the rights of the parties pending such
proceedings.

SEC. 7. Order. - After hearing, the court may either dismiss

the petition or issue an order granting the cancellation or
correction prayed for. In either case, a certified copy of the
judgment shall be served upon the civil registrar concerned
who shall annotate the same in his record.
The OSG argues that the petition below is fatally defective
for non-compliance with Rules 103 and 108 of the Rules of
Court because respondent's petition did not implead the
local civil registrar. Section 3, Rule 108 provides that the
civil registrar and all persons who have or claim any interest
which would be affected thereby shall be made parties to the
proceedings. Likewise, the local civil registrar is required to
be made a party in a proceeding for the correction of name
in the civil registry. He is an indispensable party without
whom no final determination of the case can be had.[12]
Unless all possible indispensable parties were duly notified
of the proceedings, the same shall be considered as falling
much too short of the requirements of the rules. [13] The
corresponding petition should also implead as respondents
the civil registrar and all other persons who may have or
may claim to have any interest that would be affected
thereby.[14] Respondent, however, invokes Section 6,[15] Rule 1
of the Rules of Court which states that courts shall construe
the Rules liberally to promote their objectives of securing to
the parties a just, speedy and inexpensive disposition of the
matters brought before it. We agree that there is substantial
compliance with Rule 108 when respondent furnished a copy
of the petition to the local civil registrar.

The determination of a person's sex appearing in his birth

certificate is a legal issue and the court must look to the
statutes. In this connection, Article 412 of the Civil Code
provides:
ART. 412. No entry in a civil register shall be changed or
corrected without a judicial order.
Together with Article 376[16] of the Civil Code, this provision
was amended by Republic Act No. 9048[17] in so far as
clerical or typographical errors are involved. The correction
or change of such matters can now be made through
administrative proceedings and without the need for a
judicial order. In effect, Rep. Act No. 9048 removed from the
ambit of Rule 108 of the Rules of Court the correction of
such errors. Rule 108 now applies only to substantial
changes and corrections in entries in the civil register.[18]

Under Rep. Act No. 9048, a correction in the civil registry

involving the change of sex is not a mere clerical or
typographical error. It is a substantial change for which the
applicable procedure is Rule 108 of the Rules of Court. [19]

The entries envisaged in Article 412 of the Civil Code and

correctable under Rule 108 of the Rules of Court are those
provided in Articles 407 and 408 of the Civil Code:
ART. 407. Acts, events and judicial decrees concerning the
civil status of persons shall be recorded in the civil register.

ART. 408. The following shall be entered in the civil register:

(1) Births; (2) marriages; (3) deaths; (4) legal separations;

(5) annulments of marriage; (6) judgments declaring
marriages void from the beginning; (7) legitimations; (8)
adoptions; (9) acknowledgments of natural children; (10)
naturalization; (11) loss, or (12) recovery of citizenship; (13)
civil interdiction; (14) judicial determination of filiation; (15)
voluntary emancipation of a minor; and (16) changes of
name.
The acts, events or factual errors contemplated under Article
407 of the Civil Code include even those that occur after
birth.[20]

Respondent undisputedly has CAH. This condition causes the

early or "inappropriate" appearance of male characteristics.
A person, like respondent, with this condition produces too
much androgen, a male hormone. A newborn who has XX
chromosomes coupled with CAH usually has a (1) swollen
clitoris with the urethral opening at the base, an ambiguous
genitalia often appearing more male than female; (2) normal
internal structures of the female reproductive tract such as
the ovaries, uterus and fallopian tubes; as the child grows
older, some features start to appear male, such as deepening
of the voice, facial hair, and failure to menstruate at puberty.
About 1 in 10,000 to 18,000 children are born with CAH.

CAH is one of many conditions[21] that involve intersex

anatomy. During the twentieth century, medicine adopted
the term "intersexuality" to apply to human beings who
cannot be classified as either male or female.[22] The term is
now of widespread use. According to Wikipedia,
intersexuality "is the state of a living thing of a gonochoristic
species whose sex chromosomes, genitalia, and/or secondary
sex characteristics are determined to be neither exclusively
male nor female. An organism with intersex may have
biological characteristics of both male and female sexes."

Intersex individuals are treated in different ways by different

cultures. In most societies, intersex individuals have been
expected to conform to either a male or female gender role.
[23]
Since the rise of modern medical science in Western
societies, some intersex people with ambiguous external
genitalia have had their genitalia surgically modified to
resemble either male or female genitals.[24] More commonly,
an intersex individual is considered as suffering from a
"disorder" which is almost always recommended to be
treated, whether by surgery and/or by taking lifetime
medication in order to mold the individual as neatly as
possible into the category of either male or female.

In deciding this case, we consider the compassionate calls

for recognition of the various degrees of intersex as
variations which should not be subject to outright denial. "It
has been suggested that there is some middle ground
between the sexes, a `no-man's land' for those individuals
who are neither truly `male' nor truly `female'." [25] The
current state of Philippine statutes apparently compels that
a person be classified either as a male or as a female, but
this Court is not controlled by mere appearances when
nature itself fundamentally negates such rigid classification.

In the instant case, if we determine respondent to be a

female, then there is no basis for a change in the birth
certificate entry for gender. But if we determine, based on
medical testimony and scientific development showing the
respondent to be other than female, then a change in the

subject's birth certificate entry is in order.

Biologically, nature endowed respondent with a mixed

(neither consistently and categorically female nor
consistently and categorically male) composition.
Respondent has female (XX) chromosomes. However,
respondent's body system naturally produces high levels of
male hormones (androgen). As a result, respondent has
ambiguous genitalia and the phenotypic features of a male.
Ultimately, we are of the view that where the person is
biologically or naturally intersex the determining factor in
his gender classification would be what the individual, like
respondent, having reached the age of majority, with good
reason thinks of his/her sex. Respondent here thinks of
himself as a male and considering that his body produces
high levels of male hormones (androgen) there is
preponderant biological support for considering him as
being male. Sexual development in cases of intersex persons
makes the gender classification at birth inconclusive. It is at
maturity that the gender of such persons, like respondent, is
fixed.

Respondent here has simply let nature take its course and
has not taken unnatural steps to arrest or interfere with
what he was born with. And accordingly, he has already
ordered his life to that of a male. Respondent could have
undergone treatment and taken steps, like taking lifelong
medication,[26] to force his body into the categorical mold of a
female but he did not. He chose not to do so. Nature has
instead taken its due course in respondent's development to
reveal more fully his male characteristics.

In the absence of a law on the matter, the Court will not

dictate on respondent concerning a matter so innately
private as one's sexuality and lifestyle preferences, much
less on whether or not to undergo medical treatment to
reverse the male tendency due to CAH. The Court will not
consider respondent as having erred in not choosing to
undergo treatment in order to become or remain as a
female. Neither will the Court force respondent to undergo
treatment and to take medication in order to fit the mold of a
female, as society commonly currently knows this gender of
the human species. Respondent is the one who has to live
with his intersex anatomy. To him belongs the human right to
the pursuit of happiness and of health. Thus, to him should
belong the primordial choice of what courses of action to
take along the path of his sexual development and
maturation. In the absence of evidence that respondent is an
"incompetent"[27] and in the absence of evidence to show that
classifying respondent as a male will harm other members of
society who are equally entitled to protection under the law,
the Court affirms as valid and justified the respondent's
position and his personal judgment of being a male.

In so ruling we do no more than give respect to (1) the

diversity of nature; and (2) how an individual deals with
what nature has handed out. In other words, we respect
respondent's congenital condition and his mature decision to
be a male. Life is already difficult for the ordinary person.
We cannot but respect how respondent deals with his
unordinary state and thus help make his life easier,
considering the unique circumstances in this case.

As for respondent's change of name under Rule 103, this

Court has held that a change of name is not a matter of right
but of judicial discretion, to be exercised in the light of the
reasons adduced and the consequences that will follow. [28]
The trial court's grant of respondent's change of name from
Jennifer to Jeff implies a change of a feminine name to a
masculine name. Considering the consequence that
respondent's change of name merely recognizes his
preferred gender, we find merit in respondent's change of
name. Such a change will conform with the change of the
entry in his birth certificate from female to male.

WHEREFORE, the Republic's petition is DENIED. The

Decision dated January 12, 2005 of the Regional Trial Court,
Branch 33 of Siniloan, Laguna, is AFFIRMED. No
pronouncement as to costs.

