co vs# 100776 (10.28.1993) ken

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 100776 October 28, 1993

ALBINO S. CO, petitioner, vs.COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

Antonio P. Barredo for petitioner.

The Solicitor General for the people.

NARVASA, C.J.:

In connection with an agreement to salvage and refloat asunken vessel — and in payment of his share of the expenses of the salvage operations therein stipulated — petitioner Albino Co delivered to the salvaging firm on September 1, 1983 a check drawn against the Associated Citizens' Bank, postdated November 30, 1983 in the sum of P361,528.00. 1 The check was deposited on January 3, 1984. It was dishonored two days later, the tersely-stated reason given by the bank being: "CLOSED ACCOUNT."

A criminal complaint for violation of Batas Pambansa Bilang 22 2 was filed by the salvage company against Albino Co with the Regional Trial Court of Pasay City. The case eventuated in Co's conviction of the crime charged, and his being sentenced to suffer a term of imprisonment of sixty (60) days and to indemnify the salvage company in the sum of P361,528.00.

Co appealed to the Court of Appeals. There he sought exoneration upon the theory that it was reversible error for the Regional Trial Court to have relied, as basis for its verdict of conviction, on the ruling rendered on September 21, 1987 by this Court in Que v. People, 154 SCRA 160 (1987) 3 — i.e., that a check issued merely to guarantee the performance of an obligation is nevertheless covered by B.P. Blg. 22. This was because at the time of the issuance of the check on September 1, 1983, some four (4) years prior to the promulgation of the judgment in Que v. People on September 21, 1987, the

delivery of a "rubber" or "bouncing" check as guarantee for an obligation was not considered a punishable offense, an official pronouncement made in a Circular of the Ministry of Justice. That Circular (No. 4), dated December 15, 1981, pertinently provided as follows:

2.3.4. Where issuance of bouncing check is neither estafa nor violation of B.P. Blg. 22.

Where the check is issued as part of an arrangement to guarantee or secure the payment of an obligation, whether pre-existing or not, the drawer is not criminally liable for either estafa or violation of B.P. Blg. 22 (Res. No. 438, s. 1981, Virginia Montano vs. Josefino Galvez, June 19, 1981; Res. No. 707, s. 1989; Alice Quizon vs. Lydia Calingo, October 23, 1981, Res. No. 769, s. 1981, Alfredo Guido vs. Miguel A. Mateo, et. al., November 17, 1981; Res. No. 589, s. 1981, Zenaida Lazaro vs. Maria Aquino, August 7, 1981).

This administrative circular was subsequently reversed by another issued on August 8, 1984 (Ministry Circular No. 12) — almost one (1) year after Albino Co had delivered the "bouncing" check to the complainant on September 1, 1983. Said Circular No. 12, after observing inter alia that Circular No. 4 of December 15, 1981 appeared to have been based on "a misapplication of the deliberation in the Batasang Pambansa, . . . (or) the explanatory note on the original bill, i.e. that the intention was not to penalize the issuance of a check to secure or guarantee the payment of an obligation," as follows: 4

Henceforth, conforming with the rule that an administrative agency having interpreting authority may reverse its administration interpretation of a statute, but that its review interpretation applies only prospectively (Waterbury Savings Bank vs. Danaher, 128 Conn., 476; 20 a2d 455 (1941), in all cases involving violation of Batas Pambansa Blg. 22 where the check in question is issued after this date, the claim that the check is issued as a guarantee or part of an arrangement to secure an obligation collection will no longer be considered a valid defense.

Co's theory was rejected by the Court of Appeals which affirmed his conviction. Citing Senarillos v. Hermosisima, 101 Phil. 561, the Appellate Court opined that the Que doctrine did not amount to the passage of new law but was merely a construction or interpretation of a pre-existing one, i.e., BP 22, enacted on April 3, 1979.

From this adverse judgment of the Court of Appeals, Albino Co appealed to this Court on certiorari under Rule 45 of the Rules of Court. By Resolution dated September 9, 1991, the Court dismissed his appeal. Co moved for reconsideration under date of October 2, 1991. The Court required comment thereon by the Office of the Solicitor General. The latter complied and, in its comment dated December 13, 1991, extensively argued against the merits of Albino Co's theory on appeal, which was

substantially that proffered by him in the Court of Appeals. To this comment, Albino Co filed a reply dated February 14, 1992. After deliberating on the parties' arguments and contentions, the Court resolved, in the interests of justice, to reinstate Albino Co's appeal and adjudicate the same on its merits.

Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines," according to Article 8 of the Civil Code. "Laws shall have no retroactive effect, unless the contrary is provided," declares Article 4 of the same Code, a declaration that is echoed by Article 22 of the Revised Penal Code: "Penal laws shall have, a retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal . . . 5

The principle of prospectivity of statutes, original or amendatory, has been applied in many cases. These include: Buyco v. PNB, 961 2 SCRA 682 (June 30, 1961), holding that Republic Act No. 1576 which divested the Philippine National Bank of authority to accept back pay certificates in payment of loans, does not apply to an offer of payment made before effectivity of the act; Largado v. Masaganda, et al., 5 SCRA 522 (June 30, 1962), ruling that RA 2613, s amended by RA 3090 on June, 1961, granting to inferior courts jurisdiction over guardianship cases, could not be given retroactive effect, in the absence of a saving clause; Larga v. Ranada, Jr., 64 SCRA 18, to the effect that Sections 9 and 10 of Executive Order No. 90, amending Section 4 of PD 1752, could have no retroactive application; People v. Que Po Lay, 94 Phil. 640, holding that a person cannot be convicted of violating Circular No. 20 of the Central, when the alleged violation occurred before publication of the Circular in the Official Gazette; Baltazar v. C.A., 104 SCRA 619, denying retroactive application to P.D. No. 27 decreeing the emancipation of tenants from the bondage of the soil, and P.D. No. 316 prohibiting ejectment of tenants from rice and corn farmholdings, pending the promulgation of rules and regulations implementing P.D. No. 27; Nilo v. Court of Appeals, 128 SCRA 519, adjudging that RA 6389 whichremoved "personal cultivation" as a ground for the ejectment of a tenant cannot be given retroactive effect in the absence of a statutory statement for retroactivity; Tac-An v. CA, 129 SCRA 319, ruling that the repeal of the old Administrative Code by RA 4252 could not be accorded retroactive effect; Ballardo v. Borromeo, 161 SCRA 500, holding that RA 6389 should have only prospective application; (see also Bonifacio v. Dizon, 177 SCRA 294 and Balatbat v. CA, 205 SCRA 419).

