1. 2nd LT. SALVADOR PARREO represented by his daughter Myrna P. Caintic, Petitioner, G.R. No.

162224 COMMISSION ON AUDIT .June 7, 2007 x---------------------------------------------------x DEC ISION CARPIO, J.: The Case cralawBefore the Court is a petition for certiorari[1] assailing the 9 January 2003 Decision[2] and 13 January 2004 Resolution[3] of the Commission on Audit (COA). The Antecedent Facts cralawSalvador Parreo (petitioner) served in the Armed Forces of the Philippines (AFP) for 32 years.On 5 January 1982, petitioner retired from the Philippine Constabulary with the rank of 2nd Lieutenant.Petitioner availed, and received payment, of a lump sum pension equivalent to three years pay.In 1985, petitioner started receiving his monthly pension amounting to P13,680. cralawPetitioner migrated to Hawaii and became a naturalized American citizen.In January 2001, the AFP stopped petitioners monthly pension in accordance with Section 27 of Presidential Decree No. 1638[4] (PD 1638), as amended by Presidential Decree No. 1650.[5]Section 27 of PD 1638, as amended, provides that a retiree who loses his Filipino citizenship shall be removed from the retired list and his retirement benefits terminated upon loss of Filipino citizenship.Petitioner requested for reconsideration but the Judge Advocate General of the AFP denied the request. cralawPetitioner filed a claim before the COA for the continuance of his monthly pension. The Ruling of the Commission on Audit cralawIn its 9 January 2003 Decision, the COA denied petitioners claim for lack of jurisdiction.The COA ruled: cralawIt becomes immediately noticeable that the resolution of the issue at hand hinges upon the validity of Section 27 of P.D. No. 1638, as amended.Pursuant to the mandate of the Constitution, whenever a dispute involves the validity of laws, the courts, as guardians of the Constitution, have the inherent authority to determine whether a statute enacted by the legislature transcends the limit imposed by the fundamental law.Where the statute violates the Constitution, it is not only the right but the duty of the judiciary to declare such act as unconstitutional and void.(Tatad vs. Secretary of Department of Energy, 281 SCRA 330) That being so, prudence dictates that this Commission defer to the authority and jurisdiction of the judiciary to rule in the first instance upon the constitutionality of the provision in question. cralawPremises considered, the request is denied for lack of jurisdiction to adjudicate the same.Claimant is advised to file his claim with the proper court of original jurisdiction.[6] cralawPetitioner filed a motion for reconsideration.Petitioner alleged that the COA has the power and authority to incidentally rule on the constitutionality of Section 27 of PD 1638, as amended.Petitioner alleged that a direct recourse to the court would be dismissed for failure to exhaust administrative remedies.Petitioner further alleged that since his monthly pension involves government funds, the reason for the termination of the pension is subject to COAs authority and jurisdiction. cralawIn its 13 January 2004 Resolution, the COA denied the motion.The COA ruled that the doctrine of exhaustion of administrative remedies does not apply if the administrative body has, in the first place, no jurisdiction over the case.The COA further ruled that even if it assumed jurisdiction over the claim, petitioners entitlement to the retirement benefits he was previously receiving must necessarily cease upon the loss of his Filipino citizenship in accordance with Section 27 of PD 1638, as amended. cralawHence, the petition before this Court.

Whether Section 27 of PD 1638, as amended, is constitutional;

2. Whether the COA has jurisdiction to rule on the constitutionality ofSection 27 of PD 1638, as amended; and 3. Whether PD 1638, as amended, has retroactive or prospective effect.[7]chanroblesvirtuallawlibrary

The Ruling of this Court cralawThe petition has no merit. Jurisdiction of the COA cralawPetitioner filed his money claim before the COA.A money claim is a demand for payment of a sum of money, reimbursement or compensation arising from law or contract due from or owing to a government agency.[8]Under Commonwealth Act No. 327,[9] as amended by Presidential Decree No. 1445,[10] money claims against the government shall be filed before the COA.[11]chanroblesvirtuallawlibrary cralawSection 2(1), Article IX(D) of the 1987 Constitution prescribes the powers of the COA, as follows: cralawSec. 2. (1)The Commission on Audit shall have the power, authority, and duty to examine, audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations with original charters, and on a postaudit basis; (a) constitutional bodies, commissions and offices that have been granted fiscal autonomy under this Constitution;(b) autonomous state colleges and universities; (c) other government-owned or controlled corporations and their subsidiaries; and (d) such non-governmental entities receiving subsidy or equity, directly or indirectly, from or through the Government, which are required by law or the granting institution to submit such audit as a condition of subsidy or equity.However, where the internal control system of the audited agencies is inadequate, the Commission may adopt such measures, including temporary or special pre-audit, as are necessary and appropriate to correct the deficiencies.It shall keep the general accounts of the Government and, for such period as may be provided by law, preserve the vouchers and other supporting papers pertaining thereto. cralawThe jurisdiction of the COA over money claims against the government does not include the power to rule on the constitutionality or validity of laws.The 1987 Constitution vests the power of judicial review or the power to declare unconstitutional a law, treaty, international or executive agreement, presidential decree, order, instruction, ordinance, or regulation in this Court and in all Regional Trial Courts.[12]cralawPetitioners money claim essentially involved the constitutionality ofSection 27 of PD 1638, as amended.Hence, the COA did not commit grave abuse of discretion in dismissing petitioners money claim. cralawPetitioner submits that the COA has the authority to order the restoration of his pension even without ruling on the constitutionality ofSection 27 of PD 1638, as amended.The COA actually ruled on the matter in its 13 January 2004 Resolution, thus: Furthermore, assuming arguendo that this Commission assumed jurisdiction over the instant case, claimants entitlement to the retirement benefits he was previously receiving must necessarily be severed or stopped upon the loss of his Filipino citizenship as prescribed in Section 27, P.D. No. 1638, as amended by P.D. No. 1650.[13]chanroblesvirtuallawlibrary The COA effectively denied petitioners claim because of the loss of his Filipino citizenship. Application of PD 1638, as amended Petitioner alleges thatPD 1638, as amended, should apply prospectively.The Office of the Solicitor General (OSG) agrees with petitioner.The OSG argues that PD 1638, as amended, should apply only to those who joined the military service after its effectivity, citing Sections 33 and 35, thus: cralawSection 33.Nothing in this Decree shall be construed in any manner to reduce whatever retirement and separation pay or gratuity or other monetary benefits which any person is heretofore receiving or is entitled to receive under the provisions of existing law.

The Issues xxxx cralawPetitioner raises the following issues:

cralawSection. 35.Except those necessary to give effect to the provisions of this Decree and to preserve the rights granted to retired or separated military personnel, all laws, rules and regulations inconsistent with the provisions of this Decree are hereby repealed or modified accordingly. The OSG further argues that retirement laws are liberally construed in favor of the retirees.Article 4 of the Civil Code provides: Laws shall have no retroactive effect, unless the contrary is provided.Section 36 of PD 1638, as amended, provides that it shall take effect upon its approval.It was signed on 10 September 1979.PD 1638, as amended, does not provide for its retroactive application.There is no question that PD 1638, as amended, applies prospectively. cralawHowever, we do not agree with the interpretation of petitioner and the OSG that PD 1638, as amended, should apply only to those who joined the military after its effectivity.Since PD 1638, as amended, is about the new system of retirement and separation from service of military personnel, it should apply to those who were in the service at the time of its approval. In fact, Section 2 of PD 1638, as amended, provides that th[e] Decree shall apply to all military personnel in the service of the Armed Forces of the Philippines.PD 1638, as amended, was signed on 10 September 1979.Petitioner retired in 1982, long after the approval of PD 1638, as amended.Hence, the provisions of PD 1638, as amended, apply to petitioner. Petitioner Has No Vested Right to his Retirement Benefits cralawPetitioner alleges that Section 27 of PD 1638, as amended, deprives him of his property which the Constitution and statutes vest in him.Petitioner alleges that his pension, being a property vested by the Constitution, cannot be removed or taken from him just because he became a naturalized American citizen.Petitioner further alleges that the termination of his monthly pension is a penalty equivalent to deprivation of his life. cralawThe allegations have no merit.cralawPD 1638, as amended, does not impair any vested right or interest of petitioner.Where the employee retires and meets the eligibility requirements, he acquires a vested right to the benefits that is protected by the due process clause.[14]At the time of the approval of PD 1638 and at the time of its amendment, petitioner was still in active service.Hence, petitioners retirement benefits were only future benefits and did not constitute a vested right.Before a right to retirement benefits or pension vests in an employee, he must have met the stated conditions of eligibility with respect to the nature of employment, age, and length of service.[15]It is only upon retirement that military personnel acquire a vested right to retirement benefits.Retirees enjoy a protected property interest whenever they acquire a right to immediate payment under pre-existing law.[16]chanroblesvirtuallawlibrary cralawFurther, the retirement benefits of military personnel are purely gratuitous in nature.They are not similar to pension plans where employee participation is mandatory, hence, the employees have contractual or vested rights in the pension which forms part of the compensation.[17] Constitutionality of Section 27 of PD 1638 cralawSection 27 of PD 1638, as amended, provides: cralawSection 27.Military personnel retired under Sections 4, 5, 10, 11 and 12 shall be carried in the retired list of the Armed Forces of the Philippines. The name of a retiree who loses his Filipino citizenship shall be removed from the retired list and his retirement benefits terminated upon such loss. cralawThe OSG agrees with petitioner that Section 27 of PD 1638, as amended, is unconstitutional.The OSG argues that the obligation imposed on petitioner to retain his Filipino citizenship as a condition for him to remain in the AFP retired list and receive his retirement benefit is contrary to public policy and welfare, oppressive, discriminatory, and violative of the due process clause of the Constitution.The OSG argues that the retirement law is in the nature of a contract between the government and its employees.The OSG further argues that Section 27 of PD 1638, as amended, discriminates against AFP retirees who have changed their nationality. cralawWe do not agree. cralawThe constitutional right to equal protection of the laws is not absolute but is subject to reasonable classification.[18] To be reasonable, the classification (a) must be based on substantial distinctions which make real differences; (b) must be germane to the purpose of the law; (c) must not be limited to existing conditions only; and (d) must apply equally to each member of the class.[19]chanroblesvirtuallawlibrary cralawThere is compliance with all these conditions.There is a substantial difference between retirees who are citizens of the Philippines and retirees who lost their Filipino citizenship by naturalization in another country, such as petitioner in the case before us.The constitutional right of the state to require all citizens to render

personal and military service[20] necessarily includes not only private citizens but also citizens who have retired from military service.A retiree who had lost his Filipino citizenship already renounced his allegiance to the state. Thus, he may no longer be compelled by the state to render compulsory military service when the need arises.Petitioners loss of Filipino citizenship constitutes a substantial distinction that distinguishes him from other retirees who retain their Filipino citizenship.If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from another.[21] cralawRepublic Act No. 7077[22] (RA 7077) affirmed the constitutional right of the state to a Citizen Armed Forces.Section 11 of RA 7077 provides that citizen soldiers or reservists include ex-servicemen and retired officers of the AFP.Hence, even when a retiree is no longer in the active service, he is still a part of the Citizen Armed Forces.Thus, we do not find the requirement imposed by Section 27 of PD 1638, as amended, oppressive, discriminatory, or contrary to public policy.The state has the right to impose a reasonable condition that is necessary for national defense.To rule otherwise would be detrimental to the interest of the state. cralawThere was no denial of due process in this case.When petitioner lost his Filipino citizenship, the AFP had no choice but to stop his monthly pension in accordance withSection 27 of PD 1638, as amended.Petitioner had the opportunity to contest the termination of his pension when he requested for reconsideration of the removal of his name from the list of retirees and the termination of his pension.The Judge Advocate General denied the request pursuant to Section 27 of PD 1638, as amended. cralawPetitioner argues that he can reacquire his Filipino citizenship under Republic Act No. 9225[23](RA 9225), in which case he will still be considered a natural-born Filipino.However, petitioner alleges that if he reacquires his Filipino citizenship under RA 9225, he will still not be entitled to his pension because of its prior termination.This situation is speculative.In the first place, petitioner has not shown that he has any intention of reacquiring, or has done anything to reacquire, his Filipino citizenship.Secondly, in response to the request for opinion of then AFP Chief of Staff, General Efren L. Abu, the Department of Justice (DOJ) issued DOJOpinion No. 12, series of 2005, dated 19 January 2005, thus: [T]he AFP uniformed personnel retirees, having re-acquired Philippine citizenship pursuant to R.A. No. 9225 and its IRR, are entitled to pension and gratuity benefits reckoned from the date they have taken their oath of allegiance to the Republic of the Philippines.It goes without saying that these retirees have no right to receive such pension benefits during the time that they have ceased to be Filipinos pursuant to the aforequoted P.D. No. 1638, as amended, and any payment made to them should be returned to the AFP. x x x.[24] cralawHence, petitioner has other recourse if he desires to continue receiving his monthly pension.Just recently, in AASJS Member-Hector Gumangan Calilung v. Simeon Datumanong,[25] this Court upheld the constitutionality of RA 9225.If petitioner reacquires his Filipino citizenship, he will even recover his naturalborn citizenship.[26]In Tabasa v. Court of Appeals,[27] this Court reiterated that [t]he repatriation of the former Filipino will allow him to recover his natural-born citizenship x x x. cralawPetitioner will be entitled to receive his monthly pension should he reacquire his Filipino citizenship since he will again be entitled to the benefits and privileges of Filipino citizenship reckoned from the time of his reacquisition of Filipino citizenship. There is no legal obstacle to the resumption of his retirement benefits from the time he complies again with the condition of the law, that is, he can receive his retirement benefits provided he is a Filipino citizen. cralawWe acknowledge the service rendered to the country by petitioner and those similarly situated.However, petitioner failed to overcome the presumption of constitutionality of Section 27 of PD 1638, as amended.Unless the provision is amended or repealed in the future, the AFP has to apply Section 27 of PD 1638, as amended. cralawWHEREFORE, we DISMISS the petition.We AFFIRM the9 January 2003 Decision and 13 January 2004 Resolution of the Commission on Audit. G.R. Nos. 146184-85 January 31, 2008

MANILA INTERNATIONAL AIRPORT AUTHORITY and ANTONIO P. GANA, petitioners, vs. OLONGAPO MAINTENANCE SERVICES, INC. and TRIPLE CROWN SERVICES, INC., respondents. x-------------------------------------------x G.R. No. 161117 January 31, 2008

ANTONIO P. GANA (in his capacity as Gen. Manager of the Manila International Airport Authority) and MANILA INTERNATIONAL AIRPORT AUTHORITY, petitioners,

vs. TRIPLE CROWN SERVICES, INC., respondent. x-------------------------------------------x G.R. No. 167827 January 31, 2008

In reply, MIAA wrote TCSI and OMSI reiterating its disinclination to renew the latters contracts, adding that it was to the governments advantage to instead just negotiate with other contractors. The MIAA said that awarding a contract through negotiation was in accordance with Section 9 of Executive Order No. (EO) 903; Sec. 82 of Republic Act No. (RA) 8522, otherwise known as the General Appropriations Act for 1998; and Sec. 417 of the Government Accounting and Auditing Manual (GAAM).15 Consequently, OMSI and TCSI instituted civil cases against MIAA to forestall the termination of their contracts and prevent MIAA from negotiating with other service contractors. Civil Case Nos. 98-1875 and 98-1885 On October 26, 1998, OMSI filed with the Pasay City RTC a Complaint for Injunction and Damages with Prayer for Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction16 against MIAA (OMSI case). Docketed as Civil Case No. 98-1875, the case was raffled to Branch 119 of the court. Two days after, TCSI filed Civil Case No. 98-1885 (first TCSI case) for Prohibition, Mandamus and Damages with Prayer for Temporary Restraining Order (TRO) and Injunction17 against Gana and Goodline Staffers & Allied Services, Inc. (Goodline), a service contractor that was awarded the contract heretofore pertaining to TCSI. This was raffled to the RTC, Branch 113, Pasay City. The OMSI and TCSI cases are now the consolidated cases G.R. Nos. 146184-85. Both Branches 113 and 119 granted TROs to OMSI and TCSI.18 Subsequently, on November 18, 1998, Branch 119 granted a preliminary injunctive writ19 in favor of OMSI. A day after, Branch 113 also granted a similar writ20 in favor of TCSI. Without filing any motion for reconsideration, MIAA assailed as void the issuance of the injunctive writs before the CA through petitions for certiorari under Rule 65 of the Rules of Court, docketed as CA-G.R. SP Nos. 50087 and 50131.21 Meanwhile, even as the cases were pending before the CA, Branch 113 continued to hear the first TCSI case. On February 1, 2001, the trial court rendered a Decision declaring as null and void the negotiated contract award to Goodline and the Resolution of the MIAA Board dated October 2, 1998, which authorized Gana to negotiate the award of the service contract, and ordered the holding of a public bidding on the janitorial service contract. Branch 113 also ordered the writ of preliminary injunction in the case enforced until after a qualified bidder is determined.22 In its Decision, the trial court said MIAA and Gana violated TCSIs right to equal protection and that the authority to negotiate the MIAA Board granted to Gana was tainted with grave abuse of discretion as Ganas exercise of the managements prerogative to choose the awardee of a service contract was done arbitrarily. Gana, the RTC added, should have conducted a public bidding, noting that Gana erred in relying on the law and executive issuances he cited because those do not do away with the required public bidding, as held in National Food Authority v. Court of Appeals.23 Following the denial of Ganas motion for reconsideration, MIAA and Gana appealed before the CA, their recourse docketed as CA-G.R. SP No. 67092. Civil Case Nos. 02-0517 and 03-0025 During the pendency of the appeal of the first TCSI case before the CA in CA-G.R. SP No. 67092, MIAA and TCSI engaged in several exchanges regarding payment of TCSI employees salaries. It appears that MIAA promised to pay TCSIs employees who were allegedly not paid their salaries on time. According to MIAA, it had not paid TCSI the monthly billings per contract owing to the non-submission by TCSI, as required in the contract, of the proper billing requirements and proof of actual payment of TCSIs employees for the payroll period. On September 9, 2002, TCSI sent a demand letter24 to MIAA for contract billings since late June 2002. In the letter, TCSI also protested MIAAs unilateral precondition that the former submit proof of actual wage payment to its employees. TCSI claimed MIAAs delay in payment resulted in financial losses for TCSI. TCSI reiterated its demand on October 4, 2002 for the periods covering July to September 2002, TCSI this time accusing MIAA of deliberately delaying payment which had adversely affected TCSIs business since it could not increase its manpower nor buy enough janitorial supplies and materials, making it liable to MIAA for liquidated damages. TCSI appealed to MIAA to waive the liquidated damages it was charging TCSI for the period July to September 2002. On October 30, 2002, MIAA informed TCSI that it was terminating the latters contract effective 10 days from receipt of the notice or on November 14, 2002.25 As reason therefor, MIAA alleged that TCSIs manpower

TRIPLE CROWN SERVICES, INC., petitioner, vs. MANILA INTERNATIONAL AIRPORT AUTHORITY and THE COURT OF APPEALS, respondents. x-------------------------------------------x DEC ISION VELASCO, JR., J.: The rationale behind the requirement of a public bidding, as a mode of awarding government contracts, is to ensure that the people get maximum benefits and quality services from the contracts. More significantly, the strict compliance with the requirements of a public bidding echoes the call for transparency in government transactions and accountability of public officers. Public biddings are intended to minimize occasions for corruption and temptations to abuse of discretion on the part of government authorities in awarding contracts. Before us are three separate petitions from service contractors that question the legality of awarding government contracts without public bidding. The first petition, docketed as G.R. Nos. 146184-85, assails the November 24, 2000 Decision1 of the Court of Appeals (CA) in consolidated cases CA-G.R. SP Nos. 50087 and 50131. The CA affirmed the November 18, 1998 Order2 of the Regional Trial Court (RTC), Branch 119, Pasay City in Civil Case No. 98-1875 entitled Olongapo Maintenance Services, Inc. v. Manila International Airport Authority and Antonio P. Gana, granting an injunctive writ to respondent Olongapo Maintenance Services, Inc. (OMSI). The same CA Decision likewise upheld the November 19, 1998 Order3 of the RTC, Branch 113, Pasay City, granting an injunctive writ to respondent Triple Crown Services, Inc. (TCSI) in Civil Case No. 98-1885 entitled Triple Crown Services, Inc. v. Antonio P. Gana (In his capacity as General Manager of the Manila International Airport Authority) and Goodline Staffers & Allied Services, Inc. The second, docketed as G.R. No. 161117,4 assails the November 28, 2003 CA Decision5 in CA-G.R. SP No. 67092, which affirmed the Decision6 dated February 1, 2001 of the RTC, Branch 113, Pasay City and its April 16, 2001 Order7 in Civil Case No. 98-1885, extending the November 19, 1998 injunctive writ adverted to earlier, ordering petitioners to conduct a public bidding for the areas serviced by respondent TCSI, and denying petitioners motion for reconsideration, respectively. In the third, docketed as G.R. No. 167827,8 TCSI assails the September 9, 2004 CA Decision9 in CA-G.R. SP No. 76138, as veritably reiterated in the CAs April 13, 2005 Resolution,10 which granted Manila International Airport Authoritys (MIAAs) petition for certiorari charging TCSI with forum shopping. The CA lifted the March 19, 2003 Writ of Mandamus11 issued by the RTC, Branch 115 in Civil Case No. 03-0025 entitled Triple Crown Services, Inc. v. Manila International Airport Authority for Mandamus with Damages. We consolidated G.R. Nos. 146184-85 with G.R. No. 161117 and G.R. No. 167827 as they all arose from the cancellation of the service contracts of OMSI and TCSI with MIAA.12 The antecedent facts are as follows: OMSI and TCSI were among the five contractors of MIAA which had janitorial and maintenance service contracts covering various areas in the Ninoy Aquino International Airport. Before their service contracts expired on October 31, 1998, the MIAA Board of Directors, through Antonio P. Gana, then General Manager (GM) of MIAA, wrote OMSI and TCSI informing them that their contracts would no longer be renewed after October 31, 1998.13 On September 28, 1998, TCSI, in a letter to Gana, expressed its concern over the award of its concession area to a new service contractor through a negotiated contract. It said that to award TCSIs contract by mere negotiation would violate its right to equal protection of the law. TCSI thus suggested that a public bidding be conducted and that the effectivity of its service contract be meanwhile extended until a winning bid is declared. A similar letter from OMSI to MIAA followed.14

was insufficient and, thus, was delinquent in the delivery of suppliesboth in violation of paragraph 9.0226 of the service contract. TCSI protested the termination which it viewed as violative of the injunctive writ issued by Branch 113. It blamed MIAA for deliberately refusing and delaying to pay TCSI, which forced TCSI into a situation where it could not comply with its contract. TCSI accused MIAA of arbitrarily terminating its contract to replace TCSI with another outfit and for ignoring Article VIII of the contract, the arbitration clause. It also posited that par. 9.02 was a clause of adhesion and could not be enforced. On November 11, 2002, TCSI sent a demand letter27 for PhP 18,091,957.94 to MIAA, the amount representing, among others, claims for janitorial services, illegal deductions made from billing for janitorial services, and arbitrary deductions made for alleged undelivered supplies. In its letter-reply28 of November 13, 2002, MIAA asserted that the termination of TCSIs service contract did not violate the injunctive writ as the writ covered only the extension of the contract period until such time that a new awardee was chosen through public bidding. To MIAA, the writ did not enjoin contract termination for cause, such as for violation of par. 9.02 of the contract. Moreover, MIAA asserted that TCSI did not comply with Art. 1, par. 1.03 of the "status quo contract" which stipulates that TCSI shall strictly and fully comply with the procedures/instructions issued by MIAA, as part of the invitation to bid, and instructions that may be issued by MIAA from time to timeall integral parts of the contract. According to MIAA, it was TCSI that chose to ignore these instructions and did not present proof of actual payment to TCSI employees. On the eve of November 18, 2002, MIAA refused entry to TCSI employees and took over the janitorial services in the area serviced by TCSI. Subsequently, on November 25, 2002, TCSI filed a Petition for Contempt with Motion to Consolidate,29 impleading Edgardo Manda who took over as GM of MIAA. The petition, entitled Triple Crown Services, Inc. v. Edgardo Manda, in his capacity as General Manager of the Manila International Airport Authority and docketed as Civil Case No. 02-0517 (second TCSI case for contempt), was raffled to the RTC, Branch 108, Pasay City. In it, TCSI mainly alleged that the unilateral termination by MIAA of their service contract on alleged contract violation brought about by MIAAs refusal to pay TCSI was a blatant and contumacious violation of the injunctive writ issued by Branch 113. TCSI also prayed that the petition for contempt be consolidated with the first TCSI case. On the same day that the petition for contempt was filed, MIAA sent a reply30 to TCSIs demand letter asserting that MIAA could not pay the items TCSI demanded because TCSI had not presented any billings for the period it wanted to be paid, among other reasons. Meanwhile, pending resolution of the second TCSI case for contempt, TCSI filed on January 24, 2003 a Petition for Mandamus with Damages31 against MIAA entitled Triple Crown Services, Inc. v. Manila International Airport Authority, docketed as Civil Case No. 03-0025 (third TCSI case for mandamus) and again raffled to Branch 115, wherein TCSI sought to maintain the status quo order issued by Branch 113 in the first TCSI case and to compel MIAA to pay PhP 18 million to TCSI. In its Comment, MIAA denied all of TCSIs allegations and accused TCSI of forum shopping. On March 4, 2003, in the third TCSI case for mandamus, Branch 115 granted32 the Writ of Mandamus to TCSI and ordered MIAA to comply with the Writ of Preliminary Injunction issued by Branch 113 in the first TCSI case. A week after and because MIAA refused to allow TCSI to peacefully continue its contract services, TCSI filed an Urgent Manifestation With Prayer for the Court to Cite Respondent Motu Proprio in Contempt.33 After the trial court denied MIAAs Motion for Reconsideration,34 Manda, in compliance with the trial courts show cause order, explained that the writ of mandamus had not yet become final and executory and a writ of execution was still needed before mandamus could be enforced. On March 24, 2003, MIAA assailed the March 4, 2003 and March 19, 2003 Orders of the trial court before the CA through a petition for certiorari under Rule 65 in CA-G.R. SP No. 76138, praying for a TRO and/or writ of preliminary injunction for the trial court to desist from further proceedings with the third TCSI case for mandamus. A day after, in the second TCSI case for contempt, the RTC directed the arrest of Manda for his failure to comply with the orders of the court. This did not materialize because two days after, the CA granted a TRO enjoining the enforcement of the assailed orders and the writ of mandamus and, consequently, lifted the warrant of arrest for Manda.

Thereafter, Manda filed a Manifestation and Motion to Dismiss the second TCSI case for contempt on the ground of forum shopping. The trial court denied the motion on the ground that the contempt case was an entirely distinct and separate cause of action from the mandamus case pending in another RTC branch. It said the contempt case was grounded on the alleged disobedience of Manda of the RTC, Branch 113 Order and injunctive writ in the first TCSI case appealed before the CA which could not be considered final and executory. Hence, the trial court ruled that the contempt case was prematurely filed and it thus had not acquired jurisdiction over it. The Ruling of the Court of Appeals in the consolidated cases docketed CA-G.R. SP Nos. 50087 and 50131 involving the injunctive writs issued in the OMSI case and First TCSI case Recall that MIAA assailed the injunctive writs issued by the trial court thru petitions for certiorari under Rule 65 before the CA, docketed as CA-G.R. SP Nos. 50087 and 50131. On November 24, 2000, the CA rendered the assailed Decision, denying due course to and dismissing the petitions.35 The CA stated that respondentsjudges did not gravely abuse their discretion in issuing the injunctive writs enjoining MIAA from terminating the service contracts of OMSI and TCSI. Relying on Manila International Airport Authority v. Mabunay (Mabunay)36 and National Food Authority,37 the CA said that MIAA and Gana failed to satisfactorily show why the aforementioned cases should not apply. Moreover, the appellate court explained that notwithstanding the expiration of the service contracts of OMSI and TCSI, they both have extant interests as possible applicants. Aggrieved by the CA Decision, MIAA and Gana filed the instant petition docketed as G.R. Nos. 146184-85. The Ruling of the Court of Appeals in CA-G.R. SP No. 67092 Recall likewise that the RTC in the first TCSI case granted an injunctive writ in favor of TCSI. On appeal, on November 28, 2003, the CA in CA-G.R. SP No. 67092 rendered the assailed Decision, affirming that of the RTC38 and reasoning that Sec. 1(e) of EO 301, series of 1987, entitled Decentralizing Actions on Government Negotiated Contracts, Lease Contracts and Records Disposal, relied upon by Gana and MIAA, does not apply to service contracts but only to requisitions of needed supplies. The CA applied our ruling in Kilosbayan, Incorporated v. Morato (Kilosbayan),39 where we held that the "supplies" mentioned as exceptions in EO 301 refer only to contracts for the purchase of supplies, materials, and equipment, and do not refer to other contracts, such as lease of equipment, and that in the same vein, "supplies" in Sec. 1(e) of EO 301 only include materials and equipment and not service contracts, which are included in the general rule of Sec. 1. The CA, relying on Mabunay40 and National Food Authority, explained that Sec. 9 of EO 903, Sec. 82 of RA 8522, and Sec. 417 of the GAAM must be harmonized with the provisions of EO 301 on public biddings in all government contracted services. The rationale for public bidding, the CA said, is to give the public the best possible advantages through open competition. Without filing a motion for reconsideration, Gana and MIAA now question the above Decision of the appellate court in CA-G.R. SP No. 67092 through a Petition for Review on Certiorari docketed as G.R. No. 161117 before us. The Ruling of the Court of Appeals in CA-G.R. SP No. 76138 On September 9, 2004, the CA rendered the assailed Decision, granting MIAAs petition for certiorari. It annulled and set aside the March 4, 2003 Order and March 19, 2003 Writ of Mandamus and dismissed the third TCSI case for mandamus with prejudice.41 The CA found TCSI guilty of forum shopping when it filed the third TCSI case for mandamus while the second TCSI case for contempt was pending. Further, the CA observed that the two cases have identical parties, prayed for the same reliefs, and were anchored on the same writ of preliminary injunction issued in the first TCSI case. Citing Philippine Commercial International Bank v. Court of Appeals,42 the CA concluded that elements of litis pendentia were present and TCSI was guilty of forum shopping. TCSIs motion for reconsideration was likewise denied in the April 13, 2005 CA Resolution. TCSI now assails the above Decision and Resolution before us in a Petition for Review on Certiorari under Rule 45 docketed as G.R. No. 167827. The Issues In G.R. Nos. 146184-85, MIAA and Gana raise the following issues for our consideration: 1. Whether [or not] the Court of Appeals erred in declaring that respondents had extant interests in the awarding of the service contracts. 2. Whether [or not] the Court of Appeals erred in holding that petitioners had no power to award the service contracts through negotiation.43

In G.R. No. 161117, Gana and MIAA raise the following issues for our consideration: Whether [or not] the Court of Appeals erred in holding that the exception in Section 1 (e) of [EO] 301 applies only to requisition of needed supplies and not to the contracting of public services. Whether [or not] the Court of Appeals erred in holding that respondent is not estopped from questioning the negotiated contract between MIAA and [Goodline]. Whether there was a violation of respondents right to equal protection.44 In G.R. No. 167827, TCSI raises the following issues for our consideration: I. Whether or not the respondent can be compelled by Mandamus to maintain the status quo ante, as earlier ordered by this Honorable Court and be held liable for damages for unilaterally terminating the service contract of the petitioner in violation of said status quo order. II. Whether or not the herein petitioner is guilty of forum shopping. III. Whether or not the herein private respondent complied with the requisites for the institution of a petition for certiorari under Rule 65 with the Court of Appeals.45 Propriety of the issuance of the injunctions We will jointly tackle G.R. Nos. 146184-85 and 161117 since the issues raised are closely interwoven. The incidents in the two assailed decisions not only arose from the first TCSI case, but also involved the same issue of the propriety of preliminary and permanent injunctions. MIAA and Gana strongly assert that OMSI and TCSI have no right to be protected by the injunctive writs as the term of their service contracts had already expired on October 31, 1998. Petitioners rely on National Food Authority, where we held that no court can compel a party to agree to a contract or its extension through an injunctive writ since an extension of a contract is only upon mutual consent of the parties. MIAA and Gana also argue that OMSI and TCSI are estopped from questioning the validity of a contract acquired through negotiations since the service contracts of OMSI and TCSI with MIAA were also negotiated contracts and did not undergo public bidding. These negotiated contracts are among the exceptions in Sec. 1 of EO 301. MIAA and Gana posit that the exceptions in Sec. 1 cover both contracts for public services and contracts for supplies, materials, and equipment. And, since TCSIs contract expired on October 31, 1998, and MIAA refused to extend the contracts, OMSI and TCSI have no right of renewal or extension of their service contract. We agree with MIAA and Gana. It is undisputed that the service contracts of OMSI and TCSI expired on October 31, 1998 and were not extended by MIAA. Hence, all the rights and obligations arising from said contracts were extinguished on the last day of the term. As a result, OMSI and TCSI had already lost their rights to render janitorial and maintenance services for MIAA starting November 1, 1998. Such being the case, the Court rules that the TROs and writs of preliminary injunction issued in favor of OMSI and TCSI are irregular and without legal basis for the following reasons, to wit: (1) The November 18, 1998 injunctive writ in favor of OMSI in the OMSI case and the November 19, 1998 injunctive writ in favor of TCSI in the first TCSI case were in the nature of writs of mandatory preliminary injunction. In Bautista v. Barcelona,46 we made clear that a mandatory injunction is an extreme remedy and will be granted only on a showing that (a) the invasion of the right is material and substantial; (b) the right of the complainant is clear and unmistakable; and (c) there is an urgent and paramount necessity for the writ to prevent serious damage.47 It is apparent that OMSI and TCSI have no more legal rights under the service contracts and, therefore, they have not met the vital procedural requirement that they must have material and substantial rights that have to be protected by courts.

(2) The service contracts of OMSI and TCSI may not be extended through the instrumentality of an injunctive writ. It is a doctrine firmly settled in this jurisdiction that courts have no power to make a contract for the parties nor can they construe contracts in such a manner as to change the terms of the contracts not contemplated by the parties.48 Verily, under Art. 1308 of the Civil Code, the contract between the parties is the law between them; mutuality being an essential characteristic of contracts giving rise to reciprocal obligations.49 And under Art. 1306 of the Code, the parties may establish stipulations mutually acceptable to them for as long as such are not contrary to law, morals, good customs, public order, or public policy. And where a determinate period for a contracts effectivity and expiration has been mutually agreed upon and duly stipulated, the lapse of such period ends the contracts effectivity and the parties cease to be bound by the contract. It is undisputed that the service contracts were to terminate on October 31, 1998. Thus, by the lapse of such date, where no contract extension had been mutually agreed upon by the parties, the trial court cannot force the parties nor substitute their mutual consent to a contract extension through an injunction. Indeed, MIAAs decision not to extend the service contracts of OMSI and TCSI is a valid exercise of management prerogative. Certainly, there is no law that prohibits management discretion, even if it be a governmental agency or instrumentality or a government-owned or controlled corporation, from extending or not extending a service contract. Certainly, MIAAs management can determine, in the exercise of its sound discretion and the options available, given the factual and economic milieu prevailing, whether or not it is to its interest to extend a service contract for janitorial and maintenance services. From the foregoing premises, the RTCs in Civil Case Nos. 98-1875 and 98-1885 have erred in issuing the assailed writs of mandatory injunction. Hence, these writs must be nullified. The next issue to be resolved is whether MIAA, in the context of this case, can be barred from entering into negotiated contracts after the expiration of the service contracts of OMSI and TCSI on October 31, 1998. The answer is in the affirmative. Exceptions in EO 301 apply to purchase of supplies, materials and equipment not to contracts for public services We cannot agree with the contention of MIAA and Gana that the exceptions to the public bidding rule in Sec. 1 of EO 301 cover both contracts for public services and for supplies, material, and equipment. Their reliance on Sec. 1(e) of EO 301 for the award of a service contract for janitorial and maintenance services without public bidding is misplaced. For clarity, we quote in full Sec. 1 of EO 301: Section 1. Guidelines for Negotiated Contracts. Any provision of the law, decree, executive order or other issuances to the contrary nothwithstanding, no contract for public services or for furnishing supplies, materials and equipment to the government or any of its branches, agencies or instrumentalities shall be renewed or entered into without public bidding, except under any of the following situations: a. Whenever the supplies are urgently needed to meet an emergency which may involve the loss of, or danger to, life and/or property; b. Whenever the supplies are to be used in connection with a project or activity which cannot be delayed without causing detriment to the public service; c. Whenever the materials are sold by an exclusive distributor or manufacturer who does not have sub-dealers selling at lower prices and for which no suitable substitute can be obtained elsewhere at more advantageous terms to the government; d. Whenever the supplies under procurement have been unsuccessfully placed on bid for at least two consecutive times, either due to lack of bidders or the offers received in each instance were exorbitant or nonconforming to specifications; e. In cases where it is apparent that the requisition of the needed supplies through negotiated purchase is most advantageous to the government to be determined by the Department Head concerned; and f. Whenever the purchase is made from an agency of the government. (Emphasis supplied.) In Andres v. Commission on Audit, this Court explained the rationale behind EO 301, upholding the general rule that contracts shall not be entered into or renewed without public bidding, thus:

Executive Order No. 301 explicitly permits negotiated contracts in particular identified instances. In its preamble, it adverted to the then existing set-up of "a centralized administrative system . . . for reviewing and approving negotiated contracts . . .," and to the unsatisfactory character thereof in that "such centralized administrative system is not at all facilitative particularly in emergency situations, characterized as it is by red tape and too much delay in the processing and final approval of the required transaction or activity;" hence, the "need to decentralize the processing and final approval of negotiated contracts . . . " It then laid down, in its Section 1, "guidelines for negotiated contracts" thenceforth to be followed. While affirming the general policy that contracts shall not be entered into or renewed without public bidding, x x x. (Emphasis supplied.)50 It is only in the instances enumerated above that public bidding may be dispensed with and a contract closed through negotiations. MIAA and Gana posit the view that Sec. 1(e) of EO 301 includes contracts for public services and is not limited to supplies, materials, or equipment, and applies to all forms of contracts. We are not convinced. In Kilosbayan,51 we ruled that Sec. 1 of EO 301 "applies only to the contracts for the purchase of supplies, materials, and equipment. It does not cover contracts of lease of equipment like the [Equipment Lease Agreement]." While the lease of equipment was the subject of Kilosbayan, the ruling therein can very well apply to the cases at bar. We agree with the apt observation of OMSI and TCSI that Sec. 1 of EO 301 and the exceptions to the bidding rule enumerated therein only pertain to contracts for the procurement of supplies, materials, and equipment. Thus, corollarily, this express enumeration excludes all others in accord with the elemental principle in legal hermeneutics, expressio unius est exclusio alterius or the express inclusion of one implies the exclusion of all others. A contract for janitorial and maintenance services, like a contract of lease of equipment, is not included in the exceptions, particularly Sec. 1(e) relied upon by MIAA and Gana. Moreover, in Kilosbayan, in denying Kilosbayan Incorporateds motion for reconsideration and debunking its contention that EO 301 covers all types of contracts for public services, this Court, in a Resolution, reiterated its original ruling and held that EO 301 was promulgated merely to decentralize the system of reviewing negotiated contracts of purchase for the furnishing of supplies, materials, and equipment as well as lease contracts of buildings. We concluded: In sum, E.O. No. 301 applies only to contracts for the purchase of supplies, materials and equipment, and it was merely to change the system of administrative review of emergency purchases, as theretofore prescribed by E.O. No. 298, that E.O. No. 301 was issued on July 26, 1987. Part B of this Executive Order applies to leases of buildings, not of equipment, and therefore does not govern the lease contract in this case. (Emphasis supplied.) 52 It is thus clear that the contention of MIAA and Gana that the exceptions in EO 301, particularly Sec. 1(e), include contracts for public services cannot be sustained. Further, suffice it to say that Sec. 9 of EO 903,53 Sec. 82 of RA 8522 or the General Appropriations Act for 1998, and Sec. 417 of the GAAM, likewise relied upon by MIAA and Gana for grant of authority to negotiate service contract, do not do away with the general rule on public bidding. In Mabunay, we ruled that RA 7845 or the General Appropriations Act for 1995 cannot be construed to eliminate public bidding in the award of a contract for security services, as RA 7845 "is not the governing law on the award of the service contracts by government agencies nor does it do away with the general requirement of public bidding"54 and that "administrative discretion may not transcend the statutes"55 that require public bidding. Thus, RA 8522, particularly its Sec. 82, does not dispense with the requirement of public bidding to award a contract for janitorial and maintenance services. Furthermore, our ruling in National Food Authority, cited in Mabunay, is still valid. It directly applies to the legal issue in the instant consolidated cases that public bidding is required for the award of service contracts. RA 9184 provides for alternative procurement procedures In sum, we reiterate the legal requirement of competitive public bidding for all government public service contracts and procurement of materials, supplies, and equipment. Competitive public bidding may not be dispensed with nor circumvented, and alternative modes of procurement for public service contracts and for supplies, materials, and equipment may only be resorted to in the instances provided for by law. In the instant case, no express provision of law has granted MIAA the right to forego public bidding in negotiating the award of contracts for janitorial and maintenance services. In Abaya v. Ebdane,56 this Court outlined the history of Philippine procurement laws from the introduction of American public bidding through Act No. 22, enacted on October 15, 1900, and the subsequent laws and

issuances. On October 8, 2001, President Arroyo issued EO 40 which repealed, amended, or modified all executive issuances, orders, rules and regulations, or parts inconsistent with her EO.57 On January 10, 2003, President Arroyo signed into law RA 9184,58 which expressly repealed, among others, EO 40, EO 262, EO 301, EO 302, and Presidential Decree No. 1594, as amended, and is the current law on government procurement. This law still requires public bidding as a preferred mode of award. However, RA 9184 allows exceptions to public bidding rule in certain instances, conditions, or extraordinary circumstances. Sec. 5359 of RA 9184 in particular authorizes negotiated procurement, while other alternative methods of procurement are set forth under Art. XVI60 of RA 9184. Thus, under the present law, MIAA can enter into negotiated contracts in the exceptional situations allowed by RA 9184. With regard to the prayer for a mandatory preliminary injunction, OMSI and TCSI have amply demonstrated their right to require the holding of a public bidding for the service contracts with MIAA. While we have previously explained that OMSI and TCSI have no right to a writ of mandatory injunction to have their service contracts extended by the courts beyond the fixed term, the situation is different with respect to their right to participate in the public bidding prescribed by law. Since they were the previous service contractors of MIAA and have manifested their desire to participate in the public bidding for the new contracts, then they have satisfactorily shown that they have material and substantial rights to be protected and preserved by a mandatory injunctive writ against MIAA. Considering that the negotiated contract is contextually illegal under EO 301, EO 903, Sec. 82 of RA 8522, and Sec. 417 of the GAAM, then MIAA can be directed to conduct a public bidding instead of resorting to a negotiated contract. MIAA, however, eventually discarded the negotiation of new contracts with prospective service contractors and has decided to hire personnel to render janitorial and messengerial services starting July 31, 2005. Clearly, the employment of said personnel is within the realm of management prerogatives of MIAA allowed under its charter, EO 903, and other existing laws. Since the hiring of said employees dispensed with the need for getting service contractors, then the relief of requiring MIAA to conduct public bidding is already unavailing and has become moot and academic. On the claim of OMSI and TCSI that their rights to equal protection of laws were violated by the negotiation of the contracts by MIAA with other service contractors, the Court finds no law that is discriminatory against them in relation to their expired service contracts. EO 301, EO 903, RA 8522, and the GAAM are not discriminatory against them precisely because, as the Court ruled, there has to be public bidding where OMSI and TCSI are allowed to participate. At most, what can be discriminatory is the intended negotiation of the new service contracts by MIAA which prevents OMSI and TCSI from participating in the bidding. We find such act illegal and irregular because of the wrong application of the laws by MIAA and not because the pertinent laws are discriminatory against them. We stressed in Genaro R. Reyes Construction, Inc. v. CA: [A]lthough the law be fair on its face, and impartial in appearance, yet if applied and administered by the public authorities charged with their administration x x x with an evil eye and unequal hand so as to practically make unjust and illegal determination, the denial of equal justice is still within the prohibition of the Constitution.61 Given the antecedent facts of these consolidated cases, we agree with the courts a quo that the constitutional right of OMSI and TCSI to equal protection is violated by MIAA and Gana when no public bidding was called precisely because the latter were going to award the subject service contracts through negotiation. Worse, the acts of MIAA and Gana smack of arbitrariness and discrimination as they not only did not call for the required public bidding but also did not even accord OMSI and TCSI the opportunity to submit their proposals in a public bidding. What OMSI and TCSI got was a terse reply that their contracts will not be renewed and that MIAA would negotiate contracts lower than those of OMSI and TCSI without granting them the opportunity to submit their own bids or proposals. On the ground of uneven protection of law, we could grant the prayer for an order directing a public bidding. Unfortunately, such action is already foreclosed by the decision of MIAA not to hire any service contractor. The CA has discretion to give due course to the petition We now tackle the procedural issues raised in G.R. No. 167827 on whether MIAA complied with the requirements of Rule 65 before the CA and whether forum shopping is present. TCSI argues that MIAAs petition for certiorari under Rule 65 before the CA should have been outrightly dismissed for manifest violation of par. 2, Sec. 1 of Rule 65 in failing to attach the required certified true copies of the assailed RTC Orders. Moreover, TCSI contends that MIAA failed to raise any genuine jurisdictional issues correctable by certiorari, as the issues raised by MIAA were all factual matters which involved questions of error of judgment and not of jurisdiction. We are not persuaded.