SO ORDERED.
 G.R. No. 101083, July 30, 1993
JUAN ANTONIO, ANNA ROSARIO AND JOSE ALFONSO, ALL
SURNAMED OPOSA, MINORS, AND REPRESENTED BY
THEIR PARENTS ANTONIO AND RIZALINA OPOSA,
ROBERTA NICOLE SADIUA, MINOR, REPRESENTED BY HER
PARENTS, CALVIN AND ROBERTA SADIUA, CARLO, AMANDA
SALUD AND PATRISHA, ALL SURNAMED FLORES, MINORS
AND REPRESENTED BY THEIR PARENTS ENRICO AND NIDA
FLORES, GIANINA DITA R. FORTUN, MINOR, REPRESENTED
BY HER PARENTS SIGFRID AND DOLORES FORTUN,
GEORGE II AND MA. CONCEPCION, ALL SURNAMED MISA,
MINORS AND REPRESENTED BY THEIR PARENTS GEORGE
AND MYRA MISA, BENJAMIN ALAN V. PESIGAN, MINOR,
REPRESENTED BY HIS PARENTS ANTONIO AND ALICE
PESIGAN, JOVIE MARIE ALFARO, MINOR, REPRESENTED BY
HER PARENTS JOSE AND MARIA VIOLETA ALFARO, MARIA
CONCEPCION T. CASTRO, MINOR, REPRESENTED BY HER
PARENTS FREDENIL AND JANE CASTRO, JOHANNA
DESAMPARADO, MINOR, REPRESENTED BY HER PARENTS
JOSE AND ANGELA DESAMPARADO, CARLO JOAQUIN T.
NARVASA, MINOR, REPRESENTED BY HIS PARENTS
GREGORIO II AND CRISTINE CHARITY NARVASA, MA.
MARGARITA, JESUS IGNACIO, MA. ANGELA AND MARIE
GABRIELLE, ALL SURNAMED SAENZ, MINORS,
REPRESENTED BY THEIR PARENTS ROBERTO AND
AURORA SAENZ, KRISTINE, MARY ELLEN, MAY, GOLDA
MARTHE AND DAVID IAN, ALL SURNAMED KING, MINORS,
REPRESENTED BY THEIR PARENTS MARIO AND HAYDEE
KING, DAVID, FRANCISCO AND THERESE VICTORIA, ALL
SURNAMED ENDRIGA, MINORS, REPRESENTED BY THEIR
PARENTS BALTAZAR AND TERESITA ENDRIGA, JOSE MA.
AND REGINA MA., ALL SURNAMED ABAYA, MINORS,
REPRESENTED BY THEIR PARENTS ANTONIO AND MARICA
ABAYA, MARILIN, MARIO, JR. AND MARIETTE, ALL
SURNAMED CARDAMA, MINORS, REPRESENTED BY THEIR
PARENTS MARIO AND LINA CARDAMA, CLARISSA, ANN
MARIE, NAGEL AND IMEE LYN, ALL SURNAMED OPOSA,
MINORS AND REPRESENTED BY THEIR PARENTS RICARDO
AND MARISSA OPOSA, PHILIP JOSEPH, STEPHEN JOHN
 AND ISAIAH JAMES, ALL SURNAMED QUIPIT, MINORS,
REPRESENTED BY THEIR PARENTS JOSE MAX AND VILMI
QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL AND
FRANCISCO, ALL SURNAMED BIBAL, MINORS,
REPRESENTED BY THEIR PARENTS FRANCISCO, JR. AND
MILAGROS BIBAL, AND THE PHILIPPINE ECOLOGICAL
NETWORK, INC., PETITIONERS, VS. THE HONORABLE
FULGENCIO S. FACTORAN, JR., IN HIS CAPACITY AS THE
SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND
NATURAL RESOURCES, AND THE HONORABLE ERIBERTO
U. ROSARIO, PRESIDING JUDGE OF THE RTC, MAKATI,
BRANCH 66, RESPONDENTS.

DECISION

DAVIDE, JR., J.:

In a broader sense, this petition bears upon the right of

Filipinos to a balanced and healthful ecology which the
petitioners dramatically associate with the twin concepts of
"inter-generational responsibility" and "inter-generational
justice." Specifically, it touches on the issue of whether the
said petitioners have a cause of action to "prevent the
misappropriation or impairment" of Philippine rainforests
and "arrest the unabated hemorrhage of the country's vital
life-support systems and continued rape of Mother Earth."

The controversy has its genesis in Civil Case No. 90-777

which was filed before Branch 66 (Makati, Metro Manila) of
the Regional Trial Court (RTC), National Capital Judicial
Region. The principal plaintiffs therein, now the principal
petitioners, are all minors duly represented and joined by
their respective parents. Impleaded as an additional plaintiff
is the Philippine Ecological Network, Inc. (PENI), a
domestic, non-stock and non-profit corporation organized for
the purpose of, inter alia, engaging in concerted action
geared for the protection of our environment and natural
resources. The original defendant was the Honorable
Fulgencio S. Factoran, Jr., then Secretary of the Department
of Environment and Natural Resources (DENR). His
substitution in this petition by the new Secretary, the
Honorable Angel C. Alcala, was subsequently ordered upon
proper motion by the petitioners.[ The complaint[2] was
1]

instituted as a taxpayers class suit[3] and alleges that the

plaintiffs "are all citizens of the Republic of the Philippines,
taxpayers, and entitled to the full benefit, use and enjoyment
of the natural resource treasure that is the country's virgin
tropical rainforests." The same was filed for themselves and
others who are equally concerned about the preservation of
said resource but are "so numerous that it is impracticable
to bring them all before the Court." The minors further
asseverate that they "represent their generation as well as
generations yet unborn."[4] Consequently, it is prayed for that
judgment be rendered:

"x x x ordering defendant, his agents, representatives and

other persons acting in his behalf to --

(1) Cancel all existing timber license agreements in the

country;

(2) Cease and desist from receiving, accepting, processing,

renewing or approving new timber license agreements."

and granting the plaintiffs "x x x such other reliefs just and
equitable under the premises."[5]
[

[2]

[3]

[4]

[5]
The complaint starts off with the general averments that the
Philippine archipelago of 7,100 islands has a land area of
thirty million (30,000,000) hectares and is endowed with
rich, lush and verdant rainforests in which varied, rare and
unique species of flora and fauna may be found; these
rainforests contain a genetic, biological and chemical pool
which is irreplaceable; they are also the habitat of
indigenous Philippine cultures which have existed, endured
and flourished since time immemorial; scientific evidence
reveals that in order to maintain a balanced and healthful
ecology, the country's land area should be utilized on the
basis of a ratio of fifty-four per cent (54%) for forest cover
and forty-six per cent (46%) for agricultural, residential,
industrial, commercial and other uses; the distortion and
disturbance of this balance as a consequence of
deforestation have resulted in a host of environmental
tragedies, such as (a) water shortages resulting from the
drying up of the water table, otherwise known as the
"aquifer," as well as of rivers, brooks and streams, (b)
salinization of the water table as a result of the intrusion
therein of salt water, incontrovertible examples of which may
be found in the island of Cebu and the Municipality of
Bacoor, Cavite, (c) massive erosion and the consequential
loss of soil fertility and agricultural productivity, with the
volume of soil eroded estimated at one billion
(1,000,000,000) cubic meters per annum -- approximately
the size of the entire island of Catanduanes, (d) the
endangering and extinction of the country's unique, rare and
varied flora and fauna, (e) the disturbance and dislocation of
cultural communities, including the disappearance of the
Filipino's indigenous cultures, (f) the siltation of rivers and
seabeds and consequential destruction of corals and other
aquatic life leading to a critical reduction in marine resource
productivity, (g) recurrent spells of drought as is presently
experienced by the entire country, (h) increasing velocity of
typhoon winds which result from the absence of
windbreakers, (i) the flooding of lowlands and agricultural
plains arising from the absence of the absorbent mechanism
of forests, (j) the siltation and shortening of the lifespan of
multi-billion peso dams constructed and operated for the
purpose of supplying water for domestic uses, irrigation and
the generation of electric power, and (k) the reduction of the
earth's capacity to process carbon dioxide gases which has
led to perplexing and catastrophic climatic changes such as
the phenomenon of global warming, otherwise known as the
"greenhouse effect."

Plaintiffs further assert that the adverse and detrimental

consequences of continued deforestation are so capable of
unquestionable demonstration that the same may be
submitted as a matter of judicial notice. This
notwithstanding, they expressed their intention to present
expert witnesses as well as documentary, photographic and
film evidence in the course of the trial.

As their cause of action, they specifically allege that:

"CAUSE OF ACTION
7.Plaintiffs replead by reference the foregoing allegations.
8. Twenty-five (25) years ago, the Philippines had some
sixteen (16) million hectares of rainforests constituting
roughly 53% of the country's land mass.
9. Satellite images taken in 1987 reveal that there
remained no more than 1.2 million hectares of said
rainforests or four per cent (4.0%) of the country's land area.
10. More recent surveys reveal that a mere 850,000
hectares of virgin old-growth rainforests are left, barely
2.8% of the entire land mass of the Philippine archipelago
and about 3.0 million hectares of immature and
uneconomical secondary growth forests.
11. Public records reveal that defendant's predecessors
have granted timber license agreements (TLA's,) to various
corporations to cut the aggregate area of 3.89 million
hectares for commercial logging purposes.
A copy of the TLA holders and the corresponding areas
covered is hereto attached as Annex A.
12. At the present rate of deforestation, i.e. about 200,000
hectares per annum or 25 hectares per annum or 25
hectares per hour -- nighttime, Saturdays, Sundays and
holidays included -- the Philippines will be bereft of forest
resources after the end of this ensuing decade, if not earlier.
13. The adverse effects, disastrous consequences, serious
injury and irreparable damage of this continued trend of
deforestation to the plaintiff minors generation and to
generations yet unborn are evident and incontrovertible. As
a matter of fact, the environmental damages enumerated in
paragraph 6 hereof are already being felt, experienced and
suffered by the generation of plaintiff adults.
14. The continued allowance by defendant of TLA holders to
cut and deforest the remaining forest stands will work great
damage and irreparable injury to plaintiffs -- especially
plaintiff minors and their successors -- who may never see,
use, benefit from and enjoy this rare and unique natural
resource treasure.
This act of defendant constitutes a misappropriation and/or
impairment of the natural resource property he holds in
trust for the benefit of plaintiff minors and succeeding
generations.
15. Plaintiffs have a clear and constitutional right to a
balanced and healthful ecology and are entitled to protection
by the State in its capacity as the parens patriae.
16. Plaintiffs have exhausted all administrative remedies
with the defendant's office. On March 2, 1990, plaintiffs
served upon defendant a final demand to cancel all logging
permits in the country.
A copy of the plaintiffs letter dated March 1, 1990 is hereto
attached as Annex B.
17. Defendant, however, fails and refuses to cancel the
existing TLA's, to the continuing serious damage and
extreme prejudice of plaintiffs.
18. The continued failure and refusal by defendant to
cancel the TLA's is an act violative of the rights of plaintiffs,
especially plaintiff minors who may be left with a country
that is desertified (sic), bare, barren and devoid of the
wonderful flora, fauna and indigenous cultures which the
Philippines has been abundantly blessed with.
19. Defendant's refusal to cancel the aforementioned TLA's
is manifestly contrary to the public policy enunciated in the
Philippine Environmental Policy which, in pertinent part,
states that it is the policy of the State --

(a) to create, develop, maintain and improve

conditions under which man and nature can
thrive in productive and enjoyable harmony
with each other;

(b) to fulfill the social, economic and other

requirements of present and future
generations of Filipinos and;

(c)to ensure the attainment of an

environmental quality that is conducive to a
life of dignity and well-being. (P.D. 1151, 6
June 1977)

20. Furthermore, defendant's continued refusal to cancel

the aforementioned TLA's is contradictory to the
Constitutional policy of the State to --

a. effect a more equitable distribution of

opportunities, income and wealth and
'make full and efficient use of natural
 resources (sic).' (Section 1, Article XII of the
Constitution);

b. protect the nation's marine wealth.'