The prospectivity principle has also been made to apply to administrative rulings and circulars, to wit: ABS-CBN Broadcasting Corporation v. CTA, Oct. 12, 1981, 108 SCRA 142, holding that a circular or ruling of the Commissioner of Internal Revenue may not be given retroactive effect adversely to a taxpayer: Sanchez v. COMELEC, 193 SCRA 317, ruling that Resolution No. 90-0590 of the Commission on Elections, which directed the holding of recall proceedings, had no retroactive application; Romualdez v. CSC, 197 SCRA 168, where it was ruled that CSC Memorandum Circular No. 29, s. 1989 cannot be given retrospective effect so as to entitle to permanent appointment an employee whose temporary appointment had expired before the Circular was issued.

The principle of prospectivity has also been applied to judicial decisions which, "although in themselves not laws, are nevertheless evidence of what the laws mean, . . . (this being) the reason whyunder Article 8 of the New Civil Code, 'Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system . . .'"

So did this Court hold, for example, in Peo. v. Jabinal, 55 SCRA 607, 611:

It will be noted that when appellant was appointed Secret Agent by the Provincial Government in 1962, and Confidential Agent by the Provincial commander in 1964, the prevailing doctrine on the matter was that laid down by Us in People v. Macarandang (1959) and People v. Lucero (1958). 6 Our decision in People v. Mapa, 7

reversing the aforesaid doctrine, came only in 1967. The sole question in this appeal is: should appellant be acquitted on the basis of Our rulings in Macarandang and Lucero, or should his conviction stand in view of the complete reverse of the Macarandang and Lucero doctrine in Mapa? . . .

Decisions of this Court, although in themselves not laws, are nevertheless evidence of what the laws mean, and this is the reason why under Article 8 of the New Civil Code, "Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system . . ."The interpretation upon a law by this Court constitutes, in a way, a part of the law as of the date that law was originally passed, since this Court's construction merely establishes the contemporaneous legislative intent that the law thus construed intends to effectuate. The settled rule supported by numerous authorities is a restatement of the legal maxim "legis interpretation legis vim obtinet" — the interpretation placed upon the written law by a competent court has the force of law. The doctrine laid down in Lucero and Macarandang was part of the jurisprudence, hence, of the law, of the land, at the time appellant was found in possession of the firearm in question and where he was arraigned by the trial court. It is true that the doctrine was overruled in the Mapa case in 1967, but when a doctrine of this Court is overruled and a different view is adopted, the new doctrine should be applied prospectively, and should not apply to parties who had relied on, the old doctrine and acted on the faith thereof. This is especially true in the construction and application of criminal laws, where it is necessary that the punishment of an act be reasonably foreseen for the guidance of society.

So, too, did the Court rule in Spouses Gauvain and Bernardita Benzonan v. Court of Appeals, et al. (G.R. No. 97973) and Development Bank of the Philippines v. Court of Appeals, et al (G.R. No 97998), Jan. 27, 1992, 205 SCRA 515, 527-528: 8

We sustain the petitioners' position, It is undisputed that the subject lot was mortgaged to DBP on February 24, 1970. It was acquired by DBP as the highest bidder at a foreclosure sale on June 18, 1977, and then sold to the petitioners on September 29, 1979.

At that time, the prevailing jurisprudence interpreting section 119 of R.A. 141 as amended was that enunciated in Monge and Tupas cited above. The petitioners Benzonan and respondent Pe and the DBP are bound by these decisions for pursuant to Article 8 of the Civil Code "judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines." But while our decisions form part of the law of the land, they are also subject to Article 4 of the Civil Code which provides that "laws shall have no retroactive effect unless the contrary is provided." This is expressed in the familiar legal maxim lex prospicit, non respicit, the law looks forward not backward. The rationale against retroactivity is easy to perceive. The retroactive application of a law usually divests rights that have already become vested or impairs the obligations of contract and hence, is unconstitutional (Francisco vs. Certeza, 3 SCRA 565 [1061]).

The same consideration underlies our rulings giving only prospective effect to decisions enunciating new doctrines. Thus, we emphasized in People v. Jabinal, 55 SCRA 607 [1974]" . . . when a doctrine of this Court is overruled and a different view is adopted, the new doctrine should be applied prospectively and should not apply to parties who had relied on the old doctrine and acted on the faith thereof.

A compelling rationalization of the prospectivity principle of judicial decisions is well set forth in the oft-cited case of Chicot County Drainage Dist. v. Baxter States Bank, 308 US 371, 374 [1940]. The Chicot doctrine advocates the imperative necessity to take account of the actual existence of a statute prior to its nullification, as an operative fact negating acceptance of "a principle of absolute retroactive invalidity.

Thus, in this Court's decision in Tañada v. Tuvera, 9 promulgated on April 24, 1985 — which declared "that presidential issuances of general application, which have not been published,shall have no force and effect," and as regards which declaration some members of the Court appeared "quite apprehensive about the possible unsettling effect . . . (the) decision might have on acts done in reliance on the validity of these presidential decrees . . ." — the Court said:

. . . . The answer is all too familiar. In similar situation is in the past this Court, had taken the pragmatic and realistic course set forth in Chicot County Drainage District vs. Baxter Bank (308 U.S. 371, 374) to wit:

The courts below have proceeded on the theory that the Act of Congress, having found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. Norton vs. Shelby County, 118 US 425, 442; Chicago, I. & L. Ry. Co. v. Hackett, 228 U. S. 559, 566. It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects — with respect to particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those who have engaged the attention of courts, state and federal, and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.

Much earlier, in De Agbayani v. PNB, 38 SCRA 429 — concerning the effects of the invalidation of "Republic Act No. 342, the moratorium legislation, which continued Executive Order No. 32, issued by the then President Osmeña, suspending the enforcement of payment of all debts and other monetary obligations payable by war sufferers," and which had been "explicitly held in Rutter v. Esteban (93 Phil. 68 [1953] 10 . . . (to be) in 1953 'unreasonable and oppressive, and should not be prolonged a minute longer . . ." — the Court made substantially the same observations, to wit: 11

. . . . The decision now on appeal reflects the orthodox view that an unconstitutional act, for that matter an executive order or a municipal ordinance likewise suffering from that infirmity, cannot be the source of any legal rights or duties. Nor can it justify any official act taken under it. Its repugnancy to the fundamental law once judicially declared results in its being to all intents and purposes amere scrap of paper. . . . It is understandable why it should be so, the Constitution being supreme and paramount. Any legislative or executive act contrary to its terms cannot survive.