Sec. 1 of Rule 65 pertinently provides: SECTION 1. Petition for certiorari.When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of Section 3, Rule 46. The above provision clearly vests the CA the authority and discretion to give due course to the petitions before it or to dismiss them when they are not sufficient in form and substance, the required pleadings and documents are not attached to them, and no sworn certificate on non-forum shopping is submitted. This discretion must be exercised, not arbitrarily or oppressively, but in a reasonable manner in consonance with the spirit of the law, always with the view in mind of seeing to it that justice is served. The CA has exercised its discretion in giving due course to MIAAs petition before it. We will not delve into this issue to bear on the instant petition. Certainly, TCSI has not shown that the CA has arbitrarily or oppressively exercised its sound discretion. Nor has it shown that the appellate court was not able to or could not go over the pertinent documents in resolving the instant case on review before it. Neither has TCSI shown any manifest bias, fraud, or illegal consideration on the part of the CA to merit reconsideration for the grant of due course. Certiorari is a proper remedy for an interlocutory order granting mandamus (Third TCSI case for Mandamus) The March 4, 2003 and March 19, 2003 Orders granting mandamus and denying MIAAs motion for reconsideration, respectively, are clearly interlocutory orders. What we held in Metropolitan Bank & Trust Company v. Court of Appeals is instructive, thus: It has been held that "[a]n interlocutory order does not terminate or finally dismiss or finally dispose of the case, but leaves something to be done by the court before the case is finally decided on the merits." It "refers to something between the commencement and end of the suit which decides some point or matter but it is not the final decision on the whole controversy." Conversely, a final order is one which leaves to the court nothing more to do to resolve the case. The test to ascertain whether an order is interlocutory or final is: "Does it leave something to be done in the trial court with respect to the merits of the case? If it does, it is interlocutory; if it does not, it is final."62 TCSI argues that since the trial court still has to hear the issue on damages in Civil Case No. 03-0025 for mandamus and no final decision has yet been rendered, the mandamus writ is an interlocutory one, and cannot be subject of an appeal. However, Rule 41 clearly states that while an interlocutory order cannot be subject of an appeal and the aggrieved party has to await the decision of the court, still it allows the filing of a special civil action of certiorari under Rule 65 when there is grave abuse of discretion in the issuance of the order. Moreover, under the circumstances of the case, MIAA had no other plain, speedy, and adequate remedy other than a petition for certiorari under Rule 65. MIAA raised issues alleging grave abuse of discretion on the part of the RTC TCSI argues that MIAA only raised factual matters before the CA which the trial court has ruled upon in the exercise of its jurisdiction and thus are not reviewable by certiorari but only by appeal. Contrary to TCSIs contention, a close perusal of the issues raised by MIAA in CA-G.R. SP No. 76138 shows that not all the issues the latter raised were factual issues. MIAA assailed the lack or excess of jurisdiction of the RTC resulting from grave abuse of discretion when it issued the questioned orders. Abuse of discretion is precisely the thrust in a petition for certiorari under Rule 65. Forum shopping exists

TCSIs contention is devoid of merit. Forum shopping exists when the elements of litis pendentia are present, or when a final judgment in one case will amount to res judicata in another.63 There is forum shopping when the following elements concur: (1) identity of the parties or, at least, of the parties who represent the same interest in both actions; (2) identity of the rights asserted and relief prayed for, as the latter is founded on the same set of facts; and (3) identity of the two preceding particulars, such that any judgment rendered in the other action will amount to res judicata in the action under consideration or will constitute litis pendentia.64 We uphold the CAs finding that TCSI was guilty of forum shopping: An examination of the two petitions filed by [TCSI] reveals that the elements of litis pendentia are present. Both petitions are based on the alleged violation by petitioner of the writ of preliminary injunction dated November 19, 1998 issued in Civil Case No. 98-1885 [first TCSI case] enjoining the latter to maintain the status quo until after a qualified winning bidder is chosen by way of a public bidding. The reliefs prayed for in the two petitions are likewise founded on the same fact, i.e., the alleged disobedience or violation of the writ of preliminary injunction by petitioner. In the assailed Order dated March 4, 2003 granting the writ of mandamus, respondent Judge directed petitioner to immediately comply with the writ of preliminary injunction. In the Order dated March 12, 2003, respondent Judge directed petitioners General Manager, Edgardo Manda, to explain why he should not be cited for contempt for defying the Order dated March 4, 2003. Respondent Judge found the explanation of Manda devoid of merit and directed the latter to allow private respondent to re-assume its post at the airport terminal immediately, otherwise, a warrant of arrest shall be issued against him, pursuant to Section 8, Rule 71 of the Rules of Court. In fact, a warrant of arrest was issued against Manda on March 25, 2003 for his failure to comply with the Orders dated March 4, 2003 and March 19, 2003. In other words, the same penalty could be imposed on Manda in the petition for contempt filed by private respondent with the RTC, Branch 108, Pasay City, should the Presiding Judge thereof find him guilty of violating the writ of preliminary injunction. Moreover, Section 7, Rule 71 of the Rules of Court provides that if the contempt consists in the violation of writ of injunction, temporary restraining order or status quo order, the person adjudged guilty of contempt may also be ordered to make complete restitution to the party injured by such violation of the property involved or such amount as may be alleged and proved. Thus, private respondent could likewise claim damages in the petition for contempt filed by it with Branch 108. That private respondent did not find the petition for contempt to be an adequate and speedy remedy as no action has been taken by Branch 108 as of the date of the filing of the petition for mandamus with damages only shows that private respondent indulged in forum shopping.65 If the first TCSI case for Prohibition, Mandamus, and Damages with Prayer for TRO and Injunction would not be considered in determining whether forum shopping was resorted to by TCSI when it subsequently filed the second TCSI case for contempt and the third TCSI case for mandamus, then there could have been merit in TCSIs claim of non-forum shopping. The fact, however, is the second and third TCSI cases stemmed from the first TCSI case, anchored as they were on the alleged breach by MIAA of the November 19, 1998 writ of preliminary injunction. Such being the case, the court a quo did not err when it ruled that the reliefs in the second and third TCSI cases in effect prayed for the enforcement of the November 19, 1998 injunctive writ. Moreover, the causes of action in the second and third cases are substantially identical because the basis is the disobedience or breach of the writ of injunction.66 Hence, forum shopping is present. The Courts Dispositions G.R. No. 146184 (CA-G.R. SP No. 50087) Civil Case No. 98-1875 entitled OMSI v. MIAA before the Pasay City RTC, Branch 119 Re: November 18, 1998 Order granting writ of preliminary injunction in Civil Case No. 98-1875 (1) We rule to nullify the November 18, 1998 Order granting the injunctive writ for want of any legal right on the part of OMSI to be entitled to a writ of mandatory injunction. (2) The November 24, 2000 CA Decision in CA-G.R. SP Nos. 50087 and 50131, affirming the aforementioned November 18, 1998 Order in Civil Case No. 98-1875, is accordingly reversed and set aside. II. G.R. No. 146185 (CA-G.R. SP No. 50131)

TCSI contends that the CA committed reversible error when it held TCSI resorted to forum shopping. TCSI argues it was not guilty of forum shopping when it filed the second TCSI case for contempt and the third TCSI case for mandamus. According to TSCI, as these are two distinct and separate cases, the elements of litis pendentia amounting to res judicata do not exist.

Civil Case No. 98-1885 entitled TCSI v. Antonio P. Gana, MIAA and Goodline (first TCSI case) before the Pasay City RTC, Branch 113

Re: November 19, 1998 Order granting the injunctive writ (1) We rule to nullify the November 19, 1998 Order granting the writ of mandatory injunction in the absence of any real and substantial right on the part of TCSI entitling it to such writ under the rules and applicable jurisprudence. (2) The November 24, 2000 CA Decision in CA-G.R. SP. Nos. 50087 and 50131, affirming the November 18, 1998 Order in Civil Case No. 98-1875, is also accordingly reversed and set aside. III. G.R. No. 161117 (CA-G.R. SP No. 67092) Civil Case No. 98-1885 entitled TSCI v. Antonio P. Gana, MIAA and Goodline (first TCSI case) Re: February 1, 2001 Decision in Civil Case No. 98-1885 (1) We rule that the negotiated contract between MIAA and Goodline and the resolution of the MIAA Board dated October 2, 1998, authorizing MIAAs management and/or GM Gana to negotiate and award service contracts upon the expiration of the present service contract on October 31, 1998, are null and void. We, therefore, affirm par. 1 of the February 1, 2001 Decision of the Pasay City RTC, Branch 113. (2) We rule that, in 1998, MIAA was required by EO 301 to conduct public bidding, and the negotiated contract for services with Goodline is prohibited and null and void. However, since MIAA decided against hiring contractors for janitorial and maintenance services and instead directly hired employees for the purpose, it would be legally improper to require MIAA to contract out such services by public bidding since this involves management decisions and prerogative. We, therefore, set aside par. 2 of the February 1, 2001 Pasay City RTC, Branch 113 Decision in Civil Case No. 98-1885, requiring MIAA and Gana to hold a public bidding, for being moot and academic. (3) The writ of preliminary injunction is nullified, as TCSI has not shown any legal basis for the grant thereof. We, therefore, set aside par. 3 of the February 1, 2001 RTC Decision in Civil Case No. 98-1885. The November 28, 2003 CA Decision in CA-G.R. SP No. 67092, affirming the aforementioned pars. 2 and 3 of said RTC Decision, is likewise reversed and set aside. IV. G.R. No. 167827 (CA-G.R. SP No. 76138) Civil Case No. 03-0025 entitled TCSI v. MIAA (third TCSI case for mandamus) before the Pasay City RTC, Branch 115 Re: March 19, 2003 Writ of Mandamus in Civil Case No. 03-0025 Since the November 19, 1998 Order of the Pasay City RTC, Branch 115 in Civil Case No. 98-1885 (first TCSI case) granting the injunctive writ is, for want of legal basis, null and void, it follows that the March 19, 2003 Writ of Mandamus issued in Civil Case No. 03-0025 is likewise null and void. WHEREFORE, the petition in G.R. Nos. 146184-85 is GRANTED. The November 24, 2000 CA Decision in CA-G.R. SP Nos. 50087 and 50131 is REVERSED and SET ASIDE. Likewise, both the November 18, 1998 Order of the Pasay City RTC, Branch 119 in Civil Case No. 98-1875 and the November 19, 1998 Order of the Pasay City RTC, Branch 113 in Civil Case No. 98-1885 are REVERSED and SET ASIDE. The Court declares the service contracts of OMSI and TCSI to have been legally and validly terminated on October 31, 1998 by virtue of the expiration of the contracts term and their non-renewal. The Pasay City RTC, Branch 119 is ordered to continue with the proceedings in Civil Case No. 98-1875. The petition in G.R. No. 161117 is PARTLY GRANTED. The November 28, 2003 CA Decision in CA-G.R. SP No. 67092 and the February 1, 2001 Decision of the Pasay City RTC, Branch 113 in Civil Case No. 98-1885, which was affirmed by the CA, are AFFIRMED with MODIFICATIONS, as follows: WHEREFORE, a decision is hereby rendered, ordering as follows: 1. The negotiated contract by and between the respondents and the resolution of the MIAA Board, dated October 2, 1998, authorizing MIAA management and/or respondent GM Gana to negotiate and award service contracts upon the expiration of the present service contract, on October 31, 1998 are hereby declared NULL and VOID; 2. The hiring of employees to render janitorial and maintenance services by GM Gana and/or the MIAA management is declared VALID and LEGAL. However, should said petitioners decide to procure the services

of a contractor for janitorial and maintenance services, then they are ordered to hold a public bidding for said services, subject to certain exceptions, set forth in RA 9184 or the Government Procurement Act, if applicable; 3. The writ of preliminary injunction is RECALLED and NULLIFIED; and 4. No pronouncement as to costs and attorneys fees. The petition in G.R. No. 167827 is DENIED for lack of merit and the September 9, 2004 Decision in CA-G.R. SP No. 76138 is AFFIRMED. AAA,*G.R. No. 171465 Petitioner, Present: - versus -Ynares-Santiago, J. (Chairperson), cralawAustria-Martinez, Chico-Nazario, and Nachura, JJ. HON. ANTONIO A. CARBONELL, in his capacity as Presiding Judge, Branch 27, Regional Trial Court,Promulgated: San FernandoCity, La Union and ENGR. JAIME O. ARZADON, Respondents.June 8, 2007 x ---------------------------------------------------------------------------------------- x DECISION YNARES-SANTIAGO, J.: cralawThis petition for certiorari[1] assails the December 16, 2005[2] Order of the Regional Trial Court, Branch 27, San Fernando, La Union in Criminal Case No. 6983, dismissing the rape case filed against private respondent Jaime O. Arzadon for lack of probable cause; and its February 3, 2006[3] Order denying petitioners motion for reconsideration. cralawPetitioner worked as a secretary at the Arzadon Automotive and CarServiceCenter from February 28, 2001 to August 16, 2001.On May 27, 2001 at about 6:30 p.m., Arzadon asked her to deliver a book to an office located at another building but when she returned to their office, the lights had been turned off and the gate was closed.Nevertheless, she went inside to get her handbag. On her way out, she saw Arzadon standing beside a parked van holding a pipe.He told her to go near him and upon reaching his side, he threatened her with the pipe and forced her to lie on the pavement.He removed her pants and underwear, and inserted his penis into her vagina.She wept and cried out for help but to no avail because there was nobody else in the premises. Petitioner did not report the incident because Arzadon threatened to kill her and her family. But when she discovered that she was pregnant as a consequence of the rape, she narrated the incident to her parents.On July 24, 2002, petitioner filed a complaint for rape against Arzadon. cralawOn September 16, 2002, Assistant City Prosecutor Imelda Cosalan issued a Resolution[4] finding probable cause and recommending the filing of an information for rape. Arzadon moved for reconsideration and during the clarificatory hearing held on October 11, 2002, petitioner testified before the investigating prosecutor.However, she failed to attend the next hearing hence, the case was provisionally dismissed. On March 5, 2003, petitioner filed another Affidavit-Complaint[5] with a comprehensive account of the alleged rape incident. The case was assigned to 2nd Assistant Provincial Prosecutor Georgina Hidalgo.During the preliminary investigation, petitioner appeared for clarificatory questioning.On June 11, 2003, the investigating prosecutor issued a Resolution[6] finding that a prima facie case of rape exists and recommending the filing of the information. cralawArzadon moved for reconsideration and requested that a panel of prosecutors be constituted to review the case.Thus, a panel of prosecutors was created and after the clarificatory questioning, the panel issued on October 13, 2003 a Resolution[7] finding probable cause and denying Arzadons motion for reconsideration. cralawAn Information[8] for rape was filed before the Regional Trial Court, Branch 27, San Fernando, La Union on February 6, 2004, docketed as Criminal Case No. 6415.Thereafter, Arzadon filed a Motion to Hold in

Abeyance All Court Proceedings Including the Issuance of a Warrant of Arrest and to Determine Probable Cause for the Purpose of Issuing a Warrant of Arrest.[9]On March 18, 2004, respondent Judge Antonio A. Carbonell granted the motion and directed petitioner and her witnesses to take the witness stand for determination of probable cause. cralaw Arzadon also appealed the Resolution of the panel of prosecutors finding probable cause before the Department of Justice. On July 9, 2004, then Acting Secretary of Justice Merceditas Gutierrez found no probable cause and directed the withdrawal of the Information in Criminal Case No. 6415.[10]chanroblesvirtuallawlibrary Upon motion for reconsideration by petitioner, however, Secretary of Justice Raul Gonzales reversed the July 9, 2004 Resolution and issued another Resolution[11] finding that probable cause exists.Thus, a new Information[12] for rape was filed against Arzadon docketed as Criminal Case No. 6983. cralawConsequently, Arzadon filed an Urgent Motion for Judicial Determination of Probable Cause for the Purpose of Issuing a Warrant of Arrest.[13] In an Order dated August 11, 2005, respondent Judge Carbonell granted the motion and directed petitioner and her witnesses to take the witness stand. Instead of taking the witness stand, petitioner filed a motion for reconsideration claiming that the documentary evidence sufficiently established the existence of probable cause.Pending resolution thereof, she likewise filed a petition[14] with this Court for the transfer of venue of Criminal Case No. 6983. The case was docketed as Administrative Matter No. 05-12-756-RTC and entitled Re: Transfer of Venue of Criminal Case No. 6983, formerly Criminal Case No. 6415, from the Regional Trial Court, Branch 27, San FernandoCity, La Union, to any Court in Metro Manila. In a Resolution[15] dated January 18, 2006, the Court granted petitioners request for transfer of venue.The case was raffled to the Regional Trial Court of Manila, Branch 25, and docketed as Criminal Case No. 06242289.However, the proceedings have been suspended pending the resolution of this petition. Meanwhile, on December 16, 2005, respondent Judge Carbonell issued the assailed Order dismissing Criminal Case No. 6983 for lack of probable cause.Petitioners motion for reconsideration was denied hence, this petition. Petitioner raises the following issues:[16]chanroblesvirtuallawlibrary I RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF JURISDICTION WHEN IT GRANTED THE MOTION FOR DETERMINATION OF PROBABLE CAUSE FILED BY THE PRIVATE RESPONDENT AND THE SUBSEQUENT DENIAL OF THE MOTION FOR RECONSIDERATION II RESPONDENT JUDGE COMMITTED FURTHER ACTS CONSTITUTING GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION WHEN IT ORDERED THE COMPLAINANT AND WITNESSES TO TAKE THE STAND FOR THE PURPOSE OF DETERMINING PROBABLE CAUSE III RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION WHEN HE REFUSED TO INHIBIT FROM FURTHER HANDLING THE CASE DESPITE WHISPERS OF DOUBT ON HIS BIAS AND PARTIALITY IV RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION WHEN IT ISSUED THE ORDER OF FEBRUARY 3, 2006, DENYING THE MOTION FOR RECONSIDERATION, DESPITE THE SUPREME COURT RESOLUTION OF JANUARY 18, 2006, GRANTING THE TRANSFER OF VENUE cralawPetitioner contends that the judge is not required to personally examine the complainant and her witnesses in satisfying himself of the existence of probable cause for the issuance of a warrant of arrest.She argues that respondent Judge Carbonell should have taken into consideration the documentary evidence as well as the transcript of stenographic notes which sufficiently established the existence of probable cause. cralawArzadon claims that the petition should be dismissed outright for being the wrong mode of appeal, it appearing that the issues raised by petitioner properly fall under an action for certiorari under Rule 65, and not Rule 45, of the Rules of Court.

Respondent Judge Carbonell argues in his Comment[17] that the finding of probable cause by the investigating prosecutor is not binding or obligatory, and that he was justified in requiring petitioner and her witnesses to take the witness stand in order to determine probable cause. The issues for resolution are 1) whether the petition should be dismissed for being the wrong mode of appeal; and 2) whether respondent Judge Carbonell acted with grave abuse of discretion in dismissing Criminal Case No. 6983 for lack of probable cause. The petition has merit. A petition for review on certiorari under Rule 45 is distinct from a petition for certiorari under Rule 65 in that the former brings up for review errors of judgment while the latter concerns errors of jurisdiction or grave abuse of discretion amounting to lack or excess of jurisdiction. Grave abuse of discretion is not an allowable ground under Rule 45.However, a petition for review on certiorari under Rule 45 may be considered a petition for certiorari under Rule 65 where it is alleged that the respondents abused their discretion in their questioned actions, as in the instant case.[18] While petitioner claims to have brought the instant action under Rule 45, the grounds raised herein involve an alleged grave abuse of discretion on the part of respondent Judge Carbonell. Accordingly, the Court shall treat the same as a petition for certiorari under Rule 65. However, we must point out the procedural error committed by petitioner in directly filing the instant petition before this Court instead of the Court of Appeals, thereby violating the principle of judicial hierarchy of courts.It is well-settled that although the Supreme Court, Court of Appeals and the Regional Trial Courts have concurrent jurisdiction to issue writs of certiorari, prohibition, mandamus, quo warranto, habeas corpus and injunction, such concurrence does not give the petitioner unrestricted freedom of choice of court forum.[19] In this case, however, the gravity of the offense charged and the length of time that has passed since the filing of the complaint for rape, compel us to resolve the present controversy in order to avoid further delay.[20] We thus proceed to the issue of whether respondent Judge Carbonell acted with grave abuse of discretion in dismissing Criminal Case No. 6983 for lack of probable cause. We rule in the affirmative. Respondent Judge Carbonell dismissed Criminal Case No. 6983 for lack of probable cause on the ground that petitioner and her witnesses failed to comply with his orders to take the witness stand. Thus In RESUME therefore, as indubitably borne out by the case record and considering that the Private Prosecutor, despite several admonitions contumaciously nay contemptuously refused to comply/obey this Courts Orders of March 18, 2004, August 11, 2005 and eight (8) other similar Orders issued in open Court that directed the complainant/witnesses to take the witness stand to be asked probing/clarificatory questions consonant with cited jurisprudential rulings of the Supreme Court, this Court in the exercise of its discretion and sound judgment finds and so holds that NO probable cause was established to warrant the issuance of an arrest order and the further prosecution of the instant case. Record also shows in no unclear terms that in all the scheduled hearings of the case, the accused had always been present.A contrario, the private complainant failed to appear during the last four (4) consecutive settings despite due notice without giving any explanation, which to the mind of the Court may indicate an apparent lack of interest in the further prosecution of this case.That failure may even be construed as a confirmation of the Defenses contention reflected in the case record, that the only party interested in this case is the Private prosecutor, prodded by the accuseds alleged hostile siblings to continue with the case. WHEREFORE, premises considered, for utter lack of probable cause, the instant case is hereby ordered DISMISSED.[21] He claims that under Section 2, Article III of the 1987 Constitution, no warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce. However, in the leading case of Soliven v. Makasiar,[22] the Court explained that this constitutional provision does not mandatorily require the judge to personally examine the complainant and her witnesses.Instead, he may opt to personally evaluate the report and supporting documents submitted by the prosecutor or he may disregard the prosecutors report and require the submission of supporting affidavits of witnesses.Thus: The addition of the word personally after the word determined and the deletion of the grant of authority by the 1973 Constitution to issue warrants to other responsible officers as may be authorized by law, has apparently convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause for the issuance of warrants of arrest.This is not an accurate interpretation.

What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause.In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses.Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscals report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. Sound policy dictates this procedure, otherwise judges would by unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts.[23] We reiterated the above ruling in the case of Webb v. De Leon,[24] where we held that before issuing warrants of arrest, judges merely determine the probability, not the certainty, of guilt of an accused.In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause.They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence.[25] It is well to remember that there is a distinction between the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest and the preliminary investigation proper which ascertains whether the offender should be held for trial or be released.The determination of probable cause for purposes of issuing the warrant of arrest is made by the judge.The preliminary investigation proper whether or not there is reasonable ground to believe that the accused is guilty of the offense charged is the function of the investigating prosecutor.[26] True, there are cases where the circumstances may call for the judges personal examination of the complainant and his witnesses. But it must be emphasized that such personal examination is not mandatory and indispensable in the determination of probable cause for the issuance of a warrant of arrest.The necessity arises only when there is an utter failure of the evidence to show the existence of probable cause.[27]Otherwise, the judge may rely on the report of the investigating prosecutor, provided that he likewise evaluates the documentary evidence in support thereof. Indeed, what the law requires as personal determination on the part of the judge is that he should not rely solely on the report of the investigating prosecutor.In Okabe v. Gutierrez,[28] we stressed that the judge should consider not only the report of the investigating prosecutor but also the affidavit and the documentary evidence of the parties, the counter-affidavit of the accused and his witnesses, as well as the transcript of stenographic notes taken during the preliminary investigation, if any, submitted to the court by the investigating prosecutor upon the filing of the Information.[29]If the report, taken together with the supporting evidence, is sufficient to sustain a finding of probable cause, it is not compulsory that a personal examination of the complainant and his witnesses be conducted. In this case, respondent Judge Carbonell dismissed Criminal Case No. 6983 without taking into consideration the June 11, 2003 Resolution of 2nd Assistant Provincial Prosecutor Georgina Hidalgo, the October 13, 2003 Resolution of the panel of prosecutors, and the July 1, 2005 Resolution of the Department of Justice, all of which sustain a finding of probable cause against Arzadon.Moreover, he failed to evaluate the evidence in support thereof. Respondent judges finding of lack of probable cause was premised only on the complainants and her witnesses absence during the hearing scheduled by the respondent judge for the judicial determination of probable cause. Petitioner narrated in detail the alleged rape incident both in her Sinumpaang Salaysay[30] dated July 24, 2002 and Complaint-Affidavit[31] dated March 5, 2003. She attended several clarificatory hearings that were conducted in the instant case.The transcript of stenographic notes[32] of the hearing held on October 11, 2002 shows that she positively identified Arzadon as her assailant, and the specific time and place of the incident.She also claimed that she bore a child as a result of the rape and, in support of her contentions, presented the child and her birth certificate as evidence. In contrast, Arzadon merely relied on the defense of alibi which is the weakest of all defenses. After a careful examination of the records, we find that there is sufficient evidence to establish probable cause.The gravamen of rape is the carnal knowledge by the accused of the private complainant under any of the circumstances provided in Article 335 of the Revised Penal Code, as amended.[33]Petitioner has categorically stated that Arzadon raped her, recounting her ordeal in detail during the preliminary investigations. Taken with the other evidence presented before the investigating prosecutors, such is sufficient for purposes of establishing probable cause.It is well-settled that a finding of probable cause need not be based on clear and convincing evidence beyond reasonable doubt. Probable cause is that which engenders a

well-founded belief that a crime has been committed and that the respondent is probably guilty thereof and should be held for trial.It does not require that the evidence would justify conviction. [34] It is clear therefore that respondent Judge Carbonell gravely abused his discretion in dismissing Criminal Case No. 6983 for lack of probable cause on the ground that petitioner and her witnesses failed to take the witness stand.Considering there is ample evidence and sufficient basis on record to support a finding of probable cause, it was unnecessary for him to take the further step of examining the petitioner and her witnesses. Moreover, he erred in holding that petitioners absences in the scheduled hearings were indicative of a lack of interest in prosecuting the case.In fact, the records show that she has relentlessly pursued the same. Needless to say, a full-blown trial is to be preferred to ferret out the truth.[35]As it were, the incidents of this case have been pending for almost five years without having even passed the preliminary investigation stage.Suffice to say that the credibility of petitioner may be tested during the trial where the respective allegations and defenses of the complainant and the accused are properly ventilated. It is only then that the truth as to Arzadons innocence or guilt can be determined. WHEREFORE, the petition is GRANTED.The Orders of the Regional Trial Court, Branch 27, San Fernando, La Union dated December 16, 2005, and February 3, 2006 dismissing Criminal Case No. 6983 for lack of probable cause are REVERSED and SET ASIDE, and the Information in the said case is hereby REINSTATED.The Regional Trial Court, Branch 25, Manila is DIRECTED to take cognizance of the case and let the records thereof be REMANDED to the said court for further proceedings. G.R. No. 148117 March 22, 2007

MABINI EPIE, JR. and RODRIGO PALASI, Petitioners, vs. THE HON. NELSONIDA T. ULAT-MARREDO, Presiding Judge, Regional Trial Court, Branch 10, La Trinidad, Benguet and THE PEOPLE OF THE PHILIPPINES, Respondents. DEC ISION SANDOVAL-GUTIERREZ, J.: Assailed in this Petition for Review on Certiorari is the Decision1 of the Court of Appeals dated September 15, 2000 in CA-G.R. SP No. 55684. The facts of the case as gleaned from the records are: In an Information dated September 22, 1998, the Office of the Provincial Prosecutor of Benguet Province charged Mabini Epie, Jr. and Rodrigo Palasi, petitioners, with violation of Section 68 of Presidential Decree No. 705,2 as amended. The Informtion reads: That on or about the 6th day of September 1998, along the Halsema National Highway at Acop, Municipality of Tublay, Province of Benguet, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring, confederating, and mutually aiding each other and without any authority of law or without any license or permit granted by the Department of Environment and Natural Resources (DENR), and with intent of gain and without the knowledge and consent of the owner thereof, did then and there willfully, unlawfully and feloniously possess and transport 870 bd. ft. of Benguet Pine lumber having a total market value of TWENTY FOUR THOUSAND THREE HUNDRED SIXTY PESOS (P24,360.00), Philippine Currency, belonging to the REPUBLIC OF THE PHILIPPINES, to the damage and prejudice of the GOVERNMENT in the actual sum aforesaid. CONTRARY TO LAW. The case was raffled to the Regional Trial Court, Branch 10, La Trinidad, Benguet (presided by respondent Judge Nelsonida T. Ulat-Marredo), docketed as Criminal Case No. 98-CR-3138. When arraigned, both petitioners, with the assistance of counsel de parte, pleaded not guilty to the charge. Trial then ensued. The evidence for the prosecution shows that at around 2:30 p.m. of September 6, 1998, SPO2 Alberto Ngina of the Philippine National Police (PNP) Tublay Station received an information from a confidential agent that a jeepney with Plate No. AYB 117 at Km. 96, Atok, Benguet was loaded with Benguet pine lumber. SPO2 Ngina immediately relayed the information to SPO4 Rentao Quitoriano and SPO1 Domingo Pulig. They then swiftly established a checkpoint in Acop, Tublay, Benguet.

At around 4:00 p.m. of the same day, the PNP operatives spotted the jeepney heading toward La Trinidad. They flagged it down but it did not stop. Hence, they chased the vehicle up to Shilan, La Trinidad where it finally halted. The police saw five persons inside the jeepney then loaded with assorted vegetables, like womboc3 and chili. When SPO4 Quitoriano lifted a womboc, he found some pieces of lumber under it. The driver and his companions admitted they have no permit to transport the lumber. The police immediately arrested and investigated petitioners, Marso Insiong Dumpit, Armando Palasi, and Ben Arinos. Only petitioners were charged with violation of Section 68 of the Revised Forestry Code. After the prosecution presented its evidence, petitioners, through counsel, filed a "Motion to Suppress Evidence of the Prosecution" on the ground that the pieces of Benguet pine lumber were illegally seized. In a Resolution4 dated July 26, 1999, respondent judge denied the motion. Petitioners then filed a motion for reconsideration. Likewise, it was denied in a Resolution dated September 27, 1999. Subsequently, petitioners filed with the Court of Appeals a petition for certiorari and prohibition, docketed as CA-G.R. SP No. 55684 assailing the said Resolutions of the trial court. On September 15, 2000, the Court of Appeals rendered its Decision dismissing the petition, holding that respondent judge did not commit grave abuse of discretion tantamount to lack or excess of jurisdiction; that the search conducted without warrant by the police officers is valid; and that the confiscated pieces of lumber are admissible in evidence against the accused. Petitioners filed a motion for reconsideration of the Decision. However, it was denied in a Resolution5 dated April 11, 2001. Hence, the instant petition raising the sole issue of whether the police officers have a probable cause to believe that the subject vehicle was loaded with illegal cargo and that, therefore, it can be stopped and searched without a warrant. In this jurisdiction, the fundamental law of the land recognizes and protects the right of a person to privacy against unreasonable intrusions by the agents of the State. This right to undisturbed privacy is guaranteed by Section 2, Article III of the Constitution which provides: The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. Section 3(2), also of Article III, provides that any evidence obtained in violation of the above provision shall be inadmissible for any purpose in any proceeding. Hence, as a general rule, a search and seizure must be carried through with judicial warrant, otherwise, such search and seizure constitutes derogation of a constitutional right.6 The above rule, however, is not devoid of exceptions. In People v. Sarap,7 we listed the exceptions where search and seizure may be conducted without warrant, thus: (1) search incident to a lawful arrest; (2) search of a moving motor vehicle; (3) search in violation of customs laws; (4) seizure of the evidence in plain view; (5) search when the accused himself waives his right against unreasonable searches and seizures; (6) stop and frisk; and (7) exigent and emergency circumstances. The only requirement in these exceptions is the presence of probable cause. Probable cause is the existence of such facts and circumstances which would lead a reasonable, discreet, and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place to be searched.8 In People v. Aruta,9 we ruled that in warrantless searches, probable cause must only be based on reasonable ground of suspicion or belief that a crime has been committed or is about to be committed. There is no hard and fast rule or fixed formula in determining probable cause for its determination varies according to the facts of each case. Here, the search involved a moving vehicle, an instance where a warrantless search and seizure may be conducted by peace officers. The only issue we should determine is whether there was probable cause to justify such warrantless search and seizure.