(Section 2, ibid);

c. conserve and promote the nation's cultural

heritage and resources (sic). (Section 14,
Article XIV, id.);

d. protect and advance the right of the people

to a balanced and healthful ecology in
accord with the rhythm and harmony of
nature. (Section 16, Article II, id.).

21. Finally, defendant's act is contrary to the highest law of

humankind -- the natural law -- and violative of plaintiffs'
right to self-preservation and perpetuation.
22. There is no other plain, speedy and adequate remedy in
law other than the instant action to arrest the unabated
hemorrhage of the country's vital life-support systems and
continued rape of Mother Earth."[6]

On 22 June 1990, the original defendant, Secretary Factoran,

Jr., filed a Motion to Dismiss the complaint based on two (2)
grounds, namely: (1) the plaintiffs have no cause of action
against him and (2) the issue raised by the plaintiffs is a
political question which properly pertains to the legislative
or executive branches of Government. In their 12 July 1990
Opposition to the Motion, the petitioners maintain that (1)
the complaint shows a clear and unmistakable cause of
action, (2) the motion is dilatory and (3) the action presents
a justiciable question as it involves the defendant's abuse of
discretion.

[6]
On 18 July 1991, respondent Judge issued an order granting
the aforementioned motion to dismiss.[ In the said order, not
7]

only was the defendant's claim -- that the complaint states

no cause of action against him and that it raises a political
question -- sustained, the respondent Judge further ruled
that the granting of the reliefs prayed for would result in the
impairment of contracts which is prohibited by the
fundamental law of the land.

Plaintiffs thus filed the instant special civil action for

certiorari under Rule 65 of the Revised Rules of Court and
ask this Court to rescind and set aside the dismissal order on
the ground that the respondent Judge gravely abused his
discretion in dismissing the action. Again, the parents of the
plaintiffs-minors not only represent their children, but have
also joined the latter in this case.[
8]

On 14 May 1992, We resolved to give due course to the

petition and required the parties to submit their respective
Memoranda after the Office of the Solicitor General (OSG)
filed a Comment in behalf of the respondents and the
petitioners filed a reply thereto.

Petitioners contend that the complaint clearly and

unmistakably states a cause of action as it contains sufficient
allegations concerning their right to a sound environment
based on Articles 19, 20 and 21 of the Civil Code (Human
Relations), Section 4 of Executive Order (E.O.) No. 192
creating the DENR, Section 3 of Presidential Decree (P.D.)
No. 1151 (Philippine Environmental Policy), Section 16,
Article II of the 1987 Constitution recognizing the right of
the people to a balanced and healthful ecology, the concept
of generational genocide in Criminal Law and the concept of
man's inalienable right to self-preservation and self-
[

[
perpetuation embodied in natural law. Petitioners likewise
rely on the respondent's correlative obligation, per Section 4
of E.O. No. 192, to safeguard the people's right to a healthful
environment.

It is further claimed that the issue of the respondent

Secretary's alleged grave abuse of discretion in granting
Timber License Agreements (TLAs) to cover more areas for
logging than what is available involves a judicial question.

Anent the invocation by the respondent Judge of the

Constitution's non-impairment clause, petitioners maintain
that the same does not apply in this case because TLAs are
not contracts. They likewise submit that even if TLAs may be
considered protected by the said clause, it is well settled
that they may still be revoked by the State when public
interest so requires.

On the other hand, the respondents aver that the petitioners

failed to allege in their complaint a specific legal right
violated by the respondent Secretary for which any relief is
provided by law. They see nothing in the complaint but
vague and nebulous allegations concerning an
"environmental right" which supposedly entitles the
petitioners to the "protection by the state in its capacity as
parens patriae." Such allegations, according to them, do not
reveal a valid cause of action. They then reiterate the theory
that the question of whether logging should be permitted in
the country is a political question which should be properly
addressed to the executive or legislative branches of
Government. They therefore assert that the petitioners
recourse is not to file an action in court, but to lobby before
Congress for the passage of a bill that would ban logging
totally.

As to the matter of the cancellation of the TLAs, respondents

submit that the same cannot be done by the State without
due process of law. Once issued, a TLA remains effective for
a certain period of time -- usually for twenty-five (25) years.
During its effectivity, the same can neither be revised nor
cancelled unless the holder has been found, after due notice
and hearing, to have violated the terms of the agreement or
other forestry laws and regulations. Petitioners proposition
to have all the TLAs indiscriminately cancelled without the
requisite hearing would be violative of the requirements of
due process.

Before going any further, We must first focus on some

procedural matters. Petitioners instituted Civil Case No. 90-
777 as a class suit. The original defendant and the present
respondents did not take issue with this matter.
Nevertheless, We hereby rule that the said civil case is
indeed a class suit. The subject matter of the complaint is of
common and general interest not just to several, but to all
citizens of the Philippines. Consequently, since the parties
are so numerous, it becomes impracticable, if not totally
impossible, to bring all of them before the court. We likewise
declare that the plaintiffs therein are numerous and
representative enough to ensure the full protection of all
concerned interests. Hence, all the requisites for the filing of
a valid class suit under Section 12, Rule 3 of the Revised
Rules of Court are present both in the said civil case and in
the instant petition, the latter being but an incident to the
former.

This case, however, has a special and novel element.

Petitioners minors assert that they represent their
generation as well as generations yet unborn. We find no
difficulty in ruling that they can, for themselves, for others of
their generation and for the succeeding generations, file
class suit. Their personality to sue in behalf of the
succeeding generations can only be based on the concept of
intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned. Such a right,
as hereinafter expounded, considers the "rhythm and
harmony of nature." Nature means the created world in its
entirety.[9] Such rhythm and harmony indispensably include,
inter alia, the judicious disposition, utilization, management,
renewal and conservation of the country's forest, mineral,
land, waters, fisheries, wildlife, off-shore areas and other
natural resources to the end that their exploration,
development and utilization be equitably accessible to the
present as well as future generations.[10] Needless to say,
every generation has a responsibility to the next to preserve
that rhythm and harmony for the full enjoyment of a
balanced and healthful ecology. Put a little differently, the
minors' assertion of their right to a sound environment
constitutes, at the same time, the performance of their
obligation to ensure the protection of that right for the
generations to come.

The locus standi of the petitioners having thus been

addressed, We shall now proceed to the merits of the
petition.

After a careful perusal of the complaint in question and a

meticulous consideration and evaluation of the issues raised
and arguments adduced by the parties, We do not hesitate to
find for the petitioners and rule against the respondent
Judge's challenged order for having been issued with grave
abuse of discretion amounting to lack of jurisdiction. The
pertinent portions of the said order read as follows:

xxx

After a careful and circumspect evaluation of the Complaint,

the Court cannot help but agree with the defendant. For
although we believe that plaintiffs have but the noblest of all
[9]

[10]
intentions, it (sic) fell short of alleging, with sufficient
definiteness, a specific legal right they are seeking to
enforce and protect, or a specific legal wrong they are
seeking to prevent and redress (Sec. 1, Rule 2, RRC).
Furthermore, the Court notes that the Complaint is replete
with vague assumptions and vague conclusions based on
unverified data. In fine, plaintiffs fail to state a cause of
action in its Complaint against the herein defendant.

Furthermore, the Court firmly believes that the matter

before it, being impressed with political color and involving
a matter of public policy, may not be taken cognizance of by
this Court without doing violence to the sacred principle of
'Separation of Powers' of the three (3) co-equal branches of
the Government.

The Court is likewise of the impression that it cannot, no

matter how we stretch our jurisdiction, grant the reliefs
prayed for by the plaintiffs, i.e., to cancel all existing timber
license agreements in the country and to cease and desist
from receiving, accepting, processing renewing or approving
new timber license agreements. For to do otherwise would
amount to 'impairment of contracts' abhored (sic) by the
fundamental law.[11]

We do not agree with the trial court's conclusion that the

plaintiffs failed to allege with sufficient definiteness a
specific legal right involved or a specific legal wrong
committed, and that the complaint is replete with vague
assumptions and conclusions based on unverified data. A
reading of the complaint itself belies these conclusions.

The complaint focuses on one specific fundamental legal

right -- the right to a balanced and healthful ecology which,
for the first time in our nation's constitutional history, is

[11]
solemnly incorporated in the fundamental law. Section 16,
Article II of the 1987 Constitution explicitly provides:

"SEC. 16. The State shall protect and advance the right of
the people to a balanced and healthful ecology in accord
with the rhythm and harmony of nature."

This right unites with the right to health which is provided

for in the preceding section of the same article:

"SEC. 15. The State shall protect and promote the right to
health of the people and instill health consciousness among
them."

While the right to a balanced and healthful ecology is to be

found under the Declaration of Principles and State Policies
and not under the Bill of Rights, it does not follow that it is
less important than any of the civil and political rights
enumerated in the latter. Such a right belongs to a different
category of rights altogether for it concerns nothing less
than self-preservation and self-perpetuation -- aptly and
fittingly stressed by the petitioners -- the advancement of
which may even be said to predate all governments and
constitutions. As a matter of fact, these basic rights need not
even be written in the Constitution for they are assumed to
exist from the inception of humankind. If they are now
explicitly mentioned in the fundamental charter, it is because
of the well-founded fear of its framers that unless the rights
to a balanced and healthful ecology and to health are
mandated as state policies by the Constitution itself, thereby
highlighting their continuing importance and imposing upon
the state a solemn obligation to preserve the first and
protect and advance the second, the day would not be too far
when all else would be lost not only for the present
generation, but also for those to come -- generations which
stand to inherit nothing but parched earth incapable of
sustaining life.
The right to a balanced and healthful ecology carries with it
the correlative duty to refrain from impairing the
environment. During the debates on this right in one of the
plenary sessions of the 1986 Constitutional Commission, the
following exchange transpired between Commissioner
Wilfrido Villacorta and Commissioner Adolfo Azcuna who
sponsored the section in question:

"MR. VILLACORTA:
Does this section mandate the State to provide sanctions
against all forms of pollution -- air, water and noise
pollution?
MR. AZCUNA:
Yes, Madam President. The right to healthful (sic)
environment necessarily carries with it the correlative duty
of not impairing the same and, therefore, sanctions may be
provided for impairment of environmental balance."[12]

The said right implies, among many other things, the

judicious management and conservation of the country's
forests. Without such forests, the ecological or
environmental balance would be irreversibly disrupted.