Such a view has support in logic and possesses the merit of simplicity. lt may not however be sufficiently realistic. It does not admit of doubt that prior to the declaration of nullity such challenged legislative or executive act must have been in force and had to be compiled with. This is so as until after the judiciary, in an appropriate case, declares its invalidity,, it is entitled to obedience and respect. Parties may have acted under it and may have changed theirpositions, what could

be more fitting than that in a subsequent litigation regard be had to what has been done while such legislative or executive act was in operation and presumed to be valid in all respects. It is now accepted as a doctrine that prior to its being nullified, its existence is a fact must be reckoned with. This is merely to reflect awareness that precisely because the judiciary is the governmental organ which has the final say on whether or not a legislative or executive measure is valid, a, period of time may have elapsed before it can exercise the power of judicial review that may lead to a declaration of nullity. It would be to deprive the law of its quality of fairness and justice then, if there be no recognition of what had transpired prior to such adjudication.

In the language of an American Supreme Court decision: 'The actual existence of a statute, prior to such a determination [of unconstitutionality], is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects, — with respect to particular relations, individual and corporate, and particular conduct, private and official (Chicot County Drainage Dist. v. Baxter States Bank, 308 US 371, 374 [1940]). This language has been quoted with approval in a resolution in Araneta v. Hill (93 Phil. 1002 [1953]) and the decision in Manila Motor Co. Inc. v. Flores (99 Phil. 738 [1956]). An even more recent instance is the opinion of Justice Zaldivar speaking for the Court in Fernandez v. Cuerva and Co. (L-21114, Nov. 28, 1967, 21 SCRA 1095).

Again, treating of the effect that should be given to its decision in Olaguer v. Military Commission No 34, 12 — declaring invalid criminal proceedings conducted during the martial law regime against civilians, which had resulted in the conviction and incarceration of numerous persons — this Court, in Tan vs. Barrios, 190 SCRA 686, at p. 700, ruled as follows:

In the interest of justice and consistently, we hold that Olaguer should, in principle, be applied prospectively only to future cases and cases still ongoing or not yet final when that decision was promulgated. Hence, there should be no retroactive nullification of final judgments, whether of conviction or acquittal, rendered by military courts against civilians before the promulgation of the Olaguer decision. Such final sentences should not be disturbed by the State. Only in particular cases where the convicted person or the State shows that there was serious denial of constitutional rights of the accused, should the nullity of the sentence be declared and a retrial be ordered based on the violation of the constitutional rights of the accused and not on the Olaguer doctrine. If a retrial is no longer possible, the accused should be released since judgment against him is null on account of the violation of his constitutional rights and denial of due process.

xxx xxx xxx

The trial of thousands of civilians for common crimes before the military tribunals and commissions during the ten-year period of martial rule (1971-1981) which were created under general orders issued by President Marcos in the exercise of his legislative powers is an operative fact that may not just be ignored. The belated declaration in 1987 of the unconstitutionality and invalidity of those proceedings did not erase the reality of their consequences which occurred long before our decision in Olaguer was promulgated and which now prevent us from carrying Olaguer to the limit of its logic. Thus did this Court rule in Municipality of Malabang v. Benito, 27 SCRA 533, where the question arose as to whether the nullity of creation of a municipality by executive order wiped out all the acts of the local government abolished. 13

It would seem then, that the weight of authority is decidedly in favor of the proposition that the Court's decision of September 21, 1987 in Que v. People, 154 SCRA 160 (1987) 14 that a check issued merely to guarantee the performance of an obligation is nevertheless covered by B.P. Blg. 22 — should not be given retrospective effect to the prejudice of the petitioner and other persons situated, who relied on the official opinion of the Minister of Justice that such a check did not fall within the scope of B.P. Blg. 22.

Inveighing against this proposition, the Solicitor General invokes U.S. v. Go Chico, 14 Phil. 128, applying the familiar doctrine that in crimes mala prohibita, the intent or motive of the offender is inconsequential, the only relevant inquiry being, "has the law been violated?" The facts in Go Chico are substantially different from those in the case at bar. In the former, there was no official issuance by the Secretary of Justice or other government officer construing the special law violated; 15 and it was there observed, among others, that "the defense . . . (of) an honest misconstruction of the law under legal advice" 16 could not be appreciated as a valid defense. In the present case on the other hand, the defense is that reliance was placed, not on the opinion of a private lawyer but upon an official pronouncement of no less than the attorney of the Government, the Secretary of Justice, whose opinions, though not law, are entitled to great weight and on which reliance may be placed by private individuals is reflective of the correct interpretation of a constitutional or statutory provision; this, particularly in the case of penal statutes, by the very nature and scope of the authority that resides in as regards prosecutions for their violation. 17 Senarillos vs. Hermosisima, supra, relied upon by the respondent Court of Appeals, is crucially different in that in said case, as in U.S. v. Go Chico, supra, no administrative interpretation antedated the contrary construction placed by the Court on the law invoked.

This is after all a criminal action all doubts in which, pursuant to familiar, fundamental doctrine, must be resolved in favor of the accused. Everything considered, the Court sees no compelling reason why

the doctrine of mala prohibita should override the principle of prospectivity, and its clear implications as herein above set out and discussed, negating criminal liability.

WHEREFORE, the assailed decisions of the Court of Appeals and of the Regional Trial Court are reversed and set aside, and the criminal prosecution against the accused-petitioner is DISMISSED, with costs de oficio.

SO ORDERED.

Padilla, Regalado, Nocon and Puno, JJ., concur.

# Footnotes

1 As found by the Court of Appeals, the agreement was between Co, representing Mayflower Shipping Corporation, and Geronimo B. Bella, representing Tans-Pacific Towage, Inc. The expenses for refloating were apportioned chiefly between FGU Insurance and Development Bank of the Philippines, which respectively contributed P2,329,022.00 and P1,579,000.00. SEE Rollo, pp. 9, 20-21.

2 Otherwise known as the "Bouncing Checks Law".

3 The ruling is contained in an extended resolution on a motion for reconsideration, promulgated by the Special Former Second Division of the Court on September 21, 1987, written for the division by Paras, J., with whom concurred Fernan, Gutierrez, Jr., Padilla, Bidin and Cortes, JJ. In that resolution, the Court gave its "stamp of approval" on the decision of the Court of Appeals holding inter alia that "It is now settled that Batas Pambansa Bilang 22 applies even in cases where dishonored checks are issued merely in the form of a deposit or a guarantee."

4 Emphasis supplied.

5 Exceptions to the rule of prospectivity are collated, e.g., in the textbook of retired Justice Edgardo A. Paras (Civil Code of the Philippines Annotated, 1984 ed., Vol. 1, pp. 22-23) viz : 1) laws remedial in nature; 2) penal law favorable to accused, if ; after not habitual delinquent; 3) laws of emergency nature under police power : e.g., tenancy relations (Vda. de Ongsiako v. Gamboa, 47 O.G. 4259, Valencia et al. v. Surtida et al., May 31, 1961); 4) curative laws; 5) substantive right declared for first

time unless vested rights impaired (Unson v. del Rosario, Jan. 29, 1953; Belen v. Belen, 49 O.G. 997; Peo v. Alejaga, 49 OG 2833).