We recall that at around 2:30 p.m. of September 6, 1998, a confidential informer disclosed to SPO2 Ngina that a passenger jeepney with Plate No. AYB 117 loaded with Benguet pine lumber was at Km. 96, Atok, Benguet. The lumber was covered with assorted vegetables. A PNP roadblock was then placed in Acop, Tublay, Benguet to intercept the jeepney. At around 4:00 p.m. of that same day, the police spotted the vehicle. They flagged it down but it did not stop, forcing the police to chase it until it reached Shilan, La Trinidad. A search of the vehicle disclosed several pieces of Benguet pine lumber. Petitioners could not produce the required DENR permit to cut and transport the same. In People v. Vinecarao,10 we ruled that where a vehicle sped away after noticing a checkpoint and even after having been flagged down by police officers, in an apparent attempt to dissuade the police from proceeding with their inspection, there exists probable cause to justify a reasonable belief on the part of the law enforcers that the persons on board said vehicle were officers of the law or that the vehicle contained objects which were instruments of some offense. This ruling squarely applies to the present case. Verily, the Court of Appeals did not err in holding that respondent judge did not commit grave abuse of discretion amounting to lack or excess of jurisdiction when she ruled that the warrantless search is valid and that the lumber seized is admissible in evidence against petitioners. WHEREFORE, we DENY the petition and AFFIRM the assailed Decision of the Court of Appeals in CA-G.R. SP No. 55684. Costs against petitioners. G.R. No. 175604 April 10, 2008

THE PEOPLE OF THE PHILIPPINES, appellee, vs. SALVADOR PEAFLORIDA, JR., Y CLIDORO, appellant. DEC ISION TINGA, J.: Subject of this appeal is the Decision1 of the Court of Appeals in CA-G.R. CR No. 01219, dated 31 July 2006, affirming in toto the judgment2 of the Regional Trial Court of Camarines Sur, Branch 30, in Criminal Case No. T-1476. The trial court found appellant Salvador Peaflorida y Clidoro guilty of transporting marijuana and sentenced him to suffer the penalty of reclusion perpetua and to pay a fine of one million pesos. The Information against appellant reads: That on or about the 7th day of June, 1994, in the afternoon thereat, at Barangay Huyon-huyon, Municipality of Tigaon, Province of Camarines Sur, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to sell, possess and to deliver with the use of a bicycle, did then and there, willfully, unlawfully and feloniously have in his possession, control and custody, [o]ne bundle estimated to be one (1) kilo more or less, of dried marijuana leaves (Indian Hemp) without the necessary license, permit or authority to sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug from a competent officer as required by law. ACTS CONTRARY TO LAW.3 Upon arraignment, appellant pleaded not guilty. Trial ensued. Two police officers and one forensic chemist testified for the prosecution. SPO3 Vicente Competente (Competente) narrated that in his capacity as chief of the Investigation and Operation Division of the Philippine National Police (PNP) station in Tigaon, Camarines Sur, that he received a tip from an asset that a bundle of marijuana was being transported by appellant to Huyon-huyon from another barangay in Tigaon, Camarines Sur.4 Major Domingo Agravante (Agravante), chief of police of Tigaon, then organized a team composed of Competente as team leader, SPO2 Ricardo Callo (Callo), SPO1 Portugal, PO3 Pillos and PO2 Edgar Latam. The team boarded the police mobile car and proceeded to Sitio Nasulan in Barangay Huyon-huyon.5 They overtook appellant who was on a bicycle. The police officers flagged appellant down and found marijuana wrapped in a cellophane and newspaper together with other grocery items. The amount of P1550.00 was also found in appellant's possession. The police officers confiscated these items and took photographs thereof. Appellant was then brought to the headquarters where he was booked. 6 Callo, who was the chief intelligence officer of Tigaon PNP, recounted that at around 1:00 p.m. on 7 June 1994, he was called by Competente and was briefed about the operation. While they were in Nasulan, the members of the police team caught a man riding a bicycle who turned out to be appellant. Callo saw the

marijuana wrapped in a cellophane and newspaper in the bicycle of appellant so the latter was brought to the police headquarters and turned over to the desk officer. 7 Major Lorlie Arroyo (Arroyo), a forensic chemist at the PNP Crime Laboratory Regional Office No. V, was presented as an expert witness to identify the subject marijuana leaves. She related that after taking a representative sample from the 928-gram confiscated dried leaves, the same was tested positive of marijuana. The findings were reflected in Chemistry Report No. D-26-94 dated 9 June 1994.8 Appellant denied the accusations against him. Appellant, who is a resident of Huyon-huyon, Tigaon, Camarines Sur, testified that in the morning of 7 June 1994, he first went to the house of Igmidio Miranda (Miranda) in Sagnay, Camarines Sur. The latter accompanied appellant to the house of Arnel Dadis in San Francisco, Tigaon to buy a dog. They, however, failed to get the dog; prompting them to leave. On their way home, they met Boyet Obias (Obias) who requested appellant to bring a package wrapped in a newspaper to Jimmy Gonzales (Gonzales).9 Appellant placed it in the basket in front of his bicycle and Gonzales proceeded to the Tiagon town proper. He and Miranda parted ways when they reached the place. Appellant dropped by the grocery store and the blacksmith to get his scythe. On his way home, he was flagged down by the police and was invited to go with them to the headquarters. Upon inspection of the package in his bicycle, the police discovered the subject marijuana. Appellant tried to explain that the package was owned by Obias but the police did not believe him. He was sent to jail.10 Miranda corroborated the testimony of appellant that the two of them went to San Francisco, Tigaon, Camarines Sur in the morning of 7 June 1994 to buy a dog. On their way back to the town proper of Tigaon, they met Obias who requested appellant to bring a package, which Miranda thought contained cookies, to Gonzales. Upon reaching the town proper, they parted ways.11 On 26 October 1998, the trial court rendered judgment finding appellant guilty beyond reasonable doubt of transporting a prohibited drug, a violation of Section 4, Article II of Republic Act (R.A.) No. 6425, otherwise known as The Dangerous Drugs Act of 1972, as amended by R.A. No. 7659. The dispositive portion of the decision reads: WHEREFORE, the accused Salvador Peaflorida[,Jr.] is hereby sentenced to suffer the penalty of imprisonment of reclusion perpetua and to pay a fine of One Million (P1,000,000.00) Pesos, with subsidiary imprisonment in accordance with law, in case of insolvency for the fine and for him to pay the costs. The accused Salvador Peaflorida[,Jr.] shall be entitled to full credit of his preventive imprisonment if he agreed to abide with the rules imposed upon convicted person, otherwise, he shall be entitled to four-fifth (4/5) credit thereof. The subject marijuana consisting of 928 grams, possession thereof being mala prohibita, the court hereby orders its confiscation in favor of the Government to be destroyed in accordance with law. This court, however, hereby recommends to His Excellency, the President of the Philippines, through the Honorable Secretary of Justice to commute the above penalty herein imposed, being too harsh; accordingly, the said penalty imposed to accused Salvador Peaflorida[,Jr] shall be six (6) years of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as maximum. SO ORDERED.12 In convicting appellant, the trial court lent credence to the testimonies of the police officers, thus: Now going over the evidence adduced, the court is convinced that the accused Salvador Peaflorida[,Jr.] committed the offense of illegal possession of 928 grams of marijuana, if not, of transporting it, as charged. This is so, because it appears undisputed that on June 7, 1994, at about 1:00 o'clock in the afternoon police officers Vicente Competente and his four (4) other co-police officers apprehended the accused Salvador Peaflorida[,Jr.] on the roadside at Nasulan, Huyon-huyon, Tigaon, Camarines Sur [,] then riding on his bicycle and placed on the still structure at its front, a thing wrapped in a newspaper and found to be 928 grams of marijuana. No ill-motive has been presented by the defense against the police officers Vicente Competente and companions by falsely testifying against the accused Salvador Peaflorida, Jr. So, the conclusion is inevitable that the presumption that the police officers were in the regular performance of their duties apply. The confiscation of the marijuana subject of the instant case and the arrest of the accused Salvador Peaflorida[,Jr.] by the said police officers being lawful, having been caught in flagrante delicto, there is no need for the warrant for the seizure of the fruit of the crime, the same being incidental to the lawful arrest. Rightly so, because a person caught illegally possessing or transporting drugs is subject to the warrantless search. Besides, object in the "plain view" of an officer who has the right to be in the position to have that view are subject to seizure and may be presented as evidence.13

In view of the penalty imposed, the case was directly appealed to this Court on automatic review. Pursuant to our decision in People v. Mateo,14 however, this case was referred to the Court of Appeals. The appellate court affirmed appellant's conviction on 31 July 2006. In a Resolution15 dated 14 February 2007, the parties were given to file their supplemental briefs, if they so desire. Both parties manifested their intention not to file any supplemental brief since all the issues and arguments have already been raised in their respective briefs.16 Hence, the instant case is now before this Court on automatic review. In assailing his conviction, appellant submits that there is doubt that he had freely and consciously possessed marijuana. First, he claims that the alleged asset did not name the person who would transport the marijuana to Huyon-huyon. In view of the "vague" information supplied by the asset, the latter should have been presented in court. Second, upon receipt of the information from the asset, the police officers should have first investigated and tried to obtain a warrant of arrest against appellant, instead of arbitrarily arresting him. Third, appellant maintains that he is not aware of the contents of the package. Fourth, upon arrival at the headquarters, the police did not determine the contents and weight of the package. Fifth, appellant argues that the findings of the forensic expert are questionable because there is doubt as to the identity of the package examined.17 Prefatorily, factual findings of the trial courts, including their assessment of the witness' credibility are entitled to great weight and respect by this Court, particularly when the Court of Appeals affirm the findings.18 Indeed, the trial court is in the best position to assess the credibility of witnesses since it has observed firsthand their demeanor, conduct and attitude under grilling examination.19 After a review of the records of this case, we find no cogent reason to disregard this time-honored principle. We shall retrace the series of events leading to the arrest of appellant and resolve the issues raised by him. Acting on an asset's tip, a police team was organized to apprehend appellant who was allegedly about to transport the subject marijuana. Appellant is wrong in concluding that the asset did not name appellant. As early as 16 November 1996, appellant through counsel had already conceded in his Memorandum20 filed with the trial court that based on the tip, he was about to transport the contraband. It further cited excerpts from the result of the preliminary investigation conducted by the judge on Competente, and we quote: Q: Did your [a]sset tell you the place and the person or persons involved? A: Yes[,]sir. Q: Where and who? A: He said that marijuana is being transported from Tigaon town to Bgy. Huyon-huyon by Salvador Peaflorida, Jr.21 Moreover, on cross-examination, the defense counsel even assumed that according to the asset's tip it was appellant who was assigned to deliver the contraband. And the witness under cross-examination affirmed it was indeed appellant who would be making the delivery according to the tip: Q: Will you inform this Honorable Court who has given you the tip that the accused was going to deliver that marijuana[?] [W]ho is [this] person? A: It was a confidential tip. Q: Now, but [sic] on June 1 you were in your office? A: Yes[,] sir[.] I was in the office. Q: Since your office is just near the Municipal Trial Court of Tigaon and you were given a tip that Salvador Peaflorida[,Jr.] will be delivering marijuana, why did you not get a [w]arrant of [a]rrest? xxx Q: The tip that was given to you that it was Salvador Peaflorida [who] will be dealing marijuana on that date and according to you Salvador was to travel from a certain town to Tigaon, is that the tip? A: Yes[,] sir[.] That he would deliver marijuana.

Q: So, at the time that you form[ed] a team, Salvador was nowhere to be seen, you have not seen the shadow of Salvador? A: When the tip was given to us[,] I have not seen him[.] [B]ut the tip is he will deliver from Tigaon to Huyonhuyon, that is why we chased him.22 [Emphasis supplied] Prescinding from the above argument, appellant insists that the asset should have been presented in court. He invoked the court ruling in People v. Libag,23 wherein the non-presentation of the informant was fatal to the case of the prosecution. Libag cannot find application in this case. In that case, the crime charged was the sale of shabu where the informant himself was a poseur-buyer and a witness to the transaction. His testimony as a poseur-buyer was indispensable because it could have helped the trial court in determining whether or not the appellant had knowledge that the bag contained marijuana, such knowledge being an essential ingredient of the offense for which he was convicted.24 In this case, however, the asset was not present in the police operation. The rule is that the presentation of an informant in an illegal drugs case is not essential for conviction nor is it indispensable for a successful prosecution because his testimony would merely be corroborative and cumulative. Informants are generally not presented in court because of the need to hide their identity and preserve their invaluable service to the police.25 Competente testified that his team caught up with appellant who was riding a bicycle. He saw the marijuana in a package which appellant was carrying inside his basket, thus: Q: And so as the team leader x x x and in connection with the instruction of Chief Domingo Agravante, what did you do? A: We used the mobile and proceeded to the place, to the route where the marijuana was being transported. Q: When you said we to whom are you referring to? A: The team. Q: Were you able to go to the place as you said? A: Yes, sir. Q: So, upon reaching the place, [sic] what place was that? A: Sitio Nasulan, Barangay Huyon-huyon, Tigaon, Camarines Sur. Q: And upon reaching the place together with the other member of the team, what did you find if you found any? A: We overtook our suspect while riding in a bicycle and we stopped him.

Q: Who was in possession of that? A: Salvador Peaflorida[,] Jr. Q: How is that person related to the accused in this case now? A: He is the one, sir. Q: Kindly describe to us the marijuana that you are able to tell that it was marijuana? A: It was wrapped on [cellophane] and newspaper. We saw the edges of the marijuana. Q: For the [record], kindly describe to us the edges of the marijuana[;] its appearance and color. A: It was like a shape of ream of coupon bond and the color is green.27 These positive and categorical declarations of two police officers deserve weight and credence in light of the presumption of regularity accorded to them and the lack of motive on their part to falsely testify against appellant. Appellant resorts to a challenge on the validity of his arrest predicated on lack of a warrant of arrest. The OSG correctly justifies the failure to apply for an arrest warrant because at that point, time was of the essence in appellant's apprehension, noting in the same breath that there is no law requiring investigation and surveillance upon receipt of tips from assets before conducting police operations.28 The police officers succinctly testified on this point when cross-examined, viz: Q: Will you inform this Honorable Court who has given you the tip that the accused was going to deliver that marijuana, who is that person? A: It was a confidential tip. Q: Now, but [sic] on June 1 you were in your office? A: Yes[,] sir[.] I was in the office. Q: Since your office is just near the Municipal Trial Court of Tigaon and you were given a tip that Salvador Peaflorida[,Jr.] will be delivering marijuana, why did you not get a [w]arrant of [a]rrest from the court? A: There was no time to apply for a search warrant because just after the information was received, we proceeded. xxx

Q: And did the suspect stop? A: Yes[,] sir. Q: Tell us the name of your suspect? A: Salvador Peaflorida[,] Jr. y Clidoro. xxx Q: And after stopping the accused in this case, what else did you do[,] if any[,] together with the team? Q: Are you aware of the law that illegally confiscated marijuana cannot be used in court? A: When we saw the marijuana and other groceries in his bicycle we invited him to the headquarters.26 FISCAL SOLANO: Conclusion of law. Callo also confirmed that he saw appellant transporting and in possession of the subject marijuana: A: Yes, sir[.] [I]f it is illegally confiscated it cannot be used in court. Q: When you reached there[,] what happened next? A: We have not reached yet [sic] the Huyon-huyon proper. [W]e are in Nasulan when we met the man who had with him the marijuana. xxx Q: After you talked with the person with marijuana[,] what happened next? A: We saw on his bicycle a wrap[ped] marijuana. Q: How can you see that it was in open view when according to you the house of Salvador is 120 meters[?] [H]ow can you see that distance? A: I could see that because the marijuana was carried in his bicycle, we have seen it. ATTY. CLEDERA: Despite that prohibition under the rules[,] you insisted in apprehending Salvador Peaflorida[,Jr.] without warrant of arrest inspite of the fact that you know that restriction? A: Our apprehension was in plain view. Q: If that is true, Mr. Competente that you were given a tip, the most that you will do is first see the Judge of Tigaon in as much as you have not seen yet [sic] the said person carrying marijuana? A: There was no time for us to apply, because the marijuana is being delivered so we have no more time to see the Judge.

Q: In what street? A: Huyon-huyon[,] Sitio Nasulan, Tigaon, Camarines Sur. Q: About what time did you see him? A: 1:00 o'clock sir. x x x29 The police was tipped off at around 1:00 p.m. that appellant was transporting marijuana to Huyon-huyon. Certainly, they had no time to secure an arrest warrant as appellant was already in transit and already committing a crime. The arrest was effected after appellant was caught in flagrante delicto. He was seen riding his bicycle and carrying with him the contraband, hence, demonstrating that a crime was then already being committed. Under the circumstances, the police had probable cause to believe that appellant was committing a crime. Thus, the warrantless arrest is justified. Article II, Section 4 of R.A. No. 6425, as amended by R.A. No. 7659, states: SEC. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as broker in any of such transactions. x x x. Jurisprudence defines "transport" as "to carry or convey from one place to another."30 In the instant case, appellant was riding his bicycle when he was caught by the police. He admitted that he was about to convey the package, which contained marijuana, to a certain Jimmy Gonzales. Appellant, however, denies any knowledge that the package in his possession contained marijuana. But the trial court rejected his contention, noting that it was impossible for appellant not to be aware of the contents of the package because "marijuana has a distinct sweet and unmistakable aroma x x x which would have alarmed him."31 Taking one step further, the appellate court went on to declare that being mala prohibita, one commits the crime under R.A. No. 6425 by mere possession of a prohibited drug without legal authority. Intent, motive or knowledge thereof is not necessary.32 Appellant, in the main, asserts that he did not freely and consciously possess marijuana.33 In criminal cases involving prohibited drugs, there can be no conviction unless the prosecution shows that the accused knowingly possessed the prohibited articles in his person, or that animus possidendi is shown to be present together with his possession or control of such article. Animus possidendi is only prima facie. It is subject to contrary proof and may be rebutted by evidence that the accused did not in fact exercise power and control over the thing in question, and did not intend to do so. The burden of evidence is thus shifted to the possessor to explain absence of animus possidendi.34 Knowledge refers to a mental state of awareness of a fact. Since courts cannot penetrate the mind of an accused and thereafter state its perceptions with certainty, resort to other evidence is necessary. Animus possidendi, as a state of mind, may be determined on a case-to-case basis by taking into consideration the prior or contemporaneous acts of the accused, as well as the surrounding circumstances. Its existence may and usually must be inferred from the attendant events in each particular case.35 Appellant failed to satisfactorily establish his lack of knowledge of possession in the instant case. First, the marijuana was found in the bicycle he himself was driving. Second, the police officers first readily saw in plain view the edges of the marijuana leaves jutting out of the package. Third, it is incredulous that appellant did not ask Obias what the package contained when the latter requested him to do the delivery errand since the package was wrapped in a newspaper and weighed almost one kilogram. The same observation was reached by the trial court: Finally, it is very hard for the court to accept the claim of the accused Salvador Peaflorida[,Jr.] that he does not know that the thing wrapped in a newspaper which Boyet Obias, now dead, requested the accused Peaflorida[,Jr.] would deliver to a certain Jimmy Gonzales whose present whereabouts is not known, was a marijuana. Its odor is different especially from tobacco. This was observed by the court during the trial of the case, everytime the wrapper containing the subject marijuana with a volume of 928 grams is brought to court its odor is noticeable. For the accused Peaflorida[,Jr.], not to notice it is hard to believe. Rightly so, because

marijuana has a distinct sweet and unmistakable aroma very different from (and not nauseating) unlike tobacco. This aroma would have alarmed him.36 Furthermore, it appeared from the cross-examination of appellant that Obias was an acquaintance. In the ordinary course of things, one is expected to inquire about the contents of a wrapped package especially when it is a mere acquaintance who requests the delivery and, more so, when delivery is to a place some distance away. Anent appellant's claim that the package examined by Arroyo was not the one confiscated from him, the appellate court had this to say: SPO3 Competente testified that marijuana was confiscated from appellant. The pictures of appellant, together with the items seized from him, depict a package containing dry leaves suspected to be marijuana. On the other hand, Forensic Chemist Arroyo testified that the specimen she examined was delivered to her by Major Agravante on June 9, 1994 or two days after the apprehension. From these series of events, it can be inferred that the package confiscated from appellant and the specimen delivered to Forensic Chemist Arroyo for laboratory examination were one and the same.37 Despite intense grilling from the defense counsel, Arroyo never faltered and was in fact consistent in declaring that she received the specimen from Agravante on 9 June 1994 and immediately conducted the laboratory test. Finally, the lower courts correctly sentenced appellant to suffer the penalty of reclusion perpetua and to pay a fine of one million pesos by virtue of the amendment to Section 4, R.A. No. 6425 by R.A. No. 7659.38 WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of San Jose, Camarines Sur, Branch 30 in Criminal Case No. T-1476, finding appellant Salvador Peaflorida y Clidoro guilty beyond reasonable doubt of violation of Section 4, Article II of R.A. No. 6425 (Dangerous Drugs Act) as amended, and sentencing him to suffer the penalty of reclusion perpetua and to pay a fine of One Million Pesos (P1,000,000.00), is AFFIRMED in toto. ARSENIO VERGARA VALDEZ,G.R. No.170180 Petitioner, Present: cralawQUISUMBING, J., Chairperson, -versus-CARPIO, CARPIO MORALES, cralawTINGA, and VELASCO, JJ. PEOPLE OF THE PHILIPPINES, Respondent.cralawPromulgated: November 23, 2007 x------------------------------------------------------------------------------------x DEC ISION TINGA, J.: cralawThe sacred right against an arrest, search or seizure without valid warrant is not only ancient. It is also zealously safeguarded. The Constitution guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.[1] Any evidence obtained in violation of said right shall be inadmissible for any purpose in any proceeding. Indeed, while the power to search and seize may at times be necessary to the public welfare, still it must be exercised and the law implemented without contravening the constitutional rights of the citizens, for the enforcement of no statute is of sufficient importance to justify indifference to the basic principles of government.[2]chanroblesvirtuallawlibrary cralawOn appeal is the Decision[3] of the Court of Appeals dated 28 July 2005, affirming the Judgment[4] of the Regional Trial Court (RTC), Branch 31, Agoo, La Union dated 31 March 2004 finding petitioner Arsenio Vergara Valdez guilty beyond reasonable doubt of violating Section 11 of Republic Act No. 9165 (R.A. No. 9165)[5] and sentencing him to suffer the penalty of imprisonment ranging from eight (8) years and one (1) day of prision mayor medium as minimum to fifteen (15) years of reclusion temporal medium as maximum and ordering him to pay a fine of P350,000.00.[6]chanroblesvirtuallawlibrary

I. cralawOn 26 June 2003, petitioner was charged with violation of Section 11, par. 2(2) of R.A. No. 9165 in an Information[7] which reads: cralaw That on or about the 17th day of March 2003, in the Municipality of Aringay, Province of La Union, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession, control and custody dried marijuana leaves wrapped in a cellophane and newspaper page, weighing more or less twenty-five (25) grams, without first securing the necessary permit, license or prescription from the proper government agency. cralawCONTRARY TO LAW.[8] cralawOn arraignment, petitioner pleaded not guilty. Thereafter, trial on the merits ensued with the prosecution presenting the three (3) barangay tanods of San Benito Norte, Aringay, La Union namely, Rogelio Bautista (Bautista), Nestor Aratas (Aratas) and Eduardo Ordoo (Ordoo), who arrested petitioner. cralawBautista testified that at around 8:00 to 8:30 p.m. of 17 March 2003, he was conducting the routine patrol along the National Highway in Barangay San Benito Norte, Aringay, La Union together with Aratas and Ordoo when they noticed petitioner, lugging a bag, alight from a mini-bus. The tanods observed that petitioner, who appeared suspicious to them, seemed to be looking for something. They thus approached him but the latter purportedly attempted to run away. They chased him, put him under arrest and thereafter brought him to the house of Barangay Captain Orencio Mercado (Mercado) where he, as averred by Bautista, was ordered by Mercado to open his bag. Petitioners bag allegedly contained a pair of denim pants, eighteen pieces of eggplant and dried marijuana leaves wrapped in newspaper and cellophane. It was then that petitioner was taken to the police station for further investigation.[9]chanroblesvirtuallawlibrary

Finding that the prosecution had proven petitioners guilt beyond reasonable doubt, the RTC rendered judgment against him and sentenced him to suffer indeterminate imprisonment ranging from eight (8) years and one (1) day of prision mayor medium as minimum to fifteen (15) years of reclusion temporal medium as maximum and ordered him to pay a fine of P350,000.00.[15]chanroblesvirtuallawlibrary cralawAggrieved, petitioner appealed the decision of the RTC to the Court of Appeals. On 28 July 2005, the appellate court affirmed the challenged decision. The Court of Appeals, finding no cogent reason to overturn the presumption of regularity in favor of the barangay tanod in the absence of evidence of ill-motive on their part, agreed with the trial court that there was probable cause to arrest petitioner. It observed further: cralawThat the prosecution failed to establish the chain of custody of the seized marijuana is of no moment. Such circumstance finds prominence only when the existence of the seized prohibited drugs is denied. In this case, accused-appellant himself testified that the marijuana wrapped in a newspaper was taken from his bag. The corpus delicti of the crime, i.e.[,] the existence of the marijuana and his possession thereof, was amply proven by accused-appellant Valdezs own testimony.[16] cralaw In this appeal, petitioner prays for his acquittal and asserts that his guilt of the crime charged had not been proven beyond reasonable doubt. He argues, albeit for the first time on appeal, that the warrantless arrest effected against him by the barangay tanod was unlawful and that the warrantless search of his bag that followed was likewise contrary to law. Consequently, he maintains, the marijuana leaves purportedly seized from him are inadmissible in evidence for being the fruit of a poisonous tree. Well-settled is the rule that the findings of the trial court on the credibility of witnesses and their testimonies are accorded great respect and weight, in the absence of any clear showing that some facts and circumstances of weight or substance which could have affected the result of the case have been overlooked, misunderstood or misapplied.[17]chanroblesvirtuallawlibrary After meticulous examination of the records and evidence on hand, however, the Court finds and so holds that a reversal of the decision a quo under review is in order.

cralawAratas and Ordoo corroborated Bautistas testimony on most material points. On cross-examination, however, Aratas admitted that he himself brought out the contents of petitioners bag before petitioner was taken to the house of Mercado.[10] Nonetheless, he claimed that at Mercados house, it was petitioner himself who brought out the contents of his bag upon orders from Mercado. For his part, Ordoo testified that it was he who was ordered by Mercado to open petitioners bag and that it was then that they saw the purported contents thereof.[11]chanroblesvirtuallawlibrary cralawThe prosecution likewise presented Police Inspector Valeriano Laya II (Laya), the forensic chemist who conducted the examination of the marijuana allegedly confiscated from petitioner. Laya maintained that the specimen submitted to him for analysis, a sachet of the substance weighing 23.10 grams and contained in a plastic bag, tested positive of marijuana. He disclosed on cross-examination, however, that he had knowledge neither of how the marijuana was taken from petitioner nor of how the said substance reached the police officers. Moreover, he could not identify whose marking was on the inside of the cellophane wrapping the marijuana leaves.[12]chanroblesvirtuallawlibrary

II. At the outset, we observe that nowhere in the records can we find any objection by petitioner to the irregularity of his arrest before his arraignment. Considering this and his active participation in the trial of the case, jurisprudence dictates that petitioner is deemed to have submitted to the jurisdiction of the trial court, thereby curing any defect in his arrest. The legality of an arrest affects only the jurisdiction of the court over his person.[18] Petitioners warrantless arrest therefore cannot, in itself, be the basis of his acquittal. However, to determine the admissibility of the seized drugs in evidence, it is indispensable to ascertain whether or not the search which yielded the alleged contraband was lawful. The search, conducted as it was without a warrant, is justified only if it were incidental to a lawful arrest.[19] Evaluating the evidence on record in its totality, as earlier intimated, the reasonable conclusion is that the arrest of petitioner without a warrant is not lawful as well. Petitioner maintains, in a nutshell, that after he was approached by the tanod and asked to show the contents of his bag, he was simply herded without explanation and taken to the house of the barangay captain. On their way there, it was Aratas who carried his bag. He denies ownership over the contraband allegedly found in his bag and asserts that he saw it for the first time at the barangay captains house.

The charges were denied by petitioner. As the defenses sole witness, he testified that at around 8:30 p.m. on 17 March 2003, he arrived in Aringay from his place in Curro-oy, Santol, La Union. After alighting from the bus, petitioner claimed that he went to the house of a friend to drink water and then proceeded to walk to his brothers house. As he was walking, prosecution witness Ordoo, a cousin of his brothers wife, allegedly approached him and asked where he was going. Petitioner replied that he was going to his brothers house. Ordoo then purportedly requested to see the contents of his bag and appellant acceded. It was at this point that Bautista and Aratas joined them. After inspecting all the contents of his bag, petitioner testified that he was restrained by the tanod and taken to the house of Mercado. It was Aratas who carried the bag until they reached their destination.[13]chanroblesvirtuallawlibrary Petitioner maintained that at Mercados house, his bag was opened by the tanod and Mercado himself. They took out an item wrapped in newspaper, which later turned out to be marijuana leaves. Petitioner denied ownership thereof. He claimed to have been threatened with imprisonment by his arrestors if he did not give the prohibited drugs to someone from the east in order for them to apprehend such person. As petitioner declined, he was brought to the police station and charged with the instant offense. Although petitioner divulged that it was he who opened and took out the contents of his bag at his friends house, he averred that it was one of the tanod who did so at Mercados house and that it was only there that they saw the marijuana for the first time.[14]chanroblesvirtuallawlibrary

Even casting aside petitioners version and basing the resolution of this case on the general thrust of the prosecution evidence, the unlawfulness of petitioners arrest stands out just the same. Section 5, Rule 113 of the Rules on Criminal Procedure provides the only occasions on which a person may be arrested without a warrant, to wit: Section 5. Arrest without warrant; when lawful.A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

xxx It is obvious that based on the testimonies of the arresting barangay tanod, not one of these circumstances was obtaining at the time petitioner was arrested. By their own admission, petitioner was not committing an offense at the time he alighted from the bus, nor did he appear to be then committing an offense.[20] The tanod did not have probable cause either to justify petitioners warrantless arrest. For the exception in Section 5(a), Rule 113 to operate, this Court has ruled that two (2) elements must be present: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer.[21] Here, petitioners act of looking around after getting off the bus was but natural as he was finding his way to his destination. That he purportedly attempted to run away as the tanod approached him is irrelevant and cannot by itself be construed as adequate to charge the tanod with personal knowledge that petitioner had just engaged in, was actually engaging in or was attempting to engage in criminal activity. More importantly, petitioner testified that he did not run away but in fact spoke with the barangay tanod when they approached him. Even taking the prosecutions version generally as the truth, in line with our assumption from the start, the conclusion will not be any different. It is not unreasonable to expect that petitioner, walking the street at night, after being closely observed and then later tailed by three unknown persons, would attempt to flee at their approach. Flight per se is not synonymous with guilt and must not always be attributed to ones consciousness of guilt.[22] Of persuasion was the Michigan Supreme Court when it ruled in People v. Shabaz[23] that [f]light alone is not a reliable indicator of guilt without other circumstances because flight alone is inherently ambiguous. Alone, and under the circumstances of this case, petitioners flight lends itself just as easily to an innocent explanation as it does to a nefarious one. Moreover, as we pointed out in People v. Tudtud,[24] [t]he phrase in his presence therein, connot[es] penal knowledge on the part of the arresting officer. The right of the accused to be secure against any unreasonable searches on and seizure of his own body and any deprivation of his liberty being a most basic and fundamental one, the statute or rule that allows exception to the requirement of a warrant of arrest is strictly construed. Its application cannot be extended beyond the cases specifically provided by law.[25]chanroblesvirtuallawlibrary Indeed, the supposed acts of petitioner, even assuming that they appeared dubious, cannot be viewed as sufficient to incite suspicion of criminal activity enough to validate his warrantless arrest.[26] If at all, the search most permissible for the tanod to conduct under the prevailing backdrop of the case was a stop-andfrisk to allay any suspicion they have been harboring based on petitioners behavior. However, a stop-and-frisk situation, following Terry v. Ohio,[27] must precede a warrantless arrest, be limited to the persons outer clothing, and should be grounded upon a genuine reason, in light of the police officers experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him.[28]chanroblesvirtuallawlibrary

i.e., the consent is unequivocal, specific, and intelligently given, uncontaminated by any duress or coercion.Hence, consent to a search is not to be lightly inferred, but must be shown by clear and convincing evidence. The question whether a consent to a search was in fact voluntary is a question of fact to be determined from the totality of all the circumstances. Relevant to this determination are the following characteristics of the person giving consent and the environment in which consent is given: (1) the age of the defendant; (2)whether he was in a public or secluded location; (3) whether he objected to the search or passively looked on; (4) the education and intelligence of the defendant; (5) the presence of coercive policeprocedures; (6) the defendant's belief that no incriminating evidence will be found; (7) the nature of the police questioning; (8) the environment in which the questioning took place; and (9) the possibly vulnerable subjective state of the person consenting. It is the State which has the burden of proving, by clear and positive testimony, that the necessary consent was obtained and that it was freely and voluntarily given.[32]

In the case at bar, following the theory of the prosecution albeit based on conflicting testimonies on when petitioners bag was actually opened, it is apparent that petitioner was already under the coercive control of the public officials who had custody of him when the search of his bag was demanded. Moreover, the prosecution failed to prove any specific statement as to how the consent was asked and how it was given, nor the specific words spoken by petitioner indicating his alleged "consent." Even granting that petitioner admitted to opening his bag when Ordoo asked to see its contents, his implied acquiescence, if at all, could not have been more than mere passive conformity given under coercive or intimidating circumstances and hence, is considered no consent at all within the contemplation of the constitutional guarantee.[33] As a result, petitioners lack of objection to the search and seizure is not tantamount to a waiver of his constitutional right or a voluntary submission to the warrantless search and seizure.[34]chanroblesvirtuallawlibrary III. Notably, the inadmissibility in evidence of the seized marijuana leaves for being the fruit of an unlawful search is not the lone cause that militates against the case of the prosecution. We likewise find that it has failed to convincingly establish the identity of the marijuana leaves purportedly taken from petitioners bag. In all prosecutions for violation of the Dangerous Drugs Act, the following elements must concur: (1) proof that the transaction took place; and (2) presentation in court of the corpus delicti or the illicit drug as evidence.[35] The existence of dangerous drugs is a condition sine qua non for conviction for the illegal sale of dangerous drugs, it being the very corpus delicti of the crime.[36]chanroblesvirtuallawlibrary In a line of cases, we have ruled as fatal to the prosecutions case its failure to prove that the specimen submitted for laboratory examination was the same one allegedly seized from the accused.[37] There can be no crime of illegal possession of a prohibited drug when nagging doubts persist on whether the item confiscated was the same specimen examined and established to be the prohibited drug.[38] As we discussed in People v. Orteza[39], where we deemed the prosecution to have failed in establishing all the elements necessary for conviction of appellant for illegal sale of shabu First, there appears nothing in the record showing that police officers complied with the proper procedure in the custody of seized drugs as specified in People v. Lim, i.e., any apprehending team having initial control of said drugs and/or paraphernalia should, immediately after seizure or confiscation, have the same physically inventoried and photographed in the presence of the accused, if there be any, and or his representative, who shall be required to sign the copies of the inventory and be given a copy thereof. The failure of the agents to comply with the requirement raises doubt whether what was submitted for laboratory examination and presented in court was actually recovered from appellant. It negates the presumption that official duties have been regularly performed by the police officers. In People v. Laxa, where the buy-bust team failed to mark the confiscated marijuana immediately after the apprehension of the accused, the Court held that the deviation from the standard procedure in anti-narcotics operations produced doubts as to the origins of the marijuana. Consequently, the Court concluded that the prosecution failed to establish the identity of the corpus delicti. The Court made a similar ruling in People v. Kimura, where the Narcom operatives failed to place markings on the seized marijuana at the time the accused was arrested and to observe the procedure and take custody of the drug. More recently, in Zarraga v. People, the Court held that the material inconsistencies with regard to when and where the markings on the shabu were made and the lack of inventory on the seized drugs created reasonable doubt as to the identity of the corpus delicti. The Court thus acquitted the accused due to the prosecutions failure to indubitably show the identity of the shabu.

Accordingly, petitioners waiver of his right to question his arrest notwithstanding, the marijuana leaves allegedly taken during the search cannot be admitted in evidence against him as they were seized during a warrantless search which was not lawful.[29] As we pronounced in People v. Bacla-an A waiver of an illegal warrantless arrest does not also mean a waiver of the inadmissibility of evidence seized during an illegal warrantless arrest.The following searches and seizures are deemed permissible by jurisprudence: (1) search of moving vehicles (2) seizure in plain view (3) customs searches (4) waiver or consent searches (5) stop and frisk situations (Terry Search) and (6) search incidental to a lawful arrest.The last includes a valid warrantless search and seizure pursuant to an equally valid warrantless arrest, for, while as a rule, an arrest is considered legitimate if effected with a valid warrant of arrest, the Rules of Court recognize permissible warrantless arrests, to wit: (1) arrests in flagrante delicto, (2) arrests effected in hot pursuit, and, (3) arrests of escaped prisoners.[30] When petitioner was arrested without a warrant, he was neither caught in flagrante delicto committing a crime nor was the arrest effected in hot pursuit. Verily, it cannot therefore be reasonably argued that the warrantless search conducted on petitioner was incidental to a lawful arrest. In its Comment, the Office of the Solicitor General posits that apart from the warrantless search being incidental to his lawful arrest, petitioner had consented to the search. We are not convinced. As we explained in Caballes v. Court of Appeals[31]chanroblesvirtuallawlibrary Doubtless, the constitutional immunity against unreasonable searches and seizures is a personal right which may be waived. The consent must be voluntary in order to validate an otherwise illegal detention and search,

In the case at bar, after the arrest of petitioner by the barangay tanod, the records only show that he was taken to the house of the barangay captain and thereafter to the police station. The Joint Affidavit[40] executed by the tanod merely states that they confiscated the marijuana leaves which they brought to the police station together with petitioner. Likewise, the Receipt[41] issued by the Aringay Police Station merely acknowledged receipt of the suspected drugs supposedly confiscated from petitioner. Not only did the three tanod contradict each other on the matter of when petitioners bag was opened, they also gave conflicting testimony on who actually opened the same. The prosecution, despite these material inconsistencies, neglected to explain the discrepancies. Even more damning to its cause was the admission by Laya, the forensic chemist, that he did not know how the specimen was taken from petitioner, how it reached the police authorities or whose marking was on the cellophane wrapping of the marijuana. The nonpresentation, without justifiable reason, of the police officers who conducted the inquest proceedings and marked the seized drugs, if such was the case, is fatal to the case. Plainly, the prosecution neglected to establish the crucial link in the chain of custody of the seized marijuana leaves from the time they were first allegedly discovered until they were brought for examination by Laya. The Court of Appeals found as irrelevant the failure of the prosecution to establish the chain of custody over the seized marijuana as such [f]inds prominence only when the existence of the seized prohibited drug is denied.[42] We cannot agree. To buttress its ratiocination, the appellate court narrowed on petitioners testimony that the marijuana was taken from his bag, without taking the statement in full context.[43] Contrary to the Court of Appeals findings, although petitioner testified that the marijuana was taken from his bag, he consistently denied ownership thereof.[44] Furthermore, it defies logic to require a denial of ownership of the seized drugs before the principle of chain of custody comes into play. The onus of proving culpability in criminal indictment falls upon the State. In conjunction with this, law enforcers and public officers alike have the corollary duty to preserve the chain of custody over the seized drugs. The chain of evidence is constructed by proper exhibit handling, storage, labeling and recording, and must exist from the time the evidence is found until the time it is offered in evidence. Each person who takes possession of the specimen is duty-bound to detail how it was cared for, safeguarded and preserved while in his or her control to prevent alteration or replacement while in custody. This guarantee of the integrity of the evidence to be used against an accused goes to the very heart of his fundamental rights. The presumption of regularity in the performance of official duty invoked by the prosecution and relied upon by the courts a quo cannot by itself overcome the presumption of innocence nor constitute proof of guilt beyond reasonable doubt.[45] Among the constitutional rights enjoyed by an accused, the most primordial yet often disregarded is the presumption of innocence.This elementary principle accords every accused the right to be presumed innocent until the contrary is proven beyond reasonable doubt.Thus, the burden of proving the guilt of the accused rests upon the prosecution. Concededly, the evidence of the defense is weak and uncorroborated. Nevertheless, this [c]annot be used to advance the cause of the prosecution as its evidence must stand or fall on its own weight and cannot be allowed to draw strength from the weakness of the defense.[46] Moreover, where the circumstances are shown to yield two or more inferences, one inconsistent with the presumption of innocence and the other compatible with the finding of guilt, the court must acquit the accused for the reason that the evidence does not satisfy the test of moral certainty and is inadequate to support a judgment of conviction.[47]chanroblesvirtuallawlibrary

IV. A final word. We find it fitting to take this occasion to remind the courts to exercise the highest degree of diligence and prudence in deliberating upon the guilt of accused persons brought before them, especially in light of the fundamental rights at stake. Here, we note that the courts a quo neglected to give more serious consideration to certain material issues in the determination of the merits of the case. We are not oblivious to the fact that in some instances, law enforcers resort to the practice of planting evidence to extract information or even harass civilians. Accordingly, courts are duty-bound to be [e]xtra vigilant in trying drug cases lest an innocent person be made to suffer the unusually severe penalties for drug offenses.[52] In the same vein, let this serve as an admonition to police officers and public officials alike to perform their mandated duties with commitment to the highest degree of diligence, righteousness and respect for the law. WHEREFORE, the assailed Decision is REVERSED and SET ASIDE. Petitioner Arsenio Vergara Valdez is ACQUITTED on reasonable doubt.The Director of the Bureau of Corrections is directed to cause the immediate release of petitioner, unless the latter is being lawfully held for another cause; and to inform the Court of the date of his release, or the reasons for his continued confinement, within ten (10) days from notice. No costs. G.R. No. 121087 August 26, 1999

FELIPE NAVARRO, petitioner, vs. THE COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, respondents. MENDOZA, J.: This is a petition for review on certiorari of the decision1 of the Court of Appeals, dated December 14, 1994, which affirmed the judgment of the Regional Trial Court, Branch 5, Lucena City, dated July 27, 1992, finding petitioner Felipe Navarro guilty beyond reasonable doubt of homicide and sentencing him to ten (10) years of prision mayor, as minimum, and fourteen (14) years and eight (8) months, and (1) day of reclusion temporal, as maximum, but increased the death indemnity awarded to the heirs of the victim, Enrique "Ike" Lingan, from P30,000.00 to P50,000.00. The information against petitioner alleged That on or about the 4th day of February, 1990, in the nighttime, in the City of Lucena, Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the said accused, being then a member of the Lucena Integrated National Police, with intent to kill, did then and there willfully, unlawfully and feloniously assault one Ike Lingan inside the Lucena police headquarters, where authorities are supposed to be engaged in the discharge of their duties, by boxing the said Ike Lingan in the head with the butt of a gun and thereafter when the said victim fell, by banging his head against the concrete pavement, as a consequence of which said Ike Lingan suffered cerebral concussion and shock which directly caused his death. The evidence show that, at around 8:40 in the evening of February 4, 1990, Stanley Jalbuena and Enrique "Ike" Lingan, who were reporters of the radio station DWTI in Lucena City, together with one Mario Ilagan, went to the Entertainment City following reports that it was showing the nude dancers. After the three had seated themselves at a table and ordered beer, a scantily clad dancer appeared on stage and began to perform a strip act. As she removed her brassieres, Jalbuena brought out his camera and took a picture.2 At that point, the floor manager, Dante Liquin, with a security guard, Alex Sioco, approached Jalbuena and demanded to know why he took a picture.3 Jalbuena replied: "Wala kang pakialam, because this is my job."4 Sioco pushed Jalbuena towards the table as he warned the latter that he would kill him.5 When Jalbuena saw that Sioco was about to pull out his gun, he ran out of the joint followed by his companions.6 Jalbuena and his companions went to the police station to report the matter. Three of the policeman on duty, including petitioner Navarro, were having drinks in front of the police station, and they asked Jalbuena and his companions to join them. Jalbuena declined and went to the desk officer, Sgt. Aonuevo, to report the incident. In a while, Liquin and Sioco arrived on a motorcycle.7 Sioco and Liquin were met by petitioner Navarro who talked with them in a corner for around fifteen minutes.8 Afterwards, petitioner Navarro turned to Jalbuena and, pushing him to the wall, said to him: "Putang ina,

cralaw Drug addiction has been invariably denounced as an especially vicious crime,[48] and one of the most pernicious evils that has ever crept into our society,[49] for those who become addicted to it not only slide into the ranks of the living dead, what is worse, they become a grave menace to the safety of law-abiding members of society,[50] whereas peddlers of drugs are actually agents of destruction.[51] Indeed, the havoc created by the ruinous effects of prohibited drugs on the moral fiber of society cannot be underscored enough. However, in the rightfully vigorous campaign of the government to eradicate the hazards of drug use and drug trafficking, it cannot be permitted to run roughshod over an accuseds right to be presumed innocent until proven to the contrary and neither can it shirk from its corollary obligation to establish such guilt beyond reasonable doubt. In this case, the totality of the evidence presented utterly fails to overcome the presumption of innocence which petitioner enjoys. The failure of the prosecution to prove all the elements of the offense beyond reasonable doubt must perforce result in petitioners exoneration from criminal liability.

kinakalaban mo si Kabo Liquin, anak yan ni Kabo Liquin, hindi mo ba kilala?"9 Petitioner Navarro then pulled out his firearm and cocked it, and, pressing it on the face of Jalbuena, said "Ano, uutasin na kita?"10 At this point, Lingan intervened and said to petitioner Navarro: "Huwag namang ganyan pumarito kami para magpa-blotter, I am here to mediate."11 Petitoner Navarro replied: "Walang press, press, mag-sampu pa kayo."12 He then turned to Sgt. Aonuevo and told him to make of record the behavior of Jalbuena and Lingan.13 This angered Lingan, who said: "O, di ilagay mo diyan"14 Petitioner Navarro retorted: "Talagang ilalagay ko."15 The two then had a heated exchange.16 Finally, Lingan said: "Masyado kang abusado, alisin mo yang baril mo at magsuntukan na lang tayo."17 Petitioner Navarro replied: "Ah, ganoon?"18 As Lingan was about turn away, petitioner Navarro hit him with the handle of the pistol above the left eyebrow. Lingan fell on the floor, blood flowing down his face. He tried to get up, but petitioner Navarro gave him a fist blow on the forehead which floored him.19 Petitioner Navarro turned to Jalbuena and said: "Kita mo yan ha, buhay kang testigo, si Ike Lingan and naghamon."20 He said to Sgt. Aonuevo: "Ilagay mo diyan sa blotter sa harap ni Alex Sioco at Dante Liquin, na si Ike Lingan ang naghamon."21 He then poked his gun at the right temple of Jalbuena and made him sign his name on the blotter.22 Jalbuena could not affix his signature. His right hand was trembling and he simply wrote his name in print.23 Capt. Coronado, the station commander, called petitioner Navarro to his office, while a policeman took Lingan to the Quezon Memorial Hospital. The station manager of DWTI, Boy, Casaada, arrived and, learning that Lingan had been taken to the hospital, proceeded there. But Lingan died from his injuries.24 Unknown to petitioner Navarro, Jalbuena was able to record on tape the exchange between petitioner and the deceased.25 The following is an excerpt from the tape recording: Lingan: Navarro: Lingan: xxx Navarro: Pare, you are abusing yourself. Who is that abusing?