Conformably with the enunciated right to a balanced and

healthful ecology and the right to health, as well as the other
related provisions of the Constitution concerning the
conservation, development and utilization of the country's
natural resources,[13] then President Corazon C. Aquino
promulgated on 10 June 1987 E.O. No. 192,[14] Section 4 of
which expressly mandates that the Department of
Environment and Natural Resources "shall be the primary
[12]

[13]

[14]
government agency responsible for the conservation,
management, development and proper use of the country's
environment and natural resources, specifically forest and
grazing lands, mineral resources, including those in
reservation and watershed areas, and lands of the public
domain, as well as the licensing and regulation of all natural
resources as may be provided for by law in order to ensure
equitable sharing of the benefits derived therefrom for the
welfare of the present and future generations of Filipinos."
Section 3 thereof makes the following statement of policy:

"SEC. 3. Declaration of Policy. -- It is hereby declared the

policy of the State to ensure the sustainable use,
development, management, renewal, and conservation of the
country's forest, mineral, land, off-shore areas and other
natural resources, including the protection and
enhancement of the quality of the environment, and
equitable access of the different segments of the population
to the development and use of the country's natural
resources, not only for the present generation but for future
generations as well. It is also the policy of the state to
recognize and apply a true value system including social and
environmental cost implications relative to their utilization,
development and conservation of our natural resources."

This policy declaration is substantially re-stated in Title XIV,

Book IV of the Administrative Code of 1987,[ specifically in
15]

Section 1 thereof which reads:

"SEC. 1. Declaration of Policy. -- (1) The State shall ensure,

for the benefit of the Filipino people, the full exploration and
development as well as the judicious disposition, utilization,
management, renewal and conservation of the country's
forest, mineral, land, waters, fisheries, wildlife, off-shore
areas and other natural resources, consistent with the
necessity of maintaining a sound ecological balance and
[
protecting and enhancing the quality of the environment and
the objective of making the exploration, development and
utilization of such natural resources equitably accessible to
the different segments of the present as well as future
generations.

(2) The State shall likewise recognize and apply a true value
system that takes into account social and environmental cost
implications relative to the utilization, development and
conservation of our natural resources."

The above provision stresses "the necessity of maintaining a

sound ecological balance and protecting and enhancing the
quality of the environment." Section 2 of the same Title, on
the other hand, specifically speaks of the mandate of the
DENR; however, it makes particular reference to the fact of
the agency's being subject to law and higher authority. Said
section provides:

"SEC. 2. Mandate. -- (1) The Department of Environment and

Natural Resources shall be primarily responsible for the
implementation of the foregoing policy.

(2) It shall, subject to law and higher authority, be in charge

of carrying out the State's constitutional mandate to control
and supervise the exploration, development, utilization, and
conservation of the country's natural resources."

Both E.O. No. 192 and the Administrative Code of 1987 have
set the objectives which will serve as the bases for policy
formulation, and have defined the powers and functions of
the DENR.

It may, however, be recalled that even before the ratification

of the 1987 Constitution, specific statutes already paid
special attention to the "environmental right" of the present
and future generations. On 6 June 1977, P.D. No. 1151
(Philippine Environmental Policy) and P.D. No. 1152
(Philippine Environment Code) were issued. The former
"declared a continuing policy of the State (a) to create,
develop, maintain and improve conditions under which man
and nature can thrive in productive and enjoyable harmony
with each other, (b) to fulfil the social, economic and other
requirements of present and future generations of Filipinos,
and (c) to insure the attainment of an environmental quality
that is conducive to a life of dignity and well-being." [16] As its
goal, it speaks of the "responsibilities of each generation as
trustee and guardian of the environment for succeeding
generations.[17] The latter statute, on the other hand, gave
flesh to the said policy.

Thus, the right of the petitioners (and all those they

represent) to a balanced and healthful ecology is as clear as
the DENR's duty -- under its mandate and by virtue of its
powers and functions under E.O. No. 192 and the
Administrative Code of 1987 -- to protect and advance the
said right.

A denial or violation of that right by the other who has the

correlative duty or obligation to respect or protect the same
gives rise to a cause of action. Petitioners maintain that the
granting of the TLAs, which they claim was done with grave
abuse of discretion, violated their right to a balanced and
healthful ecology; hence, the full protection thereof requires
that no further TLAs should be renewed or granted.

A cause of action is defined as:

"x x x an act or omission of one party in violation of the legal

right or rights of the other; and its essential elements are
legal right of the plaintiff, correlative obligation of the

[16]

[17]
defendant, and act or omission of the defendant in violation
of said legal right."[18]

It is settled in this jurisdiction that in a motion to dismiss

based on the ground that the complaint fails to state a cause
of action,[ the question submitted to the court for resolution
19]

involves the sufficiency of the facts alleged in the complaint

itself. No other matter should be considered; furthermore,
the truth or falsity of the said allegations is beside the point
for the truth thereof is deemed hypothetically admitted. The
only issue to be resolved in such a case is: admitting such
alleged facts to be true, may the court render a valid
judgment in accordance with the prayer in the complaint? [20]
In Militante vs. Edrosolano,[21] this Court laid down the rule
that the judiciary should "exercise the utmost care and
circumspection in passing upon a motion to dismiss on the
ground of the absence thereof [cause of action] lest, by its
failure to manifest a correct appreciation of the facts alleged
and deemed hypothetically admitted, what the law grants or
recognizes is effectively nullified. If that happens, there is a
blot on the legal order. The law itself stands in disrepute."

After a careful examination of the petitioners' complaint, We

find the statements under the introductory affirmative
allegations, as well as the specific averments under the subs-
heading CAUSE OF ACTION, to be adequate enough to
show, prima facie, the claimed violation of their rights. On
the basis thereof, they may thus be granted, wholly of partly,
the reliefs prayed for. It bears stressing, however, that

[18]

[20]

[21]
insofar as the cancellation of the TLAs is concerned, there is
the need to implead, as party defendants, the grantees
thereof for they are indispensable parties.

The foregoing considered, Civil Case No. 90-777 cannot be

said to raise a political question. Policy formulation or
determination by the executive or legislative branches of
Government is not squarely put in issue. What is principally
involved is the enforcement of a right vis-a-vis policies
already formulated and expressed in legislation. It must,
nonetheless, be emphasized that the political question
doctrine is no longer the insurmountable obstacle to the
exercise of judicial power or the impenetrable shield that
protects executive and legislative actions from judicial
inquiry or review. The second paragraph of section 1, Article
VIII of the Constitution states that:

"Judicial power includes the duty of the courts of justice to

settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or
not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government."

Commenting on this provision in his book, Philippine

Political Law,[ Mr. Justice Isagani A. Cruz, a distinguished
22]

member of his Court, says:

"The first part of the authority represents the traditional

concept of judicial power, involving the settlement of
conflicting rights as conferred by law. The second part of the
authority represents a broadening of judicial power to
enable the courts of justice to review what was before
forbidden territory, to wit, the discretion of the political
departments of the government.

[
As worded, the new provision vests in the judiciary, and
particularly the Supreme Court, the power to rule upon even
the wisdom of the decisions of the executive and the
legislature and to declare their acts invalid for lack or excess
of jurisdiction because tainted with grave abuse of
discretion. The catch, of course, is the meaning of grave
abuse of discretion, which is a very elastic phrase that can
expand or contract according to the disposition of the
judiciary."

In Daza vs. Singson,[ Mr. Justice Cruz, now speaking for this
23]

Court, noted:

"In the case now before us, the jurisdictional objection

becomes even less tenable and decisive. The reason is that,
even if we were to assume that the issue presented before us
was political in nature, we would still not be precluded from
resolving it under the expanded jurisdiction conferred upon
us that now covers, in proper cases, even the political
question. Article VII, Section 1, of the Constitution clearly
provides: x x x."

The last ground invoked by the trial court in dismissing the

complaint is the non-impairment of contracts clause found in
the Constitution. The court a quo declared that:

"The Court is likewise of the impression that it cannot, no

matter how we stretch our jurisdiction, grant the reliefs
prayed for by the plaintiffs, i.e., to cancel all existing timber
license agreements in the country and to cease and desist
from receiving, accepting, processing, renewing or
approving new timber license agreements. For to do
otherwise would amount to 'impairment of contracts'
abhored (sic) by the fundamental law."[24]
[

[24]
We are not persuaded at all; on the contrary, We are amazed,
if not shocked, by such a sweeping pronouncement. In the
first place, the respondent Secretary did not, for obvious
reasons, even invoke in his motion to dismiss the non-
impairment clause. If he had done so, he would have acted
with utmost infidelity to the Government by providing undue
and unwarranted benefits and advantages to the timber
license holders because he would have forever bound the
Government to strictly respect the said licenses according to
their terms and conditions regardless of changes in policy
and the demands of public interest and welfare. He was
aware that as correctly pointed out by the petitioners, into
every timber license must be read Section 20 of the Forestry
Reform Code (P.D. No. 705) which provides:

"x x x Provided, That when the national interest so requires,

the President may amend, modify, replace or rescind any
contract, concession, permit, licenses or any other form of
privilege granted herein x x x."

Needless to say, all licenses may thus be revoked or

rescinded by executive action. It is not a contract, property
or a property right protected by the due process clause of
the Constitution. In Tan vs. Director of Forestry,[ this Court
25]

held:

"x x x A timber license is an instrument by which the State

regulates the utilization and disposition of forest resources
to the end that public welfare is promoted. A timber license
is not a contract within the purview of the due process
clause; it is only a license or privilege, which can be validly
withdrawn whenever dictated by public interest or public
welfare as in this case.