6 106 Phil. 713 and 103 Phil. 500, respectively, both involving prosecutions for illegal possession of firearms, and both holding that appointment by the Provincial Governor or Provincial Commander of a person as a "secret agent" or "confidential agent" "sufficiently placed him under the category of a 'peace officer' . . . who under section 879 of the Revised Administrative Code is exempted from the requirements relating to the issuance of license to possess firearm.

7 SEE Ilagan v. People, Jan. 29, 1974, 55 SCRA 361.

8 The title of the cited Monge case is Monge, et al. v. Angeles, et al., and is reported in 101 Phil., 563 [1957], while that of the cited Tupas case is Tupas v. Damasco, et al., reported in 132 SCRA 593 [1984].

9 136 SCRA 27, 40-41.

10 And several other rulings set forth in a corresponding footnote in the text of the decision.

11 SEE also Olaguer v. Military Commission No. 34, 150 SCRA 144 (1987) (Citing Municipality of Malabang v. Benito, 27 SCRA 533 where the question arose as to whether the judicial nullification of an executive order creating a municipality wiped out all the acts of the local government abolished); Tan v. Barrios, 190 SCRA 686 (1990); Drilon v. Court of Appeals, 202 SCRA 378 (1991); Union of Filipino Employees v. Vivar, Jr., 205 SCRA 200 (1992); Peralta v. Civil Service Commission, 212 SCRA 425.

12 150 SCRA 144 (1987).

13 SEE also Cruz v. Enrile, 160 SCRA 700 [1988] and Res. of February 26, 1991; and Drilon v. Court of Appeals, 202 SCRA 378 [1991].

14 SEE footnote 3, supra.

15 Act No. 1696 of the Philippine Commission punishing any person who shall expose, or cause or permit to be exposed, to public view . . . any flag, banner,

emblem, or device used during the late insurrection in the Philippine Islands to designate or identify those in armed rebellion against the United States, . . .

16 14 Phil. 128, 133-134.

17 Estrella vs. Orendain, 37 SCRA 640; Noblejas vs. Salas, 67 SCRA 47


Manila

THIRD DIVISION

G.R. No. 102858 July 28, 1997

THE DIRECTOR OF LANDS, petitioner, vs.COURT OF APPEALS and TEODORO ABISTADO, substituted by MARGARITA, MARISSA, MARIBEL, ARNOLD and MARY ANN, all surnamed ABISTO, respondents.

PANGANIBAN, J.:

Is newspaper publication of the notice of initial hearing in an original land registration case mandatory or directory?

Statement of the Case

The Court of Appeals ruled that it was merely procedural and that the failure to cause such publication did not deprive the trial court of its authority to grant the application. But the Solicitor General disagreed and thus filed this petition to set aside the Decision 1 promulgated on July 3, 1991 and the subsequent Resolution 2 promulgated on November 19, 1991 by Respondent Court of Appeals 3 in CA-G.R. CV No. 23719. The dispositive portion of the challenged Decision reads: 4

WHEREFORE, premises considered, the judgment of dismissal appealed from is hereby set aside, and a new one entered confirming the registration and title of applicant, Teodoro Abistado, Filipino, a resident of Barangay 7, Poblacion Mamburao, Occidental Mindoro, now deceased and substituted by Margarita, Marissa, Maribel, Arnold and Mary Ann, all surnamed Abistado, represented by their aunt, Miss Josefa Abistado, Filipinos, residents of Poblacion Mamburao, Occidental Mindoro, to the parcel of land covered under MSI (IV-A-8) 315-D located in Poblacion Mamburao, Occidental Mindoro.

The oppositions filed by the Republic of the Philippines and private oppositor are hereby dismissed for want of evidence.

Upon the finality of this decision and payment of the corresponding taxes due on this land, let an order for the issuance of a decree be issued.

The Facts

On December 8, 1986, Private Respondent Teodoro Abistado filed a petition for original registration of his title over 648 square meters of land under Presidential Decree (PD) No. 1529. 5 The application was docketed as Land Registration Case (LRC) No. 86 and assigned to Branch 44 of the Regional Trial Court of Mamburao, Occidental Mindoro. 6 However, during the pendency of his petition, applicant died. Hence, his heirs — Margarita, Marissa, Maribel, Arnold and Mary Ann, all surnamed Abistado — represented by their aunt Josefa Abistado, who was appointed their guardian ad litem, were substituted as applicants.

The land registration court in its decision dated June 13, 1989 dismissed the petition "for want of jurisdiction." However, it found that the applicants through their predecessors-in-interest had been in open, continuous, exclusive and peaceful possession of the subject land since 1938.

In dismissing the petition, the trial court reasoned: 7

. . . However, the Court noted that applicants failed to comply with the provisions of Section 23 (1) of PD 1529, requiring the Applicants to publish the notice of Initial Hearing (Exh. "E") in a newspaper of general circulation in the Philippines. Exhibit "E" was only published in the Official Gazette (Exhibits "F" and "G"). Consequently, the Court is of the well considered view that it has not legally acquired jurisdiction over the instant application for want of compliance with the mandatory provision requiring publication of the notice of initial hearing in a newspaper of general circulation.

The trial court also cited Ministry of Justice Opinion No. 48, Series of 1982, which in its pertinent portion provides: 8

It bears emphasis that the publication requirement under Section 23 [of PD 1529] has a two-fold purpose; the first, which is mentioned in the provision of the aforequoted provision refers to publication in the Official Gazette, and is jurisdictional; while the second, which is mentioned in the opening clause of the same paragraph, refers to publication not only in the Official Gazette but also in a newspaper of general circulation, and is procedural. Neither one nor the other is dispensable. As to the first, publication in the Official Gazette is indispensably necessary because without it, the court would be powerless to assume jurisdiction over a particular land registration case. As to the second, publication of the notice of initial hearing also in a newspaper of general circulation is indispensably necessary as a requirement of procedural due process; otherwise, any decision that the court may promulgate in the case would be legally infirm.

Unsatisfied, private respondents appealed to Respondent Court of Appeals which, as earlier explained, set aside the decision of the trial court and ordered the registration of the title in the name of Teodoro Abistado.

The subsequent motion for reconsideration was denied in the challenged CA Resolution dared November 19, 1991.