(Sounds of a scuffle) Navarro: Hinamon ako nyan! Pare hinamon ako nyan! Pare hinamon ako nyan, testigo kayo. Alisin ko daw ang baril ko. Hinamon ako nyan. Pare, ilagay mo diyan, hinamon ako sa harap ni Stanley. Testigo kayo, hinamon ako. Pulis tayo eh. Puta, buti nga, suntok lang ang inabot nyan. Sa harap ni Alex, ni Joe, ni Stanley, hinamon ako. Pare, hinamon ako, kinig nyo ha. Hinamon ako nyan. Sige, dalhin nyo sa hospital yan. Petitioner Felipe Navarro claims that it was the deceased who tried to hit him twice, but he (petitioner) was able to duck both times, and that Lingan was so drunk he fell on the floor twice, each time hitting his head on the concrete.26 In giving credence to the evidence for the prosecution, the trial court stated: After a thorough and in-depth evaluation of the evidence adduced by the prosecution and the defense, this court finds that the evidence for the prosecution is the more credible, concrete and sufficient to create that moral certainty in the mind of the court that accused herein is criminally responsible. The defense's evidence which consists of outright denial could not under the circumstance overturn the strength of the prosecution's evidence. This court finds that the prosecution witnesses, more particularly Stanley Jalbuena, lacked any motive to make false accusation, distort the truth, testify falsehood or cause accusation of one who had neither brought him harm or injury. Going over the evidence on record, the postmortem report issued by Dra. Eva Yamamoto confirms the detailed account given by Stanley Jalbuena on how Lingan sustained head injuries. Said post-mortem report together with the testimony of Jalbuena sufficiently belie the claim of the defense that the head injuries of deceased Lingan were caused by the latter's falling down on the concrete pavement head first. The Court of Appeals affirmed:

I'm here to mediate. Do not include me in the problem. I'm out of the problem. xxx xxx We are far from being convinced by appellant's aforesaid disquisition. We have carefully evaluated the conflicting versions of the incident as presented by both parties, and we find the trial court's factual conclusions to have better and stronger evidentiary support. In the first place, the mere fact that Jalbuena was himself a victim of appellant's aggression does not impair the probative worth of his positive and logical account of the incident in question. In fact, far from proving his innocence, appellant's unwarranted assault upon Jalbuena, which the defense has virtually admitted, clearly betrays his violent character or disposition and his capacity to harm others. Apparently, the same motivation that led him into assailing Jalbuena must have provoked him into also attacking Lingan who had interceded for Jalbuena and humiliated him and further challenged to a fist fight.1wphi1.nt xxx xxx xxx

Wala sa akin yan. Ang kaso lang . . .

Lingan: Kalaban mo ang media, pare, Ako at si Stanley, dalawa kami. Okay. Do not fight with me. I just came here to ayusin things. Do not say bad things against me. I'm the number one loko sa media. I'm the best media man. . . . Navarro: loko ka! Lingan: Huwag tayong mag-lokohan sa ganyan! Huwag na tayong mag-takotan! Huwag mong sabihing I'm brave also.

Navarro: Ay lalo na ako. Tahimik lang naman ako. Wala ka namang masasabi sa akin dahil nag-tatrabaho lang ako ng ayon sa serbisyo ko. Lingan: You are challenging me and him. . . .

On the other hand, appellant's explanation as how Lingan was injured is too tenuous and illogical to be accepted. It is in fact contradicted by the number, nature and location of Lingan's injuries as shown in the postmortem report (Exh. D). According to the defense, Lingan fell two times when he was outbalanced in the course of boxing the appellant. And yet, Lingan suffered lacerated wounds in his left forehead, left eyebrow, between his left and right eyebrows, and contusion in the right temporal region of the head (Exh. E.). Certainly, these injuries could not have been resulted from Lingan's accidental fall. Hence, this appeal. Petitioner Navarro contends: THE HONORABLE COURT OF APPEALS HAS DECIDED THE CASE NOT IN ACCORD WITH LAW AND WITH THE APPLICABLE DECISIONS OF THE SUPREME COURT. ITS CONCLUSION IS A FINDING BASED ON SPECULATION, SURMISE OR CONJECTURE; THE INFERENCE IT MADE IS MANIFESTLY MISTAKEN, ABSURD OR IMPOSSIBLE; IT COMMITTED GRAVE ABUSE OF DISCRETION; ITS JUDGMENT IS BASED ON A MISAPPREHENSION OF FACTS; ITS FINDING IS CONTRADICTED BY EVIDENCE ON RECORD; AND ITS FINDING IS DEVOID OF SUPPORT IN THE RECORD. The appeal is without merit.

Navarro: Ay walastik ka naman Ike! Pag may problema ka dito sinasabihan kita na may balita tayong maganda. Pambihira ka Ike. Huwag mong sabihin na . . . Parang minomonopoly mo eh. Lingan: Navarro: Lingan: Navarro: Lingan: Navarro: Pati ako kalaban ninyo. Talagang kalaban namin ang press. Lahat, hindi lang ikaw! You are wrong. Bakit kalaban nyo ang press? Pulis ito! Aba! Alisin mo ang baril mo! Alisin mo ang baril mo! Suntukan tayo, sige. Mayabang ka ah!

First. Petitioner Navarro questions the credibility of the testimony of Jalbuena on the ground that he was a biased witness, having a grudge against him. The testimony of a witness who has an interest in the conviction

of the accused is not, for this reason alone, unreliable.27 Trial courts, which have the opportunity observe the facial expressions, gestures, and tones of voice of a witness while testifying, are competent to determine whether his or her testimony should be given credence.28 In the instant case, petitioner Navarro has not shown that the trial court erred in according weight to the testimony of Jalbuena. Indeed, Jalbuena's testimony is confirmed by the voice recording had made. It may be asked whether the tape is admissible in view of R.A. No. 4200, which prohibits wire tapping. The answer is in the affirmative. The law provides: Sec. 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as dictaphone or dictagraph of dectectaphone or walkie-talkie or tape-recorder, or however otherwise described: It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in section 3 hereof, shall not be covered by this prohibition. xxx xxx xxx

accused, a policeman, who shot a motorist after the latter had repeatedly taunted him with defiant words. Hence, this mitigating circumstance should be considered in favor of petitioner Navarro. Furthermore, the mitigating circumstance that the offender had no intention to commit so grave a wrong as that committed should also be appreciated in favor of petitioner. The frantic exclamations of petitioner Navarro after the scuffle that it was Lingan who provoked him shows that he had no intent to kill the latter. Thus, this mitigating circumstance should be taken into account in determining the penalty that should be imposed on petitioner Navarro. The allowance of this mitigating circumstance is consistent with the rule that criminal liability shall be incurred by any person committing a felony although the wrongful act done be different from that which he intended.41 In People v. Castro,42 the mitigating circumstance of lack of intent to commit so grave a wrong as that committed was appreciated in favor of the accused while finding him guilty of homicide. However, the aggravating circumstance of commission of a crime in a place where the public authorities are engaged in the discharge of their duties should be appreciated against petitioner Navarro. The offense in this case was committed right in the police station where policemen were discharging their public functions.43 The crime committed as found by the trial court and the Court of Appeals was homicide, for which the penalty under Art. 249 of the Revised Penal Code is reclusion temporal. As there were two mitigating circumstances and one aggravating circumstances, the penalty should be fixed in its minimum period.44 Applying the Indeterminate Sentence Law, petitioner Navarro should be sentenced to an indeterminate penalty, the minimum of which is within the range of the penalty next lower degree, i.e., prision mayor, and the maximum of which is reclusion temporal in its minimum period.45 The indemnity as increased by the Court of Appeals from P30,000.00 to P50,000.00 is in accordance with the current jurisprudence.46 WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the modification that petitioner Felipe Navarro is hereby SENTENCED to suffer a prison terms of 18 years of prision mayor, as minimum, to 14 years and 8 months of reclusion temporal, as maximum. G.R. No. 117247 April 12, 1996

Sec. 4. Any communication or spoken word, or the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or any information therein contained obtained or secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation. Thus, the law prohibits the overhearing, intercepting, or recording of private communications.29 Since the exchange between petitioner Navarro and Lingan was not private, its tape recording is not prohibited. Nor is there any question that it was duly authenticated. A voice recording is authenticated by the testimony of a witness (1) that he personally recorded the conversations; (2) that the tape played in the court was the one he recorded; and (3) that the voices on the tape are those of the persons such are claimed to belong.30 In the instant case, Jalbuena testified that he personally made the voice recording;31 that the tape played in the court was the one he recorded;32 and that the speakers on the tape were petitioner Navarro and Lingan.33 A sufficient foundation was thus laid for the authentication of the tape presented by the prosecution. Second. The voice recording made by Jalbuena established: (1) that there was a heated exchange between petitioner Navarro and Lingan on the placing in the police blotter of an entry against him and Jalbuena; and (2) that some form of violence occurred involving petitioner Navarro and Lingan, with the latter getting the worst of it. Furthermore, Dr. Eva Yamamoto, who performed the autopsy on the body of Lingan, issued the medical certificate,34 dated February 5, 1990, containing the following findings: Possible, sir. How about striking with a butt of a gun, could it cause shock? A Possible, sir.35 The above testimony clearly supports the claim of Jalbuena that petitioner Navarro hit Lingan with the handle of his pistol above the left eyebrow and struck him on the forehead with his fist. Third. It is argued that the mitigating circumstances of sufficient provocation or threat on the part of the offended party immediately preceding the act should have been appreciated in favor of petitioner Navarro. Provocation is defined to be any unjust or improper conduct or act of the offended party, capable of exciting, inciting or irritating anyone.36 The provocation must be sufficient and should immediately precede the act.37 To be sufficient, it must be adequate to excite a person to commit the wrong, which must accordingly be proportionate in gravity.38 And it must immediately precede the act so much so that there is no interval between the provocation by the offended party and the commission of the crime by the accused.39 In the present case, the remarks of Lingan, which immediately preceded the act of petitioner, constituted sufficient provocation. In People v. Macaso,40 we appreciated this mitigating circumstance in favor of the

MANUEL I. RAMIREZ, petitioner, vs. COURT OF APPEALS and ESMERALDO PONCE, respondents.

PANGANIBAN, J.:p Does the judgment in a land registration case denying the application filed in court in 1957 by the parents of the herein petitioner for the registration of land allegedly formed by alluvial deposits, which judgment was eventually affirmed by the Court of Appeals in 1968 and became final, constitute res judicata as to bar a subsequent application by the herein petitioner to register the same property? This is the question tackled by this Court in the instant petition for review on certiorari assailing the Decision 1 dated September 6, 1994 of the respondent Court 2 in CA-G.R. SP No. 33735, and the subsequent Resolution 3 denying petitioner's motion for reconsideration. By a Resolution dated October 23, 1995, the First Division of this court transferred the instant case to the Third. After careful deliberation on the submissions of the parties, this case was assigned to the undersigned ponente, who assumed his position as a member of the Court on October 10, 1995, for the writing of the herein Decision. Antecedent Facts In August, 1929, the Supreme Court rendered a decision in Government of the Phil. Islands vs. Colegio de San Jose 4, declaring that two parcels of land bordering on Laguna de Bay and identified as Lots 1 and 2 form an integral part of the Hacienda de San Pedro Tunasan belonging to the Colegio de San Jose. Ten years later, the Colegio de San Jose sold the said two lots, together with an adjoining unregistered land, to the Government. The three parcels of land acquired by the Government became known as the Tunasan Homesite. The Rural Progress Administration (RPA), which was charged with the administration and disposition of the homesite, caused the subdivision thereof into small lots for the purpose of selling them to bona fide occupants. In December, 1940, Lot 17, Block 78 of the Tunasan Homesite, which was part of Lot 2, and containing an area of 5,158 square meters, was sold by the RPA to Apolonio Diaz. In May, 1948, Lot 19 of the same

homesite, which was also apart of Lot 2, with an area of 1,170 square meters, was acquired by Apolonio Diaz, although his son Pastor Diaz was made to appear as the vendee. In January, 1955, the heirs of Apolonio Diaz transferred their rights to both Lots 17 and 19 to Marta Ygonia, wife of Arcadio Ramirez (said spouses being the parents of herein petitioner), who paid the balance of the purchase price for the lots. The Secretary of Agriculture and Natural Resources approved the deeds of transfer of rights executed by the heirs of Apolonio Diaz, and in July, 1958, the Land Tenure Administration executed a deed of sale in favor of Marta Ygonia over Lots 17 and 19. An original application for registration was filed by spouses Marta Ygonia and Arcadio Ramirez (docketed as LRC Case No . B-46) with the then Court of First Instance of Laguna in May, 1957. It had for its subject matter a parcel of land on the eastern side of Lot 17, with an area of 11,055 square meters (later increased to 11,311 sq. meters), which was claimed by the applicants as an accretion to their land gradually formed by alluvial deposits. The Director of Lands opposed the application on the grounds that the applicants did not possess sufficient title to the land sought to be registered, and that the land in question is a part of the public domain. Canuto Ponce (herein private respondent's predecessor) also filed an opposition claiming that the land applied for is foreshore land covered by a revocable permit granted to him in June 1956 by the Bureau of Lands. The Land Tenure Administration likewise opposed the application on behalf of the Republic of the Philippines, on the ground that, inasmuch as the Government was the previous owner of Lots 17 and 19, and considering that only the two lots excluding the accretion were sold to the predecessors of the applicant-spouses, the latter cannot claim ownership of the accretion and the same should be declared as part of the Government's patrimonial property. The principal question raised, both in the lower court and on appeal before the Court of Appeals (in CA-G.R. No. 28938-R) was simply whether the accretion came into existence only in 1943 , as the applicant-spouses claimed, or as far back as 1918, as maintained by the oppositors. As the appellate Court noted, resolution of said question rested on the credibility of witnesses presented. In its decision of October 31, 1960, the court a quo found for the oppositors, and denied the application for registration, holding that the accretion, based on preponderance of evidence, must have been gradual and dated back even before the acquisition of the Tunasan Homesite by the Government in 1939. The appellate court upheld the findings of the lower court since the applicants-spouses failed to show any fact or circumstance of weight which was overlooked or misinterpreted by the trial court, and since the testimonies of the witnesses for the applicants-spouses were either not credible or else tended to support the oppositors' position instead. The appellate court further stated: Considering that the Colegio de San Jose was the owner of Lot 2 (of which Lots 17 and 19 are part) to which the accretion in question is contiguous, it follows that the Colegio de San Jose also became the owner of said accretion at the time of its formation. Neither the applicants nor their predecessors can lay a claim of ownership over the land because it is clear from the documents that the property sold by the Government to Apolonio Diaz which was in turn conveyed to the applicants (herein petitioner's parents) was just a little more than one-half hectare, True it is that the applicants tried to prove that the heirs of Apolonio Diaz verbally agreed with them to include the accretion in the transfer deeds, but such oral evidence cannot prevail over the solemn recitals of the documents. Besides, the heirs of Apolonio Diaz cannot pretend to convey what did not belong to them. As a final attempt to have the land in dispute decreed in their names, the applicants claim that their possession of the land, tacked to that of their predecessors. is sufficient to vest title in them by acquisitive prescription. However, the evidence clearly demonstrates that from 1918 to 1940 it was Juan Ponce who was in possession of the land, and the possession of Canuto Ponce commenced from 1940 and extends up to the time this case was being tried. There is therefore no basis for the applicants' claim of acquisitive prescription. 5 The decision of the Court of Appeals in the above case, promulgated on July 6, 1968, became final and executory for failure of the applicants-spouses (parents of herein petitioner) to appeal therefrom. However, that was not to he the end of the story. Herein petitioner, as the buyer of Lots 17 and 19 from his parents, filed on May 17, 1989, in LRC Case No. B-526, before the Regional Trial Court of Laguna, Branch XXV, Bian, Laguna 6, an application for registration of the same land formed by accretion. After due publication, mailing and posting of notices, the petition was called for hearing. Among petitioner's witnesses was Mario Lantican, chief of the Forest Engineering and Infrastructure Unit at Los Baos, Laguna, who testified that the function of said office is to know whether the property involved is alienable and disposable. He testified that he conducted an inspection to determine the status of the subject property and prepared a report to the effect that the land is indeed disposable.

The trial court also noted the following findings in its Order of May 13, 1991: The REPORT of the Community Environment and Natural Resources states that the parcel of land, after it has been inspected/investigated, was verified to be within the alienable and disposable land under the Land Certification Project No. 10-A of San Pedro, Laguna certified and declared as such on September 28, 1981 pursuant to the Forestry Administrative Order No. 4-1627 per BFIC Map No. 3004 (Exh. "T"). Likewise, (sic) the Director of the Land Management Bureau in its "COMPLIANCE WITH REPORT", dated December 12, 1990, states that the land applied for registration is not covered by any kind of public land application filed by third persons, nor by any patent issued by said office (Exh. "U".) 7 Thereafter, the court a quo, considering the testimonial and documentary evidence on record, ruled that applicant (herein petitioner) possessed an imperfect title to the accretion, which could already be confirmed and registered, and ordered 8 registration and confirmation of title over the claimed accretion in favor of herein petitioner, and issuance of a decree of registration. Pursuant to said order, a decree of registration was eventually issued, followed by an original certificate of title. It was only a matter of time before herein private respondent son of the late Canuto Ponce became aware of the situation. He filed a special civil action for certiorari on February 14, 1994 which this Court referred to the Court of Appeals for appropriate action) seeking to annul the land decree issued in favor of petitioner and the judicial proceedings had in LRC Case No. B-526. In its assailed Decision of September 6, 1994, the respondent Court upheld herein private respondent's contention that the judgment in LRC Case No. B-526 approving the application over the accretion was improper since the earlier application in Case No. B-46 had been denied, which denial, as previously affirmed by the respondent Court in CA-G.R. No. 28938-R, constituted res judicata. The respondent Court ratiocinated: There is merit in petitioner's principal submission that res judicata had set in when private respondent applied for registration in 1989 over the same lot because of the previous rejection of the application of private respondent's parents in 1960. All of the requisites of res judicata . . . xxx xxx xxx

are present which prevent private respondent from relitigating the same issue of registration of the identical lot. There is no question that the judgment in Case No. B-46 (p. 27, Rollo) became final after it was affirmed in CA-G.R. No. 28938-R on July 6, 1968 (p. 39, Rollo) which was not appealed. There is equally no doubt that Case No. B-46 was rendered by a court having jurisdiction over the same subject matter and parties. Moreover, there was, between Case No. B-46 and LRC Case No. B-526, identity of parties, of subject matter and parties (should be cause of action). The fact that private respondent was not a party in the first registration case (p. 88, Rollo) is of no moment because private respondent is a successor-in-interest of his parents who acquired the disputed lot by title in 1988 subsequent to the commencement of the first registration case in 1960 (Section 49[b], Rule 39, Revised Rules of Court). In fact, only substantial identity of parties is required (San Diego vs. Cardona, 70 Phil. 281; 2 Martin, Rules of Court, 1982 Ed., p. 425). Similarly, there is identity of subject matter from a mere perusal of Case No. B-46 (p, 13, Rollo) and Case No. B-526 (p. 48, Rollo) which refer to the same property consisting of 11,311 sq. m. Lastly, there is no dispute that identity of causes of action between Case No. B-46 and Case No. B-526 exist since they both sought registration of the land formed by alluvial deposits. (CA Decision, p. 5; rollo, p. 36.) Thus, the respondent Court ruled as follows: WHEREFORE, the petition is hereby given DUE COURSE. The Order in LRC Case No. B-526 dated May 13, 1991 and Decree No. N-198605 issued by the LRA pursuant thereto are hereby SET ASIDE. Accordingly, the application (in) LRC Case No. B-526 is hereby ordered DISMISSED. The Issues The instant petition for review on certiorari raises two issues: I. Respondent Hon. Court of Appeals committed grave error in the interpretation and application of the doctrine of res judicata, more particularly on the issue of "public domain." and II. Respondent Hon. Court of Appeals committed grave error when it violated the provisions of Section 38 of Act No. 496, as amended (The Land Registration Act) relative to the doctrine of non-collateral attack of a decree or title.

However, as we shall soon see, the resolution of this case hinges on the first issue, and there is really no need to delve into the second. The Main Issue: Res Judicata Petitioner argues that res judicata did not apply in the instant case because of the ruling of this Court in the case of Director of Lands vs. Court of Appeals, 9 which quoted from the decision in an earlier but similarly titled case, Director of Lands vs. Court of Appeals, 10 as follows: But granting for a moment, that the defenses (sic) of res adjudicata was properly raised by petitioner herein, WE still hold that, factually, there is no prior final judgment at all to speak of. The decision in Cadastral Case No. 41 does not constitute a bar to the application of respondent Manuela Pastor; because a decision in a cadastral proceeding declaring a lot public land is not the final decree contemplated in Sections 38 and 40 of the Land Registration Act. A judicial declaration that a parcel of land is public, does not preclude even the same applicant from subsequently seeking a judicial confirmation of his title to the same land, provided he thereafter complies with the provisions of Section 48 of Commonwealth Act No. 141, as amended, and as long as said public land remains alienable and disposable (now sections 3 and 4, P.D. No. 1073). (emphasis supplied) 11 After careful deliberation and consultation, we find ourselves in agreement with petitioner's contention. Seen from the perspective offered by the aforequoted ruling, it is evident that one of the elements of res judicata is lacking in the case at bar. Respondent Court declared that "identity of causes of action between Case No. B46 and Case No. B-526 exist since they both sought registration of the land formed by alluvial deposits", but failed to recognize that the basis for claiming such registration was different in each case. In Case No. B-46, applicants-spouses Arcadio Ramirez and Marta Ygonia (herein petitioner's parents) claimed that their possession of the land, tacked to that of their predecessors Apolonio Diaz, et al. (allegedly from 1953 onwards). was sufficient to vest title in them by acquisitive prescription. 12 On the other hand, in LRC Case No. B-526, petitioner claimed that the duration of possession by his parents (commencing allegedly in 1958), combined with his own possession (counted from 1988 when he purchased the accretion from his parents) gave him sufficient title thereto by acquisitive prescription. 13 In other words, because of the different relevant periods of possession being referred to, the basis of the application in Case No. B-46 is actually different from that in Case No. 526. Stated in another way, the right to relief in one case rests upon a set of facts different from that upon which the other case depended. Hence, there was no res judicata to bar the proceedings in LRC Case No. R-526. Incidentally, the Solicitor General reached essentially the same conclusion in his Comment filed in CA-G.R. SP No. 33735 before the respondent Court. 14 As to the parties' pleas 15 before the respondent Court for the issuance of an order to cause the taking of a verification survey to determine whether they are referring to the same parcel of land or to two different properties, suffice it to say that the disposition of this case is not a bar to such a survey. 16 WHEREFORE, premises considered, the instant petition is hereby GRANTED. The assailed Decision of the Court of Appeals is hereby SET ASIDE and the Order dated May 13, 1991 issued by the RTC of Laguna, Br. 25 granting registration and confirmation of title in favor of petitioner is hereby AFFIRMED. No costs. DR. PEDRO F. GOBENCIONG, Petitioner,

- versus DR. PEDRO F. GOBENCIONG and the HON. COURT OF APPEALS (CEBU CITY), Respondents. x-------------------------------------------x DR. PEDRO F. GOBENCIONG, Petitioner, - versus DEPUTY OMBUDSMAN (VISAYAS), REGIONAL DIRECTOR of the Department of Health, Region VIII, and FLORA DELA PEA, Respondents. G.R. No. 159883 Present: PUNO, CJ, QUISUMBING, YNARES-SANTIAGO, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, AZCUNA, TINGA, CHICO-NAZARIO, VELASCO, JR., NACHURA, REYES, and LEONARDO-DE CASTRO, JJ. G.R. No. 168059

G.R. No. 173212

- versus -

Promulgated: March 31, 2008 x-----------------------------------------------------------------------------------------x DEC ISION VELASCO, JR., J.: The Petitions

HON. COURT OF APPEALS, DEPUTY OMBUDSMAN (VISAYAS), REGIONAL DIRECTOR of the Department of Health, Region VIII, and FLORA DELA PEA, Respondents. x-------------------------------------------x OFFICE OF THE OMBUDSMAN, Petitioner,

Before the Court are these three petitions, two interposed under Rule 45 and one under Rule 65 of the Rules of Court. These petitions stemmed from OMB-VIS-ADM-97-0370 entitled Dr. Flora de la Pea v. Dr. Rafael C. Omega, Chief of Hospital, Dr. Pedro F. Gobenciong, Administrative Officer IV, Crisologo R. Babula, Supply Officer IV, et al., all of Eastern Visayas Regional Medical Center, Tacloban City.

The first, a Petition for Review on Certiorari under Rule 45, docketed as G.R. No. 159883, seeks to nullify the Decision[1] and Resolution[2] dated November 26, 2002 and August 27, 2003, respectively, of the Court of Appeals (CA) in CA-G.R. SP No. 49585, denying petitioner Gobenciongs petition for certiorari under Rule 65 and, thus, effectively affirming the assailed Order[3] dated August 24, 1998 of the Deputy OmbudsmanVisayas, preventively suspending him from office. In the second, a Petition for Certiorari under Rule 65 and docketed as G.R. No. 168059, the Office of the Ombudsman assails, as tainted with grave abuse of discretion, the Decision[4] dated April 29, 2005 of the CA in CA-G.R. SP No. 61687, which set aside the Ombudsmans Decision[5] of March 21, 2000 and Order of August 10, 2000 Order[6] in OMB-VIS-ADM-97-0370 but only insofar as it imposed a penalty of one-year suspension on Gobenciong. The third, a Petition for Review on Certiorari under Rule 45, docketed as G.R. No. 173212, seeks to set aside the Decision and Resolution[7] dated April 29, 2005 and May 29, 2006, respectively, of the CA in CA-G.R. SP No. 61687, which sustained the aforesaid March 21, 2000 and August 10, 2000 rulings in OMB-VIS-ADM-970370. On January 17, 2006, the Court ordered the consolidation of G.R. No. 159883 with G.R. No. 168059, both to be considered as en banc cases.[8] The consolidation of G.R. No. 173212 with the first two cases later followed.[9] The Facts During the period material, Gobenciong held the position of Administrative Officer IV in Eastern Visayas Regional Medical Center (EVRMC), a public hospital in Tacloban City. On December 3, 1996, the appropriate EVRMC office issued Requisition and Issue Voucher No. (RIV) EO-1-96 for one unit hemoanalyzer (also called particle counter), among other items. On its face, RIV EO-1-96 carried, for the hemoanalyzer, the specifications electric 220V, 50 feed shelves capacity with a handwritten unit price quotation of PhP 1,195,998. After public bidding where Alvez Commercial, Inc. (Alvez) emerged as the best bidder, Purchase Order No. (PO) EO-5-96 dated December 9, 1996 was issued covering two units of nebulizer and one unit particle counter with specifications 23 Parameters, Genius, Italy, electric 220V, fully automated at the unit price as aforestated. As hospital documents would show, the nebulizers and the hemoanalyzer appeared to have been delivered on December 20, 1996 and accepted by Engr. Jose M. Jocano, Jr. and Supply Officer III Crisologo R. Babula, per Certification of Acceptance they signed to attest having accepted all the articles delivered by Alvez per Sales Invoice No. 0786. Similarly, Babula signed Sales Invoice No. 0786 to acknowledge receipt in good condition of the articles covered thereby. In addition, it was made to appear in a Commission on Audit (COA) Inspection Report that Jocano and Gobenciong had certified as correct the finding/recommendation that the two nebulizers and the hemoanalyzer had been inspected as to quality and quantity as per Sales Invoice No. 0786. On December 26, 1996, Disbursement Voucher No. (DV) 101-9612-1986, for PhP 1,161,817.35, net of creditable VAT, was prepared. Gobenciong, among others, signed the voucher to attest that the expense covered thereby was necessary, lawful, and incurred under his direct supervision. Appended to DV 101-96121986 were documents adverted to earlier, such as Sales Invoice No. 0786, the Certification of Acceptance, the COA Inspection Report, PO EO-5-96, and RIV EO-1-96. The issuance on December 27, 1996 of Landbank Check No. 456359 in the amount of PhP 1,161,817.35 in favor of Alvez, which then purportedly issued Receipt No. 0815, followed. On March 31, 1997, or little over three months after the supposed delivery of the hemoanalyzer, Alvez addressed a letter to EVRMC to assure the hospital that it would be replacing the yet to-be-delivered slightly defective hemoanalyzer with another unit. On April 1, 1997, Alvez actually delivered the promised replacementa Genius particle counter with Serial No. 36162. It was installed on April 2, 1997 and inspected the following day by Jocano and Gobenciong. The instant case started when Dr. Flora dela Pea, Head of the EVRMC Laboratory Unit, filed, on June 20, 1997, an administrative complaint before the Office of the Ombudsman-Visayas, charging Gobenciong, Jocano, Babula, and three other EVRMC officers with Falsification of Public Documents and Misconduct. The complaint was docketed as OMB-VIS-ADM-97-0370. In a related move, dela Pea also filed a complaint with the Department of Health (DOH) which forthwith formed a committee to look likewise into the alleged anomalous purchase of the expensive hemoanalyzer. The

investigation culminated in the filing by the DOH Secretary of a Formal Charge[10] dated October 29, 1997 for Grave Misconduct, Gross Neglect of Duty and Conduct Prejudicial to the Best Interest of the Service against Gobenciong and three others. Ombudsman Ordered Preventive Suspension On August 24, 1998, the Deputy Ombudsman-Visayas, upon dela Peas motion, issued an Order, placing all, except one, of the respondents in OMB-VIS-ADM-97-0370 under preventive suspension and directed the proper DOH officer to immediately implement the Order.[11] Following his receipt on November 9, 1998 of a copy of the said order, Gobenciong wrote Dr. Lilia O. Arteche, DOH Regional Director for Region VIII, requesting the deferment of the implementation of the preventive suspension until after his to-be-filed motion for reconsideration shall have been resolved. Conformably with the Ombudsmans directive,[12] Arteche, via a Memorandum[13] dated November 11, 1998, informed the affected respondents in OMB-VIS-ADM-97-0370 that their six-month preventive suspension shall take effect immediately upon their receipt of the memorandum. On November 12, 1998, Gobenciong sought reconsideration of the August 24, 1998 preventive suspension order. But due to the virtual denial of his plea for the deferment of his preventive suspension, Gobenciong, without awaiting the Office of the Ombudsmans action on his motion for reconsideration, went to the CA on a petition for certiorari, with a plea for the issuance of temporary restraining order (TRO). The petition was docketed as CA-G.R. SP No. 49585. On November 19, 1998, the CA issued a TRO enjoining then Deputy Ombudsman-Visayas Arturo Mojica and Arteche from implementing the order of preventive suspension in OMB-VIS-ADM-97-0370.[14] As later developments would show, the TRO, while duly served, evidently went unheeded, for Gobenciong failed to get back to his work or get his salary until after the lapse of the suspension period in May 1999. This turn of events impelled Gobenciong to move that Arteche and Mojica be cited in contempt. The CA, however, did not act on the motion. The Ruling of the Ombudsman in OMB-VIS-ADM-97-0370 Before the CA could resolve CA-G.R. SP No. 49585, the Ombudsman rendered on March 21, 2000 a Decision, finding Gobenciong and several others guilty in OMB-VIS-ADM-97-0370. The decretal portion of the Ombudsmans Decision partly reads: WHEREFORE, finding substantial evidence to hold respondents RAFAEL C. OMEGA, PEDRO F. GOBENCIONG, CRISOLOGO R. BABULA, and JOSE M. JOCANO of Conduct Grossly Prejudicial to the Best Interest of the Service, it is respectfully recommended that they be meted the penalty of SUSPENSION FROM THE SERVICE FOR ONE (1) YEAR WITHOUT PAY.[15] (Emphasis added.) The above guilty verdict was mainly predicated on the finding that the Certification of Acceptance and the COA Inspection Report, among other documents, were falsified, there being no actual delivery on December 20, 1996 of the covered hemoanalyzer. There was thus no legal basis for the issuance of DV 101-9612-1986 and the corresponding Landbank check for PhP 1,161,817.35. Subsequently, Gobenciong, et al. moved for reconsideration, but the Ombudsman, by an Order of August 10, 2000, denied their motion. In due time, Gobenciong appealed from the above decision and order to the appellate court, the appeal docketed as CA-G.R. SP No. 61687. On November 16, 2000, the Office of the Ombudsman-Visayas, through Director Virginia P. Santiago, by an Order,[16] directed the DOH Regional Office No. VIII to immediately implement its Decision and impose the penalties decreed therein, which, in the case of Gobenciong, was one-year suspension from office without pay. On December 11, 2000, Gobenciong moved that Santiago be cited in contempt of court[17] for issuing the November 16, 2000 Order despite being notified of his appeal in CA-G.R. SP No. 61687. Like his earlier similar motion, this motion was neither denied nor granted by the CA.

The Ruling of the Court of Appeals in CA-G.R. SP No. 49585 Long after the issuance of the Decision dated March 21, 2000 in OMB-VIS-ADM-97-0370, the CA, on November 26, 2002, rendered a Decision in CA-G.R. SP No. 49585, denying Gobenciongs petition for certiorari assailing the directive, and the implementation thereof, for the immediate execution of his preventive suspension. Dispositively, the CA wrote: WHEREFORE, the foregoing premises considered, the petition for certiorari is DENIED DUE COURSE and hereby DISMISSED. No pronouncement as to costs. SO ORDERED.[18] The CA dismissed Gobenciongs petition on the strength of Section 24 in relation to Sec. 27 of Republic Act No. (RA) 6770, otherwise known as the Ombudsman Act of 1989. The interplay of both sections expressly empowers the Ombudsman, under defined conditions, to preventively suspend, for a maximum period of six months, all but three categories of public officials and employees under investigation by his office and to direct the immediate implementation of the corresponding suspension order. Gobenciongs motion for reconsideration of the above decision was rejected by the appellate court on August 27, 2003. Hence, the Petition for Review on Certiorari in G.R. No. 159883. The Ruling of the Court of Appeals in CA-G.R. SP No. 61687 On April 29, 2005, the CA, on the postulate that the disciplinary authority of the Office of the Ombudsman is merely recommendatory, rendered its Decision in CA-G.R. SP No. 61687, partially granting due course to Gobenciongs appeal and effectively modifying the Decision dated March 21, 2000 of the Ombudsman. The decretal portion of the CA Decision reads: WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us GRANTING the petition filed in this case and SETTING ASIDE the Decision dated March 21, 2000 and the Order dated August 10, 2000 rendered and issued by the Office of the Ombudsman in OMB-VIS-ADM-97-0370 insofar as said office directly imposes upon the petitioner the penalty of suspension from the service for one (1) year without pay.[19] In G.R. No. 168059, petitioner Office of the Ombudsman raises the following grounds for the allowance of its petition: I. THE CONSTITUTION DOES NOT BAR THE OFFICE OF THE OMBUDSMAN FROM EXERCISING ADMINISTRATIVE DISCIPLINARY AUTHORITY OVER PUBLIC OFFICIALS AND EMPLOYEES IN GENERAL. II. CONGRESS CONSTITUTIONALLY CLOTHED THE OFFICE OF THE OMBUDSMAN WITH FULL ADMINISTRATIVE DISCIPLINARY AUTHORITY IN GENERAL, COMPLETE WITH ALL THE REQUISITE COMPONENTS AS CONTAINED IN [RA] 6770, CONSIDERING THAT: A. THE 1987 CONSTITUTION EXPRESSLY AUTHORIZED CONGRESS TO GRANT THE OMBUDSMAN ADDITIONAL POWERS; B. CONGRESS, BOTH PURSUANT TO ITS EXPRESS CONSTITUTIONAL AUTHORITY IN THE CASE OF THE OMBUDSMAN, AND IN THE EXERCISE OF ITS PLENARY LEGISLATIVE POWERS, ENACTED [RA] 6770 PROVIDING THEREIN THE OMBUDSMANS FULL AND COMPLETE ADMINISTRATIVE DISCIPLINARY POWER AND DUTY; C. THERE IS NOTHING IN THE SAID STATUTORY GRANT OF ADMINISTRATIVE DISCIPLINARY POWER WHICH CAN BE REMOTELY CONSIDERED INCONSISTENT WITH THE 1987 CONSTITUTION; AND D. VESTING THE OMBUDSMAN WITH FULL DISCIPLINARY AUTHORITY IS ABSOLUTELY IN CONSONANCE WITH THE SOVEREIGN INTENT, AS EXPRESSED BY THE LETTER OF, AND IN THE DELIBERATIONS ON, THE 1987 CONSTITUTION, I.E., THE INTENT TO CREATE AN EFFECTIVE, RATHER THAN EFFETE, PROTECTOR OF THE PEOPLE INSULATED FROM POLITICAL INFLUENCE. III. Therefrom, the parties availed themselves of different remedies to contest before this Court the above decision of the CA. The Office of the Ombudsman, ascribing grave abuse of discretion on the part of the appellate court, assailed the above decision through a Petition for Certiorari under Rule 65, docketed as G.R. No. 168059.[21] On the other hand, Gobenciong filed his Motion for Partial Reconsideration of the Decision dated April 29, 2005,[22] which the CA denied via its Resolution dated May 29, 2006. Thus, the instant Petition for Review on Certiorari filed by Gobenciong, now docketed as G.R. No. 173212. In the meantime, on January 16, 2005, Gobenciong retired from the service. The Issues In G.R. No. 159883, petitioner Gobenciong submits that the CA erred: A. x x x WHEN IT UPHELD THE IMPLEMENTATION OF THE PREVENTIVE SUSPENSION ORDER DESPITE THE [TRO] IT ISSUED AND THE CONTINUED DEFIANCE OF PUBLIC RESPONDENTS OF THE [TRO]. B. x x x IN NOT HOLDING PUBLIC RESPONDENTS GUILTY OF CONTEMPT OF COURT FOR DEFYING THE [TRO]. C. x x x WHEN IT UPHELD THE IMPLEMENTATION OF THE PREVENTIVE SUSPENSION ORDER THE DISCIPLINARY AUTHORITY GRANTED TO THE OMBUDSMAN INCLUDES THE AUTHORITY TO DETERMINE THE PENALTY AND TO CAUSE THE SAME TO BE IMPLEMENTED BY THE HEAD OF AGENCY CONCERNED, CONSIDERING THAT: A. [RA] 6770 CONTAINS EXPRESS PROVISIONS GRANTING THE OMBUDSMAN THE AUTHORITY TO DETERMINE AND CAUSE THE IMPLEMENTATION OF ADMINISTRATIVE PENALTIES; B. A DISCIPLINARY POWER BEREFT OF THE NECESSARY COMPONENT OF DETERMINING THE PENALTY AND CAUSING THE IMPLEMENTATION THEREOF IS OTIOSE; C. EVEN ASSUMING THAT THE IMPLEMENTATION OF PENALTIES ASSESSED BY THE OMBUDSMAN IS SUBJECT TO SECTION 13(3), ART. XI OF THE CONSTITUTION, AND THE INDEPENDENT FIRST PART OF SECTION 15(3) OF [RA] 6770, THE LATTER PROVISIONS STILL EMPOWER THE OMBUDSMAN TO ENSURE COMPLIANCE WITH ITS RECOMMENDATIONS; AND D. IV. THE RELIANCE BY THE HONORABLE [CA] ON THE OBITER DICTUM IN TAPIADOR VS. OFFICE OF THE OMBUDSMAN, x x x DISPOSSESSING THE OMBUDSMAN OF ITS DISCIPLINARY AUTHORITY, CONSITUTES A GRAVE ERROR CONSIDERING THAT: A CONTRARY RULE CAN ONLY RESULT IN FURTHER LEGAL AND PRACTICAL ABSURDITIES. 1. DESPITE THE FACT THAT ITS IMPLEMENTATION VIOLATED PETITIONERS RIGHT TO DUE PROCESS OF LAW; 2. DESPITE THE FACT THAT ITS IMPLEMENTATION VIOLATED PETITIONERS RIGHT TO THE EQUAL PROTECTION OF THE LAWS; AND 3. DESPITE THE FACT THAT TO DO SO WOULD SANCTION AN UNCONSTITUTIONAL APPLICATION OF SECTIONS 27(1) AND THE SECOND PARAGRAPH OF SECTION 24 OF [RA] 6770.

Invoked as part of the ratio decidendi of the CA Decision was Tapiador v. Office of the Ombudsman,[20] which the appellate court viewed as declaring that the disciplinary power of the Ombudsman in administrative cases is limited only to recommending to the disciplining authority the appropriate penalty to be meted out. In the concrete, as gleaned from the CA Decision, this means that the Ombudsman cannot compel the DOH to impose the penalty recommended in its underlying Decision of March 21, 2000.