A license is merely a permit or privilege to do what

otherwise would be unlawful, and is not a contract between
[
the authority, federal, state, or municipal, granting it and the
person to whom it is granted; neither is it property or a
property right, nor does it create a vested right; nor is it
taxation (37 C.J. 168). Thus, this Court held that the
granting of license does not create irrevocable rights,
neither is it property or property rights (People vs. Ong Tin,
54 O.G. 7576). x x x"

We reiterated this pronouncement in Felipe Ysmael, Jr. &

Co., Inc. vs. Deputy Executive Secretary:[ 26]

"x x xTimber licenses, permits and license agreements are

the principal instruments by which the State regulates the
utilization and disposition of forest resources to the end that
public welfare is promoted. And it can hardly be gainsaid
that they merely evidence a privilege granted by the State to
qualified entities, and do not vest in the latter a permanent
or irrevocable right to the particular concession area and the
forest products therein. They may be validly amended,
modified, replaced or rescinded by the Chief Executive when
national interests so require. Thus, they are not deemed
contracts within the purview of the due process of law
clause [See Sections 3(ee) and 20 of Pres. Decree No. 705,
as amended. Also, Tan v. Director of Forestry, G.R. No. L-
24548, October 27, 1983, 125 SCRA 302]."

Since timber licenses are not contracts, the non-impairment

clause, which reads:

"SEC. 10. No law impairing the obligation of contracts shall

be passed."[27]

cannot be invoked.

[27]
In the second place, even if it is to be assumed that the same
are contracts, the instant case does not involve a law or even
an executive issuance declaring the cancellation or
modification of existing timber licenses. Hence, the
non-impairment clause cannot as yet be invoked.
Nevertheless, granting further that a law has actually been
passed mandating cancellations or modifications, the same
cannot still be stigmatized as a violation of the non-
impairment clause. This is because by its very nature and
purpose, such a law could have only been passed in the
exercise of the police power of the state for the purpose of
advancing the right of the people to a balanced and healthful
ecology, promoting their health and enhancing the general
welfare. In Abe vs. Foster Wheeler Corp.,[ this Court stated:
28]

"The freedom of contract, under our system of government,

is not meant to be absolute. The same is understood to be
subject to reasonable legislative regulation aimed at the
promotion of public health, moral, safety and welfare. In
other words, the constitutional guaranty of non-impairment
of obligations of contract is limited by the exercise of the
police power of the State, in the interest of public health,
safety, moral and general welfare."

The reason for this is emphatically set forth in Nebia vs.

New York,[ quoted in Philippine American Life Insurance
29]

Co. vs. Auditor General,[30] to wit:

"Under our form of government the use of property and the

making of contracts are normally matters of private and not
of public concern. The general rule is that both shall be free
of governmental interference. But neither property rights
[

[30]
nor contract rights are absolute; for government cannot
exist if the citizen may at will use his property to the
detriment of his fellows, or exercise his freedom of contract
to work them harm. Equally fundamental with the private
right is that of the public to regulate it in the common
interest."

In short, the non-impairment clause must yield to the police

power of the state.[31]

Finally, it is difficult to imagine, as the trial court did, how

the non-impairment clause could apply with respect to the
prayer to enjoin the respondent Secretary from receiving,
accepting, processing, renewing or approving new timber
licenses for, save in cases of renewal, no contract would
have as of yet existed in the other instances. Moreover, with
respect to renewal, the holder is not entitled to it as a matter
of right.

WHEREFORE, being impressed with merit, the instant

Petition is hereby GRANTED, and the challenged Order of
respondent Judge of 18 July 1991 dismissing Civil Case No.
90-777 is hereby set aside. The petitioners may therefore
amend their complaint to implead as defendants the holders
or grantees of the questioned timber license agreements.

No pronouncement as to costs.

SO ORDERED.

G.R. No. L-20089, December 26, 1964

BEATRIZ P. WASSMER, PLAINTIFF AND APPELLEE, VS.
FRANCISCO X. VELEZ, DEFENDANT AND APPELLANT.

DECISION

[
BENGZON, J. P., J.:

The facts that culminated in this case started with dreams

and hopes, followed by appropriate planning and serious
endeavors, but terminated in frustration and, what is worse,
complete public humiliation.

Francisco X. Velez and Beatriz P. Wassmer, following their

mutual promise of love, decided to get married and set
September 4, 1954 as the big day. On September 2, 1954
Velez left this note for his bride-to-be:

"Dear Bet-
Will have to postpone wedding. My mother oppose it. Am
leaving on the Convair today.
"Please do not ask too many people about the reason why.
That would only create a scandal.

Paquing"

But the next day, September 3, he sent her the following

telegram:

"NOTHING CHANGED REST ASSURED RETURNING

VERY SOON APOLOGIZE MAMA PAPA

LOVE

PAKING"

Thereafter Velez did not appear nor was he heard from

again.

Sued by Beatriz for damages, Velez filed no answer and was

declared in default. Plaintiff adduced evidence before the
clerk of court as commissioner, and on April 29, 1955,
judgment was rendered ordering defendant to pay plaintiff
P2,000.00 as actual damages; P25,000.09 as moral and
exemplary damages; P2,500.00 as attorney's fees; and the
costs.

On June 21, 1955 defendant filed a "petition for relief from

orders, judgment and proceedings and motion for new trial
and reconsideration." Plaintiff moved to strike it out. But the
court, on August 2, 1955, ordered the parties and their
attorneys to appear before it on August 23, 1955 "to explore
at this stage of the proceedings the possibility of arriving at
an amicable settlement." It added that should any of them
fail to appear "the petition for relief and the opposition
thereto will be deemed submitted for resolution."

On August 23, 1955 defendant failed to appear before the

court. Instead, on the following day his counsel filed a
motion to defer for two weeks the resolution on defendant's
petition for relief. The counsel stated that he would confer
with defendant in Cagayan de Oro City-the latter's
residence-on the possibility of an amicable settlement. The
court granted two weeks counted from August 25, 1955.

Plaintiff manifested on June 15, 1956 that the two weeks

given by the court had expired on September 8, 1955 but
that defendant and his counsel had failed to appear.

Another chance for amicable settlement was given by the

court in its order of July 6, 1956 calling the parties and their
attorneys to appear on July 13, 1956. This time, however,
defendant's counsel informed the court that chances of
settling the case amicably were nil.

On July 20, 1956 the court issued an order denying

defendant's aforesaid petition. Defendant has appealed to
this Court.

In his petition of June 21,1956 in the court a quo defendant

alleged excusable negligence as ground to set aside the
judgment by default. Specifically, it was stated that
defendant filed no answer in the belief that an amicable
settlement was being negotiated.

A petition for relief from judgment on grounds of fraud,

accident, mistake or excusable negligence, must be duly
supported by an affidavit of merit stating facts constituting a
valid defense. (Sec. 3, Rule 38, Rules of Court.) Defendant's
affidavit of merits attached to his petition of June 21, 1955
stated: "That he has a good and valid defense against
plaintiff's cause of action, his failure to marry the plaintiff as
scheduled having been due to fortuitous event and/or
circumstances beyond his control". An affidavit of merits like
this, stating mere conclusions or opinions instead of facts is
not valid. (Cortes vs. Co Bun Kim, 90 Phil., 167; Vaswani vs.
P. Tarachand Bros., 110 Phil., 521.)

Defendant, however, would contend that the affidavit of

merits was in fact unnecessary, or a mere surplusage,
because the judgment sought to be set aside was null and
void, it having been based on evidence adduced before the
clerk of court. In Province of Pangasinan vs. Palisoc, L-
16519, October 30, 1962, this Court pointed out that the
procedure of designating the clerk of court as commissioner
to receive evidence is sanctioned by Rule 34 (now Rule 33)
of the Rules of Court. Now as to defendant's consent to said
procedure, the same did not have to be obtained for he was
declared in default and thus had no standing in court (Velez
vs. Ramas, 40 Phil., 787; Alano vs. Court of First Instance,
106 Phil., 445).

In support of his "motion for now trial and reconsideration,"

defendant asserts that the judgment is contrary to law. The
reason given is that "there is no provision of the Civil Code
authorizing" an action for breach of promise to marry.
Indeed, our ruling in Hermosisima vs. Court of Appeals, 109
Phil., 629, as reiterated in Estopa vs. Piansay (109 Phil, 640),
is that "mere breach of a promise to marry" is not an
actionable wrong. We pointed out that Congress deliberately
eliminated from the draft of the new Civil Code the
provisions that would have it so.

It must not be overlooked, however, that the extent to which

acts not contrary to law may be perpetrated with impunity, is
not limitless for Article 21 of said Code provides that "Any
person who willfully causes loss or injury to another in a
manner that is contrary to morals, good customs or public
policy shall compensate the latter for the damage".

The record reveals that on August 23, 1954 plaintiff and

defendant applied for a license to contract marriage, which
was subsequently issued. (Exhs. A, A-1). Their wedding was
set for September 4, 1954. Invitations were printed and
distributed to relatives, friends and acquaintances (Tsn., 5;
Exh. C). The bride-to-be's trousseau, party dresses and other
apparel for the important occasion were purchased (Tsn., 7-
8). Dresses for the maid of honor and the flower girl were
prepared. A matrimonial bed, with accessories, was bought.
Bridal showers were given and gifts received (Tsn., 6; Exh.
E). And then, with but two days before the wedding,
defendant, who was then 28 years old, simply left a note for
plaintiff stating: "Will have to postpone wedding-My mother
opposes it . . ." He enplaned to his home city in Mindanao,
and the next day, the day before the wedding, he wired
plaintiff: "Nothing changed rest assured returning soon". But
he never returned and was never heard from again.

Surely this is not a case of mere breach of promise to marry.

As stated, mere breach of promise to marry is not an
actionable wrong. But to formally set a wedding and go
through all the above-described preparation, and publicity,
only to walk out of it when the matrimony is about to be
solemnized, is quite different. This is palpably and
unjustifiably contrary to good customs, for which defendant
must be held answerable in damages in accordance with
Article 21 aforesaid.

Defendant urges in his afore-stated petition that the

damages awarded were excessive. No question is raised as
to the award of actual damages. What defendant would
really assert hereunder is that the award of moral and
exemplary damages, in the amount of P25,000.00, should be
totally eliminated.

Per express provision of Article 2219 (10) of the new Civil

Code, moral damages are recoverable in the cases
mentioned in Article 21 of said Code. As to exemplary
damages, defendant contends that the same could not be
adjudged against him because under Article 2232 of the new
Civil Code the condition precedent is that "the defendant
acted in a wanton, fraudulent, reckless, oppressive, or
malevolent manner". The argument is devoid of merit as
under the above-narrated circumstances of this case
defendant clearly acted in a "wanton . . . reckless [and]
oppressive manner." This Court's opinion, however, is that
considering the particular circumstances of this case,
P15,000.00 as moral and exemplary damages is deemed to
be a reasonable award.