The Director of Lands represented by the Solicitor General thus elevated this recourse to us. This Court notes that the petitioner's counsel anchored his petition on Rule 65. This is an error. His remedy should be based on Rule 45 because he is appealing a final disposition of the Court of

Appeals. Hence, we shall treat his petition as one for review under Rule 45, and not for certiorari under Rule 65. 9

The Issue

Petitioner alleges that Respondent Court of Appeals committed "grave abuse of discretion" 10 in holding —

. . . that publication of the petition for registration of title in LRC Case No. 86 need not be published in a newspaper of general circulation, and in not dismissing LRC Case No. 86 for want of such publication.

Petitioner points out that under Section 23 of PD 1529, the notice of initial hearing shall be "published both in the Official Gazette and in a newspaper of general circulation." According to petitioner, publication in the Official Gazette is "necessary to confer jurisdiction upon the trial court, and . . . in . . . a newspaper of general circulation to comply with the notice requirement of due process." 11

Private respondents, on the other hand, contend that failure to comply with the requirement of publication in a newspaper of general circulation is a mere "procedural defect." They add that publication in the Official Gazette is sufficient to confer jurisdiction. 12

In reversing the decision of the trial court, Respondent Court of Appeals ruled: 13

. . . although the requirement of publication in the Official Gazette and in a newspaper of general circulation is couched in mandatory terms, it cannot be gainsaid that the law also mandates with equal force that publication in the Official Gazette shall be sufficient to confer jurisdiction upon the court.

Further, Respondent Court found that the oppositors were afforded the opportunity "to explain matters fully and present their side." Thus, it justified its disposition in this wise: 14

. . . We do not see how the lack of compliance with the required procedure prejudiced them in any way. Moreover, the other requirements of: publication in the Official Gazette, personal notice by mailing, and posting at the site and other conspicuous places, were complied with and these are sufficient to notify any party who is minded to make any objection of the application for registration.

The Court's Ruling

We find for petitioner.

Newspaper Publication Mandatory

The pertinent part of Section 23 of Presidential Decree No. 1529 requiring publication of the notice of initial hearing reads as follows:

Sec. 23. Notice of initial hearing, publication, etc. — The court shall, within five days from filing of the application, issue an order setting the date and hour of the initial hearing which shall not be earlier than forty-five days nor later than ninety days from the date of the order.

The public shall be given notice of initial hearing of the application for land registration by means of (1) publication; (2) mailing; and (3) posting.

1. By publication. —

Upon receipt of the order of the court setting the time for initial hearing, the Commissioner of Land Registration shall cause a notice of initial hearing to be published once in the Official Gazette and once in a newspaper of general circulation in the Philippines: Provided, however, that the publication in the Official Gazette shall be sufficient to confer jurisdiction upon the court. Said notice shall be addressed to all persons appearing to have an interest in the land involved including the adjoining owners so far as known, and "to all whom it may concern." Said notice shall also require all persons concerned to appear in court at a certain date and time to show cause why the prayer of said application shall not be granted.

xxx xxx xxx

Admittedly, the above provision provides in clear and categorical terms that publication in the Official Gazette suffices to confer jurisdiction upon the land registration court. However, the question boils down to whether, absent any publication in a newspaper of general circulation, the land registration court can validly confirm and register the title of private respondents.

We answer this query in the negative. This answer is impelled by the demands of statutory construction and the due process rationale behind the publication requirement.

The law used the term "shall" in prescribing the work to be done by the Commissioner of Land Registration upon the latter's receipt of the court order setting the time for initial hearing. The said word denotes an imperative and thus indicates the mandatory character of a statute. 15 While concededly such literal mandate is not an absolute rule in statutory construction, as its import

ultimately depends upon its context in the entire provision, we hold that in the present case the term must be understood in its normal mandatory meaning. In Republic vs. Marasigan, 16 the Court through Mr. Justice Hilario G. Davide, Jr. held that Section 23 of PD 1529 requires notice of the initial hearing by means of (1) publication, (2) mailing and (3) posting, all of which must be complied with. "If the intention of the law were otherwise, said section would not have stressed in detail the requirements of mailing of notices to all persons named in the petition who, per Section 15 of the Decree, include owners of adjoining properties, and occupants of the land." Indeed, if mailing of notices is essential, then by parity of reasoning, publication in a newspaper of general circulation is likewise imperative since the law included such requirement in its detailed provision.

It should be noted further that land registration is a proceeding in rem. 17 Being in rem, such proceeding requires constructive seizure of the land as against all persons, including the state, who have rights to or interests in the property. An in rem proceeding is validated essentially through publication. This being so, the process must strictly be complied with. Otherwise, persons who may be interested or whose rights may be adversely affected would be barred from contesting an application which they had no knowledge of. As has been ruled, a party as an owner seeking the inscription of realty in the land registration court must prove by satisfactory and conclusive evidence not only his ownership thereof but the identity of the same, for he is in the same situation as one who institutes an action for recovery of realty. 18 He must prove his title against the whole world. This task, which rests upon the applicant, can best be achieved when all persons concerned — nay, "the whole world" — who have rights to or interests in the subject property are notified and effectively invited to come to court and show cause why the application should not be granted. The elementary norms of due process require that before the claimed property is taken from concerned parties and registered in the name of the applicant, said parties must be given notice and opportunity to oppose.

It may be asked why publication in a newspaper of general circulation should be deemed mandatory when the law already requires notice by publication in the Official Gazette as well as by mailing and posting, all of which have already been complied with in the case at hand. The reason is due process and the reality that the Official Gazette is not as widely read and circulated as newspapers and is oftentimes delayed in its circulation, such that the notices published therein may not reach the interested parties on time, if at all. Additionally, such parties may not be owners of neighboring properties, and may in fact not own any other real estate. In sum, the all-encompassing in rem nature of land registration cases, the consequences of default orders issued against the whole world and the objective of disseminating the notice in as wide a manner as possible demand a mandatory construction of the requirements for publication, mailing and posting.

Admittedly, there was failure to comply with the explicit publication requirement of the law. Private respondents did not proffer any excuse; even if they had, it would not have mattered because the statute itself allows no excuses. Ineludibly, this Court has no authority to dispense with such mandatory requirement. The law is unambiguous and its rationale clear. Time and again, this Court

has declared that where the law speaks in clear and categorical language, there is no room for interpretation, vacillation or equivocation; there is room only for application. 19 There is no alternative. Thus, the application for land registration filed by private respondents must be dismissed without prejudice to reapplication in the future, after all the legal requisites shall have been duly complied with.

WHEREFORE, the petition is GRANTED and the assailed Decision and Resolution are REVERSED and SET ASIDE. The application of private respondent for land registration is DISMISSED without prejudice. No costs.

SO ORDERED.

Davide, Jr., Melo and Francisco, JJ., concur.

Narvasa, C.J., is on leave.