A. SUCH A PASSING STATEMENT MUST BE INTERPRETED TO MEAN THAT THE OMBUDSMAN CANNOT DIRECTLY IMPLEMENT ITS ADMINISTRATIVE DECISIONS; AND B. SUCH A STATEMENT IS AND HAS REMAINED AN OBITER DICTUM WHICH DOES NOT HAVE THE STATUS OF A LEGAL DOCTRINE. In G.R. No. 173212, petitioner Gobenciong argues that the CA committed errors of law: A. x x x WHEN IT DID NOT DECLARE AS UNCONSTITUTIONAL [RA] 6770, SECTIONS 15 (1), 19, AND 21, [INSOFAR] AS THEY GRANT TO THE OMBUDSMAN AND HIS DEPUTIES THE AUTHORITY TO INVESTIGATE AND PROSECUTE ANY ACT OR OMISSION, ADMINISTRATIVE OR OTHERWISE, OF ANY PUBLIC OFFICER OR EMPLOYEE, OR TO TAKE OVER, AT ANY STAGE, FROM ANY INVESTIGATORY AGENCY OF GOVERNMENT, THE INVESTIGATION OF SUCH CASES, FOR BEING AN INVALID DELEGATION OF LEGISLATIVE AUTHORITY. B. x x x WHEN IT DID NOT DECLARE AS UNCONSTITUTIONAL [RA] 6770, SECTIONS 15 (1), 19, 21, 24 AND 25, [INSOFAR] AS THEY GRANT TO THE OMBUDSMAN AND HIS DEPUTIES THE AUTHORITY TO INVESTIGATE, PROSECUTE AND PENALIZE, ANY ACT OR OMISSION, ADMINISTRATIVE OR OTHERWISE, OF ANY PUBLIC OFFICER OR EMPLOYEE, OR TO TAKE OVER, AT ANY STAGE FROM ANY INVESTIGATORY AGENCY OF GOVERNMENT, THE INVESTIGATION OF SUCH CASES, AND TO IMPOSE SUSPENSION, EITHER PREVENTIVE OR AS PENALTY, FOR BEING VIOLATIVE OF PETITIONERS CONSTITUTIONAL RIGHT TO EQUAL PROTECTION OF THE LAWS. C. x x x WHEN IT ACQUIESCED TO THE DEPUTY OMBUDSMAN (VISAYAS)S VIOLATION OF [RA] 6770, THE OMBUDSMAN LAW. D. x x x WHEN IT UPHELD THE DECISION OF THE DEPUTY OMBUDSMAN (VISAYAS) FINDING PETITIONER GUILTY OF CONDUCT GROSSLY PREJUDICIAL TO THE BEST INTEREST OF THE SERVICE. E. x x x IN REFUSING TO CITE DIRECTOR VIRGINIA PALANCA-SANTIAGO OF THE OFFICE OF THE DEPUTY OMBUDSMAN (VISAYAS) IN CONTEMPT OF COURT. The grounds relied upon and the errors assigned may be reduced into three issues, to wit: first, whether the preventive suspension ordered by the Ombudsman is immediately executory, the filing in due time of a motion to reconsider the corresponding order notwithstanding; second, whether the disciplinary power of the Ombudsman is merely recommendatory and excludes the authority to ensure compliance of his recommendations; and third, whether RA 6770, on the ground of undue delegation of legislative authority and under the equal protection clause, is unconstitutional insofar as it grants the Ombudsman and his deputies the authority to investigate, prosecute and penalize any act or omission, administrative or otherwise, of any public officer or employee, or to take over, at any stage, from any investigatory agency of Government, the investigation of such cases. The Courts Ruling There is nothing novel about the underlying determinative issues raised by any of the petitioners. The Court, in a catena of recent cases, has for the most part fully settled them; and the corresponding dispositions in those cases militate against Gobenciongs cause, as articulated in his twin Petitions for Review on Certiorari, but augur well for the Ombudsmans petition. First Main Issue: Provisionary Orders of the Ombudsman Immediately Executory As Gobenciong argues, his timely filing of a motion for reconsideration of the subject preventive suspension order stripped such order of its otherwise quality of immediacy. He points out that while Sec. 27 of RA 6770 provides for the immediate execution of provisionary orders of the Ombudsman, Sec. 8, Rule III of the Ombudsman Rules of Procedure, which is purportedly derived from said Sec. 27, intentionally omitted the matter of immediate execution. Pushing the point, Gobenciong would then argue that this omission contextually worked to repeal part of said Sec. 27. To Gobenciong, the repeal is within the Ombudsmans power to effect under the last paragraph of Sec. 27, RA 6770.

Prescinding from the foregoing premises, Gobenciong would posit the view that the immediate implementation of his preventive suspension, despite his having moved for reconsideration, violated his right to due process and to the equal protection of law. In this regard, he cites the more lenient, but just as applicable and effective, Civil Service law which allows an appeal from an order of preventive suspension and does not consider the same as immediately executory. Finally, Gobenciong makes reference to the matter of the CA having issued a TRO, which both the DOH and the Deputy Ombudsman-Visayas ignored, and to the CAs subsequent refusal to resolve his contempt motion. We are not convinced. Repeals by implication are not favored, as laws are presumed to be passed with full knowledge of all existing legislations on the subject. In order that one law or what passes for one may operate to repeal another law, the two laws must be inconsistent, that is, the former must be so repugnant as to be irreconcilable with the latter act.[23] Even as we concede the Ombudsmans authority to amend certain procedural rules of RA 6770, we agree with the CAs holding on the absence of an irreconcilable conflict, vis--vis the implementation of a preventive suspension order, between Sec. 27 of RA 6770 and Sec. 8, Rule III of the Ombudsman Rules of Procedure. For reference, we reproduce the pertinent provisions of both issuances: Sec. 27 of RA 6770 Sec. 27. Effectivity and Finality of Decisions.All provisionary orders of the Office of the Ombudsman are immediately effective and executory. A motion for reconsideration of any order, directive or decision of the Office of the Ombudsman must be filed within five (5) days after receipt of written notice and shall be entertained only on any of the following grounds: (1) New evidence has been discovered which materially affects the order, directive or decision; (2) Errors of law or irregularities have been committed prejudicial to the interest of the movants. The motion for reconsideration shall be resolved within three (3) days from filing; Provided, That only one motion for reconsideration shall be entertained. x x x Any order, directive or decision imposing the penalty of public censure or reprimand, suspension of not more than one months salary shall be final and unappealable. The above rules may be amended or modified by the Office of the Ombudsman as the interest of justice may require.[24] Sec. 8, Rule III of the Ombudsman Rules of Procedure Sec. 8. Motion for Reconsideration or reinvestigation; Grounds.Whenever allowable, a motion for reconsideration or reinvestigation may only be entertained if filed within ten (10) days from receipt of the decision by the respondent on any of the following grounds: a) New evidence had been discovered which materially affects the order, directive or decision;

b) Grave errors of facts or laws or serious irregularities have been committed prejudicial to the interest of the movant. Only one motion for reconsideration or reinvestigation shall be allowed, and the hearing officers shall resolve the same within five (5) days from receipt thereof. Indeed, there exists no irreconcilable inconsistency between the two sets of provisions respecting the immediate implementability of a preventive suspension order emanating from the Ombudsman. As it were, the conflict concerns only the period for filing a motion for reconsideration. What was once the five-day reglementary period fixed under Sec. 27(2), RA 6770 is now 10 days under Sec. 8, Rule III, Ombudsman Rules of Procedure. Apart from this change, both sections in question can validly be harmonized and given effect at the same time. We cannot, accordingly, subscribe to Gobenciongs contention that Sec. 27(1), RA 6770 is deemed repealed for not being incorporated or carried into the Ombudsman Rules of Procedure. For, if this outlandish posture of Gobenciong is, under the premises, pushed to its logical conclusion, then any and all related provisions of RA

6770 not touched upon in the Ombudsman Rules of Procedure would be considered abrogated, regardless of the absence of real conflicts. The Court need not belabor the absurdity of Gobenciongs logic. Reading and harmonizing together the aforequoted Sec. 27(1) of RA 6770 and Sec. 8, Rule III of the Ombudsman Rules of Procedure, it is at once apparent that the immediately executory quality of a preventive suspension order does not preclude the preventively suspended respondent from seeking reconsideration of such order. In fine, the existence and availment, if this be the case, of the right to move for reconsideration does not motu proprio stay the immediate execution of the provisionary order of preventive suspension. The unqualified use of the phrase immediately effective and executory in Sec. 27(1) of RA 6770 suggests this conclusion. An order of preventive suspension is a preliminary step in an administrative investigation. And it is usually made immediately effective and executory to prevent the respondent from using his/her position or office to influence prospective witnesses or tamper with the records which may be vital to the prosecution of the case.[25] At any rate, RA 6770 itself contains limiting bars to the exercise by the Ombudsman or his deputies of the power to impose preventive suspension. Sec. 24 of RA 6770 thus provides: Sec. 24. Preventive Suspension.The Ombudsman or his Deputy may preventively suspend any officer or employee under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondents continued stay in office may prejudice the case filed against him. The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein provided.

between those who fall within such class and those who do not.[27] In Miranda v. Sandiganbayan, where the issue of equal protection was raised, albeit the 60-day preventive suspension limit under the Local Government Code was involved, we ruled against any violation of the constitutional proscription against the equal protection of the law, thus: In essence, [the dissenting opinion] avers that there is no substantial distinction between preventive suspensions handed down by the Ombudsman and those imposed by executive officials. On the contrary, there is a world of difference between them. The Constitution has endowed the Ombudsman with unique safeguards to ensure immunity from political pressure. Among these statutory protections are fiscal autonomy, fixed term of office and classification as an impeachable officer. This much was recognized by this Court in the earlier cited case of Garcia v. Mojica. Moreover, there are stricter safeguards for imposition of preventive suspension by the Ombudsman. The Ombudsman Act of 1989 requires that the Ombudsman determine: (1) that the evidence of guilt is strong; and (2) that any of the following circumstances are present: (a) the charge against such officer or employee involves dishonesty, oppression, or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service; or (c) the respondents continued stay in office may prejudice the case filed against him.[28]

Second Main Issue: Ombudsman has power to ensure compliance with imposition of penalties pursuant to his administrative disciplinary authority The Office of the Ombudsmans assertion, about being in possession of full administrative disciplinary authority over public officials and employees, except impeachable officials, members of Congress, and the Judiciary, including the power to determine the penalty therefor and to cause the same to be implemented by the head of the government agency concerned, is correct. Jurisprudence on the matter is settled. Accordingly, any suggestion that its power to remove, suspend, or censure is merely advisory or recommendatory has to be rejected outright. And the CAs reference to Tapiador[29] to underpin its conclusion on the recommendatory nature of the Ombudsmans disciplinary authority is misplaced and erroneous, the cited portion of Tapiador being a mere obiter dictum. The Court made this abundantly clear in Ledesma v. Court of Appeals[30] and subsequently in Office of the Ombudsman v. Court of Appeals.[31] In Ledesma, we held that the pronouncement in Tapiador on the authority of the Ombudsman is at most an obiter dictum, which cannot be cited as a doctrinal pronouncement of the Court, ratiocinating as follows: Petitioner insists that the word recommend be given its literal meaning; that is, that the Ombudsmans action is only advisory in nature rather than one having any binding effect, citing Tapiador v. Office of the Ombudsman, thus: . . . Besides, assuming arguendo, that petitioner were (sic) administratively liable, the Ombudsman has no authority to directly dismiss the petitioner from the government service Under Section 13, subparagraph (3), of Article XI of the 1987 Constitution, the Ombudsman can only recommend the removal of the public official or employee found to be at fault, to the public official concerned. For their part, the Solicitor General and the Office of the Ombudsman argue that the word recommend must be taken in conjunction with the phrase and ensure compliance therewith. The proper interpretation of the Courts statement in Tapiador should be that the Ombudsman has the authority to determine the administrative liability of a public official or employee at fault, and direct and compel the head of the office or agency concerned to implement the penalty imposed. In other words, it merely concerns the procedural aspect of the Ombudsmans functions and not its jurisdiction. We agree with the ratiocination of public respondents. Several reasons militate against a literal interpretation of the subject constitutional provision. Firstly, a cursory reading of Tapiador reveals that the main point of the case was the failure of the complainant therein to present substantial evidence to prove the charges of the administrative case. The statement that made reference to the power of the Ombudsman is, at best, merely an obiter dictum and, as it is unsupported by sufficient explanation, is susceptible to varying interpretations, as what precisely is before us in this case. Hence, it cannot be cited as a doctrinal declaration of this Court nor is it safe from judicial examination.[32] (Emphasis ours.) For good measure, we further stated: x x x That the refusal, without just cause, of any officer to comply with an order of the Ombudsman to penalize an erring officer or employee is a ground for disciplinary action, is a strong indication that the Ombudsmans recommendation is not merely advisory in nature but is actually mandatory within the bounds of law. x x x By stating that the Ombudsman recommends the action to be taken against an erring officer or employee, the provisions of the Constitution and in RA 6770 intended that the implementation of the order be coursed through the proper officer, which in this case would be the head of the BID.[33]

Expounding on the limitation adverted to, the Court has held that a preventive suspension order shall issue only if the Ombudsman, or any of his deputies, exercising sound judgment, determines that the evidence of guilt is strong and that any of the three conditions set forth in Sec. 24 of RA 6770 is present. Thus, in Garcia v. Mojica, the Court held that the Ombudsman and his deputies have the discretion to exercise such determination, thus: There can be no question in this case as to the power and authority of respondent Deputy Ombudsman to issue an order of preventive suspension against an official like the petitioner, to prevent that official from using his office to intimidate or to influence witnesses or to tamper with records that might be vital to the prosecution of the case against him.[26] As things thus stand, the Office of the Ombudsman can, as a matter of statutory empowerment, validly order the immediate execution of a preventive suspension after determining the propriety of the imposition, regardless of the remedy of reconsideration made available under the law to the suspended respondent. Accordingly, Gobenciongs lament about his right to due process, being violated as a result of the immediate implementation of his preventive suspension, has really no legal leg to stand on. And if only to stress a point, a preventive suspension, not being a penalty for an administrative infraction, is imposable without prior hearing. The foregoing considered, the matters of the issuance by the CA of a TRO bearing on the implementation of the preventive suspension in question and Gobenciongs unacted contempt motions have become moot and academic, for the preventive suspension had been served and the CA had, for all intents and purposes, denied the said motions. This brings us to the issue of the alleged violation of the equal protection clause. Gobenciong parlays the theory that the application of RA 6770, which authorizes the Ombudsman to impose a six-month preventive suspension, instead of the civil service provisions of the Administrative Code, which limits the disciplining authoritys prerogative to only imposing a prevention suspension for a period not exceeding 90 days, violates the equal protection guarantee. We are not persuaded. At its most basic, the equal protection clause is against undue favor and individual or class privilege, as well as hostile discrimination; it does not demand absolute equality. The fundamental guarantee is not breached by a law which applies only to those persons falling within a specified class, if it applies alike to all persons within such class and provided further that there is a substantial distinction

In Office of the Ombudsman, on the core issue of whether the Ombudsman can only recommend, but cannot impose, administrative sanctions over erring public officers and employees, the Court reiterated its ruling in Ledesma, observing: In the present case, the Court similarly upholds the Office of the Ombudsmans power to impose the penalty of removal, suspension, demotion, fine, censure, or prosecution of a public officer or employee found to be at fault, in the exercise of its administrative disciplinary authority. The exercise of such power is well founded in the Constitution and Republic Act No. 6770.[34] And to put to rest any uncertainty that might have been occasioned by a misreading of Tapiador, we proceeded to explain in Office of the Ombudsman that the Office of the Ombudsmans basic constitutional mandate as [protector] of the people is embodied in Sec. 13[35] of RA 6770, while its specific constitutional functions are substantially reiterated in Sec. 15[36] of the same RA. Thus, the authority of the Ombudsman to conduct administrative investigations is of constitutional origin, proceeding as it does from Sec. 13(1), Article XI of the Constitution,[37] which reads: Sec. 13. The Office of the Ombudsman shall have the following powers, functions and duties: (1)cralawInvestigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient. Not to be overlooked of course is RA 6770 which grants, as it were, the Ombudsman full administrative disciplinary authority as said statute is replete with provisions that, to borrow from Office of the Ombudsman: cover the entire gamut of administrative adjudication which entails the authority to, inter alia, receive complaints, conduct investigations, hold hearings in accordance with its rules of procedure, summon witnesses and require the production of documents, place under preventive suspension public officers or employees as warranted by the evidence, and, necessarily, impose the said penalty.[38] Among others, the provisions cited in Office of the Ombudsman were Secs. 19,[39] 21,[40] 22,[41] 23,[42] and 25[43] of RA 6770. As a final point, in Office of the Ombudsman, we stressed that the history of RA 6770 bears out the conclusion that Congress intended the Office of the Ombudsman to be an activist watchman, not merely a passive one,[44] possessing full administrative disciplinary authority, including the power to impose the penalty of removal and to prosecute a public officer or employee found to be at fault. The Court, in Uy v. Sandiganbayan,[45] gave validation to the legislative intent adverted to. The parallel holdings in Ledesma and Office of the Ombudsman would later be echoed in a slew of cases, among the latest of which were Commission on Audit, Regional Office No. 13, Butuan City v. Hinampas[46] and Office of the Ombudsman v. Santiago.[47] Third Main Issue: RA 6770 provisos granting investigative, prosecutorial and disciplinary powers to the Ombudsman not unconstitutional We now come to the concluding inquiry. Gobenciong asseverates that the grant unto the Ombudsman under RA 6770 of the power to take over a disciplinary case, at any stage of the investigation, to investigate any act or omission, administrative, or otherwise, and to direct the implementation of a preventive suspension order constitutes unconstitutional delegation of authority. He describes the exercise by the Ombudsman and his deputies of such powers as a roving commission, devoid of any limitation and check-and-balance mechanism, adding that RA 6770 does not provide any guiding standard. To Gobenciong, such unbridled power and wide and sweeping authority are laden with perilous opportunities for partiality and abuse, and even corruption. We are not persuaded. As earlier discussed, the Office of the Ombudsman is a creature of the Constitution. The framers of the 1987 Constitution intended the office to be strong and effective, with sufficient bite and muscle to enable it to carry out its mandate as protector of the people against the inept, abusive, and corrupt in the Government. They, however, left it to Congress to invest the office with more broad powers to enforce its own action.[48] And so it was that RA 6770 was enacted empowering, under Sec. 15(1) thereof, the Ombudsman to take over, at any stage, from any investigatory agency of government, the investigation of cases [of which he has primary jurisdiction].

Clearly then, the espoused theory of undue delegation of authority is untenable. For, in the ultimate analysis, it is the 1987 Constitution no less which granted and allowed the grant by Congress of sweeping prosecutorial, investigatory, and disciplinary powers to the Ombudsman. Lest it be overlooked, the unconstitutionality of a law must clearly be demonstrated. It cannot be predicated on speculations or hypothetical fears that its provisions may be perverted or the powers granted abused. All powers are susceptible to misuse and abuse, but that is hardly a reason to strike down the law. While the Court may declare a law or portions thereof unconstitutional, it is imperative that the petitioner shows a clear and unequivocal breach of the Constitution, not merely a doubtful or argumentative one.[49] And it is basic that the matter of constitutionality shall, as a rule, be considered if it is the lis mota of the case and raised and argued at the earliest opportunity. Estarija v. Ranada formulates the rule in the following wise: When the issue of unconstitutionality of a legislative act is raised, the Court may exercise its power of judicial review only if the following requisites are present: (1) an actual and appropriate case and controversy; (2) a person and substantial interest of the party raising the constitutional question; (3) the exercise of judicial review is pleaded at the earliest opportunity; and (4) the constitutional question raised is the very lis mota of the case. For our purpose, only the third requisite is in question. Unequivocally, the law requires that the question of constitutionality of a statute must be raised at the earliest opportunity. In Matibag v. Benipayo, we held that the earliest opportunity to raise a constitutional issue is to raise it in the pleadings before a competent court that can resolve the same, such that, if it was not raised in the pleadings before a competent court, it cannot be considered at the trial, and, if not considered in the trial, it cannot be considered on appeal.[50] The issue of constitutionality was not raised at the earliest possible opportunity; this means before the Office of the Ombudsman, or at least before the CA. Withal, it cannot now be considered in Gobenciongs petitions for review. This is not to say, however, that what Gobenciong considers as a question of a constitutional nature is absolutely necessary to the disposition of this case. Finally, Gobenciongs submission about the Office of the Ombudsman taking over the case from the DOH strikes us as a clear case of a misleading afterthought. For the fact of the matter is that the Deputy Ombudsman-Visayas did not wrest jurisdiction from the DOH over the administrative aspect of this ghost delivery case. Far from it. The records tend to show that the Office of Ombudsman-Visayas took cognizance of and assumed jurisdiction of what would later be OMB-VIS-ADM-97-0370 on June 20, 1997 when dela Pea filed her complaint for falsification and misconduct against Gobenciong and other hospital officials. This was four months before the DOH formally charged Gobenciong, et al. on October 29, 1997 with an offense arising from the anomalous procurement of a hemoanalyzer. The mere filing of the formal charge, without more, did not as it cannot oust the Office of the Ombudsman of its jurisdiction over the administrative case. Jurisdiction, once it attaches, continues until the case is concluded. WHEREFORE, the petitions in G.R. Nos. 159883 and 173212 are hereby DISMISSED for lack of merit, and the appealed Decision and Resolution dated November 26, 2002 and August 27, 2003, respectively, of the CA in CA-G.R. SP No. 49585 are AFFIRMED IN TOTO. The petition for certiorari in G.R. No. 168059 is hereby GRANTED, and the assailed Decision and Resolution dated April 29, 2005 and May 29, 2006, respectively, of the CA in CA-G.R. SP No. 61687 are ANNULLED and SET ASIDE. Accordingly, the Decision dated March 21, 2000 and the Order dated August 10, 2000 of the Ombudsman in OMB-VIS-ADM-97-0370 are hereby REINSTATED and AFFIRMED IN TOTO.

IMPLEMENTING RULES AND REGULATIONS OF REPUBLIC ACT NO. 8749 PHILIPPINE CLEAN AIR ACT OF 1999 Pursuant to the provisions of Section 51 of Republic Act No. 8749, otherwise known as the "Philippine Clean Air Act of 1999," and by virtue of Executive Order No. 192, Series of 1987, the Department of Environment and Natural Resources hereby adopts and promulgates the following rules and regulations: PART I GENERAL PROVISIONS RULE I PRELIMINARY PROVISIONS Section 1. Title. - These Rules shall be known and cited as the "Implementing Rules and Regulations of the Philippine Clean Air Act of 1999." Section 2. Purpose. - The purpose of these Rules is to provide guidelines on the operationalization of the Philippine Clean Air Act of 1999. Section 3. Scope . - These Rules shall lay down the powers and functions of the Department of Environment and Natural Resources, the Department of Transportation and Communication, the Department of Trade and Industry, the Department of Energy and all other concerned agencies, the rights and obligations of stakeholders and the rights and duties of the people with respect to the Air Quality Management and Control Program. Section 4. Construction. - These Implementing Rules and Regulations shall be liberally construed to carry out the national policy of balancing development and environmental protection through the pursuance of the framework of sustainable development. Sustainable development shall refer to development that meets the needs of the present without compromising the ability of future generations to meet their own needs. RULE II DECLARATION OF STATE POLICY Section 1. Declaration of Policy. - It is the policy of the State to protect and advance the right of people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. It is also the policy of the State to attain and maintain a balance between development and environmental protection. Finally, it is the policy of the State to maintain a quality of air that protects human health and welfare. RULE III AIR QUALITY PRINCIPLES Section 1. Air Quality Principles. a. The State shall promote and protect the global environment to attain sustainable development while recognizing the primary responsibility of local government units to deal with environmental problems. b. The State recognizes that the responsibility of cleaning the habitat and environment is primarily area-based and that air quality management and control is most effective at the level of airsheds. c. The State recognizes the principle that "polluters must pay" and the important role of economic instruments in air quality management and control. d. The State recognizes that a clean and healthy environment is for the good of all and should therefore be a concern of all. RULE IV

AIR QUALITY POLICIES Section 1. Air Quality Policies. - It is the policy of the State to: a. Formulate a comprehensive national program of air pollution management that shall be implemented by the government through proper delegation and effective coordination of functions and activities; b. Encourage cooperation and self-regulation among citizens and industries through the application of market-based instruments; c. Focus primarily on pollution prevention rather than on control and provide for a comprehensive management program for air pollution; d. Promote public information and education and to encourage the participation of an informed and active public in air quality planning and monitoring; and e. Formulate and enforce a system of accountability for short and long-term adverse environmental impact of a project, program or activity. This shall include the setting up of a funding or guarantee mechanism for cleanup and environmental rehabilitation and compensation for personal damages. RULE V RIGHTS Section 1. Recognition of Rights. - Pursuant to the above-declared principles, the following rights of citizens are hereby sought to be recognized and the State shall seek to guarantee their enjoyment: a. The right to breathe clean air; b. The right to utilize and enjoy all natural resources according to the principles of sustainable development; c. The right to participate in the formulation, planning, implementation and monitoring of environmental policies and programs and in the decision-making process; d. The right to participate in the decision-making process concerning development policies, plans and programs projects or activities that may have adverse impact on the environment and public health; e. The right to be informed of the nature and extent of the potential hazard of any activity, undertaking or project and to be served timely notice of any significant rise in the level of pollution and the accidental or deliberate release into the atmosphere of harmful or hazardous substances; f. The right of access to public records which a citizen may need to exercise his or her rights effectively under this Act; g. The right to bring action in court or quasi-judicial bodies to enjoin all activities in violation of environmental laws and regulations, to compel the rehabilitation and cleanup of affected area, and to seek the imposition of penal sanctions against violators of environmental laws; and h. The right to bring action in court for compensation of personal damages resulting from the adverse environmental and public health impact of a project or activity. RULE VI DEFINITION OF TERMS Section 1. Definitions. - The following terms as used in these Implementing Rules and Regulations shall be defined as follows: "Act" refers to Republic Act No. 8749, otherwise known as the "Philippine Clean Air Act of 1999"; "Air pollutant" means any matter found in the atmosphere other than oxygen, nitrogen, water vapor, carbon dioxide, and the inert gases all in their natural or normal concentrations, that is detrimental to health or the environment, which includes but not limited to smoke, dust, soot, cinder, fly ash, solid particles of any kind, gases, fumes, chemical mists, contaminated steam and radioactive substances; "Air pollution" means any alteration of the physical, chemical and biological properties of the atmosphere, or any discharge thereto of any liquid, gaseous or solid substances that will or is likely to create or to render the air resources of the country harmful, detrimental, or injurious to public health, safety or welfare or which will adversely affect their utilization for domestic, commercial, industrial, agricultural, recreational, or other legitimate purposes; "Air quality performance rating" refers to a rating system to be developed by the Department through the Bureau. The air quality performance ratings will be grouped by industry, and will compare emissions data for

industrial sources to the relevant National Ambient Air Quality Standards and the relevant National Emissions Standards for Source Specific Air Pollutants. "Airshed" refers to areas with common weather or meteorological conditions and sources of air pollution which affect the interchange and diffusion of pollution in the surrounding atmosphere. "Ambient air quality" refers to the atmospheres average purity in a broad area as distinguished from discharge measurements taken at the source of pollution or the present characteristic or nature of the surrounding atmosphere; "Ambient air quality guideline values" refers to the concentration of air over specified periods classified as short-term and/or long-term which are intended to serve as goals or objectives for the protection of health and/or public welfare. These values shall be used for air quality management purposes such as determining time trends, evaluating stages of deterioration or enhancement of the air quality. In general, used as a basis for taking positive action in preventing, controlling, or abating health impacts from air pollution; "Ambient air quality standard" means the concentration of an air pollutant which, in order to protect public health and/or public welfare, shall not be exceeded in the breathing zone, at any time. Standards are enforceable and must be complied with by the owner or person in-charge of an industrial operation, process or trade; "Authority to Construct" refers to the legal authorization granted by the Bureau to install a new source or modify an existing source. "Best Available Control Technology" refers to approaches, techniques or equipment which when used, result in lower air emissions but in a cost-effective manner. BACT results in lower emission rates than those specified in the National Emission Standards for Source Specific Air Pollutants "Bio-medical waste" refers to pathological wastes, pharmaceutical wastes, chemical wastes and sharps defined as follows: "Pathological wastes" include all human tissue (whether infected or not) such as limbs, organs, fetuses and body fluid; animal carcasses and tissue from laboratories, together with all related swabs and dressings; "Pharmaceutical wastes" include pharmaceutical products; drugs and chemicals that have been returned from wards; have been spilled or soiled; are expired or contaminated; or are to be discarded or any reason; "Chemical wastes" include discarded solid, liquid or gaseous chemicals from housekeeping and disinfecting procedures; "Bureau" or "EMB" refers to the Central Office of the Environmental Management Bureau and its Regional Offices under the Department; "Cease and Desist Order" refers to the ex parte Order directing the discontinuance of the operation resulting in the emission or discharge of pollutants exceeding the emission standards or whenever such emission or discharge constitutes imminent threat to human, animal or plant life, public health or public safety. Noncompliance with an undertaking or agreement submitted to the Department shall likewise be a ground for issuance of a CDO; "Certificate of Conformity" refers to the certificate issued by the Department to a vehicle manufacturer/assembler or importer certifying that a particular new vehicle or vehicle type meets the requirements provided under this Act and its Implementing Rules and Regulations; "Completely Built-up Unit (CBU)" refers to vehicles imported into the country either brand new or used and ready for operation; "Compliance Plan" refers to a plan submitted to the Bureau for approval which details how an existing stationary air emissions source will be brought into compliance. The owner of the facility must submit the plan within two months of notification of non-compliance by the Bureau. The plan must include a schedule that will be enforceable. "Compression Ignition Engine" means an internal combustion engine in which atomized fuel temperature is raised through compression, resulting in ignition, e.g., diesel engines; "Completely Knocked-Down" (CKD) refers to new parts and components and/or engines that are imported in disassembled condition for purposes of assembly. It may include not only parts and components but also subassemblies and assemblies, e.g., engines, transmissions, axle assemblies, chassis and body assemblies;

"Continuous Emission Monitoring System" means the total equipment, required under these Implementing Rules and Regulations or as directed by the Bureau, used to sample and condition (if applicable), analyze, and provide a permanent record of emissions or process parameters. Such record shall be the basis of the firms compliance with the emission standards. Further, it may be an approved monitoring system for continuously measuring the emission of a pollutant from an affected source or facility and as such, may be used in computing annual emission fees; "Criteria Pollutants" are air pollutants for which National Ambient Air Quality Guideline Values have been established; "Department" refers to the Department of Environment and Natural Resources; "Detoxification process" refers to the process of diminishing or removing the poisonous quality of any substance using chelating agents to prevent or reverse toxicity particularly for those substances (e.g., heavy metals) that are cumulative or persistent in the body; "Director" means the Director of the Bureau; "Eco-profile" shall refer to the geographic-based instrument for planners and decision-makers which presents an evaluation of the environmental quality and carrying capacity of an area. It is the result of the integration of various primary and secondary data and information on natural resources and anthropogenic activities on the land which are evaluated by various environmental risk assessment and forecasting methodologies. This will enable the Department to anticipate the type of development control that is necessary in the planning area; "Emission" means any measurable air contaminant, pollutant, gas stream or unwanted sound from a known source which is passed into the atmosphere; "Emission averaging" is a technique whereby a facility having more than one source of a given pollutant may, under certain circumstances and with EMB approval, reduce emissions from one or more sources sufficiently so that the average of all the facility's source emissions is equal to or below the applicable standard for a particular pollutant. Emission averaging is computed on an annual potential ton per year basis. "Emission Charge" refers to a fee corresponding to the quality, quantity, volume and toxicity of emissions from an industrial or mobile source; "Emission Credits" are generated by sources that reduce their annual mass emissions below the equivalent minimum regulatory level by either installing and operating pollution control devices or by using other Bureau approved methods. The equivalent minimum regulatory level is based upon the lowest annual emissions in tons that results when the source operates at its permitted emission rate for its typical annual operating hours. Sources that are subject to different allowable emission rates, such as National Emission Standards and Ambient Air Quality Standards, must estimate the minimum regulatory level on the standard that provides the lowest annual allowable tonnage. An emission credit is equal to one ton of an air pollutant; "Emission factor" refers to a representative value that attempts to relate the quantity of a pollutant released to the atmosphere with an activity associated with the release of that pollutant. Emission factors may be used to calculate emission fees, as indicated in Rule VI, Section V. These factors are usually expressed as the weight of pollutant divided by a unit weight, volume, distance, or duration of the activity emitting the pollutant (e. g., kilograms of particulate emitted per megagram of coal burned). Such factors facilitate estimation of emissions from various sources of air pollution. In most cases, these factors are simply averages of all available data of acceptable quality. The general equation for emission estimation is: E = A x EF x (1-ER/100) where: E = emissions; A = activity rate; EF = emission factor; and ER= overall emission reduction efficiency, %.ER is further defined as the product of the control device destruction or removal efficiency and the capture efficiency of the control system. When estimating emissions for a long time period (e. g., one year), both the device and the capture efficiency terms should account for upset periods as well as routine operations. "Emissions Trading" refers to a market-based approach to air pollution control which allows for transferring emission credits between different facilities for use as a form of regulatory compliance; "Episode" means a series of short-term air pollution events that significantly alter the ambient air quality of an affected area; "Equivalent Method" refers to any technique or procedure for sampling and/or analyzing an air pollutant which has been approved by the Bureau and demonstrated to have a consistent and quantitatively known relationship with the designated standard method;

"Existing Source" means any source already erected, installed, and in operation; or any source for which construction has been offered for bidding or actual construction has commenced prior to the date of effectivity of these Implementing Rules and Regulations Any existing source which in the opinion of the Department has undergone a modification after the date of adoption of an applicable rule and regulation, shall be reclassified and considered a new source; "Governing Board" refers to a multi-sectoral body created under Section 9 of the Act to effectively carry out and implement the air quality action plan of an airshed; "Greenhouse gases" refers to those gases such as carbon dioxide, methane, and oxides of nitrogen, chloroflouro-carbons, and the others that can potentially or can reasonably be expected to induce global warming; "Gross Vehicle Mass or Weight" means the gross vehicle mass or weight as declared by the vehicle manufacturer; "Guideline" means an official recommendation or guidance on the protection of human beings or receptors in the environment from the adverse effects of air pollutants; "Hazardous substances" refers to those substances which present either: (1) short-term acute hazards such as acute toxicity by ingestion, inhalation, or skin absorption, corrosivity or other skin or eye contact hazard or the risk of fire explosion; or (2) long-term toxicity upon repeated exposure, including carcinogenicity (which in some cases may result in acute exposure but with a long latent period), resistance to the detoxification process, or the potential to pollute underground or surface waters; "Imported Used/Second-Hand Vehicle" means any used or second-hand motor vehicle imported and registered in the country of origin; "Incinerator" refers to a facility, equipment, furnace or other similar structure which burns municipal, biomedical or hazardous wastes, which process emits toxic and poisonous fumes; "Infectious waste" refers to soiled surgical dressings, swabs and other contaminated waste from treatment areas; materials which have been in contact with persons or animals suffering from infectious diseases; cultures and stocks of infectious agents from laboratory work; dialysis equipment; apparatus and disposable gowns, aprons, gloves, towels, etc; waste from dialysis treatment area; waste from patients in isolation wards; all materials which may contain pathogens in sufficient concentration or quality that exposure to could result in disease; "Installation" means any structure, equipment, facility or appurtenances thereto, operation of which may be a source of pollution or a means to control the same; "In-Use Vehicle" means a motor vehicle duly registered with the LTO; "Light Duty Vehicles" are motor vehicles whose gross vehicle weight is equal to or less than 3,500 kgs. This also refers to "Light Commercial Vehicles;" "Lowest Achievable Emission Rate" refers to any technology or combination of technology and process controls that results in the lowest possible emissions of a given air pollutant. Cost is not a consideration in determining applicable LAER for a given source; however, technical feasibility is. The technology must be reasonably demonstrated to be appropriate and reliable for each application; "Mandatory Inspection" refers to the interval between testing and the tests performed, as partial pre-condition for the renewal of registration of in-use motor vehicles; "Manufacturer or Assembler" means any entity or person who manufactures or assembles motor vehicles, for eventual use in the Philippines; "Medical waste" means any solid waste that is generated in the diagnosis, treatment, or immunization of human beings or animals, in research pertaining thereto, or in the production or testing of biologicals; "Medium/Heavy Duty Vehicles" refers to motor vehicles whose gross vehicle weight is greater than 3,500 kgs; "Mobile source" means any vehicle/machine propelled by or through oxidation or reduction reactions, including combustion of carbon-based or other fuel, constructed and operated principally for the conveyance of persons or the transportation of property or goods, that emit air pollutants as a reaction product;

"Modification" means any physical change or alteration in the method of operation of an existing source which increases the amount of any air pollutant (to which a standard applies) emitted into the atmosphere by that source, or which results in the emission of any air pollutant (to which a standard applies) into the atmosphere not previously permitted. The following are exempted from the said definition: Routine maintenance, repair and replacement shall not be considered physical changes if not intended to extend the useful life beyond the equipment manufacturers design; An increase in the production rate providing the facility is permitted to operate at the increased level and that such increase does not exceed the designed capacity of the existing source; and An increase in hours of operation provided that the facility is permitted to operate for the increase in hours. "Motorcycle" refers to any two-wheeled motor vehicle with at least one headlight, taillight and stoplight, and one or more saddle seats. For purposes of these rules, motorcycles shall include motorcycles with attached cars also known as "tricycles". "Motor Vehicle" means any vehicle propelled by a gasoline or diesel engine or by any means other than human or animal power constructed and operated principally for the conveyance of persons or the transportation of goods; "Motor Vehicle Registration" refers to the official recording of a motor vehicle by the Land Transportation Office (LTO) subject to the conformance of the vehicle to the safety and emission standards provided under Section 21 of the Act, including the pre-evaluation of the documents/requirements pursuant to Section 5 of Republic Act 4136, as amended, otherwise known as the Land Transportation Code; "Municipal waste" refers to the waste materials generated from communities within a specific locality; "National Ambient Air Quality Guideline Values" are limits on criteria air pollutant concentrations published by the Department, intended to be protective of public health, safety, and general welfare. "National Motor Vehicle Inspection and Maintenance Program" refers to the set of projects and other activities and efforts all designed to reduce the damaging impact of air pollution and unsafe vehicles on health and safety of the people, through adoption of standards for emission and vehicle safety, and a series of measures to ensure compliance with them; "New Motor Vehicle" means a vehicle constructed entirely from new parts that has never been sold or registered with the DOTC or with the appropriate agency or authority, and operated on the highways of the Philippines, any foreign state or country; "New Source" means any plant, equipment, or installation in any trade, business or establishment which generates, emits or disposes air emissions into the atmosphere and constructed after the date of effectivity of these Implementing Rules and Regulations. This includes any existing stationary source transferred or moved to a different location or site for the purpose of installation, operation or use after such date; "Normal Cubic Meter" (Ncm) means the volume of dry gas which occupies a cubic meter measured at twenty five degrees Celsius (25o) at an absolute pressure equivalent to seven hundred sixty (760) mm Hg; "Octane Rating" or the "Anti-Knock Index" (AKI) means the rating of the anti-knock characteristics of a grade or type of automotive gasoline as determined by dividing by two (2) the sum of the Research Octane Number (RON), plus the Motor Octane Number (MON), the octane requirement, with respect to automotive gasoline for use in a motor vehicle or a class thereof, whether imported, manufactured, or assembled by a manufacturer, refers to the minimum octane rating or such automotive gasoline which such manufacturer recommends for the efficient operation of such motor vehicle, or substantial portion of such class, without knocking; "Opacity" means the amount of light obscured by particle pollution in the atmosphere; "Operator" means a person or entity that manages a transport business but not necessarily a vehicle owner; "Owner" means the person or entity identified as the motor vehicle owner in the motor vehicle registration or by a valid deed of sale; "Ozone Depleting Substances" (ODS) refers to those substances that significantly deplete or otherwise modify the ozone layer in a manner that is likely to result in adverse effects on human health and the environment such as, but not limited to, chlorofluorocarbons, halons, and the like;

"Particulate Matter" or "Suspended Particulates" means any material, other than uncombined water, which exists in a finely divided form as a liquid or solid; "Permit" refers to the legal authorization to engage in or conduct any construction, operation, modification or expansion of any installation, operation or activity which will be reasonably be expected to be a source of pollution; "Permit to Operate" refers to the legal authorization granted by the Bureau to operate or maintain any installation for a specified period of time; "Permit Condition" refers to a statement or stipulation issued with a permit, compliance with which is necessary for continued validity of the permit; "Persistent Organic Pollutants" (POPs) means organic compounds that persist in the environment, bioaccumulative through the food web, and pose a risk of causing adverse effects to human health and the environment. These compounds resist photolytic, chemical and biological degradation, and include but are not limited to dioxin, furan, Polychlorinated Biphenyls (PCBs), organochlorine pesticides, such as aldrin, dieldrin, DDT, hexachlorobenzene, lindane, toxaphene and chlordane; "Poisonous and toxic fumes" means any emission and fumes which do not conform to internationally accepted standards, including but not limited to World Health Organization (WHO) guideline values; "Pollution control device" refers to any device or apparatus that is used to prevent, control, or abate the pollution of air caused by emissions from identified sources at levels within the air pollution standards established by the Department; "Pollution control technology" refers to pollution control devices, production processes, fuel combustion processes or other means that effectively prevent or reduce emissions or effluents; "Potential to emit" refers to the annual mass emissions that would result from a source when operating 8,760 hours per year. Actual emissions are based on the actual hours of operation per year; "Rebuilt Motor Vehicle" means a locally assembled vehicle using new or used engine, major parts or components "Reference Mass or Weight" means the mass or weight of the vehicle in running order with a full fuel tank and including the set of tools and spare wheel, plus 100 kilograms but does not include the mass or weight of the passengers and driver; "Regional Director" means the Regional Director of any Regional Office; "Regional Office" means one of the Regional Offices of the Bureau; "Ringelmann Chart" means the chart described in the U.S. Bureau of Mines, Information Circular No. 8333 and No. 7718, and used for measuring smoke opacity; "Semi-Knocked Down (SKD)" refers to parts and components and/or engines that are imported in partially assembled condition for assembly purposes. This includes semi-assembled vehicles and cars without tires and batteries; "Siga" means the traditional small scale method of burning of wastes resulting from cleaning the backyard such as fallen leaves, twigs, stems, and other similar matter from plants and trees in the backyard where the burning is done; "Smoke Opacity Meter (or Opacimeter)" means an instrument which determines the smoke opacity in exhaust gases emitted by the engine system. "Spark-Ignition Engine" means an internal combustion engine in which the air/fuel mixture is ignited by a spark plug, e.g., a gasoline engine; "Standard of performance" means a standard for emission of air pollutants which reflects the degree of emission limitation achievable through the application of the best system of emission reduction, taking into account the cost of achieving such reduction and any non-air quality health and environment impact and energy requirement as determined by the Department through the Bureau; "Stationary source" refers to any building or fixed structure, facility or installation that emits or may emit any air pollutant;

"Useful Life of Vehicles and Engines" refers to the period of time a vehicle and/or engine can be used, and meet standards of road worthiness and engine emissions; "Vehicle Type" means a category of power-driven vehicles which do not differ in such essentials as reference mass or weight, engine type, number of cylinders, body configuration, manner of transmission, fuel used and similar characteristics. PART II NATIONAL AMBIENT AIR QUALITY GUIDELINES RULE VII NATIONAL AIR QUALITY Section 1. National Ambient Air Quality Guideline Values (a) Pursuant to Section 12 of Republic Act 8749, the initial set of National Ambient Air Quality Guideline Values necessary to protect public health and safety and general welfare shall be as follows Photochemical Oxidants as Ozone a Maximum limits represented by ninety-eight percentile (98%) values not to exceed more than once a year. b Arithmetic mean. c SO2 and Suspended Particulate matter are sampled once every six days when using the manual methods. A minimum of twelve sampling days per quarter or forty-eight sampling days each year is required for these methods. Daily sampling may be done in the future once continuous analyzers are procured and become available. d Limits for Total Suspended Particulate Matter with mass median diameter less than 25-50 m m. e Annual Geometric Mean. f Provisional limits for Suspended Particulate Matter with mass median diameter less than 10 m m and below until sufficient monitoring data are gathered to base a proper guideline. g Evaluation of this guideline is carried out for 24-hour averaging time and averaged over three moving calendar months. The monitored average value for any three months shall not exceed the guideline value. (b) The applicable methods for sampling and measurement of the above pollutants are as follows: TSP High Volume - Gravimetric, USEPA 40 CFR, Part 50, Appendix B PM-10 High Volume with 10 micron particle-size inlet; Gravimetric, USEPA 40 CFR, Part 50, Appendix J Sulfur Dioxide Gas Bubbler and Pararosaniline Method (West and Gaeke Method), or Flame Photometric Detector, USEPA 40CFR, Part 50, Appendix A Nitrogen Dioxide Gas Bubbler Griess-Saltzman, or Chemiluminescence Method, USEPA 40 CFR, Part 50, Appendix F Ozone Neutral Buffer Potassium Iodide (NBKI), or Chemiluminescence Method, USEPA 40 CFR, Part 50, Appendix D Carbon Monoxide Non-dispersive Infra-red Spectrophotometry (NDIR), USEPA 40 CFR, Part 50, Appendix C Lead High Volume and Atomic Absorption Spectrophotometry, USEPA 40 CFR, Part 50, Appendix G (c) An analyzer based on the principles and methods cited above will be considered a reference method only if it has been designated as a reference method in accordance with 40 CFR, Part 53. (d) Other equivalent methods approved by the Bureau may be adopted. Section 2. Review of Air Quality Guideline Values. - The Department through the Bureau shall, on a routine basis, in coordination with other concerned agencies and programs such as the National Research and

Development Program for the Prevention and Control of Air Pollution, review the list of Hazardous Air Pollutants and Guideline Values and recommend to the Secretary of the Department the revision thereof whenever necessary to protect public health and safety, and general welfare, consistent with the requirements of Rule XVII, Section 3. Section 3. Publication of Revised Values. - Upon approval by the Secretary, the revised Ambient Air Quality Guideline Values shall be published in one (1) newspaper of general circulation and shall be posted on a public Internet website. Section 4. Air Quality Indices. - The Department through the Bureau, and in conjunction with the Department of Health (DOH) may formulate a pollution standard index of air quality to protect public health, safety and general welfare. Implementation and enforcement of corrective actions contained in the index will be at the local government unit (LGU) level. Annex A contains the air quality indices and recommended actions that each LGU may opt to follow. PART III MAINTENANCE OF ATTAINMENT AREAS RULE VIII ATTAINMENT AREAS - GENERAL Section 1. Designation of Attainment Areas. - The Bureau shall delineate areas where the existing ambient air quality is at or below (that is, complies with) National Ambient Air Quality Guideline Values given in Part II, and shall designate such areas as "attainment areas." Designation of attainment areas will be based on monitoring data collected using the reference methods in Part II and/or other relevant information, including meteorological data, and data covering existing nearby sources. The Department through the Bureau will designate attainment and non-attainment areas, and will review and revise these designations from time to time as relevant data become available. Section 2. Review of Area Designation. - The Bureau shall revise area designations as additional data, whether monitoring, source or general knowledge, become available. Results from reviews of area designations will be made available for public comment.