Premises considered, with the above-indicated modification,

the lower court's judgment is hereby affirmed, with costs.

Bengzon, C. J., Bautista Angelo, Concepcion, Reyes, J. B. L.,

Barrera, Paredes, Dizon, Regala, Makalintal, and Zaldivar,
JJ., concur.

RESOLUTION

February 26, 1965

Bengzon, J. P., J.:

Defendant-appellant has filed a motion for reconsideration of

this Court's decision promulgated December 26, 1964. The
only point movant raises is the alleged validity of his affidavit
of merits attached to his petition for relief in the lower court.

The affidavit of merits in question states "that he (defendant)

has a good and valid defense, his failure to marry plaintiff as
scheduled having been due to a fortuitous event and/or
circumstances beyond his control." The movant contends
that this is not a mere opinion or conclusion but positive and
categorical statement of a valid defense; that it states there
are fortuitous events, i.e., fortuitous facts, which defendant
puts forward as a valid defense. The previous rulings of this
Court, movant further contends, held invalid only affidavits
of merits that disclosed no defense.

The rulings of this Court require affidavits of merits to state

not mere conclusions or opinions but facts (Vaswani vs.
Tarachand Bros., 110 Phil., 521). An affidavit is a statement
under oath of facts. Defendant's affidavit of merits stated no
facts, but merely an inference that defendant's failure was
due to fortuitous events and/or circumstances beyond his
control. This is a conclusion of fact, not a fact.

An affidavit of merits is required to avoid waste of the

court's time if the defense turns out to be ineffective (Vda.
de Yulo vs. Chua Chuco, 87 Phil., 448; 48 Off. Gaz., 554,
555). Statements too vague or merely general do not-as
movant admits-serve the afore-stated purpose.

Defendant's affidavit of merits provides no means for the

court to see the merits of his defense and determine whether
reopening the case would be worth its time. Said affidavit
revealed nothing of the "event" or "circumstances"
constituting the defense. It stated, in substance, only
defendant's opinion that the event was "fortuitous" and that
the circumstances were "beyond his control"; and his
conclusion that his failure to marry plaintiff on schedule was
"due to" them. The court, not the defendant, should form
such opinions and draw such conclusions on the basis of
facts provided in the affidavit. As it is, defendant's affidavit
leaves the court guessing as to the facts.

Conformably to previous rulings of this Court, therefore, the

affidavit of merits aforementioned is not valid. To repeat, it
states a conclusion of fact, not facts themselves; it leaves the
court guessing as to the facts; it provides no basis for
determining the probable merits of the defense as a
justification for reopening the case.

WHEREFORE, the motion for reconsideration is hereby

denied.

SO ORDERED.

G.R. No. L-630, November 15, 1947

ALEXANDER A. KRIVENKO, PETITIONER AND APPELLANT,
VS. THE REGISTER OF DEEDS, CITY OF MANILA,
RESPONDENT AND APPELLEE.

MORAN, C.J.:

Alexander A. Krivenko, alien, bought a residential lot from

the Magdalena Estate, Inc., in December of 1941, the
registration of which was interrupted by the war. In May,
1945, he sought to accomplish said registration but was
denied by the register of deeds of Manila on the ground that,
being an alien, he cannot acquire land in this jurisdiction.
Krivenko then brought the case to the fourth branch of the
Court of First Instance of Manila by means of a consulta, and
that court rendered judgment sustaining the refusal of the
register of deeds, from which Krivenko appealed to this
Court.
There is no dispute as to these facts. The real point in issue
is whether or not an alien under our Constitution may
acquire residential land.

It is said that the decision of the case on the merits is

unnecessary, there being a motion to withdraw the appeal
which should have been granted outright, and reference is
made to the ruling laid down by this Court in another case to
the effect that a court should not pass upon a constitutional
question if its judgment may be made to rest upon other
grounds. There is, we believe, a confusion of ideas in this
reasoning. It cannot be denied that the constitutional
question is unavoidable if we choose to decide this case upon
the merits. Our judgment can not to be made to rest upon
other grounds if we have to render any judgment at all. And
we cannot avoid our judgment simply because we have to
avoid a constitutional question. We cannot, for instance,
grant the motion with drawing the appeal only because we
wish to evade the constitutional issue. Whether the motion
should be, or should not be, granted, is a question involving
different considerations now to be stated.

According to Rule 52, section 4, of the Rules of Court, it is

discretionary upon this Court to grant a withdrawal of
appeal after the briefs have been presented. At the time the
motion for withdrawal was filed in this case, not only had the
briefs been presented, but the case had already been voted
and the majority decision was being prepared. The motion
for withdrawal stated no reason whatsoever, and the
Solicitor General was agreeable to it. While the motion was
pending in this Court, came the new circular of the
Department of Justice, instructing all register of deeds to
accept for registration all transfers of residential lots to
aliens. The herein respondent-appellee was naturally one of
the registers of deeds to obey the new circular, as against
his own stand in this case which had been maintained by the
trial court and firmly defended in this Court by the Solicitor
General. If we grant the withdrawal, the result would be that
petitioner-appellant Alexander A. Krivenko wins his case, not
by a decision of this Court, but by the decision or circular of
the Department of Justice, issued while this case was
pending before this Court. Whether or not this is the reason
why appellant seeks the withdrawal of his appeal and why
the Solicitor General readily agrees to that withdrawal, is
now immaterial. What is material and indeed very important,
is whether or not we should allow interference with the
regular and complete exercise by this Court of its
constitutional functions, and whether or not after having
held long deliberations and after having reached a clear and
positive conviction as to what the constitutional mandate is,
we may still allow our conviction to be silenced, and the
constitutional mandate to be ignored or misconceived, with
all the harmful consequences that might be brought upon
the national patrimony. For it is but natural that the new
circular be taken full advantage of by many, with the
circumstance that perhaps the constitutional question may
never come up again before this court, because both vendors
and the vendees will have no interest but to uphold the
validity of their transactions, and very unlikely will the
register of deeds venture to disobey the orders of their
superior. Thus, the possibility for this court to voice its
conviction in a future case may be remote, with the result
that our indifference of today might signify a permanent
offense to the Constitution.

All these circumstances were thoroughly considered and

weighed by this Court for a number of days and the legal
result of the last vote was a denial of the motion
withdrawing the appeal. We are thus confronted, at this
stage of the proceedings, with our duty to decide the case
upon the merits, and by so doing, the constitutional question
becomes unavoidable. We shall then proceed to decide that
question.
Article XIII, section 1, of the Constitution is as follows:

"Article XIII.Conservation and utilization of natural

resources.

"Section 1. All agricultural, timber, and mineral lands of the

public domain, waters, minerals, coal, petroleum, and other
mineral oils, all forces of potential energy, and other natural
resources of the Philippines belong to the State, and their
disposition, exploitation, development, or utilization shall be
limited to citizens of the Philippines, or to corporations or
associations at least sixty per centum of the capital of which
is owned by such citizens, subject to any existing right,
grant, lease, or concession at the time of the inauguration of
the Government established under this Constitution. Natural
resources, with the exception of public agricultural land,
shall not be alienated, and no license, concession, or lease
for the exploitation, development, or utilization of any of the
natural resources shall be granted for a period exceeding
twenty-five years, renewable for another twenty-five years,
except as to water rights for irrigation, water supply,
fisheries, or industrial uses other than the development of
water 'power' in which cases beneficial use may be the
measure and the limit of the grant."

The scope of this constitutional provision, according to its

heading and its language, embraces all lands of any kind of
the public domain, its purpose being to establish a
permanent and fundamental policy for the conservation and
utilization of all natural resources of the Nation. When,
therefore, this provision, with reference to lands of the
public domain, makes mention of only agricultural, timber
and mineral lands, it means that all lands of the public
domain are classified into said three groups, namely,
agricultural, timber and mineral. And this classification finds
corroboration in the circumstance that at the time of the
adoption of the Constitution, that was the basic classification
existing in the public laws and judicial decisions in the Philip
pines, and the term "public agricultural lands" under said
classification had then acquired a technical meaning that
was well-known to the members of the Constitutional
Convention who were mostly members of the legal
profession.

As early as 1908, in the case of Mapa vs. Insular Government

(10 Phil., 175, 182), this Court said that the phrase
"agricultural public lands" as defined in the Act of Congress
of July 1, 1902, which phrase is also to be found in several
sections of the Public Land Act (No. 926), means "those
public lands acquired from Spain which are neither mineral
nor timber lands." This definition has been followed in a long
line of decisions of this Court. (See Montano vs. Insular
Government, 12 Phil., 572; Santiago vs. Insular Government,
12 Phil., 593; Ibaez de Aldecoa vs. Insular Government, 13
Phil., 159; Ramos vs. Director of Lands, 39 Phil., 175; Jocson
vs. Director of Forestry, 39 Phil., 560; Ankron vs.
Government of the Philippines, 40 Phil., 10.) And with
respect to residential lands, it has been held that since they
are neither mineral nor timber lands, of necessity they must
be classified as agricultural. In Ibaez de Aldecoa vs. Insular
Government (13 Phil., 159, 163), this Court said:

"Hence, any parcel of land or building lot is susceptible of

cultivation, and may be converted into a field, and planted
with all kinds of vegetation; for this reason, where land is
not mining or forestal in its nature, it must necessarily be
included within the classification of agricultural land, not
because it is actually used for the purposes of agriculture,
but because it was originally agricultural and may again
become so under other circumstances; besides, the Act of
Congress contains only three classifications, and makes no
special provision with respect to building lots or urban lands
that have ceased to be agricultural land."
In other words, the Court ruled that in determining whether
a parcel of land is agricultural, the test is not only whether it
is actually agricultural, but also its susceptibility to
cultivation for agricultural purposes. But whatever the test
might be, the fact remains that at the time the Constitution
was adopted, lands of the public domain were classified in
our laws and jurisprudence into agricultural, mineral, and
timber, and that the term "public agricultural lands" was
construed as referring to those lands that were not timber or
mineral, and as including residential lands. It may safely be
presumed, therefore, that what the members of the
Constitutional Convention had in mind when they drafted the
Constitution was this well-known classification and its
technical meaning then prevailing.