________________________________________________________________________________


G.R. No. 84240 March 25, 1992

OLIVIA S. PASCUAL and HERMES S. PASCUAL, petitioners, vs.ESPERANZA C. PASCUAL-BAUTISTA, MANUEL C. PASCUAL, JOSE C. PASCUAL, SUSANA C. PASCUAL-BAUTISTA, ERLINDA C. PASCUAL, WENCESLAO C. PASCUAL, JR., INTESTATE ESTATE OF ELEUTERIO T. PASCUAL, AVELINO PASCUAL, ISOCELES PASCUAL, LEIDA PASCUAL-MARTINES, VIRGINIA PASCUAL-NER, NONA PASCUAL-FERNANDO, OCTAVIO PASCUAL, GERANAIA PASCUAL-DUBERT, and THE HONORABLE PRESIDING JUDGE MANUEL S. PADOLINA of Br. 162, RTC, Pasig, Metro Manila, respondents.

PARAS, J.:

This is a petition for review on certiorari which seeks to reverse and set aside: (a) the decision of the Court of Appeals 1 dated April 29, 1988 in CA-G.R. SP. No. 14010 entitled "Olivia S. Pascual and Hermes S. Pascual v. Esperanza C. Pascual-Bautista, Manuel C. Pascual, Jose Pascual, Susana C. Pascual-Bautista, Erlinda C. Pascual, Wenceslao C. Pascual, Jr., et al." which dismissed the petition and

in effect affirmed the decision of the trial court and (b) the resolution dated July 14, 1988 denying petitioners' motion for reconsideration.

The undisputed facts of the case are as follows:

Petitioners Olivia and Hermes both surnamed Pascual are the acknowledged natural children of the late Eligio Pascual, the latter being the full blood brother of the decedent Don Andres Pascual (Rollo, petition, p. 17).

Don Andres Pascual died intestate on October 12, 1973 without any issue, legitimate, acknowledged natural, adopted or spurious children and was survived by the following:

(a) Adela Soldevilla de Pascual, surviving spouses;

(b) Children of Wenceslao Pascual, Sr., a brother of the full blood of the deceased, to wit:

Esperanza C. Pascual-BautistaManuel C. PascualJose C. PascualSusana C. Pascual-BautistaErlinda C. PascualWenceslao C. Pascual, Jr.

(c) Children of Pedro-Bautista, brother of the half blood of the deceased, to wit:

Avelino PascualIsoceles PascualLoida Pascual-MartinezVirginia Pascual-NerNona Pascual-FernandoOctavio PascualGeranaia Pascual-Dubert;

(d) Acknowledged natural children of Eligio Pascual, brother of the full blood of the deceased, to wit:

Olivia S. PascualHermes S. Pascual

(e) Intestate of Eleuterio T. Pascual, a brother of the half blood of the deceased and represented by the following:

Dominga M. PascualMamerta P. FugosoAbraham S. Sarmiento, IIIRegina Sarmiento-MacaibayEleuterio P. SarmientoDomiga P. San DiegoNelia P. MarquezSilvestre M. PascualEleuterio M. Pascual(Rollo, pp. 46-47)

Adela Soldevilla de Pascual, the surviving spouse of the late Don Andres Pascual, filed with the Regional Trial Court (RTC), Branch 162 (CFI of Rizal, Br. XXIII), a Special Proceeding, Case No. 7554, for administration of the intestate estate of her late husband (Rollo, p. 47).

On December 18, 1973, Adela soldevilla de Pascual filed a Supplemental Petition to the Petition for letters of Administration, where she expressly stated that Olivia Pascual and Hermes Pascual, are among the heirs of Don Andres Pascual (Rollo, pp. 99-101).

On February 27, 1974, again Adela Soldevilla de Pascual executed an affidavit, to the effect that of her own knowledge, Eligio Pascual is the younger full blood brother of her late husband Don Andres Pascual, to belie the statement made by the oppositors, that they were are not among the known heirs of the deceased Don Andres Pascual (Rollo, p. 102).

On October 16, 1985, all the above-mentioned heirs entered into a COMPROMISE AGREEMENT, over the vehement objections of the herein petitioners Olivia S. Pascual and Hermes S. Pascual, although paragraph V of such compromise agreement provides, to wit:

This Compromise Agreement shall be without prejudice to the continuation of the above-entitled proceedings until the final determination thereof by the court, or by another compromise agreement, as regards the claims of Olivia Pascual and Hermes Pascual as legal heirs of the deceased, Don Andres Pascual. (Rollo, p. 108)

The said Compromise Agreement had been entered into despite the Manifestation/Motion of the petitioners Olivia Pascual and Hermes Pascual, manifesting their hereditary rights in the intestate estate of Don Andres Pascual, their uncle (Rollo, pp. 111-112).

On September 30, 1987, petitioners filed their Motion to Reiterate Hereditary Rights (Rollo, pp. 113-114) and the Memorandum in Support of Motion to reiterate Hereditary Rights (Rollo, pp. 116-130).

On December 18, 1987, the Regional Trial Court, presided over by Judge Manuel S. Padolina issued an order, the dispositive portion of which reads:

WHEREFORE, premises considered, this Court resolves as it is hereby resolved to Deny this motion reiterating the hereditary rights of Olivia and Hermes Pascual (Rollo, p. 136).

On January 13, 1988, petitioners filed their motion for reconsideration (Rollo, pp. 515-526). and such motion was denied.

Petitioner appealed their case to the Court of Appeals docketed as CA-G.R. No. 14010 (Rollo, p. 15.).

On Aril 29, 1988, the respondent Court of Appeals rendered its decision the decision the dispositive part of which reads:

WHEREFORE, the petition is DISMISSED. Costs against the petitioners.

SO ORDERED. (Rollo, p. 38)

Petitioners filed their motion for reconsideration of said decision and on July 14, 1988, the Court of Appeals issued its resolution denying the motion for reconsideration (Rollo, p. 42).

Hence, this petition for review on certiorari.

After all the requirements had been filed, the case was given due course.

The main issue to be resolved in the case at bar is whether or not Article 992 of the Civil Code of the Philippines, can be interpreted to exclude recognized natural children from the inheritance of the deceased.

Petitioners contend that they do not fall squarely within the purview of Article 992 of the Civil Code of the Philippines, can be interpreted to exclude recognized and of the doctrine laid down in Diaz v. IAC (150 SCRA 645 [1987]) because being acknowledged natural children, their illegitimacy is not due to the subsistence of a prior marriage when such children were under conception (Rollo, p. 418).

Otherwise stated they say the term "illegitimate" children as provided in Article 992 must be strictly construed to refer only to spurious children (Rollo, p. 419).

On the other hand, private respondents maintain that herein petitioners are within the prohibition of Article 992 of the Civil Code and the doctrine laid down in Diaz v. IAC is applicable to them.

The petition is devoid of merit.