Section 1. Standards. - New or modified sources must comply with National Emission Standards for Source Specific Air Pollution and Ambient Air Quality Standards pertaining to the source. Section 2. Best Available Control Technology. - Sources subject to this Rule shall, in addition to meeting the requirements of Section 1 of this Rule, install and operate Best Available Control Technology for each regulated pollutant with the potential to be emitted in quantities equal to or greater than 100 tons per year. Selection of the appropriate control technology will be made in consultation and with the approval of the Bureau but in no case shall it result in non-compliance with requirements of Section 1. Installation of the control equipment will be at the time of source construction or modification. Section 3. Increment Consumption. - No new source may be constructed or existing source modified if emissions from the proposed source or modification will, based on computer dispersion modeling, result in; Exceedance of the National Ambient Air Quality Guideline Values; or An increase in existing ambient air levels above the levels shown below: PM-10, annual arithmetic mean 17 micrograms per cubic meter PM-10, 24-hr maximum 30 micrograms per cubic meter Sulfur Dioxide, annual arithmetic mean 20 micrograms per cubic meter Sulfur Dioxide, 24-hr maximum 91 micrograms per cubic meter Nitrogen Dioxide, annual arithmetic mean 25 micrograms per cubic meter In the case of multiple point sources at a single facility, the net emissions from all affected sources shall be included in a single increment analysis. Section 4. Emission Averaging and Emission Trading. - Sources subject to provision of this Rule shall not be eligible for emission averaging however they may generate emission credits for purposes of an acceptable emission trading program. Section 5. Continuous Emission Monitoring. - New and modified sources shall install and operate, according to manufacturer specifications, continuous emission monitoring systems (CEMS) for each applicable pollutant listed in Section 4, Rule IX that the source has the POTENTIAL to emit in quantities equal to or greater than 100 tons per year. TSP and PM-10 fractions are not differentiated for purposes of this section; therefore, applicability will be determined by the total particulate matter expected to be emitted for new sources, or as collected by 40 CFR Part 60, Appendix A, Method 5 for modified sources. CEMS shall be applied as follows: All sources subject to this section: Sources shall install and operate a CEMS for carbon dioxide and oxygen that meets criteria provided in USEPA 40 CFR Part 60 Appendix B, Performance Specification 3. Additionally, each source shall, as appropriate meet the following requirements; a. Particulate matter: Sources shall install and operate a CEMS for opacity that meets criteria provided in USEPA 40 CFR Part 60 Appendix B, Performance Specification 1. The owner shall have the additional requirement of establishing a calibration curve showing the relationship between opacity as measured by the CEMS and mass particulate emission rate as determined by Method 5. The calibration curve shall cover the full range of reasonably expected operating conditions and/or process rates of the source and shall consist of at least three data points, one at maximum permitted operations, one at maximum design capacity, and one at 80% of the maximum permitted rate. The Bureau may waive one test point if the permitted rate and maximum design capacity rate are the same. b. Sulfur Dioxide and Nitrogen Oxides: Sources shall install and operate a CEMS for these parameters that meet criteria provided in USEPA 40 CFR Part 60 Appendix B, Performance Specification 2. c. Carbon Monoxide: Sources shall install and operate a CEMS for this parameter that meets criteria provided in USEPA 40 CFR Part 60 Appendix B, Performance Specification 4 or 4A. d. Hydrogen Sulfide: Sources shall install and operate a CEMS for this parameter that meets criteria provided in USEPA 40 CFR Part 60 Appendix B, Performance Specification 7. The CEMS requirements under this Section shall not apply to refinery flares, as well as to volatile organic compounds, unless a specific provision requires CEMS for volatile organic compounds is included in the facilitys permit to operate. PART IV MANAGEMENT OF NON-ATTAINMENT AREAS RULE XI NON-ATTAINMENT AREAS - GENERAL

RULE IX EXISTING SOURCES IN ATTAINMENT AREAS Section 1. Standards. - Existing sources must comply with National Emission Standards for Source Specific Air Pollution and Ambient Air Quality Standards pertaining to the source. Section 2. Non-compliance. - Sources not in compliance with Section 1 above must submit a Compliance Plan to the Bureau for approval, which details how the source will be brought into compliance. The owner of the facility must submit the plan within two (2) months of notification of non-compliance by the Bureau. The plan must include a schedule that will be enforceable and may provide for as long as eighteen (18) months to meet the applicable standards after notice of non-compliance by the Bureau. The Bureau may grant an extension of up to twelve (12) months for good-faith actions from the source owner. Section 3. Emission Averaging and Emission Trading. - Compliance plans submitted under Section 2 above may include use of emission averaging and emission trading as approved by the Bureau and described in Rules XXI and XXII, respectively. Section 4. Modification of Sources. - Any existing source in an attainment area making a change or modification to its process or production which results in an increase of POTENTIAL emissions equal to or greater than the following shall be considered significant and subject to Rule X for the affected pollutant(s). Carbon Monoxide 100 tons per year Nitrogen Oxides 40 tons per year Sulfur Dioxide 40 tons per year TSP 25 tons per year PM10 15 tons per year Volatile Organic Compounds 40 tons per year Hydrogen Sulfide 10 tons per year RULE X NEW/MODIFIED SOURCES IN ATTAINMENT AREAS

Section 1. Designation of Non-Attainment Areas. - The Bureau shall designate and delineate areas where the existing ambient air quality is not in conformance with National Ambient Air Quality Guideline values given in Part II as "non-attainment areas." Designation of non-attainment areas will be based on monitoring data collected using the reference methods in Part II or as may be reasonably expected from existing nearby sources and meteorological conditions. Special consideration will be given to populated areas where greater numbers of people may be exposed to unhealthy air. The Department through the Bureau will designate attainment and non-attainment areas, and will review and revise these designations from time to time as relevant data becomes available. An area may be designated as non-attainment for one or more criteria pollutants, and may be an attainment area for the remaining criteria pollutants. Section 2. Review of Area Designation. - The Bureau shall revise and/or confirm area designations as additional data, whether monitoring, sampling, source specific or general knowledge, becomes available. Results from reviews of area designations will be made available for public comment/review. RULE XII EXISTING SOURCES IN NON-ATTAINMENT AREAS Section 1. Standards. - Existing sources must comply with all National Emission Standards for Source Specific Air Pollution and Ambient Air Quality Standards pertaining to the source. Section 2. Non-compliance. - Sources not in compliance with Section 1 above must submit a Compliance Plan to the Bureau for approval which details how the source will be brought into compliance. The owner of the facility must submit the plan within two (2) months of notification of non-compliance by the Bureau. The plan must include a schedule that will be enforceable and may provide for as long as eighteen (18) months to meet the applicable standards after notice of non-compliance by the Bureau. Extensions or grace periods will not be allowed in non-attainment areas. Should the source failed to comply with its commitment within the specified period in the compliance plan, the Bureau shall impose penalties and fines to be computed retroactive from the time the notification of noncompliance was served. Section 3. Emission Averaging and Emission Trading. - Existing sources located in non-attainment areas will be allowed to use emission averaging for compliance purposes however, they will not be allowed to participate in emission trading for the pollutant or pollutants for which the area is designated as a non-attainment area, except as a generator (not user) of emission reduction credits. Section 4. Modification of Sources. - Any existing source located in a non-attainment area and making a change in process or production which increases POTENTIAL emissions from the source of the pollutant for which the area is designated non-attainment, shall be classified as modified and subject to Rule XIII. Equipment overhaul, refurbishment, or upgrade to extend the life of the equipment beyond its normal useful life is considered to be a modification if it result in the increase of POTENTIAL emissions for purposes of this Section. Section 5. Emission Fee Surcharge. - Sources subject to the non-attainment provisions will be assessed a 50% surcharge (i.e., 150% of base) on the annual emission fees for the pollutant(s) for which the area is designated non-attainment. Section 6. Penalty and Fine Surcharge. - Sources subject to the non-attainment provisions will be subject to a 100% surcharge (i.e., 200% of base) for any penalties or fines relating to a violation of the non-attainment provisions. RULE XIII NEW/MODIFIED SOURCES IN NON-ATTAINMENT AREAS Section 1. Standards. - New or modified sources must comply with all National Emission Standards for Source Specific Air Pollution and Ambient Air Quality Standards pertaining to the source. Section 2. Lowest Achievable Emission Rate., - New and modified sources (as defined in Section 4 of Rule XII) shall install and operate air pollution control technology which will provide the lowest achievable emission rate (LAER) of the pollutant for which the area is designated non-attainment. The affected firm will propose technologies it believes will meet the intent of this regulation. The Bureau will approve the use of lowest achievable emission rate control technologies on a case-by-case basis. Section 3. Emission Offsets. - New and modified sources must provide offsets in existing actual emission within the non-attainment area in a ratio of 1:1.2 to the POTENTIAL emission level of the proposed new or

modified source. The offsets may be made from any existing source in the non-attainment area but must be actual, demonstrable, enforceable and permanent. The proposed offsets are subject to approval by the Bureau. Section 4. Emission Averaging and Emission Trading. - New and modified sources subject to the nonattainment provisions may not use emission trading or emission averaging for compliance purposes. Section 5. Continuous Emission Monitoring. - New and modified sources must install and operate, according to manufacturer specifications, continuous emission monitoring devices for each pollutant for which the area is in non-attainment and which the source emits. Application, installation and operation of the CEMS shall meet criteria provided in Rule X Section 5. Section 6. Emission Fee, Penalty and Fine Surcharge. - Sections 5 and 6 of Rule XII above shall apply to new and modified sources in non-attainment areas. PART V AIR QUALITY MANAGEMENT SYSTEM RULE XIV AIR QUALITY MANAGEMENT INFORMATION SYSTEM Section 1. Ambient Air Monitoring Network. - The Bureau shall, within two (2) years from the effectivity of these Rules, design and establish an Ambient Air Monitoring Network for the assessment of ambient air quality. The Ambient Air Monitoring Network shall be expanded gradually to cover the entire country. Section 2. Emissions Inventory. - The Bureau shall, within three (3) years from the date of effectivity of these Rules, and every three (3) years thereafter, make an inventory of emissions from stationary, mobile and area sources. Where possible, the Bureau shall coordinate with the Governing Boards Section 3. Air Quality Database. - The Bureau and the National Statistical Coordination Board shall design the Air Quality Database which shall be computerized and stored in a manner accessible to the public and shall contain data collected from the Ambient Air Monitoring Network and the Emissions Inventory. The Bureau shall maintain and update the Air Quality Database. Section 4. National Air Quality Status Report. - The Bureau, shall prepare the Annual National Air Quality Status Report which shall contain: (a) A summary of the extent of air pollution in the country, per type of pollutant and per type of source; (b) An analysis and evaluation of the current state, trends and projections of air pollution; (c) An identification of critical areas, activities, or projects which will need closer monitoring or regulation; (d) Recommendations for necessary executive and legislative action; and (e) Other pertinent qualitative and quantitative information concerning the extent of air pollution and the air quality performance rating of industries in the country. Upon approval by the Secretary of the Department of Environment and Natural Resources, the National Air Quality Status Report shall be submitted to the Office of the President and to Congress on or before March 31 of every year and shall cover the preceding calendar year. The National Air Quality Status Report and other related reports shall be made available to the public. RULE XV AIRSHEDS Section 1. Authority.- The Secretary of the Department, upon the recommendation of the Bureau, shall divide the geo-political regions of the country into airsheds. Section 2. Designation of Airsheds.- Designation of airsheds shall be on the basis of, but not limited to, areas with similar climate, meteorology and topology which affect the interchange and diffusion of pollutants in the atmosphere, or areas which share common interest or face similar development programs, prospects or problems. Designation of airsheds shall be revised as additional data, needs or situations arise.For a more effective air quality management, a system of planning and coordination shall be established and a common action plan shall be formulated for each airshed. Section 3. Initial Designation of National Airsheds. - The Department through the Bureau will designate attainment and non-attainment areas, and will review and revise these designations from time to time as relevant data become available.

Section 4. Governing Board. - Pursuant to Section 9 of the Act, a Governing Board will be created for each airshed to effectively carry out the formulated action plans. Section 5. Composition and Organizational Set-up of the Board.- Each Governing Board shall be headed by the Secretary of the Department as chairman. The members shall be as follows: (a) Provincial Governors from areas belonging to the airshed; (b) City/Municipal Mayors from areas belonging to the airshed; (c) A representative from each concerned government agency; (d) Representatives from people's organizations; (e) Representatives from non-government organizations; and (f) Representatives from the private sector. There shall be two Deputy Chairpersons, namely, the Department Regional Executive Director and Regional Director in the region where the airshed is located. It is expected that the ratio of the number of Board representatives from government agencies to those from non-government agencies or organizations will be on the order of 60/40. Section 6. Functions of the Board. - Each Governing Board shall perform the following functions within its jurisdiction (airshed): (a) Formulation of policies and standard-setting; (b) Preparation of a common action plan; (c) Coordination of functions among its members; and (d) Submission and publication of an annual Air Quality Status Report for each airshed. Section 7. Executive Committee. - An Executive Committee will be formed consisting of seven persons; Chairperson, 2 Deputy Chairs and 4 members elected by the at large governing board. Where possible, members of the Committee will be selected for their expertise in the subject area. Representatives will be selected from the appropriate region. Section 8. Technical Working Groups. - Technical working groups will be formed to ensure broad based participation in the work of the Governing Boards. Section 9. Technical-Administrative Secretariat. - Each Governing Board will assign a dedicated, full-time technical-administrative secretariat with a separate budget. Section 10. Meetings. - The Department will provide basic funding for the conduct of regular meetings of the Governing Boards. Section 11. Governing Rules. - Governing rules shall be formulated by and for the individual Governing Boards. These governing rules shall be submitted for review and approval to the Department. Section 12. Re-designation of Airshed Boundaries. - Upon consultation with appropriate local government authorities, the Secretary of the Department, upon recommendation of the Bureau, shall, from time to time, revise the designation of airsheds utilizing eco-profiling techniques and undertaking scientific studies. RULE XVI AIR QUALITY MANAGEMENT FUND Section 1. Air Quality Management Fund. - An Air Quality Management Fund to be administered by the Environmental Management Bureau as a special account in the National Treasury is hereby established to finance containment, removal, and clean-up operations of the Government in air pollution cases, guarantee restoration of ecosystems and rehabilitate areas affected by the acts of violators of this Act, to support research, enforcement and monitoring activities and capabilities of the relevant agencies, as well as to provide technical assistance to the relevant agencies. Such fund may likewise bye allocated per airshed for the undertakings herein stated. Section 2. Uses of Fund.- The Air Quality Management Fund will be used for activities that are in direct support of objectives outlined in the Air Quality Action Plan and Control Action Plan of the airsheds. One-third of the Fund will be reserved for national purposes while the remaining two-thirds will be allocated among the airsheds. This can mean support, grant, finance or otherwise assist activities such as, but not limited to: (a) purchase of equipment related to air quality monitoring, reporting or management; (b) running costs for special campaigns: monitoring, enforcement or public awareness raising; (c) costs for special events related to air quality monitoring, enforcement etc.;

(d) funding of temporary staff positions in accredited organizations, of persons who have a TOR directly related to implementation of AQAP; (e) research on air related issues; and (f) running costs of Governing Boards and their Technical Secretariats Section 3. Sources for the Air Quality Management Fund. - Sources for the Air Quality Management Fund shall include: (a) air emission charges for industrial facilities; (b) air emission charges from motor vehicles.; (c) fines and penalties for non-compliance with environmental standards. This relates to both vehicular and industrial related air pollution; (d) grants from both private sector and donor organizations.; and (e) a limited percentage (5-10%) of the proceeds of the Program Loan for the Metro Manila Air Quality Improvement Project. Section 4. Decision Making on the Use of the Air Quality Management Fund. The Department is responsible for allocating funds from the Air Quality Management Fund. It will formulate a detailed set of criteria (project design, project management, project reporting and project accounting) on which decision making of requests for support from Air Quality Management Fund will be based. Individual Governing Boards shall follow these criteria in allocating those funds that are put at their disposal by the Department. Individual Governing Boards shall set up special committees for this purpose with members drawn from both the government, private sector and civil society members of each Governing Board. In order to promote transparency and accountability the Department will formulate business standards, which will describe the scrutiny mechanisms of proposals as well as maximum response times. The Department will ensure the publication of an Annual Report which specifies income and expenditure of the Air Quality Management Fund, together with a summary of initiatives supported and refused. This Annual Report will be available within two months after the budget year used by the Air Quality Management Fund Section 5. Air Emission Fees For Stationary Sources and For Mobile Sources. - The air emission fee will initially be determined by the amount of revenue necessary to assure the successful implementation of the Clean Air Act as described in these implementing rules and regulations. The necessary revenue will be based on relevant agency's budgets. This cost will then be apportioned to stationary and mobile source owners based on estimated annual mass emissions. The base air emission fee may be adjusted in later years as new data becomes available regarding the success of individual components of the Clean Air Act. RULE XVII AIR POLLUTION RESEARCH AND DEVELOPMENT PROGRAM Section 1. National Research and Development Program for the Prevention and Control of Air Pollution. - The Bureau, in coordination with the Department of Science and Technology (DOST), other agencies, the private sector, the academe, NGOs and POs, shall, establish a National Research and Development Program for the Prevention and Control of Air Pollution. Section 2. Development of Industry-Wide Applicable Methods. - The Bureau shall give special emphasis to research on and the development of improved methods having industry-wide application for the prevention and control of air pollution. Section 3. Development of Air Quality Guidelines. - The National Research and Development Program for the Prevention and Control of Air Pollution shall develop air quality guidelines and air quality guideline values in addition to internationally-accepted standards. It shall consider the socio-cultural, political and economic implications of air quality management and pollution control.The National Research and Development Program for the Prevention and Control of Air Pollution shall be established by the Department through the Bureau, in coordination with the Department of Science and Technology, other agencies, the private sector, the academe, NGOs and POs. RULE XVIII EMISSION QUOTAS Section 1. Emission Quotas. - The Bureau may allow each regional industrial center that is designated as a special airshed to allocate emission quotas to pollution sources within its jurisdiction that qualify under an environmental impact assessment system programmatic compliance program pursuant to the implementing rules and regulations of Presidential Decree No. 1586. Prior to implementation thereof, the Department shall consider, among others, the emissions inventory and the mass rate of emission standards.

PART VI AIR POLLUTION CLEARANCES AND PERMITS FOR STATIONARY SOURCES RULE XIX PERMIT REGULATIONS Section 1. Permits Required. - All sources of air pollution subject to these Implementing Rules and Regulations must have a valid Permit to Operate. Existing sources must obtain a permit issued by the Director unless exempted by Executive Order. New or modified sources must first obtain an Authority to Construct, issued by the Director. Section 2. Filing Fees for Applications. - A fee to be determined by the Department through Bureau shall be paid upon the filing of any of the following applications: a. Authority to Construct; b. Permit to Operate; c. Transfer of an existing and valid Permit to Operate by reason of transfer of location of the installation or change of permittee, or both; d. Revision of any existing and valid Authority to Construct or Permit to Operate involving alteration or replacement of the installation; e. Renewal of an expired Authority to Construct or Permit to Operate; f. Any other application for a permit not otherwise enumerated above. Filing fees for applications which have been denied shall not be refunded nor applied to subsequent applications. Section 3. Authority to Construct. - All proposed or planned source construction or modification requires an Authority to Construct which must be approved by the Bureau before construction or modification activities take place. Applications shall be filed in four (4) copies and supported by the official receipt of the filing fees and by such documents, information and data as may be required by the Bureau, including the following: a. An engineering report covering the plant description and operations, the estimated types, concentrations and quantities of all emissions to the atmosphere, the proposed control facilities, the emission rate and annual mass emission objectives, the design criteria for air pollution control equipment to be used, and other relevant information. The design criteria, if warranted, shall be based on the results of laboratory and pilot plant scale studies. The design efficiencies of the proposed air control equipment and the quantities and types of pollutants in the final emissions shall be indicated. Where confidential records are involved, the Bureau may limit the full disclosure of the same after discussions with the applicant; b. The plans and specifications of the installation and its control facilities (in standard size of 50 cm by 90 cm) duly certified by a registered professional mechanical engineer, sanitary engineer or chemical engineer or a combination of any two or all of them as may be required by the Bureau depending upon the nature of the construction, operation or activity sought to be covered by the Authority to Construct. The plans shall clearly show in adequate detail the proposed arrangement, location and size of the pollution control equipment or facilities, including their accessories, cross-sections and construction details. The specifications shall be in sufficient detail so that, when read in conjunction with the plans, they clearly reveal the proposed means and methods for the control of pollution and their expected performance efficiency; c. The project proponent shall conduct an air quality impact analysis using Bureau-approved computer dispersion models and techniques. The impact analysis shall estimate the resulting ambient air concentrations for all significant pollutants from the facility, and shall include the existing ambient air concentrations as a baseline. The impact analysis will be used by the Bureau, together with other relevant information, to determine if the proposed construction or modification will result in a violation of an applicable air quality standard; d. A vicinity map adequately identifying the street address, if any, of the location or premises of the installation. Any interested person, furnishing a copy thereof to the applicant may before its approval, oppose such application in writing. In such a case, the Environmental Management Bureau may conduct a public hearing on the application. The Bureau shall, within a reasonable time, act on the application for Authority to Construct either by issuing the corresponding Authority to Construct or by denying the application in writing stating the reason or reasons therefor.

The Authority to Construct shall be issued subject to such conditions as the Department through the Bureau may deem reasonable to impose and upon payment of the fees in accordance with the following schedule: In case the application is denied, the applicant may, within 10 days from notice of such denial, file only one written petition for reconsideration. The decision on said petition shall become final after 10 days from receipt thereof. Section 4. Conversion of Authority to Construct to Permit to Operate. - Once new source construction or modification is completed the source owner shall, within 60 days of startup, request the authorizing agency (generally the Department through the Bureau) to convert the Authority to Construct to a Permit to Operate. A valid Permit to Operate will be issued once the owner has demonstrated to the satisfaction of the authorizing agency that all permit conditions have been or will be met and that no air quality standards or guidelines will be exceeded. The owner shall conduct source testing using methods and techniques approved by the Bureau as part of the demonstration. Section 5. Application for Permit to Operate. - An application for a Permit to Operate shall be filed for each source emitting regulated air pollutants. Facilities having more than one source may group the sources under a single permit application, provided the requirements below are met for each individual source. Applications shall be made in a format prescribed by the Department through the Bureau, filed in triplicate copies, together with a copy of the official receipt of the filing fees and including the following: a. The information listed in Section 3 of this Rule; b. A statement of compliance or non-compliance with Rule XXV, National Emission Standards For Source Specific Air Pollutants (or, in the case of incinerators, a statement of compliance or non-compliance with Rule XXVIII). The statement of compliance shall be supported with actual test data, (such as stack sampling test data), or data gathering techniques acceptable to the Bureau; c. A statement of compliance or non-compliance with Rule XXVI, Ambient Air Quality Standards. The statement of compliance shall be supported by dispersion modeling data using modeling techniques and sampling approved by the Bureau. For cases in which source sampling and analysis is not practical, the Bureau may approve the use of actual ambient air test data to demonstrate compliance with the Ambient Air Quality Standards, so long as the location and conditions of the testing conform to a "worst case" scenario as demonstrated by air dispersion modeling; d. A compliance action plan for sources not meeting regulatory requirements. The compliance plan may include provision for use of emission averaging and/or trading as allowed under Parts III and IV. A certification signed by the applicant attesting to the accuracy and completeness of the application; e. A signed copy of the appointment or designation of the pollution control officer of the applicant; and f. Other documents, information and data as may be required by the Department through the Bureau. Section 6. Action on the Application for Permit to Operate. - Within thirty (30) days from submission of the complete requirements, the Department through the Bureau shall act on the application for Permit to Operate by approving or denying the same in writing. The Department through the Bureau may deny an application having incomplete requirements when the applicant fails or refuses to complete the same despite being given reasonable time to do so. The Permit to Operate shall be issued or renewed every year subject to such conditions as the Department through the Bureau through the may deem reasonable to impose, and upon payment of the permit fees for air pollution source and control facilities. In case the application is denied, the applicant may, within 10 days from notice of such denial file only one written petition for reconsideration. The decision on said petition shall become final after 10 days from receipt thereof. Section 7. Temporary Permit to Operate. - For purposes of sampling, planning, research and other similar purposes, the Department through the Bureau, upon submission of satisfactory proof, may issue a Temporary Permit to Operate no to exceed ninety (90) days, provided that the applicant has a pending application for a Permit to Operate under Section 5. Section 8. Life and General Conditions of Permit. - A permit duly issued by the Department through the Bureau shall be valid for the period specified therein but not beyond one (1) year from the date of issuance unless sooner suspended or revoked. It may be renewed by filing an application for renewal at least thirty (30) days before its expiration date and upon payment of the required fees and compliance with requirements.

Issuance of the permit shall not relieve the permittee from complying with the requirements of the Act and these Rules and that commencement of the work or operation under such permit shall be deemed acceptance of all the conditions therein specified. Section 9. Grounds for Modification of Permit Conditions. - After due notice and public hearing, the Department through the Bureau may modify any existing and valid permit by imposing new or additional conditions, provided that the permittee is given reasonable time to comply with such new or additional conditions, upon showing: a. That an improvement in emission quality or quantity can be accomplished because of technological advance without unreasonable hardship; b. That a higher degree of treatment is necessary to effect the intents and purposes of the applicable provisions of these Rules and Regulations; c. That a change in the environment or surrounding conditions requires a modification of the installation covered by a permit to conform to applicable air quality standards, as the case may be; d. That the area in which the permitted facility is located has been changed from an undesignated area or an attainment area to a non-attainment area for one or more criteria pollutants; or e. That the Act or these Rules and Regulations requires the modification of the permit conditions. Section 10. Grounds for Suspension or Revocation of Permits. - After due notice and hearing, the Department through the Bureau may suspend or revoke any existing and valid permit on any of the following grounds: a. Non-compliance with, or violation of any provision of Act, these Rules and Regulations, and/or permit conditions; b. False or inaccurate information in the application for permit that led to the issuance of the permit; c. Refusal to allow lawful inspection conducted by the Department through the Bureau of duly authorized personnel; d. Non-payment of the appropriate fees; e. Other valid purposes. Section 11. Posting of Permit. - The permittee shall display the permit upon the installation itself in such manner as to be clearly visible and accessible at all times. In the event that the permit cannot be so placed, it shall be mounted in an accessible and visible place near the installation covered by the permit. No person shall willfully deface, alter, forge, counterfeit, or falsify any permit. Section 12. Transfer of Permits. - In case of sale or legal transfer of a facility covered by a permit, the permittee shall notify the Department through the Bureau of such and the name and address of the transferee within thirty (30) days from the date of sale or transfer. In case of failure to do so, he shall be liable for any violation of these Rules and Regulations that the transferee may commit by reason of such transfer. It shall be the duty of the transferee to file an application for transfer of the permit in his name within ten (10) days from notification of the Department through the Bureau. Section 13. Plant Operational Problems. - In the event that the permittee is temporarily unable to comply with any of the conditions of the Permit to Operate due to a breakdown of the installation covered by the permit for any cause, he or his pollution control officer shall immediately notify the Department through the Bureau of such cause(s), and the steps being taken to solve the problem and prevent its recurrence, including the estimated duration of the breakdown, the intent toward reconstruction or repair of such installation and such other relevant information or data as may be required by the Department through the Bureau. The Department through the Bureau shall be notified when the condition causing the failure or breakdown has been corrected and such source equipment or facility is again in operation In such a case, the permittee may be subject to the payment of fines or penalties as provided under Part XIII of these Implementing Rules and Regulations. Section 14. Monitoring and Reporting. - The owner or the pollution control officer in charge of the installation subject to the provisions of these Implementing Rules and Regulations shall keep a record of its operational data and control test indicating its operational efficiency, and shall furnish a copy of the same to the Department through the Bureau quarterly in accordance with the procedures and/or programs approved by the Department through the Bureau for this purpose. RULE XX

FINANCIAL LIABILITY FOR ENVIRONMENTAL REHABILITATION Section 1. Financial Guarantee Mechanisms. - As part of the environmental management plan attached to the environmental compliance certificate (ECC) pursuant to Presidential Decree No. 1586 and rules and regulations, the Bureau shall require program and project proponents to put up financial guarantee mechanisms to finance the needs for emergency response, clean-up or rehabilitation of areas that may be damaged during the program or actual project implementation. Liability for damages shall continue even after the termination of a program or project, where such damages are clearly attributable to that program or project and for a definite period to be determined by the Bureau and incorporated into the ECC. The Bureau may promulgate guidelines for the effective implementation of said financial guarantee mechanisms. Section 2. Financial Liability Instruments. - Financial liability instruments may be in the form of a trust fund, environmental insurance, surety bonds, letters of credit, as well as self-insurance. The choice of the guarantee instrument or combinations thereof shall depend, among others, on the assessment of risks involved. Proponents required to put up guarantee instruments shall furnish the Bureau with evidence of availment of such instruments. RULE XXI EMISSION AVERAGING Section 1. Applicability. - Facilities having multiple sources within a contiguous property and owned by the same entity may use emission averaging for compliance purposes if provided for in either Part III or Part IV. Section 2. Approach. - Facility owners wishing to use emission averaging for compliance purposes must do so through an enforceable compliance plan submitted as a part of the operating permit application. The Bureau must approve the compliance plan and application of emission averaging for it to be effective. Section 3. Requirements. - Facilities must install a Bureau approved continuous emission monitoring system for the pollutant(s) to which emission averaging is being applied. The continuous emission monitoring system must be installed on each source that is being used to generate the emission reduction credits for the remaining sources. Application, installation and operation of the CEMS shall meet criteria provided in Rule X Section 5. RULE XXII EMISSIONS TRADING Section 1. Applicability. - Emissions trading may be allowed among pollution sources within an airshed as provided in Parts III and IV. Facilities located in different airsheds may use trading as approved by the Bureau. Section 2. Approach. - Facility owners wishing to use emission trading for compliance purposes must do so through an enforceable compliance plan submitted as a part of the operating permit application of each facility. The Bureau must approve the compliance plan and application of emission trading for it to be effective. Section 3. Requirements. - Facilities must install a Bureau approved continuous emission monitoring system for the pollutant(s) to which emission trading is being applied. The continuous emission monitoring system must be installed on each source that is being used to generate the emission reduction credits. Application, installation and operation of the CEMS shall meet criteria provided in Rule X Section 5. RULE XXIII SYSTEM OF INCENTIVES Section 1. Tax Incentives. - Industries, which shall install pollution control devices or retrofit their existing facilities with mechanisms that reduce pollution shall be entitled to tax incentives such as but not limited to tax credits and/or accelerated depreciation deductions. RULE XXIV RECORD-KEEPING, INSPECTION, MONITORING AND ENTRY Section 1. Required Relevant Reports and Records. - The Environmental Management Bureau or its duly accredited entity shall, after proper consultation and notice, require any person who owns or operates any emissions source or who is subject to any requirement of this Act to : (a) establish and maintain relevant records; (b) make relevant reports; (c) install, use and maintain monitoring equipment or methods; (d) sample emission, in accordance with the methods, locations, intervals and manner prescribed by the Environmental Management Bureau; (e) keep records on control equipment parameters, production variables or other

indirect data when direct monitoring of emissions is impractical; and (f) provide such other information as the Environmental Management Bureau may reasonably require. Section 2. Right of Entry, Inspection and Testing. - Pursuant to the Act, the Bureau, through its authorized representatives, shall have the right of: (a) entry of access to any premises including documents and relevant materials as referred to in the herein preceding paragraph; (b) inspect any pollution or waste source, control device, monitoring equipment or method required; and (c) test any emission. Section 3. Records Available to the Public. - Any record, report or information obtained under this section shall be made available to the public, except upon a satisfactory showing to the Environmental Management Bureau by the entity concerned that the record, report or information, or parts thereof, if made public, would divulge secret methods or processes entitled to protection as intellectual property. Such record, report or information shall likewise be incorporated in the Environmental Management Bureaus industrial rating system. PART VII POLLUTION FROM STATIONARY SOURCES RULE XXV STATIONARY SOURCES - GENERAL Section 1. National Emission Standards for Source Specific Air Pollutants. - For any trade, industry, process, fuel-burning equipment or industrial plant emitting air pollutants, the concentration at the point of emission shall not exceed the limits set in Table 2. Table 2 National Emission Standards for Source Specific Air Pollutants (NESSAP) a Other equivalent methods approved by the Department may be used. b Atomic Absorption Spectrophotometry. c All new geothermal power plants starting construction by 01 January 1995 shall control H2S emissions to not more than 150 g/GMW-Hr. d All existing geothermal power plants shall control H2S emissions to not more than 200 g/GMW-Hr. e Best available control technology for air emissions and liquid discharges. Compliance with air and water quality standards is required. f Emission limit of Nickel Carbonyl shall not exceed 0.5 mg/Ncm. g Urban Area means a poblacion or central district of cities or municipalities having at least 50,000 population, or twin political subdivisions with contiguous boundary which essentially form one community whose population is more than 50,000 inhabitants. Inside these centers or population are some scattered industrial establishments. h Industrial Area means a well-defined, exclusive land use area in various stages of development that are primarily established for industrial subdivisions, manufacturing and other industry mixes with provisions for common support infrastructures, facilities and services such as roads, water supply, power supply, communication systems, housing, storm drainage, sanitary sewerage systems, industrial wastewater treatment facilities, etc. These areas which are usually from 200 to 500 hectares in size as registered with the Housing and Land Use Regulatory Board (HLURB) or any other duly authorized government entities as industrial estates, parks or area. Export processing zones also fall under this category of land use. i Other Areas means all areas other than an urban or industrial area. j Other Stationary Sources (particulates) means a trade, process, industrial plant, or fuel burning equipment other than thermal power plant, industrial boilers, cement plants, incinerators, smelting furnaces.

a. The opacity of light or dark smoke emitted from any emission point in all stationary sources shall be such that, when compared in the appropriate manner with the Ringelmann Chart method, or using USEPA Method 9 (40 CFR, Part 60, Appendix A), or an equivalent method approved by the Department through the Bureau, visible emissions shall not appear darker than shade 1 on the Ringelmann Chart, nor exceed 20% opacity using USEPA Method 9. b. Exceptions to the requirements stated herein may be allowed under the following circumstances: The opacity limit hereinbefore prescribed shall not apply to the emission of dark smoke for less than five (5) minutes in a period of one (1) hour provided that the total period of such emission shall not exceed an aggregate of fifteen (15) minutes in any twenty-four (24) hours; provided further, that at no time should the opacity be darker than shade 3 of the chart; and provided finally, that this provisions shall not apply to cases of dark emissions resulting from cold-start and up-set conditions. Measurements of opacity shall be made in the manner specified by the approved method employed for this purpose. Section 3. Absence of Emission Standard for Other Air Pollutants. a. Where no emission or ambient standard is prescribed hereof for a specific air pollutant that is potentially harmful to public health and/or public welfare, the owner or operator of an industrial plant or stationary source shall conduct its operation or process by the best practicable means as may be necessary to prevent or minimize air pollution through the employment of cleaner production technology and sound environmental management practices; b. The absence of the ambient air or emission standard for a specific air pollutant shall not preclude the Department through the Bureau to take appropriate action to control such pollutants to assure the health, welfare and comfort of the general population. Section 4. Sampling Methods. - Sampling for compliance purposes shall be conducted using the methods prescribed above or other equivalent method as approved by the Department through the Bureau. Sampling shall be conducted under routine operating conditions at the facility. Operating conditions at the facility during compliance testing will be used by the Bureau to establish permit conditions under which the facility may operate. Section 5. Miscellaneous Provisions and Equipment. Stationary Fuel-Burning Equipment The owner or operator of a stationary fuel-burning equipment shall, if so required by the Department through the Bureau, provide a means to the satisfaction of Secretary whereby a person in charge of such a plant or equipment may at all times ascertain without leaving the boiler room, furnace room, or control room, whether or not dark smoke is discharging from any stack or such installation, such mean may include one or more of the following: a. Window or opening through which an unobstructed view of the top of the stack may be obtained from the boiler room, furnace room or control room; b. A mirror so placed as to reflect the top of the stack, which reflection shall be visible from the boiler room, furnace room, or control room; c. A smoke density indicator and alarm installed so as to indicate adequately in the boiler room, furnace room and control room the density of smoke being discharged; d. A closed circuit television installation with the receiver located in the boiler room, furnace room, or control room; e. Any similar device which may be approved by the Secretary. All oil-burning equipment shall have heaters capable of heating oil to a temperature appropriate for the oil and burner. The following major industries are required to install continuous emission monitoring system (CEMS) for particulates and sulfur oxide emissions: a. Fossil-fuel fired power plant (including NOx)

k Provisional guideline. b. Petroleum refinery, petrochemical industries (including NOx) l Other Stationary Sources (sulfur oxides) refers to existing and new stationary sources other than those caused by the manufacture of sulfuric acid and sulfonation process, fuel burning equipment and incineration. Section 2. Visible Emission Standards for Smoke and Opacity. - Visible opacity standards for smoke are as follows: c. Primary copper smelter (including NOx) d. Steel plant, ferro-alloy production facility (particulates only)

e. Cement Plant (particulates only) New and existing sources falling under paragraph (3) a), b), c) and d) and new sources falling under paragraph (3) e) shall comply with the requirements of installing CEMS upon the effectivity of these Implementing Rules and Regulations. All existing sources falling under paragraph (3) e) shall comply with the requirements of installing CEMS within twenty-four (24) months from the effectivity of these Implementing Rules and Regulations. Application, installation and operation of the CEMS shall meet criteria provided in Rule X Section 5. Miscellaneous Equipment. Re-heating furnaces, smoke ovens, bake ovens, coffee heaters, varnish kettles, paint booths and similar equivalent shall be so designed that when operating, there is no free flow of objectionable gases into the atmosphere. To minimize the escape of smoke, odors, fly ash or fumes, appropriate air pollution control facilities shall be installed. Section 6. Review and Revision of Emission Standard. - The Bureau shall provide industries, non-government organizations (NGOs) and other stakeholders the opportunity to participate in the formulation and revision of standards, determination of the technical feasibility of the revised standards, setting the schedule of implementation of the revised standards, and other related concerns. Pursuant to Section 19 of the Act, the Department through the Bureau shall review, or as the need arises, revise and publish emissions standards to further improve the emission standards for stationary sources of air pollution. Such emission standards shall be based on mass rate of emission for all stationary sources of air pollution based on internationally-accepted standards, but not be limited to, nor be less stringent than such standards and with the standards set forth in this Rule. The standards, whichever is applicable, shall be the limit on the acceptable level of pollutants emitted from a stationary source for the protection of the public's health and welfare. Section 7. Harmonization with International Standards. - In the review and revision of emission standards, the Bureau shall, as appropriate, endeavor to achieve the harmonization of national emissions standards with those set by regional bodies such as the Association of South East Asian Nations (ASEAN). Section 8. Self-Monitoring Report. - Each existing stationary source shall submit to the Bureau Regional Office where the facility is located a self-monitoring report of its emission rates, indicating the status of compliance with current standards. The self-monitoring report shall be submitted to the Bureau within six months of the effectivity of these IRRs, and within six months of each official revision of emission standards applicable to the source. The party or person responsible for the source shall assume responsibility for demonstrating proof of compliance, which the Bureau may subject to independent verification if it deems necessary. Section 9. Consent Agreement. - The Department, through the Pollution Adjudication Board (PAB) may waive certain penalties or fines to be imposed upon stationary sources proven to exceed emission rates provided that the person or party responsible for the source enters into a consent agreement with the Bureau in which the responsible party shall: a. Implement an Environmental Management System (EMS) within eighteen (18) months of entering into said agreement using scope and procedures specified in Philippine National Standard 1701 on establishing an EMS; b. Submit an approvable Environmental Management Plan (EMP) derived from the EMS process within six (6) months of entering into a consent agreement. The EMP shall specify a timetable for attaining compliance with all environmental regulations as well as the means with which to accomplish compliance, with emphasis on pollution prevention methods and not limited to installation of pollution control devices; c. Post a performance bond acceptable to the PAB, not to exceed P500,000 but not less that P50,000 depending on the size of the facility, which shall be forfeited upon failure to submit proof of an approved EMS within eighteen (18) months, and provided that an extension of not more than twelve (12) months may be allowed by the Bureau on meritorious grounds. The consent agreement shall incorporate requirements for environmental performance through timetables and reporting of performance, in addition to commitments and procedures adopted in the EMP. Section 10. Compliance Timetable Beyond Eighteen (18) Months. - Sources proposing timetables longer than eighteen (18) months for reaching compliance shall be required to first conduct a public consultation before the consent agreement may be finalized. Section 11. Proof of an Environmental Management System. - Proof of an approved EMS shall be in the form of an EMS audit report prepared internally by the person or party responsible for the facility, or one prepared by a third party EMS auditor. The audit report shall be prepared by a person or company certified under an international EMS standard such as ISO 14001 or an equivalent approved by EMB. This report, including a determination of the EMS's conformity to PNS 1701, shall be submitted for review and acceptance by the EMB Regional Director within eighteen (18) months from the signing of a consent agreement.