"Certain expressions which appear in Constitutions, * * * are

obviously technical; and where such words have been in use
prior to the adoption of a Constitution, it is presumed that its
framers and the people who ratified it have used such
expressions in accordance with their technical meaning." (11
Am. Jur., sec. 66, p. 683.) Also Calder vs. Bull, 3 Dall. [U. S.],
386; 1 Law. ed., 648; Bronson vs. Syverson, 88 Wash., 264;
152 P., 1039.)

"It is a fundamental rule that, in construing constitutions,

terms employed therein shall he given the meaning which
had been put upon them, and which they possessed, at the
time of the framing and adoption of the instrument. If a word
has acquired a fixed, technical meaning in legal and
constitutional history, it will be presumed to have been
employed in that sense in a written Constitution." (McKinney
vs. Barker, 180 Ky., 526; 203 S. W., 303; L. R. A., 1918E,
581.)

"Where words have been long used in a technical sense and

have been judicially construed to have a certain meaning,
and have been adopted by the legislature as having a certain
meaning prior to a particular statute in which they are used,
the rule of construction requires that the words used in such
statute should be construed according to the sense in which
they have been so previously used, although the sense may
vary from the strict literal meaning of the words." (II
Sutherland, Statutory Construction, p. 758.)

Therefore, the phrase "public agricultural lands" appearing

in section 1 of Article XIII of the Constitution must be
construed as including residential lands, and this is in
conformity with a legislative interpretation given after the
adoption of the Constitution. Well known is the rule that
"where the Legislature has revised a statute after a
Constitution has been adopted, such a revision is to be
regarded as a legislative construction that the statute so
revised conforms to the Constitution." (59 C. J., 1102.) Soon
after the Constitution was adopted, the National Assembly
revised the Public Land Law and passed Commonwealth Act
No. 141, and sections 58, 59 and 60 thereof permit the sale
of residential lots to Filipino citizens or to associations or
corporations controlled by such citizens, which is equivalent
to a solemn declaration that residential lots are considered
as agricultural lands, for, under the Constitution, only
agricultural lands may be alienated.

It is true that in section 9 of said Commonwealth Act No.

141, "alienable or disposable public lands" which are the
same "public agricultural lands" under the Constitution, are
classified into agricultural, residential, commercial,
industrial and for other purposes. This simply means that the
term "public agricultural lands" has both a broad and a
particular meaning. Under its broad or general meaning, as
used in the Constitution, it embraces all lands that are
neither timber nor mineral. This broad meaning is
particularized in section 9 of Commonwealth Act No. 141
which classifies "public agricultural lands" for purposes of
alienation or disposition, into lands that are strictly
agricultural or actually devoted to cultivation for agricultural
purposes; lands that are residential; commercial; industrial;
or lands for other purposes. The fact that these lands are
made alienable or disposable under Commonwealth Act No.
141, in favor of Filipino citizens, is a conclusive indication of
their character as public agricultural lands under said
statute and under the Constitution.

It must be observed, in this connection, that prior to the

Constitution, under section 24 of Public Land Act No. 2874,
aliens could acquire public agricultural lands used for
industrial or residential purposes, but after the Constitution
and under section 23 of Commonwealth Act No. 141, the
right of aliens to acquire such kind of lands is completely
stricken out, undoubtedly in pursuance of the constitutional
limitation. And, again, prior to the Constitution, under
section 57 of Public Land Act No. 2874, land of the public
domain suitable for residence or industrial purposes could
be sold or leased to aliens, but after the Constitution and
under section 60 of Commonwealth Act No. 141, such land
may only be leased, but not sold, to aliens, and the lease
granted shall only be valid while the land is used for the
purposes referred to. The exclusion of sale in the new Act is
undoubtedly in pursuance of the constitutional limitation,
and this again is another legislative construction that the
term "public agricultural land" includes land for residence
purposes.

Such legislative interpretation is also in harmony with the

interpretation given by the Executive Department of the
Government. Way back in 1939, Secretary of Justice Jose
Abad Santos, in answer to a query as to "whether or not the
phrase 'public agricultural lands' in section 1 of Article XII
(now XIII) of the Constitution may be interpreted to include
residential, commercial, and industrial lands for purposes of
their disposition," rendered the following short, sharp and
crystal clear opinion:
"Section 1, Article XII (now XIII) of the Constitution
classifies lands of the public domain in the Philippines into
agricultural, timber and mineral. This is the basic
classification adopted since the enactment of the Act of
Congress of July 1, 1902, known as the Philippine Bill. At the
time of the adoption of the Constitution of the Philippines,
the term 'agricultural public lands' and, therefore, acquired
a technical meaning in our public laws. The Supreme Court
of the Philippines in the leading case of Mapa vs. Insular
Government, 10 Phil., 175, held that the phrase 'agricultural
public lands' means those public lands acquired from Spain
which are neither timber nor mineral lands. This definition
has been followed by our Supreme Court in many
subsequent cases. * * *

"Residential, commercial, or industrial lots forming part of

the public domain must have to be included in one or more
of these classes. Clearly, they are neither timber nor mineral,
of necessity, therefore, they must be classified as
agricultural.

"Viewed from another angle, it has been held that in

determining whether lands are agricultural or not, the
character of the land is the test (Odell vs. Durant, 62 N. W.,
524; Lorch vs. Missoula Brick & Tile Co., 123 p. 25). In other
words, it is the susceptibility of the land to cultivation for
agricultural purposes, by ordinary farming methods which
determines whether it is agricultural or not (State vs.
Stewart, 190 p. 129).

"Furthermore, as said by the Director of Lands, no reason is

seen why a piece of land, which may be sold to a person if he
is to devote it to agricultural, cannot be sold to him if he
intends to use it as a site for his home."

This opinion is important not alone because it comes from a

Secretary of Justice who later became the Chief Justice of
this Court, but also because it was rendered by a member of
the cabinet of the late President Quezon who actively
participated in the drafting of the constitutional provision
under consideration. (2 Aruego, Framing of the Philippine
Constitution, p. 598.) And the opinion of the Quezon
administration was reiterated by the Secretary of Justice
under the Osmea administration, and it was firmly
maintained in this Court by the Solicitor General of both
administrations.

It is thus clear that the three great departments of the

Governmentjudicial, legislative and executivehave
always maintained that lands of the public domain are
classified into agricultural, mineral and timber, and that
agricultural lands include residential lots.

Under section 1 of Article XIII of the Constitution, "natural

resources, with the exception of public agricultural land,
shall not be alienated," and with respect to public
agricultural lands, their alienation is limited to Filipino
citizens. But this constitutional purpose conserving
agricultural resources in the hands of Filipino citizens may
easily be defeated by the Filipino citizens themselves who
may alienate their agricultural lands in favor of aliens. It is
partly to prevent this result that section 5 is included in
Article XIII, and it reads as follows:

"Sec. 5. Save in cases of hereditary succession, no private

agricultural land will be transferred or assigned except to
individuals, corporations, or associations qualified to acquire
or hold lands of the public domain in the Philippines."

This constitutional provision closes the only remaining

avenue through which agricultural resources may leak into
aliens' hands. It would certainly be futile to prohibit the
alienation of public agricultural lands to aliens if, after all,
they may be freely so alienated upon their becoming private
agricultural lands in the hands of Filipino citizens.
Undoubtedly, as above indicated, section 5 is intended to
insure the policy of nationalization contained in section 1.
Both sections must, therefore, be read together for they
have the same purpose and the same subject matter. It must
be noticed that the persons against whom the prohibition is
directed in section 5 are the very same persons who under
section 1 are disqualified "to acquire or hold lands of the
public domain in the Philippines." And the subject matter of
both sections is the same, namely, the non transferability of
"agricultural land" to aliens. Since "agricultural land" under
section 1 includes residential lots, the same technical
meaning should be attached to "agricultural land" under
section 5. It is a rule of statutory construction that "a word
or phrase repeated in a statute will bear the same meaning
throughout the statute, unless a different intention appears."
(II Sutherland, Statutory Construction, p. 758.) The only
difference between "agricultural land" under section 1, and
"agricultural land" under section 5, is that the former is
public and the latter private. But such difference refers to
ownership and not to the class of land. The lands are the
same in both sections, and, for the conservation of the
national patrimony, what is important is the nature or class
of the property regardless of whether it is owned by the
State or by its citizens.

Reference is made to an opinion rendered on September 19,

1941, by the Hon. Teofilo Sison, then Secretary of Justice, to
the effect that residential lands of the public domain may be
considered as agricultural lands, whereas residential lands
of private ownership cannot be so considered. No reason
whatsoever is given in the opinion for such a distinction, and
no valid reason can be adduced for such a discriminatory
view, particularly having in mind that the purpose of the
constitutional provision is the conservation of the national
patrimony, and private residential lands are as much an
integral part of the national patrimony as the residential
lands of the public domain. Specially is this so where, as
indicated above, the prohibition as to the alienable of public
residential lots would become superfluous if the same
prohibition is not equally applied to private residential lots.
Indeed, the prohibition as to private residential lands will
eventually become more important, for time will come when,
in view of the constant disposition of public lands in favor of
private individuals, almost all, if not all, the residential lands
of the public domain shall have become private residential
lands.

It is maintained that in the first draft of section 5, the words

"no land of private ownership" were used and later changed
into "no agricultural land of private ownership," and lastly
into "no private agricultural land" and from these changes it
is argued that the word "agricultural" introduced in the
second and final drafts was intended to limit the meaning of
the word "land" to land actually used for agricultural
purposes. The implication is not accurate. The wording of
the first draft was amended for no other purpose than to
clarify concepts and avoid uncertainties. The words "no
land" of the first draft, unqualified by the word
"agricultural," may be mistaken to include timber and
mineral lands, and since under section 1, this kind of lands
can never be private, the prohibition to transfer the same
would be superfluous. Upon the other hand, section 5 had to
be drafted in harmony with section 1 to which it is
supplementary, as above indicated. Inasmuch as under
section 1, timber and mineral lands can never be private,
and the only lands that may become private are agricultural
lands, the words "no land of private owner ship" of the first
draft can have no other meaning than "private agricultural
land." And thus the change in the final draft is merely one of
words in order to make its subject matter more specific with
a view to avoiding the possible confusion of ideas that could
have arisen from the first draft.
If the term "private agricultural lands" is to be construed as
not including residential lots or lands not strictly
agricultural, the result would be that "aliens may freely
acquire and possess not only residential lots and houses for
themselves but entire subdivisions, and whole towns and
cities," and that "they may validly buy and hold in their
names lands of any area for building homes, factories,
industrial plants, fisheries, hatcheries, schools, health and
vacation resorts, markets, golf courses, playgrounds,
airfields, and a host of other uses and purposes that are not,
in appellant's words, strictly agricultural." (Solicitor
General's Brief, p. 6.) That this is obnoxious to the
conservative spirit of the Constitution is beyond question.