Pertinent thereto, Article 992 of the civil Code, provides:

An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child.

The issue in the case at bar, had already been laid to rest in Diaz v. IAC, supra, where this Court ruled that:

Article 992 of the Civil Code provides a barrier or iron curtain in that it prohibits absolutely a succession ab intestato between the illegitimate child and the legitimate children and relatives of the father or mother of said legitimate child. They may have a natural tie of blood, but this is not recognized by law for the purposes of Article 992. Between the legitimate family and illegitimate family there is presumed to be an intervening antagonism and incompatibility. The illegitimate child is disgracefully looked down upon by the legitimate family; the family is in turn hated by the illegitimate child; the latter considers the privileged condition of the former, and the resources of which it is thereby deprived; the former, in turn, sees in the illegitimate child nothing but the product of sin, palpable evidence of a blemish broken in life; the law does no more than recognize this truth, by avoiding further grounds of resentment.

Eligio Pascual is a legitimate child but petitioners are his illegitimate children.

Applying the above doctrine to the case at bar, respondent IAC did not err in holding that petitioners herein cannot represent their father Eligio Pascual in the succession of the latter to the intestate estate of the decedent Andres Pascual, full blood brother of their father.

In their memorandum, petitioners insisted that Article 992 in the light of Articles 902 and 989 of the Civil Code allows them (Olivia and Hermes) to represent Eligio Pascual in the intestate estate of Don Andres Pascual.

On motion for reconsideration of the decision in Diaz v. IAC, this Court further elucidated the successional rights of illegitimate children, which squarely answers the questions raised by the petitioner on this point.

The Court held:

Article 902, 989, and 990 clearly speaks of successional rights of illegitimate children, which rights are transmitted to their descendants upon their death. The descendants (of these illegitimate children) who may inherit by virtue of the right of representation may be legitimate or illegitimate. In whatever manner, one should not overlook the fact that the persons to be represented are themselves illegitimate. The three named provisions are very clear on this matter. The right of representation is not available to illegitimate descendants of legitimate children in the inheritance of a legitimate grandparent. It may be argued, as done by petitioners, that the illegitimate descendant of a legitimate child is entitled to represent by virtue of the provisions of Article 982, which provides that "the grandchildren and other descendants shall inherit by right of representation." Such a conclusion is erroneous. It would allow intestate succession by an illegitimate child to the legitimate parent of his father or mother, a situation which would set at naught the provisions of Article 992. Article 982 is inapplicable to the instant case because Article 992 prohibits absolutely a succession ab intestato between the illegitimate child and the legitimate children and relatives of the father or mother. It may not be amiss to state Article 982 is the general rule and Article 992 the exception.

The rules laid down in Article 982 that "grandchildren and other descendants shall inherit by right of representation" and in Article 902 that the rights of illegitimate children . . . are transmitted upon their death to their descendants, whether legitimate or illegitimate are subject to the limitation prescribed by Article 992 to the end that an illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother. (Amicus Curiae's Opinion by former Justice Minister Ricardo C. Puno, p. 12). Diaz v. Intermediate Appellate Court, 182 SCRA 427; pp. 431-432; [1990]).

Verily, the interpretation of the law desired by the petitioner may be more humane but it is also an elementary rule in statutory construction that when the words and phrases of the statute are clear and unequivocal, their meaning must be determined from the language employed and the statute must be taken to mean exactly what is says. (Baranda v. Gustilo, 165 SCRA 758-759 [1988]). The courts may not speculate as to the probable intent of the legislature apart from the words (Aparri v. CA, 127 SCRA 233 [1984]). When the law is clear, it is not susceptible of interpretation. It must be

applied regardless of who may be affected, even if the law may be harsh or onerous. (Nepomuceno, et al. v. FC, 110 Phil. 42). And even granting that exceptions may be conceded, the same as a general rule, should be strictly but reasonably construed; they extend only so far as their language fairly warrants, and all doubts should be resolved in favor of the general provisions rather than the exception. Thus, where a general rule is established by statute, the court will not curtail the former nor add to the latter by implication (Samson v. C.A., 145 SCRA 654 [1986]).

Clearly the term "illegitimate" refers to both natural and spurious.

Finally under Article 176 of the Family Code, all illegitimate children are generally placed under one category, which undoubtedly settles the issue as to whether or not acknowledged natural children should be treated differently, in the negative.

It may be said that the law may be harsh but that is the law (DURA LEX SED LEX).

PREMISES CONSIDERED, the petition is DISMISSED for lack of merit and the assailed decision of the respondent Court of Appeals dated April 29, 1988 is AFFIRMED.

SO ORDERED. Melencio-Herrera, Padilla, Regalado and Nocon, JJ., concur.


Manila

THIRD DIVISION

G.R. No. 116719 January 18, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.PATRICIO AMIGO alias "BEBOT", accused-appellant.

D E C I S I O N

MELO, J.:

Initially, Patricio Amigo was charged with frustrated murder in an Information reading as follows:

The undersigned accuses the above-named accused of the crime of FRUSTRATED MURDER, under Art. 248, in relation to Art. 5 of the Revised Penal Code, committed as follows:

That on or about December 29, 1989, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused, armed with a knife, with treachery and evident premeditation and with intent to kill wilfully, unlawfully and feloniously attacked, assaulted and stab with said weapon one Benito Ng Suy, thereby inflicting injuries upon the latter, the following injuries, to wit:

MULTIPLE STAB WOUNDS-LEFT ARM, LEFT CHEST, ABDOMEN AND LEFT THIGH WITH PENETRATION TO LEFT PLEURAL CAVITY, DIAPHRAGM STOMACH, DUODENUM, PANCREAS AND MIDTRANVERSE COLON.

thus performing all the acts of execution which should have produced the crime of murder as a consequence but nevertheless, did not produce it by reason of causes independent of his will, that is, because of the timely and able medical assistance immediately rendered to the said Benito Ng Suy.

(p. 1, Rollo.)

to which he pleaded not guilty.

Subsequently, due to the death of the victim, an amended Information was filed charging now the crime of murder, to wit:

That on or about December 29, 1989, in the City of Davao, Philippines, and within the jurisdiction of this Honorable Court, the above-mentioned accused, armed with a knife, with treachery and evident premeditation and with intent to kill wilfully, unlawfully and feloniously attacked, assaulted and stabbed with said weapon one Benito Ng Suy, thereby inflicting upon the latter multiple wounds which caused his death and the consequent loss and damage to the heirs of the victim.

(p. 3, Rollo.)