Section 12. Failure to Comply with Consent Agreement. - Failure of the stationary source to comply with the timetable specified in the consent agreement shall be sufficient grounds for closure through a Cease and Desist Order (CDO) issued by the Bureau. Further, the facility owner shall be subject to the reimposition of the original penalty (subject of the waiver) as well as additional appropriate penalties computed on a daily basis pursuant to Section 45 of the Act. Section 13. Prohibited Acts. Fugitive Particulates. No person shall cause, let, permit, suffer or allow the emission of particulate matter from any source whatsoever, including, but not limited to, vehicular movement, transportation of materials, construction, alternation, demolition or wrecking or industry related activities such as loading, storing or "handling," without taking reasonable precautions to prevent such emission. Such reasonable precaution shall include, but not be limited to, the following: 1. Use, where possible, of water or chemicals for control of dust in the demolition of existing buildings or structure, construction, operations, the grinding of rock, quarry or clearing of lands; 2. Application of asphalt, oil water, or suitable chemicals on roads, materials stockpiles, and other surface which create airborne dust problem; and 3. Installation and use of hoods fans and fabric filters or other suitable control devices to enclose and vent the handling of dusty materials. Adequate containment methods shall be employed during sandblasting or other similar operations. Volatile Organic Compounds or Organic Solvent Emissions No person shall store, pump, handle, process, unload or use in any process or installation, volatile compound or organic solvents without applying known existing vapor emission control devices or systems deemed necessary and approved by the Department through the Bureau. Nuisance No person shall discharge from any source whatsoever such quantities of air contaminants or other material which constitute nuisance as defined under Articles 694 to 707 of Republic Act No. 385, otherwise known as the Civil Code of the Philippines. Open Burning No person shall be allowed to burn any materials in any quantities which shall cause the emission of toxic and poisonous fumes. Such materials include but not limited to plastic, polyvinyl chloride, polypropylene, paints, ink, wastes containing heavy metals, organic chemicals, petroleum related compound, industrial wastes, ozone depleting substances and other similar toxic and hazardous substances. Further, no establishment, firm, company, government or private entity or organizations shall be allowed to burn or cause open burning of waste materials in their premises, area of jurisdiction, including recognized or unrecognized dumpsites in any quality or quantity. Violators upon determination by the Department through the Bureau shall be penalized in accordance with the provisions of Part XIII of these Implementing Rules and Regulations. General Restrictions 1. No plant or source shall operate at capacities which exceed the limits of operation or capability of a control device to maintain the air emission within the standard limitations imposed by the Act or by relevant permit conditions issued by the Department through the Bureau; 2. No person shall build, erect, construct, install, or implant any new source, or operate, modify, or rebuild an existing source, or by any other means release or take action which would result in, together with the concentrations of existing air pollutants, ambient air concentration greater than the ambient air quality standards specified in Section 12 (b) of the Act; 3. No person shall build, erect install or use any article, machine, equipment or other contrivance, the use of which will conceal an emission which would otherwise constitute a violation of any of the provisions of these Implementing Rules and Regulations.

No person shall cause or permit the installation or use of any device or any means which, without resulting in reduction in the total amount of air contaminant emitted, conceals or dilutes any emission of air contaminant which would otherwise violate the provisions of permit regulations of Rule XIX; 4. All pollution control devices and systems shall be properly and consistently maintained and correctly operated in order to maintain emission in compliance with the provisions and standards of Section 19 of the Act. No facilities shall be operated without the control equipment in proper operation, except with the permission of the Department through the Bureau when special circumstance arise. RULE XXV SOURCE SPECIFIC AMBIENT AIR QUALITY STANDARDS Section 1. National Ambient Air Quality Standards. - For any industrial establishment or operation, the discharge of air pollutants that result in airborne concentrations in excess of the National Ambient Air Quality Standards shown in Table 3 shall not be permitted. Sampling shall be done at an elevation of at least two (2) meters above the ground level and at the location of highest expected concentration and under worst case meteorological conditions. Location and meteorological conditions shall be determined using dispersion modeling. Bureau-approved techniques shall be followed in developing sampling plans.. However, the Bureau may approve the adoption of a different procedure in the choice of the location of the monitoring equipment depending upon the physical surrounding and other relevant factors in the area where the sampling is to be conducted. Table 3 National Ambient Air Quality Standards for Source Specific Air Pollutants from Industrial Sources/Operations Concentration a Averaging Time (min) Method of Analysis/Measurement c Pollutants m g/Ncm Ppm Ammonia 200 .028 30 Nesselerization / Indo Phenol Carbon Disulfide 30 0.01 30 Tischer Method Chlorine and Chlorine cmpds expressed as CL2 100 0.03 5 Methyl Orange Formaldehyde 50 0.04 30 Chromotropic Acid method or MBTH Colorimetric method Hydrogen Chloride 200 0.13 30 Volhard Titration with Iodine solution Hydrogen Sulfide 100 0.07 30 Methylene Blue Lead 20 30 AASb Nitrogen Dioxide 375 260 0.20 0.14 30 60 Griess-Saltzman Phenol 100 Sulfur Dioxide 340 0.18 0.13 30 60 Colorimeteric-Pararosaline Suspended Particulate Matter TSP PM-10 300 200 --60 0.03 470 30 4-Aminoantipyrine

60 Gravimetric Gravimetric Antimony 0.02 mg/Ncm -Arsenic 0.02 mg/Ncm -Cadmium 0.01 mg/Ncm -Asbestos 2 x 106 Particulates/Ncm (over 5 micrometer in size) -30 Light Microscopy Sulfuric Acid 0.3 mg/Ncm Nitric Acid 0.4 mg/Ncm -Notes: 30 30 30 AASb AASb AASb

-30

30 Titration

Titration

1 Pertinent ambient standards for Antimony, Arsenic, Cadmium, Asbestos, Nitric Acid and Sulfuric Acid Mists in the 1978 NPCC Rules and Regulations may be considered as guides in determining compliance. 2 Ninety-eight percentile (98%) values of 30-min. sampling measured at 25oC and one atmosphere pressure. 3 Other equivalent methods approved by the Department through the Bureau may be used. Section 2. Review of Ambient Air Quality Standards. - The Bureau shall provide industries, non-government organizations (NGOs) and other stakeholders the opportunity to participate in the formulation and revision of standards, determination of the technical feasibility of the revised standards, setting the schedule of implementation of the revised standards, and other related concerns. The Bureau shall, on an annual basis, in coordination with other concerned agencies, review the list of Hazardous Air Pollutants and the National Ambient Air Quality Standards for Source Specific Air Pollutants under Section 12 of the Act and recommend to the Secretary of the Department the revision thereof when necessary to protect public health and safety, and general welfare. Section 3. Publication of Revised Standards. - Upon approval by the Secretary of the Department, the revised Ambient Air Quality Standards shall be published in at least one (1) newspapers of general circulation and may be posted on a public internet website. RULE XXVII AIR QUALITY CONTROL TECHNIQUES Section 1. Air Quality Control Techniques. - Simultaneous with the issuance of the Ambient Air Quality Guideline Values, the Bureau, through the National Research and Development Program contained in the Act, and upon consultation with the appropriate advisory committees, government agencies and LGUs, shall issue, and from time to time, revise information on air pollution control techniques. Such information shall include: a. Best available technology and alternative methods of prevention, management and control of air pollution; b. Best available technology economically achievable which refers to the technological basis/standards for emission limits applicable to existing, direct industrial emitters of non-conventional and toxic pollutants; and c. Alternative fuels, processes and operating methods which will result in the elimination or significant reduction of emissions. Such information may also include data relating to the cost of installation and operation, energy requirement, emissions reduction benefits, and environmental impact or the emission control technology. Section 2. Air Quality Control Techniques Database. - The Bureau may establish an Air Quality Control Techniques Database. RULE XXVIII NON-BURN TECHNOLOGIES Section 1. Incineration Prohibited. - Pursuant to Section 20 of the Act, incineration, hereby defined as the burning of municipal, bio-medical and hazardous wastes, which process emits toxic and poisonous fumes is prohibited. Section 2. Non-Burn Technologies. - With due concern on the effects of climate change, the Bureau shall promote the use of state-of-the-art, environmentally-sound and safe thermal and non-burn technologies for the

handling, treatment, thermal destruction, utilization, and disposal of sorted, un-recycled, un-composted, biomedical and hazardous wastes. Non-burn technologies are technologies used for the destruction, decomposition or conversion of wastes other than through the use of combustion and which comply with at least one of the following conditions: (a) The environment within the destruction chamber is free of Oxygen; or (b) Fire is not used within the destruction chamber; or (c) The source of heat is not fire; or (d) A heat-conducting material or medium, whether of a solid, liquid, gaseous, sol or gel form, is used to destroy the waste. Non-burn technologies may be used provided that the following conditions are strictly complied with: (a) Applicable emission standards are not exceeded; (b) Installation and approved use of CEMS measuring PM, NO2, CO, Chlorine and temperature; (c) Compliance with all other relevant requirements of these Implementing Rules and Regulations. In cases where the requirements of this Rule are more restrictive than those of the other requirements of the Implementing Rules and Regulations, the more restrictive requirements shall apply. Section 3. Emission Standards for Thermal Treatment Facilities/Non-Burn Technologies. - Emissions from thermal treatment facilities and non burning technologies shall be deemed toxic and poisonous when they result from the processing of chlorinated compounds, or when they exceed the following emission standards set forth in Tables 4 and 5: Table 4 Daily and Half Hourly Average Limits Treatment Facilities Using Non-burn Technologies Item Daily Average Values Half Hourly Average Values Particulates (total dust) 10 mg/Ncm 30 mg/Ncm Gaseous and vaporous organic substances, expressed as total organic carbon 10 mg/Ncm 20 mg/Ncm Hydrogen chloride (HCl) 10 mg/Ncm 60 mg/Ncm Hydrogen fluoride (HF) 1 mg/Ncm 4 mg/Ncm Sulfur dioxide (SO2) 50 mg/Ncm 200 mg/Ncm Nitrogen monoxide (NO) and Nitrogen dioxide (NO2), expressed as nitrogen dioxide for incineration plants with a capacity exceeding 3 tonnes per hour 200 mg/Ncm 400 mg/Ncm Nitrogen monoxide (NO) and nitrogen dioxide (NO2), expressed as nitrogen dioxide for incineration plants with a capacity of 3 tonnes per hour or less 300 mg/Ncm -Ammonia 10 mg/Ncm 20 mg/Ncm Table 5 Limits for Metals, Dioxins and Furans - Treatment Facilities Using Non-burn Technologies Item Average Valuesa Cadmium and its compounds, expressed as cadmium (Cd) total 0.05mg/Ncm Thallium and its compounds, expressed as thallium (Tl) Mercury and its Compounds, expressed as mercury (Hg) 0.05 mg/Ncm

Antimony and its compounds, expressed as antimony (Sb) total 0.5 mg/Ncm Arsenic and its compounds, expressed as arsenic (As) Lead and its compounds, expressed as lead ( Pb) Chromium and its compounds, expressed as chromium (Cr) Cobalt and its compounds, expressed as cobalt (Co) Copper and its compounds, expressed as copper (Cu) Manganese and its compounds, expressed as manganese (Mn) Nickel and its compounds, expressed as nickel (Ni) Vanadium and its compounds, expressed as vanadium (V) Tin and its compounds, expressed as tin (Sn) Dioxins and Furans 0.1 nanogram/Ncm a These average values cover gaseous and the vapor forms of the relevant heavy metal emission as well as their compounds. Provided, that the emission of dioxins and furans into the air shall be reduced by the most progressive techniques. The average values shall be measured over a sample period of a minimum of four (4) hours and a maximum of eight (8) hours, except that all averages of dioxins and furans shall be measured over a sample period of a minimum of six (6) hours and maximum of eight (8) hours. Section 4. Non-applicability of the Prohibition. - The prohibition shall not apply to traditional small-scale method of community/neighborhood sanitation "siga", traditional, agricultural, cultural, health, and food preparation and crematoria. Section 5. Phase-out of Incinerators Dealing with Biomedical Wastes. - Existing incinerators dealing with a biomedical wastes shall be phased out on or before 17 July 2003 provided that in the interim, such units shall be limited to the burning of pathological and infectious wastes, and subject to close monitoring by the Bureau. After the said grace period, facilities that process or treat biomedical wastes shall utilize state-of the art, environmentally-sound and safe non-burn technologies. Section 6. Monitoring. - There shall be public participation in the monitoring of thermal treatment facilities. PART VIII POLLUTION FROM OTHER SOURCES RULE XXIX POLLUTION FROM OTHER SOURCES - GENERAL Section 1. Ban on Smoking. - The Local Government Units (LGUs) shall, within six (6) months from the effectivity of these Implementing Rules and Regulations, implement or enforce a ban on smoking inside a public building or an enclosed public place including public vehicles and other means of transport or in any enclosed area outside of one's private residence, private place or work or any duly designated smoking area. Section 2. Regulation of Other Sources. - The DOTC shall regulate and implement emission standards on mobile sources other than those referred to under Section 21 of the Act. For this purpose, the Department through the Bureau shall formulate and establish the necessary standard for these other mobile sources. The DOTC shall collect fines and penalties provided for under Section 46 of the Act from those found to be in violation of the applicable emissions standards for other mobile sources. PART IX POLLUTION FROM MOTOR VEHICLES RULE XXX MOTOR VEHICLE COVERAGE Section 1. Scope. - These provisions, in the interest of public safety and conservation of the environment, are applicable with respect to: (a) Manufacture, local assembly or importation into the country of new motor vehicle shall be covered by a Certificate of Conformity (COC) to be issued pursuant to the following sections of this Rule, provided, however, that those motor vehicle types already covered by the COC at the time of the effectivity of these rules shall not be subject to these provisions unless the Department finds justifiable to suspend, cancel or revoke such a certificate; (b) Enforcement of permissible emission levels of vehicles to be manufactured, marketed and/or operated in the country; (c) Implementation of the National Motor Vehicle Inspection and Maintenance Program including accreditation and authorization of private emission testing centers and certification of inspectors and mechanics, and;

(d) Roadside inspection of motor vehicles. RULE XXXI EMISSION CONTROL FOR NEW VEHICLES Section 1. Certificate of Conformity. - A COC shall be issued by the Department through the Bureau to a vehicle manufacturer, assembler, or importer certifying that a vehicle type complies with the emission standards in this Rule. No new motor vehicle shall be allowed initial registration unless a valid COC issued by the Department through the Bureau is granted. New motor vehicles shall refer to the following: (a) Vehicles designed and manufactured in the Philippines using brand new engines and spare parts; (b) Vehicles assembled in the Philippines using original and brand new parts and components imported into the country either semi knocked down (SKD) or completely knocked down (CKD); (c) New vehicles completely built up (CBU) imported into the country. The emission test for type approval shall be carried out by the DOTC/LTO under the policy, regulation and guidelines supervision of the DENR. The facility where the tests will be conducted shall be chosen by the DENR utilizing the vehicle type approval system testing center of the DOTC/LTO. It shall also have visitorial powers over the LTO Motor Vehicle Inspection Center and Vehicle Type Approval System Testing Center where these tests are carried out. While the DOTC/LTO is developing inspection capability for the vehicle type approval system test, the certificate of compliance to emission standards authenticated by the Philippine Embassy/Consulate from the country of origin or manufacture of subject vehicle shall be valid and sufficient. Section 2. Transitory Emission Limits. - As a condition for the issuance of a COC, exhaust emission limits for new vehicle types, to be manufactured/assembled in the country up to 31 December 2002, shall not exceed the following: For cars and light duty motor vehicles, the limits for emission of gaseous pollutants as a function of given reference mass shall be as provided hereunder:

22.0 27.5 1471 1700 85 101 23.5 29.4 1701 1930 93 112 25.0 31.3 1931 2150 101 121 26.5 33.1 2150 110 132 28.0 35.0 All Vehicles Type II Test Maximum Concentration of CO at end of last urban cycle = 3.5% All Vehicles Type III Test No Crankcase Emissions Permitted For medium and heavy duty motor vehicles with compression-ignition engine, the limit for the emission of gaseous pollutant shall be as provided hereunder: Table 7 Exhaust Limits of Gaseous Pollutants for Medium and Heavy Duty Motor Vehicles Equipped with Compression-Ignition Engine (Reference No. ECE Reg. 49-01)

Table 6 Exhaust Emission Limits of Gaseous Pollutants for Cars and Light Duty Motor Vehicles (Reference No. ECE Reg. 15-04) Reference Mass (kg) CO g/km HC + NO3g/km Type I Test Type Approval Conformity of Production 750 58 70 19.0 23.8 751 850 58 70 19.0 23.8 851 1020 58 70 19.0 23.8 1021 1250 67 80 20.5 25.6 1251 - 1470 76 91

CO (g/kWh) (g/kWh) (g/kWh) 11.2 Type Approval

HC NOx 2.4 14.4

Conformity of Production

Table 8 Smoke Emission Limits Under Steady State Conditions (Reference No. ECE Reg. 24-03) Nominal Flow (liters/second) Absorption Coefficient (m-1) 42 2.26 100 1.495 200 1.065 Opacity under free acceleration should not exceed the approved level by more than 0.5 m-1. Fuel evaporative emissions for spark ignition engines shall not exceed 2.0 grams per test. For motorcycles, CO emissions at idle shall not exceed 6% for all types. Section 3. Test Procedures to Determine Exhaust Emissions Under Transitory Standards The test procedures for the determination of gaseous exhaust emissions under the transitory standards shall be as follows: For cars and light duty motor vehicles ECE Regulation 15-04 "Uniform provision concerning the approval of vehicle equipped with positive-ignition engine or with compression-ignition engine with regard to emission of gaseous pollutant by the engine"

For medium and heavy duty motor vehicles with compression-ignition engines ECE Regulation 49-01 "Uniform provision concerning the approval of compression ignition (C.I.) engines and vehicles with C.I. engines with regards to the emission of pollutant by the engine" For the determination of CO emission Test procedure for the determination of CO emission shall be at idling speed. Section 4. Emission Standards Effective Year 2003. - As a condition for issuance of a COC, exhaust emission limits for motor vehicle types with spark ignition engines and compression ignition engines to be introduced into the market beginning 01 January 2003 shall refer to the provisions of Sec. 21 of the Act, which is equivalent to Euro 1, as follows: Table 9 Emission Limits for Passenger Car/Light Duty Vehicle Type Approval (Directive 91/441/EEC) CO (g/km) HC + NOx (g/km) PM1 (g/km) Type Approval Conformity of Production Type Approval Type Approval Conformity of Production 2.72 3.16 0.97 1.13 0.14 0.18 For Compression-ignition engines only. Table 10 Emission Limits for Passenger/Light Commercial Vehicles as a Function of the Given Reference Mass Type Approval (Directive 93/59/EEC) CO HC+NOX PM1 Class of Vehicle Type Approval Conformity of Production Class 1(<1250 Kg) 2.72 3.16 Class 2(1251<>1700) 5.17 6.0 Class 3(>1700 Kg) 6.9 8.0 , For Compression Ignition vehicles only.

2.26 100 1.495 200 1.065 Opacity under free acceleration should not exceed the approved level by more than 0.5 m-1. Table 13 Emission Limits for Motorcycle Type Approval with 4-stroke Engines ECE Regulation 40.01 Reference Weight R(1)(kg) CO (g/km) HC (g/km) Type Approval Conformity of Production Type Approval Conformity of Production <100 17.5 21 4.2 8 100-300 (17.5+17.5(R-100))/200 21+21(R-100))/200 4.2+1.8(R-100) (6+2.4(R100))/200 >300 35 42 8 9.4

Conformity

of

Production Notes: 1) Reference weight (R) = Motorcycle weight + 75 kg. (Mopeds are vehicles of less than 400 kg equipped with an engine having a cylinder capacity of less than 50 cubic centimeters.) For mopeds, CO emissions at idle shall not exceed 6% for all types. Fuel evaporative emission for spark-ignition engines shall not exceed 2.0 grams hydrocarbons per test. Likewise, it shall not allow any emission of gases from crankcase ventilation system into the atmosphere. Durability of pollution control equipment for spark-ignition and compression-engines shall conform to the deterioration factor prescribed in the test procedure.

Conformity of Production Type Type Approval Conformity of Production 0.97 1.13 0.14 0.18 1.40 1.6 0.19 0.22 1.7 2.0 0.25 0.29

Approval

The standards set forth in the above paragraphs of this section refer to the exhaust emitted over a driving schedule or engine speed, evaporative emission, crankcase ventilation emission and durability of pollution control equipment as set forth in the test procedures indicated in the succeeding section. Section 5.Test Procedures to Determine Exhaust Emissions and Other Standards Effective in Year 2003. The test procedures for the determination of emissions and other standards effective in 2003 shall be as follows: For exhaust emissions, fuel evaporative emission, emission of crankcase gases and durability of pollution control equipment for cars and light duty motor vehicles ECE Regulation 83-01/02, series of amendment approval B and C: "Uniform provision concerning the approval of vehicles with regards to the emission of gaseous pollutants by the engine according to engine fuel standards" Approval B - Limitation of emission of gaseous pollutant by the engine, evaporative emission, crankcase emission and durability of vehicle fueled with unleaded petrol. Approval C - Limitation of emission of gaseous and particulate pollutants, crankcase emission and durability of pollution control devices of motor vehicles fueled with diesel fuel. For Medium and Heavy Duty Motor Vehicles with compression-ignition engines ECE Regulation 49-01/02, series of amendment (49/02) "Uniform provision concerning the approval of compression-ignition (C.I) engines and vehicles equipped with C.I. engine with regards to the emission of pollutants by the engine" For the determination of CO emission The test procedure for the determination of CO emission shall be at idling speed as provided in the Emission Test Procedure for Vehicles Equipped with Spark-Ignition Engines and the Free Acceleration Test Procedure for Vehicles Equipped with Compression-Ignition Engines Section 6. General Requirements. - Every motor vehicle manufacturer, assembler or importer shall provide all new motor vehicles with a service manual or written instructions for the proper use and maintenance of the motor vehicle, including all relevant service information or specifications to ensure proper functioning of the emission control system and compliance with emission standards. All newly manufactured or imported gasoline-fuelled vehicles, including motorcycles and mopeds, to be introduced into the market or imported in to the Philippines shall be designed to operate on unleaded gasoline upon the effectivity of these Implementing Rules and Regulations.

Table 11 Emission Limits for Heavy Duty Vehicle Type Approval (Directive 91/542/EEC) CO (g/k Wh) HC (g/k Wh) NOx (g/k Wh) PM2 (g/k Wh) Type Approval Conformity of Production Type Approval Conformity of Production Type Approval Conformity of Production Type Approval Conformity of Production 4.5 4.9 1.10 1.23 8.0 9.0 0.36 0.4 For Compression ignition vehicles only. For engines of 85 kW or less, the limit value for particulate emissions is increased by multiplying the quoted limit by a coefficient of 1.7. Table12 Smoke Emission Limits Under Steady State Conditions (Reference No. ECE Reg. 24-03) Nominal Flow (liters/second) 42 Light Absorption Coefficient(m-1)

Section 7. Application for Certificate of Conformity. - The application for a Certificate of Conformity (COC) shall be submitted to the Bureau by the motor vehicle manufacturer, assembler, importer or their duly authorized representatives. It shall be accompanied by the following particulars in triplicate copies: (a) Complete and detailed descriptions of motor vehicle and the engine; (b) Description of the emission control system installed in the motor vehicle; (c) Details of the fuel feed system; (d) Previous emission test results of pre-production engine vehicle type duly authenticated by the Philippine Embassy/Consulate of the country of origin; and (e) Other particulars which may be required by the DENR. Section 8. Filing Fees for Application for COC. - A fee to be determined by the Department through the Bureau shall be paid upon the filing of the COC application. Filing fees for applications that have been denied shall not be refundable, nor applicable to subsequent applications. Section 9. Approval of Application. - Upon a determination that the vehicle type meets the general requirements of this Rule and upon payment of the corresponding application fees, the Bureau shall issue a COC within a reasonable time. Section 10. COC as Requisite for Registration. - New motor vehicles shall be registered with the LTO of the DOTC only upon presentation of a copy of a valid COC issued by the Bureau. For purposes of registration, the COC shall cover only:

(e) Engine tune-up specification and adjustment as recommended by the manufacturer including but not limited to idle speed(s), ignition timing, the idle air-fuel mixture setting procedure and value (e.g. idle CO, idle air-fuel ratio, idle speed drop), high idle speed, initial injection timing and valve lash (as applicable) as well as other parameters deemed necessary by the manufacturer. Section 15. Submission of Vehicle Identification Number. - The manufacturer, assembler or importer of any motor vehicle covered by a COC under these Implementing Rules and Regulations shall submit to the Bureau, not later than sixty (60) days after its manufacture or entry into the country, the vehicle engine number, chassis number, engine type, vehicle type and color. Likewise, a sticker with the Department logo, COC number and date of issue and a brief statement that the vehicle complies with the provisions of the Act and its Implementing Rules and Regulations shall be conspicuously displayed on the front windshield of the motor vehicle RULE XXXII EMISSION CONTROL FOR IN-USE VEHICLES Section 1. Emission Standards for In-Use Vehicles. - All in-use motor vehicles, and vehicles with updated/enhanced engine whose chassis are pre-registered with DOTC/LTO will only be allowed renewal of registration upon proof of compliance of the emission standard described below. The DOTC/LTO shall conduct the vehicle test utilizing the Motor Vehicle Inspection Station (MVIS) or its duly authorized and accredited inspection centers consistent with the R.A. 7394 otherwise known as the Consumer Act of the Philippines within sixty (60) days prior to date of registration. Emission test procedures as given in Annex B and Annex C for registered or in-use motor vehicles equipped with spark-ignition or compression-ignition engines, respectively, should be strictly followed. For vehicles with spark-ignition engines except motorcycles, the following emission standards shall apply:

(a) new vehicles described in the Certificate, or (b) new vehicle types which conform in all material respects to the design specifications applicable to the particular vehicle type as described in the application for COC and which are produced in accordance with the particulars of a valid COC. Section 11. Validity of COC. - For purposes of vehicle registration, the COC shall be valid for six (6) years from the date of issue unless sooner revoked or suspended. In case of suspension, the 6-year validity period shall not be extended by the period of suspension. Modifications of the brake system, steering, air conditioning, suspension and interior and exterior trimmings shall not be construed as a change in vehicle type and there will be no need to apply for a new COC. Section 12. Consent to Inspection as Condition of COC. - To ensure that new vehicles manufactured, assembled, or imported conform in all material respects to the design specifications described in the COC, it shall be a condition of the COC that the manufacturer, assembler or importer shall consent to all the inspections by the Department through the Bureau of the vehicle engine, emission control system, among others, of the new motor vehicles covered by the COC. Section 13. Ground for Revocation of COC. - Failure to comply with any of the requirements of this Rule shall justify the revocation or suspension of the COC. Section 14. Emission Control Labeling. - The manufacturer, assembler or importer of any motor vehicle or motor vehicle engine, subject to the applicable emission standards prescribed by the Department, shall affix a permanent legible label, and the vehicle identification number (VIN) plate of the type and in a manner described below: The label, of durable material, shall be affixed by the manufacturer, assembler or importer in such a manner that it cannot be removed without defacing such label. It shall be affixed in a readily visible position in the engine compartment or any conspicuous area under the hood, or under the seat in case of a motorcycle. The label shall contain the following information lettered in the English language in block letters and numerals with a legible print size, and of a color that contrasts with the background of the label: (a) The label heading: Vehicle Emission Control Information; (b) Full corporate name and trademark; (c) Engine type displacement in metric units; (d) International emission regulation code; and

Table 16 Emission Standards for Vehicles with Spark-Ignition Engines (Gasoline) Except Motorcycles Vehicle Category CO(% by volume) HC(ppm as hexane) Registered prior to January 1, 1997At Idle 4.5 800 Registered on or after January 1, 1997 but before January 1, 2003At Idle 3.5 600 Registered on or after January 1, 2003At Low IdleAt High Idle (rpm > 2,500) 0.50.3 (l = 1+/-0.03)* * or in accordance with manufacturer's specificationFor vehicles with compression-ignition engines

100

Table 17 Emission Standards for Vehicles with Compression-Ignition (Diesel) Engines (light absorption coefficient, m1)* Naturally Aspirated Turbo charged Registered for the first time prior to12/31/2002 Registered on or after 01/01/2003 1.2 2.2 * Using the free acceleration test. For motorcycles registered for the first time on or before December 31, 2002, CO emissions at idle shall not exceed 6.0%. For motorcycles registered for the first time after December 31, 2002 CO emissions at idle shall not exceed 4.5%. Section 2. Emission Standards for Rebuilt Vehicles and Imported Second Hand Vehicles. - No rebuilt or second hand-CBU imported into the country or pre-registered vehicles retrofitted with second hand engines shall be allowed registration or renewal of registration without valid Certificate of Compliance to Emission Standard (CCES) issued by the DOTC. As a condition for the issuance of a CCES, exhaust emission standards of vehicles enumerated previously shall not exceed the standards described below. As a requirement for the issuance of a CCES by DOTC for imported second hand vehicles, a Certificate of Emission Compliance duly authenticated by the Philippines Embassy/Consulate from the country of origin shall be valid and sufficient. The DOTC may however seek verification through actual testing in the MVIS. In the case of locally rebuilt vehicles, a CCES issued by the DOTC on the basis of an inspection by the DOTC Vehicle Type Approval System, if available, or initially by LTO MVIS, is required. 1,000 m increase in elevation 2.5 3.5 4.5 3.2

The DTI through the Bureau of Import Services (BIS) shall formulate regulations and guidelines that will ensure rebuilt and imported second hand motor vehicles and engines will satisfy the emission standards for rebuilt and imported second hand motor vehicles as provided in these Implementing Rules and Regulations.

Section 3. Harmonization with International Standards. - In the review and revision of emission standards, the Department shall endeavor to achieve the harmonization of national emission standards with internationallyaccepted standards. The Department, in coordination with the DOTC and DTI, may adopt or formulate the functional equivalence of the emission limits and test procedures. "Functional equivalence" means exhaust emission limits and test procedures whose numerical values are almost the same or identical with other types of emission limits and test procedures. The Department, in coordination with DOTC and DTI, and in consultation with the motor vehicle manufacturers and other stakeholders, shall study the feasibility of adopting EURO II or III standards or other appropriate standards in the Philippines to further reduce emissions from motor vehicles.

Table 18 Emission Standards for Rebuilt Vehicles and Imported Second Hand Vehicles* COa HCa Smokeb[turbocharged] Registered for the first time prior to December 31, 2002At Idle Registered for the first time on or after January 1, 2003At Idle

3.5% 0.5%

500 ppm 100 ppm

2.5 [3.5] m-1 2.5 [3.5] m-1

RULE XXXIV NATIONAL MOTOR VEHICLE INSPECTION AND MAINTENANCE PROGRAM Section 1. National Motor Vehicle Inspection and Maintenance Program. - All private in-use motor vehicles and vehicles with updated/enhanced engine whose chassis are pre-registered with Land Transportation Office (LTO) will only be allowed renewal of annual registration when, upon inspection by the LTO or other authorized private Motor Vehicle Inspection Station (MVIS), such vehicles meet the in-use emission standards set forth in Section 1 of Rule XXXII hereof. The LTO or other authorized MVIS shall conduct the vehicle tests for emissions. Public Utility Vehicles submitted to DOTC/LTO for renewal of registration shall only be allowed upon presentation of a valid Vehicle Inspection Report issued on the basis of the inspection following the standard described hereto from the MVIS or its authorized testing center. The Vehicle Inspection Report shall be valid for a maximum of six (6) months. Emission tests may be conducted within sixty (60) days prior to the renewal of registration. The results of such test shall be presented within sixty (60) days from the date of the test and may be presented to the LTO motor vehicle registration offices as a prerequisite to renewal of registration. Section 2. Phased Implementation. - The DOTC/LTO shall ensure that the Motor Vehicle Inspection System shall be fully operational in Metro Manila by January 2003. Nationwide implementation shall follow in twelve (12) to eighteen (18) months thereafter. The vehicle inspection will be initially conducted in the LTO-operated MVIS or LTO Motor Vehicle Registration Centers. Priority shall be given to the immediate testing of diesel-powered vehicles. Section 3. DOTC Authorization and DTI Accreditation of Private Emission Testing Centers. - Emission testing of vehicles as a consequence of roadside inspection, for voluntary inspection after vehicle maintenance, or for rebuilt and imported second hand vehicles and engines, may be done in a private emission testing center. Private emission testing centers shall be commissioned by the Government through accreditation by DTI and authorization by DOTC. The DTI and DOTC shall accredit and authorize emission testing centers in accordance with the procedural guidelines thereon. In order to accommodate all vehicles for emission testing, the DOTC may authorize private emission testing centers previously accredited with the DTI. Such testing centers shall be authorized to conduct emission tests on vehicles apprehended for non-compliance with the in-use emission standards. The DOTC shall issue the procedural guidelines on the authorization process. Pursuant to its standard-setting functions, the Department is responsible for regulating the specifications of the emission testing equipment to be used by private emission testing centers. The DTI shall ensure that these specifications are met by the accredited private emission testing centers. In seeking authorization from DOTC, qualified persons may file an application with the DOTC through LTO or its designated agency, to be authorized as an emission testing center. The applicant must comply with the requirements of area, trained personnel, adequate equipment and facilities, and submit the documentary requirements as may be required by the DOTC in subsequent regulations. The facilities shall be inspected prior to the issuance of the authorization to determine compliance with the authorization requirements. To obtain accreditation from the DTI, an application form shall be submitted by the applicant to the DTI Provincial Office located in the province where the applicant operates or resides. The applicant shall comply with the accreditation requirements and submit its organizational manual to the DTI. The facilities of the applicant shall then be inspected. Upon a favorable recommendation of the DTI Evaluation Panel / Committee, the Director of DTI Provincial Office shall approve the application and issue a certification to the applicant.

a For spark-ignition (gasoline-fueled) motor vehicles b For compression-ignition (diesel-fueled) motor vehicles; figure in brackets relate to turbocharged vehicles. * If the in-use emission standard of the country of origin is more stringent than these maximum limits, it will supersede them. Section 3. Test Procedures for Measurement of Exhaust Emission. - The Department shall prescribe the type of smoke opacity meter to be used in the emission testing of vehicles with diesel engines. The test procedures for measurement of exhaust emissions for in-use motor vehicles with spark-ignition engines and compression-ignition engines are described in Annexes B and C. Section 4. Control of Emissions from In-use Vehicles. - Pursuant to Section 21(d) of the Act, the DTI, DOTC/LTO, and the Department shall develop and implement the National Motor Vehicle Inspection and Maintenance Program that will ensure the reduction of emissions from motor vehicles and promote the efficient and safe operation of motor vehicles. The inspection and maintenance program shall require all vehicles, as a requisite for renewal of registration, to undergo mandatory inspection to determine compliance with the in-use emission standards. The DOTC/LTO shall also establish a roadside inspection system to ensure that vehicles comply with the in-use emission standards. The National Motor Vehicle Inspection and Maintenance Program is described in detail in Rule XXXIV and the Roadside Inspection System is described in Rule XXXV. Section 5. Use of tamper-resistant odometers and fuel management systems. Pursuant to Section 21 of the Act, the DTI shall prescribe regulations requiring the disclosure of odometer readings and the use of tamper-resistant odometers for all motor vehicles including tamper-resistant fuel management systems for the effective implementation of the inspection and maintenance program. Section 6. Useful Life of For-Hire Vehicles. - Pursuant to Section 22 of the Act, the DTI shall promulgate the necessary regulations prescribing the useful life of vehicles and engines including devices in order to ensure that such vehicles will conform to the emission they were certified to meet. These regulations shall include provisions for ensuring the durability of emission devices. For considerations of public health and welfare, the Department, DTI, DOTC/LTO, NEDA and DOF may develop and implement a program to ensure for-hire vehicles to continue to meet emission standards hereto described. RULE XXXIII REVIEW AND REVISION OF STANDARDS Section 1. Review and Revision of Standards. - To further improve the emission standards, the Department through the Bureau, in coordination with the DOTC/LTO, shall review the standards every two (2) years or as the need arises. Where necessary to achieve substantial improvement in air quality for the health, safety and welfare of the general public, the Department through the Bureau shall revise the exhaust emission standards for new and in-use motor vehicles. The revised standards must be published in a newspaper of general circulation or be filed in triplicate copies with the University of the Philippines (UP) Law Center pursuant to Presidential Memorandum Circular No. 11 dated 09 October 1992. Section 2. Participation of Stakeholders. - The Department shall provide the motoring public, automotive industry, non-government organizations (NGOs) and other stakeholders the opportunity to participate in the formulation and revision of standards, determination of the technical feasibility of the revised standards, setting the schedule of implementation of the revised standards, and other related concerns.