One of the fundamental principles underlying the pro vision

of Article XIII of the Constitution and which was embodied in
the report of the Committee on Nationalization and
Preservation of Lands and other Natural Resources of the
Constitutional Convention, is "that lands, minerals, forests,
and other natural resources constitute the exclusive heritage
of the Filipino nation. They should, therefore, be preserved
for those under the sovereign authority of that nation and for
their posterity." (2 Aruego, Framing of the Filipino
Constitution, p. 595.) Delegate Ledesma, Chairman of the
Committee on Agricultural Development of the
Constitutional Convention, in a speech delivered in
connection with the national policy on agricultural lands,
said: "The exclusion of aliens from the privilege of acquiring
public agricultural lands and of owning real estate is a
necessary part of the Public Land Laws of the Philippines to
keep pace with the idea of preserving the Philippines for the
Filipinos." (Italics ours.) And, of the same tenor was the
speech of Delegate Montilla who said: "With the complete
nationalization of our lands and natural resources it is to be
understood that our God-given birthright should be one
hundred per cent in Filipino hands * * *. Lands and natural
resources are immovables and as such can be compared to
the vital organs of a person's body, the lack of possession of
which may cause instant death or the shortening of life. * * *
If we do not completely nationalize these two of our most
important belongings, I am afraid that the time will come
when we shall be sorry for the time we were born. Our
independence will be just a mockery, for what kind of
independence are we going to have if a part of our country is
not in our hands but in those of foreigners?" (Italics ours.)
Professor Aruego says that since the opening days of the
Constitutional Convention one of its fixed and dominating
objectives was the conservation and nationalization of the
natural resources of the country. (2 Aruego, Framing of the
Philippine Constitution, p. 592.) This is ratified by the
members of the Constitutional Convention who are now
members of this Court, namely, Mr. Justice Perfecto, Mr.
Justice Briones, and Mr. Justice Hontiveros. And, indeed, if
under Article XIV, section 8, of the Constitution, an alien may
not even operate a small jitney for hire, it is certainly not
hard to understand that neither is he allowed to own a piece
of land.

This constitutional intent is made more patent and is

strongly implemented by an act of the National Assembly
passed soon after the Constitution was approved. We are
referring again to Commonwealth Act No. 141. Prior to the
Constitution, there were in the Public Land Act No. 2874
sections 120 and 121 which granted aliens the right to
acquire private lands only by way of reciprocity. Said section
reads as follows:

"Sec. 120. No land originally acquired in any manner under

the provisions of this Act, nor any permanent improvement
on such land, shall be encumbered, alienated, or transferred,
except to persons, corporations, associations, or
partnerships who may acquire lands of the public domain
under this Act; to corporations organized in the Philippine
Islands authorized therefor by their charters, and, upon
express authorization by the Philippine Legislature, to
citizens of countries the laws of which grant to citizens of
the Philippine Is lands the same right to acquire, hold, lease,
encumber, dispose of, or alienate land, or permanent
improvements thereon, or any interest therein, as to their
own citizens, only in the manner and to the extent specified
in such laws, and while the same are in force, but not
thereafter.

"Sec. 121. No land originally acquired in any manner under

the provisions of the former Public Land Act or of any other
Act, ordinance, royal order, royal decree, or any other
provision of law formerly in force in the Philippine Islands
with regard to public lands, terrenos baldios y realengos, or
lands of any other denomination that were actually or
presumptively of the public domain, or by royal grant or in
any other form, nor any permanent improvement on such
land, shall be encumbered, alienated, or conveyed, except to
persons, corporations, or associations who may acquire land
of the public domain under this Act; to corporate bodies
organized in the Philippine Islands whose charters may
authorize them to do so, and, upon express authorization by
the Philippine Legislature, to citizens of the countries the
laws of which grant to citizens of the Philippine Islands the
same right to acquire, hold, lease, encumber, dispose of, or
alienate land or permanent improvements thereon or any
interest therein, as to their own citizens, and only in the
manner and to the extent specified in such laws, and while
the same are in force, but not thereafter: Provided, however,
That this prohibition shall not be applicable to the
conveyance or acquisition by reason of hereditary succession
duly acknowledged and legalized by competent courts, nor
to lands and improvements acquired or held for industrial or
residence purposes, while used for such purposes: Provided,
further, That in the event of the ownership of the lands and
improvements mentioned in this section and in the last
preceding section being transferred by judicial decree to
persons, corporations or associations not legally capacitated
to acquire the same under the provisions of this Act, such
persons, corporations, or associations shall be obliged to
alienate said lands or improvements to others so capacitated
within the precise period of five years, under the penalty of
such property reverting to the Government in the contrary
case." (Public Land Act, No. 2874.)

It is to be observed that the phrase "no land" used in these

section refers to all private lands, whether strictly
agricultural, residential or otherwise, there being practically
no private land which had not been acquired by any of the
means provided in said two sections. Therefore, the
prohibition contained in these two provisions was, in effect,
that no private land could be transferred to aliens except
"upon express authorization by the Philippine Legislature, to
citizens of countries the laws of which grant to citizens of
the Philippine Is lands the same right to acquire, hold, lease,
encumber, dispose of, or alienate land." In other words,
aliens were granted the right to acquire private land merely
by way of reciprocity. Then came the Constitution and
Common wealth Act No. 141 was passed, sections 122 and
123 of which read as follows:

"Sec. 122. No land originally acquired in any manner under

the provisions of this Act, nor any permanent improvement
on such land, shall be encumbered, alienated, or transferred,
except to per sons, corporations, associations, or
partnerships who may acquire lands of the public domain
under this Act or to corporations organized in the
Philippines authorized therefor by their charters.

"Sec. 123. No land originally acquired in any manner under

the provisions of any previous Act, ordinance, royal order,
royal decree, or any other provision of law formerly in force
in the Philippines with regard to public lands, terrenos
baldios y realengos, or lands of any other denomination that
were actually or presumptively of the public domain, or by
royal grant or in any other form, nor any permanent
improvement on such land, shall be encumbered, alienated,
or conveyed, except to persons, corporations or associations
who may acquire land of the public domain under this Act or
to corporate bodies organized in the Philippines whose
charters authorize them to do so: Provided, however, That
this prohibition shall not be applicable to the conveyance or
acquisition by reason of hereditary succession duly
acknowledged and legalized by competent courts: Provided,
further, That in the event of the ownership of the lands and
improvements mentioned in this section and in the last
preceding section being transferred by judicial decree to
persons, corporations or associations not legally capacitated
to acquire the same under the provisions of this Act, such
persons, corporations, or associations shall be obliged to
alienate said lands or improvements to others so capacitated
within the precise period of five years; otherwise, such
property shall revert to the Government."

These two sections are almost literally the same as sections

120 and 121 of Act No. 2874, the only difference being that
in the new provisions, the right to reciprocity granted to
aliens is completely stricken out. This, undoubtedly, is to
conform to the absolute policy contained in section 5 of
Article XIII of the Constitution which, in prohibiting the
alienation of private agricultural lands to aliens, grants them
no right of reciprocity. This legislative construction carries
exceptional weight, for prominent members of the National
Assembly who approved the new Act had been members of
the Constitutional Convention.

It is said that the lot in question does not come within the
purview of sections 122 and 123 of Commonwealth Act No.
141, there being no proof that the same had been acquired
by one of the means provided in said provisions. We are not,
however, deciding the instant case under the provisions of
the Public Land Act, which have to refer to lands that had
been formerly of the public domain, otherwise their
constitutionality may be doubtful. We are deciding the
instant case under section 5 of Article XIII of the
Constitution which is more comprehensive and more
absolute in the sense that it prohibits the transfer to aliens
of any private agricultural land including residential land
whatever its origin might have been.

And, finally, on June 14, 1947, the Congress approved

Republic Act No. 133 which allows mortgage of "private real
property" of any kind in favor of aliens but with a
qualification consisting of expressly prohibiting aliens to bid
or take part in any sale of such real property as a
consequence of the mortgage. This prohibition makes no
distinction between private lands that are strictly
agricultural and private lands that are residential or
commercial. The prohibition embraces the sale of private
lands of any kind in favor of aliens, which is again a clear
implementation and a legislative interpretation of the
constitutional prohibition. Had the Congress been of opinion
that private residential lands may be sold to aliens under the
Constitution, no legislative measure would have been found
necessary to authorize mortgage which would have been
deemed also permissible under the Constitution. But clearly
it was the opinion of the Congress that such sale is forbidden
by the Constitution and it was such opinion that prompted
the legislative measure intended to clarify that mortgage is
not within the constitutional prohibition.

It is well to note at this juncture that in the present case we

have no choice. We are construing the Constitution as it is
and not as we may desire it to be. Perhaps the effect of our
construction is to preclude aliens, admitted freely into the
Philippines from owning" sites where they may build their
homes. But if this is the solemn mandate of the Constitution,
we will not attempt to compromise it even in the name of
amity or equity. We are satisfied, however, that aliens are not
completely excluded by the Constitution from the use of
lands for residential purposes. Since their residence in the
Philip pines is temporary, they may be granted temporary
rights such as a lease contract which is not forbidden by the
Constitution. Should they desire to remain here forever and
share our fortunes and misfortunes, Filipino citizen ship is
not impossible to acquire.

For all the foregoing, we hold that under the Constitution

aliens may not acquire private or public agricultural lands,
including residential lands, and, accordingly, judgment is
affirmed, without costs.

Feria, Pablo, Perfecto, Hilado, and Briones, JJ., concur.