The accredited testing center shall make available to DTI or its appointed assessors all documents and shall allow the latter to inspect its facilities. The accredited emission testing center must secure the authorization of the DOTC to conduct emission tests on vehicles apprehended for non-compliance with the in-use standards. To facilitate the process of accreditation and authorization, the DOTC and DTI shall enter into an inter-agency agreement to develop and implement a uniform procedure for accreditation and authorization of emission testing centers. The DOTC and DTI shall study, among others, (1) the creation of a "one-stop shop" where an applicant may complete the process of accreditation and authorization, (2) the imposition of one fee, (3) the use of a single application form for both accreditation and authorization, and (4) the issuance of a single certificate of accreditation and authorization signed by both DOTC and DTI representatives. RULE XXXV ROADSIDE INSPECTION OF MOTOR VEHICLES Section 1. Roadside Inspection. - Vehicles found emitting excessive smoke while operating in any public highway shall be subjected to an emission test by properly-equipped DOTC through LTO and/or DOTCdesignated enforcement unit(s) and/or its deputized agents. The procedure for the apprehension of noncompliant vehicles and the deputation of agents to perform roadside inspection are set forth in Section 4 of this Rule. Section 2. Agency Responsible for Enforcement. - Pursuant to Section 46 of the Act, the DOTC, through LTO or DOTC-designated enforcement unit(s) shall establish a roadside inspection system to ensure that vehicles comply with the in-use emission standards set forth in these Implementing Rules and Regulations The DOTC shall establish and chair an oversight committee for the purpose of monitoring smoke belching violations. Representatives from concerned government agencies, relevant sector organizations and civil society shall compose the membership of the oversight committee headed by the LTO. Section 3. Deputation. - The DOTC through LTO or DOTC- designated enforcement unit(s) may deputize qualified government employees, LGUs, government agencies and private entities to conduct roadside inspection and to apprehend vehicles which do not comply with the in-use standards set forth in these Implementing Rules and Regulations. The deputized agents shall undergo a mandatory training on emission standards and regulations. For this purpose, the Department, together with the DOTC through LTO or DOTC- designated enforcement unit(s), DTI, DOST, the Philippine National Police (PNP) and other concerned agencies and private entities shall design a training program. The DOTC through LTO or its designated enforcement unit(s), together with the Department shall oversee the training program. This program shall include training in the correct use, maintenance and calibration of smoke testing equipment. No individual shall be deputized without satisfactorily completing the training. Section 4. Apprehension and Impounding of Vehicles Exceeding Emission Limits. - Pursuant to Section 46 of the Act, the procedure for apprehension and impounding of motor vehicles which emit pollutants beyond the allowable limits shall be as follows: (a) A vehicle suspected of violation of emission standards through visual signs shall be flagged down by the apprehending officer. (b) The apprehending officer shall conduct an emission test of the vehicle using portable emission testing equipment and using test procedures given in Annex B and Annex C, to determine whether the vehicle complies with the emission standards. Should the results show an exceedance of the emission limits, the computerized print-out, or other test result generated by the portable emission testing equipment shall serve as prima facie evidence of violation of the emission standards. Should the test results show that there is an exceedance of the standards, a ticket will be issued to the driver and the vehicle will be impounded and shall remain in the custody of the LTO or deputized agency or private entity until the fines are paid. (c) Should the test result show that there is an exceedance of the standards, a ticket will be issued to the driver and a warrant of constructive or actual distraint to any owner of the motor vehicle as provided for in Republic Act 4136 shall commence unless the vehicle has been previously found violating the standards three (3) or more times within the last 365-day period. In the latter case, the motor vehicle registration shall be suspended for a period of one (1) year. (d) Upon payment of the fine at the DOTC through LTO or DOTC- designated enforcement unit(s) or deputized agency or private entity, the vehicle plate(s) will be surrendered to the apprehending officer and the driver will be issued a temporary pass allowing him to take possession of the vehicle for the purpose of undertaking the needed repairs within a period not later than seven (7) days from the date the vehicle is temporarily released.

(e) Motor vehicles released for purposes of repairs shall not be operated or used in public roads except for the purpose of transporting the same to the service center for repairs and to the authorized emission testing center for emission testing. (f) When the repairs are made, the vehicle must undergo an emission test at a DOTC/LTO testing center or its authorized and accredited emission testing center to ascertain if it already meets the emission standards. (g) Once the vehicle meets the standards, the DOTC/LTO testing center or its authorized and accredited emission testing center shall issue a Certificate of Emission Compliance to the driver of the vehicle. The CEC will have no validity period, its sole purpose is to secure the release of the impounded vehicle or the vehicle license plates, whichever is applicable and which were confiscated as a consequence of that specific violation. (h) Upon presentation of the Certificate of Emission Compliance, the driver shall recover his vehicle or his vehicle plates, whichever is applicable, from the DOTC through LTO and/or DOTC- designated enforcement unit(s) which has custody over the vehicle or vehicle plates. Further refinement of the apprehension procedure stated in the Act shall be developed and/or approved by the DOTC. All apprehensions shall be made strictly adopting the above procedure. Failure of enforcers to observe said procedure shall merit review of the apprehension by the adjudication service and/or waiver of fines and penalties. Section 5. Appellate Procedure. - In the event the driver of the apprehended vehicle contests the fine imposed and/or the violation of emission standards, he may appeal the same with the DOTC-designated Traffic Adjudication Service where he will be given the opportunity to be heard. Section 6. Self-Regulation. - The DOTC shall encourage self-regulation among transport stakeholders. The DOTC shall encourage private sector initiated projects which integrate preventive maintenance, driver training, sealing of injections pumps, pre-registration testing, and modified apprehension procedures to reduce smoke belching. Section 7. Data Collection and Management. - The DOTC/LTO shall improve its system of managing and collecting data from the Motor Vehicle Inspection Stations and from roadside inspection/apprehensions for violation of emission standards. The ongoing computerization of LTO vehicle registration shall be linked to the MVIS and roadside inspection data base to be established. Section 8. Certification of Emission Test Equipment. - To ensure proper and effective enforcement of the vehicle emission standard, the Department, through the Bureau, shall certify the conformity to standards of emission test equipment before it can be used for mandatory emission tests. PART X FUELS, ADDITIVES, SUBSTANCES AND POLLUTANTS RULE XXXVI STANDARDS FOR FUELS AND ADDITIVES Section 1. Mechanism for Setting Fuel Specifications. - Pursuant to Section 26 of the Act, the Department of Energy (DOE), co-chaired by the Department, in consultation with the Bureau of Product Standards (BPS) of the DTI, the DOST, the representatives of the fuel and automotive industries, academe and the consumers shall, within six (6) months from the effectivity of these Implementing Rules and Regulations, set the specifications for all types of fuel and fuel-related products, to improve fuel composition for increased efficiency and reduced emissions: Provided, however, That the specifications for all types of fuel and fuelrelated products set-forth pursuant to this section shall be adopted by the BPS as Philippine National Standards (PNS). Section 2. Specification of Allowable Additive Content. - The DOE shall specify the allowable content of additives in all types of fuels and fuel-related products. Such standards shall be based primarily on threshold levels of health and research studies. On the basis of such specifications, the DOE shall limit the content or begin the phase-out of additives in all types of fuels and fuel-related products as it may deem necessary. Other agencies involved in the performance of this function shall be required to coordinate with the DOE and transfer all documents and information necessary for the implementation of this provision. Section 3. Fuel Specifications. - The fuel formulations shall meet, among others, the following specifications set in Table 19 on or before the deadline set forth in the Act: The fuels characterized above shall be commercially available. Likewise, the same shall be the reference fuels for emission and testing procedures to be established in accordance with the provisions of this Act.

Section 4. Review and Revision of Fuel Specifications. - Every two (2) years thereafter or as the need arises and subject to public consultations, the specifications of unleaded gasoline and of automotive and industrial diesel fuels shall be reviewed and revised for further improvement in formulation and in accordance with the provisions of this Act. Section 5. Monitoring Compliance through Fuel Sampling. - Compliance with the fuel specifications set in the Act shall be monitored through fuel sampling. Guidelines and procedures for the conduct of fuel sampling shall be developed by the DOE within six (6) months from the effectivity of these Implementing Rules and Regulations. Such guidelines and procedures shall, among others, consider the following: (a) Fuel samples collected must be truly representative of the fuel sampled. (b) The chosen sampling procedure must be suitable for sampling fuel under definite storage, transportation, and container conditions. (c) Samples must be obtained in such a manner and from such locations in the tank or other container that the sample will be truly representative of the gasoline. (d) It must be ensured that the samples represent the general character and average condition of the fuel. (e) Care should be taken in collecting and storing samples in containers that will protect them from changes in content such as loss of volatile fractions by evaporation or leaching into the container. Monitoring results shall be made available to the public through an annual report to be published by the DOE. RULE XXXVII REGULATION OF FUELS AND ADDITIVES Section 1. Agencies Responsible for Regulating Fuels and Additives. - The DOE, in coordination with the Department and the BPS, shall regulate the use of any fuel or fuel additive. Section 2. Registration of Fuels and Additives. - No manufacturer, processor or trader of any fuel or additive may import, sell, offer for sale, or introduce into commerce such fuel or additive unless the same has been registered with the DOE. Prior to registration, the manufacturer, processor or trader shall provide the DOE with the following relevant information: (a) Product identity and composition to determine the potential health effects of such fuels and additives; (b) Description of the analytical technique that can be used to detect and measure the additive in any fuel; (c) Recommended range of concentration; and (d) Purpose in the use of the fuel and additive. The DOE shall issue a separate regulation or circular detailing registration procedures, including but not limited to report formats and submission deadlines, within (6) months from the adoption and publication of these Implementing Rules and Regulations. Section 3. Information Database. - The DOE shall develop an information database of registered fuels and additives and other related data which shall be accessible to the public provided that information which are in the nature of trade secrets shall be subject to the non-disclosure and confidentiality agreement in Section 4 of this Rule. Section 4. Non-disclosure and Confidentiality Agreement. - Information on fuels and fuel additives registered with the Department of Energy which are considered trade secrets shall be covered by a non-disclosure and confidentiality agreement between the company and the Department of Energy for a period of fifteen (15) years. RULE XXXVIII PROHIBITED ACTS Section 1. Misfuelling. - In order to prevent the disabling of any emission control device by lead contamination, no person shall introduce or cause or allow the introduction of leaded gasoline into any motor vehicle equipped with a gasoline tank filler inlet and labeled "unleaded gasoline only". This prohibition shall also apply to any person who knows or should know that such vehicle is designed solely for the use of unleaded gasoline. Section 2. Manufacture, Import, and Sale of Leaded Gasoline and of Engines and/or Components, Requiring Leaded Gasoline. - Effective December 23, 2000 no person shall manufacture, import, sell, offer for sale,

introduce into commerce, convey or otherwise dispose of, in any manner leaded gasoline and engines and components requiring the use of leaded gasoline. Section 3. Manufacture, Import and Sale of Fuels Not According to Legally Prescribed Specifications. - The manufacture, importation and sale of fuels which do not meet the specifications prescribed in these Rules and Regulations or which may be prescribed by the DOE in the future is prohibited, except where the fuel is intended for export to a country which allows fuel specifications lower than are prescribed in the Philippines. RULE XXXIX OZONE-DEPLETING SUBSTANCES Section 1. Enforcement of Philippine Ozone Depleting Substances Phase Out Schedule. - Consistent with the terms and conditions of the Montreal Protocol on Substances that Deplete the Ozone Layer and other international agreements and protocols to which the Philippines is a signatory, the Department through the Bureau shall enforce the Philippine Ozone Depleting Substances (ODS) Phase Out Schedule as published in the June 27, 2000 editions of the Manila Times, Business World, Philippine Star, Manila Bulletin, Peoples Balita, and Abante. Section 2. Revision of the List of Ozone Depleting Substances. - When necessary, the Bureau shall revise the list of substances which are known to cause harmful effects on the stratospheric ozone layer which was initially published pursuant to Section 30 of the Act. RULE XL GREENHOUSE GASES Section 1. National Plan for Reduction of Greenhouse Gas Emissions. - The Department through the Bureau, together with concerned agencies and local government units, shall, within one (1) year from the effectivity of these Implementing Rules and Regulations, prepare and implement a national plan consistent with the United Nations Framework Convention on Climate Change and other international agreements, conventions and protocols on the reduction of greenhouse gas emissions. RULE XLI PERSISTENT ORGANIC POLLUTANTS Section 1. National Action Plan. - The Department through the Bureau, together with concerned agencies and local government units, shall, within one (1) year from the effectivity of these Implementing Rules and Regulations establish an inventory list of all sources of Persistent Organic Pollutants (POPs) in the country. Section 2. National Programs on Reduction and Elimination of POPs. - Pursuant to Section 32 of the Act, the Bureau shall, within one (1) year after the establishment of the inventory list referred to in the preceding section, design and implement a national government program on the reduction and elimination of POPs such as dioxins and furans. RULE XLII RADIOACTIVE EMISSIONS Section 1. Regulation on Atomic and/or Nuclear Energy Use. - The Philippine Nuclear Research Institute (PNRI), in coordination with the Bureau and other concerned government agencies, shall regulate all projects which will involve the use of atomic and/or nuclear energy, and will entail release and emission of radioactive substances into the environment, incident to the establishment or possession of nuclear energy facilities and radioactive materials, handling, transport, production, storage, and use of radioactive materials. RULE XLIII HAZARDOUS AIR POLLUTANTS Section 1. Designation and Management of Hazardous Air Pollutants. - The Department through the Bureau shall issue and maintain a list of hazardous air pollutants and required control measures. The list and control measures shall be source-specific by industry and shall be designed to protect Filipinos from unnecessary risk to health or welfare. Compounds shall be considered for inclusion on the list as reasonable data or information become available. PART XI INSTITUTIONAL MECHANISMS RULE XLIV IMPLEMENTING AGENCIES

Section 1. The Department. - The Department is the primary government agency responsible for the implementation and enforcement of the Act. The Department shall have the following authority, among others: (a) To promulgate rules and regulations as may be necessary to implement the intent and provisions of the Act; (b) To closely supervise all or parts of the air quality action plans until such time that the local government concerned can assume the function to enforce the standards set by the Department; (c) To revise, from time to time, the designation of airshed utilizing eco-profiling techniques and undertaking scientific studies; (d) To designate areas where specific pollutants have already exceeded ambient standards as non-attainment areas and to revise the designation of such areas after consultation with local government authorities, nongovernment organizations (NGOs), people's organization (POs) and concerned sectors; (e) To administer the Air Quality Management Fund; (f) To establish a National Research and Development Program for the prevention and control of air pollution, in coordination with the Department of Science and Technology (DOST), other agencies, the private sector, the academe, NGOs and POs; (g) To institute administrative proceedings pursuant to Section 40 of the Act; (h) To impose fines, through the Pollution Adjudication Board, for violations of standards for stationary sources; (i) To exercise such other authority vested by the Act and as provided for in these Implementing Rules and Regulations. The Secretary may delegate such authority and other powers and function to the Director. Section 2. The Bureau. - The Environmental Management Bureau shall be a line bureau primarily responsible for the implementation and enforcement of the Act pursuant to Section 34 thereof. It shall be comprised of a Central Office and the necessary regional, provincial and such other offices as may be established in pertinent administrative orders issued by the Secretary. The Bureau shall establish and operationalize its regional offices within two (2) years from the effectivity of these Implementing Rules and Regulations. For this purpose, the Bureau shall reorganize and increase the number of its personnel to effectively implement the Act and the Implementing Rules and Regulations. The proposed line bureau staffing pattern shall be submitted to the Department of Budget ad Management for approval. The Bureau shall have the following powers and functions, among others: (a) To prepare annual National Quality Status Report pursuant to Section 6 of the Act; (b) To design and develop, in cooperation with the National Statistical Coordination Board (NCSB), an information network for data storage, retrieval and exchange; (c) To serve as the central depositary of all data and information related to air quality; (d) To issue and, from time to time, revise information on air pollution control techniques upon consultation with the appropriate committees, government agencies and LGUs; (e) To, in coordination with other concerned agencies, review and/or revise and publish annually a list of hazardous air pollutants with corresponding ambient guideline values and/or standard necessary to protect public health and safety, and general welfare; (f) To design, impose on and collect regular emission fees from industrial dischargers as part of the emissions permitting system based on environmental techniques; (g) To issue permit as it may determine necessary for the prevention and abatement of air pollution; (h) To require program and project proponents to put up financial guarantee mechanisms to finance the needs for emergency response, clean-up or rehabilitation of areas that may be damaged during the program or project's actual implementation; (i) To review, or as the need therefore arises, revise and publish emission standards to further improve the emission standards for stationary sources of air pollution as well as emission standards for motor vehicles; (j) To have the right of entry or access to any premises including documents and relevant materials; to inspect any pollution or waste source, control devise, monitoring equipment or method required; and to test any emission;

(k) To require any person who owns or operates any emission source or who is subject to any requirement of the Act to (i) establish and maintain relevant records; (ii) make relevant reports; (iii) install, use and maintain monitoring equipment or methods; (iv) sample emission, in accordance with the methods, locations, intervals, and manner prescribed by the Department; and (v) keep records; (l) To exercise such other powers and functions as provided by the law, the Act and these Implementing Rules and Regulations. Section 3. Other Implementing Agencies. - The other agencies primarily responsible for the implementation of the Act are the Department of Transportation and Communications, the Department of Energy, and the Department of Trade and Industry. The DOTC shall have the authority to, among others: (a) Implement the emission standards for motor vehicles pursuant to and as provided in the Act; (b) Participate in the formulation of an Action Plan for the control and management of air pollution from motor vehicles; (c) Contribute towards the establishment of procedures for inspection of motor vehicles, assist in the formulation and implementation of the National Motor Vehicle Inspection and Maintenance Program; (d) Authorize private emission testing centers (duly accredited by DTI); (e) Establish a roadside inspection system; (f) Contribute towards design of training program for law enforcement officials and deputized agents on vehicle emission testing. The DTI shall have the authority to, among others: (a) Participate in the formulation of an Action Plan for the control and management of air pollution from motor vehicles; (b) Contribute towards the establishment of procedures for inspection of motor vehicles, assist in the formulation and implementation of the National Motor Vehicle Inspection and Maintenance Program; (c) Accredit private emission testing centers (duly authorized by the DOTC); (d) Develop and implement standards and procedures for the certification of training institutions, instructors and facilities and licensing of qualified private service centers and their technicians; (e) Prescribe regulations requiring the disclosure of odometer readings and use of tamper-resistant odometers, including tamper resistant fuel management systems. The DOE shall have the authority to, among others: (a) In coordination with other relevant agencies, set the specifications for all types of fuel and fuel-related products; (b) Specify allowable content of additives in all types of fuel and fuel-related products; (c) In coordination with the Department and BPS, regulate the use of any fuel or fuel additive. RULE II ROLE OF LOCAL GOVERNMENT UNITS Subject to Section 36 of the Act and pursuant to the Local Government Code (R.A. 7160) and other pertinent laws, the Local Government Units (LGUs) shall have the following roles within their respective territorial jurisdiction: (a) To share the responsibility in the management and maintenance of air quality within their respective territorial jurisdiction; (b) To implement air quality standards set by the Governing Board, consistent with Sections 7, 8 and 9 of the Act; (c) To establish an Environment and Natural Resources Office (ENRO) in every province, city, or municipality which shall be headed by the environment and natural resources officer appointed by the chief executive of every province, city or municipality in accordance with the provisions of Section 484 of the R. A. 7160 and to exercise powers and duties set forth in Section 37 of the Act;

(d) To prepare and develop, with the assistance from the Department, an action plan consistent with the Integrated Air Quality Framework to attain and maintain the ambient of air quality standards within their respective airsheds as provided in Section 9 of the Act; (e) To prepare and implement a program and other measures including relocation, whenever necessary, to protect the health and welfare of residents in the area; (f) To develop and submit to the Department through the Bureau a procedure for carrying out the action plan for their jurisdiction, provided that the Department through the Bureau shall maintain its authority to independently inspect the enforcement procedure adopted; (g) To perform such other powers and functions as may be provided by applicable laws, rules and regulations. The Department shall provide the LGUs with technical assistance, training and a continuing capability-building program to prepare them to undertake full administration of the air quality management and regulations within their territorial jurisdiction. RULE XLVI LINKAGE MECHANISM Section 1. Participation of Other Organizations. - The Department shall consult, participate, cooperate and enter into agreement with other government agencies, or with affected non-governmental (NGOs) or peoples organizations (POs), or private enterprises in the furtherance of the objectives of the Act and these Implementing Rules and Regulations. Section 2. Linkage with Coordinative Multisectoral Body. - Pursuant to Section 35 of the Act, the Bureau shall endeavor to institutionalize consultation with a multisectoral commission tasked to coordinate the plans and efforts of government agencies and non-government organizations in addressing air pollution in an organized and systematic manner. The Bureau shall study the creation of a multisectoral commission headed by the Secretary of the Department and composed of representatives from the following sectors: (1) government agencies involved in the task of air pollution control and management, (2) civil society, (3) business, (4) and other concerned sectors. The commission shall serve as an oversight body to ensure the systematic and effective management of air quality. RULE IV RECORD-KEEPING, INSPECTION, MONITORING AND ENTRY Section 1. Required Relevant Reports and Records. - The Department through the Bureau or its duly accredited entity shall, after proper consultation and notice, require any person who owns or operates any emissions source or who is subject to any requirement of this Act to: (a) establish and maintain relevant records; (b) make relevant reports; (c) install, use and maintain monitoring equipment or methods; (d) sample emission, in accordance with the methods, locations, intervals and manner prescribed by the Bureau; (e) keep records on control equipment parameters, production variables or other indirect data when direct monitoring of emissions is impractical; and (f) provide such other information as the Bureau may reasonably require. Section 2. Right of Entry, Inspection and Testing. - Pursuant to the Act, the Bureau, through its authorized representatives, shall have the right of: (a) entry of access to any premises including documents and relevant materials as referred to in the herein preceding paragraph; (b) inspect any pollution or waste source, control device, monitoring equipment or method required; and (c) test any emission. Section 3. Records Available to the Public. - Any record, report or information obtained under this Rule shall be made available to the public, except upon a satisfactory showing to the Bureau by the entity concerned that the record, report or information, or parts thereof, if made public, would divulge secret methods or processes entitled to protection as intellectual property. Such record, report or information shall likewise be incorporated in the Bureau's industrial rating system. RULE V PUBLIC EDUCATION AND INFORMATION CAMPAIGN Section 1. Public Education and Information Campaign. - A continuing air quality information and education campaign shall be promoted by the Department, the Department of Education, Culture and Sports (DECS), the Department of the Interior and Local Government (DILG), the Department of Agriculture (DA) and the Philippine Information Agency (PIA). Consistent with Section 7 of the Act, such campaign shall encourage the

participation of other government agencies and the private sector including NGOs, POs, the academe, environmental groups and other private entities in the formulation and implementation of a multi-sectoral information campaign. Section 2. Awareness Campaign for Mobile Sources. - The enforcement and implementation of emission standards requires the active cooperation of the importers, local assemblers, owners/operators and users of all motor vehicles. To ensure the cooperation of these groups, there is a need for an intensified and sustained awareness raising campaign. Awareness raising will be focused on the transport sector and will concentrate in communicating: (i) the harmful impact of gas emission on general public and workers in the transport sector, (ii) the technological options available to the transport sector to prevent smoke belching; and (iii) the commitment of the government to fully enforce emission standards through strengthening of apprehension activities. The advertising industry, the broadcasting industry and the print media shall participate and cooperate in the formulation and implementation of public awareness raising campaigns in connection with the emission standards without any profit to claim in connection with their involvement. PART XII ACTIONS RULE XLIX ADMINISTRATION AND ENFORCEMENT Section 1. Administration and Enforcement. - These Implementing Rules and Regulations shall be administered by the Department and/or its authorized representatives or through other government agencies designated or deputized by the Department, or by this act, executive orders or memorandum circulars, and others. Section 2. Rules and Regulations of other Government Agencies. - The rules and regulations issued by other government agencies and instrumentalities for the prevention and/or abatement of pollution not consistent with this Act shall supplement the rules and regulations issued by the Department through the Bureau. Section 3. Authentication with Official Seal. - All decisions, orders and appropriate legal documents hereinafter promulgated shall be issued and authenticated with the official seal of the Department or other government agencies designated by this Act. Section 4. Jurisdiction. - The Department through the bureau shall have exclusive and original jurisdiction to control and abate air pollution from stationary sources within the territorial jurisdiction. The abatement of public nuisance as defined under the Civil Code of the Philippines and special laws shall not affect or stay the proceedings before the Department or the DOTC as the case may be, provided however, that the Department or the DOTC as the case may be, may at its discretion, take appropriate steps in the interest of justice and public welfare. RULE L ADMINISTRATIVE ACTIONS AND PROCEDURES IN AIR POLLUTION CASES INVOLVING STATION SOURCES Section 1. Administrative Action. - Without prejudice to the right of any affected person to file an administrative action, the Department shall, on its own instance or upon verified complaint by any person, institute administrative proceedings against any person who violates: (a) Standards of limitation provided under this Act; or (b) Any order, rule or regulation issued by the Department with respect to such standard or limitation. Section 2. The Pollution Adjudication Board. - The Pollution Adjudication Board (PAB) shall have sole and exclusive jurisdiction over all cases of air pollution, as defined in these Implementing Rules and Regulations, and all other matters related thereto, including the imposition of administrative sanctions, except as may be provided by law. The PAB shall adopt and promulgate the rules of practice and procedure in air pollution cases from stationary sources under this Act. Unless otherwise revised or amended, the existing rules of the PAB, PAB Resolution No. 1-C, Series of 1997, shall apply. Section 3. Closure or Suspension of Development, Construction or Operations of a Stationary Source. - In addition to the fines prescribed under the Act and these Implementing Rules and Regulations, the PAB shall order the closure or suspension of development, construction or operation of the stationary sources until such time that proper environmental safeguards are put in place; Provided, That an establishment found liable for a third offense shall suffer permanent closure immediately.

The Order of Closure or suspension is without prejudice to the immediate issuance of an ex parte order by the PAB for such closure, suspension or development or construction, or cessation of operations during the pendency of the pollution case before the PAB. Said ex parte order shall be based upon prima facie evidence that there is imminent threat to life, public health, safety or general welfare, or to plant or animal life, or whenever there is an exceedance of the emission standards set by the Department and/or the Board or the appropriate LGU. Section 4. Fine Rating System. - The PAB shall prepare a fine rating system to adjust the maximum fine prescribed under Section 45 of the Act based on the violator's ability to pay, degree of willfulness, degree of negligence, history of non-compliance and degree of recalcitrance subject to conditions set forth in the Act. In case of negligence, the first-time offender's ability to pay may likewise be considered by the PAB. In the absence of any extenuating or aggravating circumstances, the amount of fine for negligence shall be equivalent to one-half of the fine for willful violation. RULE LI ACTIONS, PLEADINGS AND HEARING PROCEDURES FOR MOTOR VEHICLES BEFORE THE LTO Section 1. Nature and Procedure. - Subject to the basic requirements of due process, the proceedings herein provided shall be summary in nature. The technical rules of evidence obtaining in courts of law shall not bind the Traffic Adjudication Service of the LTO. The Rules of Court shall not apply in proceedings before the Board except in a supplementary character and only whenever applicable. Section 2. Commencement of Action. - Actions for any violation of any of the motor vehicle pollution control laws and/or these Implementing Rules and Regulations may be commenced by any person by filing a written complaint, or by the DOTC on its own initiative, or by the filing of a charge by any deputized agent of the DOTC before the hearing officer. Section 3. Caption and Title. - In all cases cognizable by the Traffic Adjudication Service, the full names of all parties, as far as they are known, shall be stated in the caption of the original pleadings, motion, resolution, order or decision and in all summons, notices and processes to be served upon them. Section 4. Forms and Contents of Complaints and Charge Sheet. - The complaint or charge sheet shall be in writing and drawn in clear and concise language, either in Filipino or in English. It shall recite the ultimate facts constituting the cause(s) of action and/or the violations of the motor vehicle pollution control laws and/or these Implementing Rules and Regulations, as well as all information pertinent thereto. It may specify the relief and such further remedies as may be deemed just and equitable, except that the charge sheet shall already include a notice requiring the Respondent to appear and answer the charge of the date, time and place indicated therein which shall not be less than one (1) day nor more than three (3) days from receipt hereof. In the case of a private complaint, the hearing officer shall set the case for hearing and require the Respondent to appear and answer the complaint on the date, time and place indicated in the notice of hearing which shall not be later than five (5) days from receipt thereof. Section 5. Filing and Service of Complaint and Charge Sheet. - The complaint or charge sheet shall be filed in two (2) copies before the Hearing Officer whose office covers the territorial jurisdiction where the Respondent was apprehended. The charge sheet shall be filed immediately, but not later than twenty-four (24) hours from knowledge of the violation. Service of the copy upon the driver of Respondent, shall be deemed service to Respondent. Section 6. Hearing on Apprehended Motor Vehicles. - (a) As soon as the parties enter their appearances and manifest their readiness to proceed with the hearing of the case, the complainant shall be allowed to present evidence in support of the charge with the testimony of each witness taken under oath. Thereafter, the Respondent shall be allowed to present this evidence. (b) If the case is commenced by the Secretary or its deputized agent, the hearing shall proceed directly with the presentation of results of the smoke meter or CO/HC tests as the case may be, and other evidence, after which the Respondent shall present his evidence. In case of doubt, the Hearing Officer shall admit all the evidence presented, subject to the objections interposed, if there be any. Section 7. Order/Decision. - If the Respondent admits the charge, the Hearing Officer shall on that same day, issue an order imposing the appropriate fines and directing the grounding of the apprehended motor vehicle. If the litigation of the case continues, the Hearing Officer shall decide the same within three (3) days from its submission. Said decision shall become final and executory if no appeal is taken therefrom to the Secretary within fifteen (15) days from notice thereof.

Only upon the presentation of the CEC and the official receipt certifying full payment of fines shall the grounded motor vehicle be released upon a written order duly issued by the Hearing Officer. The Hearing Officer shall then issue another order allowing the said motor vehicle to resume operation. RULE LII CITIZEN SUIT Section 1. Purposes. - The purposes of this section are to: (a) promote the participation of the citizens in the enforcement of the Act. (b) serve as a prod to government officials to take the necessary and appropriate action to abate and/or control pollution. Section 2. Scope. - The legal actions contemplated under this section are for civil and criminal remedies, the administrative action having been extensively treated in the preceding Rules. Section 3. Party Defendants. - The legal actions shall be against: (a) Any private natural or juridical person, including government owned and controlled corporations, who violates or fails to comply with the provisions of this Act; (b) Any Government agency which may issue any order or rules inconsistent with this Act. For this purpose, unless the inconsistency is so blatant as to manifest evident bad faith, the action available under this heading shall only be civil in nature, such as for declaratory relief and/or injunction. The government official who was made a respondent in said civil action shall be sued in his official capacity and shall not be liable for damages. (c) Any public officer who willfully or grossly neglects to perform the duties provided for under the Act, or who abuses his authority or in any manner improperly performs his duties under the Act and its Implementing Rules and Regulations. Section 4. Notice. - The government official as well as the person in violation shall be given notice of thirty (30) calendar days to undertake the necessary measures to abate the pollution. This shall be a condition precedent to the filing of a civil or criminal case in court against the polluting establishment and against the government official concerned. Section 5. Damages. - Damages arising from illness, physical injury or damage to property as a result of air pollution may be included in the action filed against the government official concerned and the polluting establishment. In addition, failure to take action within the prescribed 30-day period may also be ground for the initiation of an administrative or criminal action against the government official concerned before the Office of the Ombudsman. Section 6. Filing Fees. - In coordination with the Supreme Court, the citizen suit under this Rule, including actual and moral damages alleged to have resulted from the air pollution, shall be exempt from filing fees and other court fees. The Supreme Court may also waive the payment of the nominal filing fee for actions not capable of pecuniary estimation (e.g., declaratory relief, prohibitory and mandatory injunction, etc). The fees shall however be recorded to enable the Court to collect the appropriate amount recovered by the plaintiff in the event a monetary judgment is rendered in favor of the plaintiff in the citizen suit. Section 7. Bond. - In coordination with the Supreme Court, where there is a prima facie showing by the plaintiff that the defendant establishment's emission is beyond the standards allowed by the law and these Implementing Rules and Regulations, or where there is a showing that the government official concerned has grossly neglected to perform his duty or has abused his authority, the Court shall exempt the plaintiff from the posting of a bond for the issuance of a restraining order or preliminary injunction. Section 8. Malicious Actions The Court shall, within thirty (30) days from receipt of the complaint, make a preliminary determination whether the case is malicious and/or baseless. The availability of technical data secured through the monitoring conducted by the Department through the Bureau, if any, or the presence of a photograph showing a visibly opaque emission shall be sufficient evidence to prove that the case is neither malicious nor baseless. RULE LIII SUITS AND STRATEGIC LEGAL ACTIONS Section 1. Duty of the Investigating Prosecutor. - Where a suit is brought against a person who filed an action under the preceding Rule, or against any person, institution or government agency that implements the Act or these Implementing Rules and Regulations, it shall be the duty of the investigating prosecutor or the court, as the case may be, to immediately make a determination not exceeding thirty (30) days whether said legal action has been filed to harass, vex, exert undue pressure or stifle such legal resources of the person complaining or enforcing the provisions of the Act or these Implementing Rules and Regulations.

Section 2. Action of the Court. - Upon determination made under the preceding section, if evidence warrants the same, the court shall dismiss the case and award attorney's fees and double damages. Section 3. Scope. - This Rule shall apply and benefit persons who filed an action under the preceding Rule or Section 41 of the Act and any person, institution or government agency that implements the Act or these Implementing Rules and Regulations. Further, it shall also apply and benefit public officers who are sued for acts committed in their official capacity, there being no grave abuse of authority, and done in the course of enforcing the Act or these Implementing Rules and Regulations. PART XIII FINES AND PENALTIES RULE LIV FINES AND PENALTIES FOR VIOLATION OF STANDARDS FOR STATIONARY SOURCES Section 1. Fines to Be Imposed. - For actual exceedance of any pollution or air quality standards under the Act or these Implementing Rules and Regulations, the PAB shall impose a fine of not more than One Hundred Thousand Pesos (P 100,000.00) for every day of violation against the owner or operator of a stationary source until such time that the standards have been complied with. The fines herein prescribed shall be increased by at least ten percent (10%) every three (3) years to compensate for inflation and to maintain the deterrent function of the fines. Section 2. Gross Violation Defined. - Gross violations of the Act or these Implementing Rules and Regulations shall mean: (a) Three (3) or more specific offenses within a period of one (1) year; (b) Three (3) or more specific offenses within three (3) consecutive years; (c) Blatant disregard of the orders of the PAB, such as but not limited to the breaking of seals, padlocks and other similar devices, or operating despite the existence of an order for closure, discontinuance or cessation of operation; (d) Irreparable or grave damage to the environment as a consequence of any violation or omission of the provisions of the Act or these Implementing Rules and Regulations. Section 3. Penalties for Gross. - Violations In case of gross violations of the Act or these Implementing Rules and Regulations, the PAB shall recommend to the proper government agencies the filing of appropriate criminal charges against the violators. The PAB shall assist the public prosecutor in the litigation of the case. Offenders shall be punished with imprisonment of not less than six (6) years but not more than ten (10) years at the discretion of the court. If the offender is a juridical person, the president, manager, directors, trustees, the pollution control officer or officials directly in charge of the operations shall suffer the penalty herein provided. Section 4. Lien Upon Personal and Immovable Property. - Fines and penalties imposed pursuant to the Act or these Implementing Rules and Regulations shall be liens upon personal and immovable properties of the violator. Such lien shall, in case of insolvency of the respondent violator, enjoy preference subsequent to laborer's wages under Article 2241 and 2242 of Republic Act No. 386, otherwise known as the New Civil Code of the Philippines. RULE LV FINES AND PENALTIES FOR VIOLATION OF STANDARDS FOR MOTOR VEHICLES Section 1. Fines and Penalties for Violation of Vehicle Emission Standards. - The driver and operator of the apprehended vehicle found to have exceeded the emission standards shall suffer the following penalties. (a) First offense - a fine in the amount of one thousand pesos (P 1,000.00); (b) Second offense - a fine in the amount of three thousand pesos (P 3,000.00); and (c) Third offense -a fine in the amount of five thousand pesos (P 5,000.00) and the offender must undergo a seminar on pollution control and management conducted by the DOTC/LTO. In case the third offense was committed within a year from the commission of the first offense, an additional penalty of suspension of the Motor Vehicle Registration (MVR) for a period of one (1) year shall be imposed. Section 2. Fines for Violation of the Provisions of Section 21(d) of the Act. - Any violation of the provisions of Section 21 paragraph (d) with regard to national inspection and maintenance program, including technicians

and facility compliance shall be penalized with a fine of not less than thirty thousand pesos (P 30,000.00) or cancellation of license of both the technician and the center, or both, as determined by the DOTC. RULE LVI FINES AND PENALTIES FOR VIOLATIONS OF OTHER PROVISIONS OF THE CLEAN AIR ACT Section 1. Fines and Penalties for Violations of Other Provisions in the Act. - For violations of all other provisions provided in the Act and these Implementing Rules and Regulations, fine of not less than Ten Thousand Pesos (P 10,000.00) but not more than One Hundred Thousand Pesos (P 100,000.00) or six (6) years imprisonment or both shall be imposed. If the offender is a juridical person, the president, manager, directors, trustees, the pollution control officer or officials directly in charge of the operations shall suffer the penalty herein provided. Section 2. Burning of Municipal Waste. - Any person who burns municipal waste in violation of Sections 1 and 3 of Rule XXV shall be punished with two (2) years and one (1) day to four (4) years imprisonment. Section 3. Burning of Hazardous Substances and Wastes. - Any person who burns hazardous substances and wastes in violation of Section 1 of Rule XXV shall be punished with four (4) years and one (1) day to six (6) years imprisonment. Section 4. Burning of Bio-Medical Waste. - Any person who burns bio-medical waste in violation of Section 4 of Rule XXV shall be punished with four (4) years and one (1) to six (6) years imprisonment. Section 5. Smoking in Public Places. - Any person who smokes inside a public building or an enclosed public place, including public utility vehicles or other means of public transport or in any enclosed area outside of his private residence, private place of work or any duly designated smoking area shall be punished with six (6) months and one (1) day to one (1) year imprisonment or a fine of ten thousand pesos (P 10,000.00). Section 6. Manufacture, Importation, Sale, Offer for Sale, Introduction into Commerce, Conveyance or other Disposition of Leaded Gasoline. - Any person who manufactures, imports, sells, offers for sale, introduces to commerce, conveys or otherwise disposes of, in any manner leaded gasoline shall be punished with three (3) years and one (1) day to five (5) years imprisonment and liable for the appropriate fine as provided in Section 1. Section 7. Manufacture, Importation, Sale, Offer for Sale, Introduction into Commerce, Conveyance or other Disposition of Engines and/or Engine Components Requiring Leaded Gasoline. - Any person who manufactures, imports, sells, offers for sale, introduces into commerce, conveys or otherwise disposes of, in any manner engines and/or engine components which require the use of leaded gasoline shall be punished with three (3) years and one (1) day to five (5) years imprisonment and liable for the appropriate fine as provided in Section 1. Section 8. Manufacture, Importation, Sale, Offer for Sale, Dispensation, Transportation or Introduction into Commerce of Unleaded Gasoline Fuel which do not Meet the Fuel Specifications. - Any person who manufactures, sells, offers for sale, dispenses, transports or introduces into commerce unleaded premium gasoline fuel in violation of Section 3 of Rule XXXI or which do not meet the fuel specifications as revised by the DOE shall be punished with three (3) years and one (1) day to five (5) years imprisonment and liable for the appropriate fine as provided in Section 1. Section 9. Manufacture, Importation, Sale, Offer for Sale, Dispensation, Transportation or Introduction into Commerce of Automotive Diesel Fuel which do not Meet the Fuel Specifications. - Any person who manufactures, sells, offers for sale, dispenses, transports or introduces into commerce automotive diesel fuel in violation of Section 3 of Rule XXXI or which do not meet the fuel specifications as revised by the DOE shall be punished with three (3) years and one (1) day to five (5) years imprisonment and liable for the appropriate fine as provided in Section 1. Section 10. Manufacture, Importation, Sale, Offer for Sale, Dispensation, Transportation or Introduction into Commerce of Industrial Diesel Fuel which do not Meet the Fuel Specifications. - Any person who manufactures, sells, offers for sale, dispenses, transports or introduces into commerce industrial diesel fuel in violation of Section 3 of Rule XXXI or which do not meet the fuel specifications as revised by the DOE shall be punished with three (3) years and one (1) day to five (5) years imprisonment and liable for the appropriate fine as provided in Section 1. Section 11. Manufacture, Processing, Trade of Fuel or Fuel Additive Without Prior Registration of the Fuel or Fuel Additive with the DOE. - Any person who manufactures, processes, or engages in the trade of any fuel or fuel additive without having the fuel or fuel additive registered with the DOE shall be punished with two (2)

years and one (1) day to four (4) years of imprisonment and liable for the appropriate fine as provided in Section 1. Section 12. Misfuelling. - Misfuelling refers to the act of introducing or causing or allowing the introduction of leaded gasoline into any motor vehicle equipped with a gasoline tank filler inlet and labeled "unleaded gasoline only." Any person who misfuels shall be punished with one (1) year and one (1) day to three (3) years imprisonment or a fine of twenty thousand pesos (P20,000.00). PART XIV FINAL PROVISIONS RULE LVII SEPARABILITY CLAUSE If any clause, sentence, section or provision of these Implementing Rules and Regulations is held or declared unconstitutional or invalid by a competent court, the remaining parts of these Implementing Rules and Regulations shall not be affected thereby. RULE LVIII REPEALING AND AMENDING CLAUSE Department Administrative Order No. 2000-03 and all orders, rules and regulations inconsistent with or contrary to the provisions of these Implementing Rules and Regulations are hereby repealed or modified accordingly. RULE LIX EFFECTIVITY These Implementing Rules and Regulations shall take effect fifteen (15) days from the date of its publication in the Official Gazzette or in at least two (2) newspapers of general circulation.