After trial on the merits, the court a quo rendered a decision, disposing:

WHEREFORE, finding the accused Patricio Amigo guilty beyond reasonable doubt of the crime of MURDER punishable under Art. 248 of the Revised Penal Code, with no modifying circumstance present, the accused is hereby sentenced to the penalty of reclusion perpetua,

which is the medium period of the penalty of reclusion temporal in its maximum to death and to pay the cost; to indemnify the offended party the amount of P93,214.70 as actual damages and P50,000.00 as compensatory damages and P50,000.00 as moral damages.

(p. 32, Rollo.)

Reversal thereof is now sought, with accused-appellant arguing that error was committed by the trial court in imposing or meting out the penalty of reclusion perpetua against him despite the fact that Sec. 19 (1), Article III of the 1987 Constitution was already in effect when the offense was committed.

The facts of the case, as briefly summarized in the brief submitted by the Office of the Solicitor General and as borne out by the evidence, are as follows:

On December 29, 1989, at around 1:00 P.M., after having spent half-day at their store, located at No. 166-A, Ramon Magsaysay Avenue, Davao City, Benito Ng Suy was driving their gray Ford Fiera back home, situated at the back of Car Asia, Bajada, Davao City. With him during that time were his daughters, Jocelyn Ng Suy and a younger one together with his two year old son, who were all seated at the front seat beside him while a five year old boy was also seated at the back of the said vehicle. (TSN, April 29, 1991, pp. 3-5; TSN, March 31, 1992)

On their way home and while traversing the National Highway of Bajada, Davao City, an orange Toyota Tamaraw driven by one Virgilio Abogada, suddenly made a left turn in front of the Regional Hospital, Bajada, Davao City, without noticing the Ford Fiera coming from the opposite direction. This Tamaraw was heading for Sterlyn Kitchenette, which was situated at the comer of the said hospital. (TSN, April 29, 1991, p. 4; TSN, March 31, 1992, pp. 3 and 13)

With Virgilio was Patricio Amigo alias Bebot, a vulcanizer at Lingling's vulcanizing shop owned and operated by a certain Galadua. He was also seated at the right front seat beside Virgilio.

Due to the unexpected veer made by Virgilio, an accidental head on collision occurred between the Fiera and the Tamaraw, causing a slight damaged to the right bumper of the latter. (TSN, March 31, 1992, p. 4)

Right after the collision, Benito immediately alighted from the driver's seat and confronted Virgilio Abogada who also went down from his vehicle. (TSN, April 29, 1991, p. 5)

Benito, who was a big man with a loud voice told Virgilio, "You were not looking," to which Virgilio retorted, I did not see you". (TSN, April 29, 1991, p. 16)

While the two drivers where having this verbal confrontation, Patricio who was merely a passenger of Virgilio also alighted from the front seat of the Tamaraw and instantaneously approached Benito and advised the latter to leave since it was merely a small and minor accident. (TSN, April 29, 1991, pp. 16-18)

A bit irritated with the actuation exhibit by Patricio, Benito rebuked the former and told him not to interfere, since he had nothing to do with the accident. (ibid. p. 7)

Irked by the comment made by Benito, Patricio sarcastically asked; "You are Chinese, is it you?" With a ready answer Benito said; "Yes, I am a Chinese and why?" Patricio in turn replied; So, you are a Chinese, wait for a while," then left. (ibid. pp. 7 and 19)

Immediately thereafter, Benito ordered Jocelyn to call a policeman, but after a lapsed of about one minute, Patricio returned and arrogantly approached Benito, asking the latter once again, "You are a Chinese, is it not?" To this Benito calmly responded in the affirmative. (ibid. pp. 7, 19-20)

Upon hearing the response, Patricio mumbled "Ah, so you are a Chinese," and suddenly took a five inch knife from his waist and simultaneously stabbed Benito hitting him twice on the chest. (Ibid. p. 20)

After being hit, Benito wounded and sensing that his life was in peril, tried to evade his assailant by pushing Patricio away and run around the Tamaraw but Patricio wielding the same knife and not content with the injuries he had already inflicted, still chased Benito and upon overtaking the latter embraced him and thrusted his knife on the victim several times, the last of which hit Benito on the left side of his body. (ibid. pp. 8, 10, 22)

It was at this juncture that Jocelyn who was still inside the Ford Fiera, pleading for mercy to spare her father tried to get out of the vehicle but it was very unfortunate that she could not open its door. (Ibid. p. 10)

Knowing that Patricio was really determined to kill her father by refusing to heed her pleas, Joselyn shouted for help, since there were already several people around witnessing that fatal incident, but to her consternation nobody lifted a single finger to help them. (ibid. pp. 6, 10, 18, 21-22) Only after her father lay seated on the floor of their Ford Fiera after being hit on the left side of his body that she was able to open the door of the said vehicle. (Ibid. p 12)

After this precise moment, her younger sister, upon seeing their father bathing with his own blood, embraced him, causing Patricio to cease from his ferocious assault and noticing the presence of several people, he fled. (Ibid. p. 22)

Thereafter, an enraged Jocelyn chased him, but since the assailant ran faster than her, she was not able to overtake him, thus, she instead decided to go back to where her father was and carried him inside the Tamaraw who bumped them and consequently brought him to San Pedro Hospital where he was attended to at the Emergency Room. (ibid. p 13)

While at the Emergency Room, Benito who was on a very critical condition, due to multiple (13) stabbed wounds, was operated by Dr. Rolando Chiu. After the operation, he was subsequently brought to the ICU and stayed there for three (3) weeks. (July 12, 1991, pp. 3 and 4)

In a last ditch effort to save his life, having only 10 to 20 percent survival, Benito was airlifted to Manila and was directly confined at the Chinese General Hospital. After three (3) weeks of confinement, Benito expired. CAUSE OF DEATH — SEPSIS (an overwhelming infection). This means that the infection has already circulated in the blood all over the body. (ibid. pp. 6-7)

(pp. 59-65, Rollo.)

Accused-appellant contends that under the 1987 Constitution and prior to the promulgation of Republic Act No. 7659, the death penalty had been abolished and hence, the penalty that should have been imposed for the crime of murder committed by accused-appellant without the attendance of any modifying circumstances, should be reclusion temporal in its medium period or 17 years, 4 months and 1 day, to 20 years of reclusion temporal.

Reasons out accused-appellant:

. . . Since the death penalty (or capital punishment) is not imposable when the stabbing and killing happened, the computation of the penalty should be regarded from reclusion perpetua down and not from death penalty. Indeed, the appropriate penalty is deducible from reclusion perpetua down to reclusion temporal in its medium period. Hence, there being no modifying circumstances present (p. 5 Decision, ibid.), the correct penalty should be in the medium period (Art. 64, par. 1, Revised Penal Code) which is 17 years, 4 months and 1 day to 20 years of reclusion temporal.

(p. 10, Appellant's Brief, ff. p. 50, Rollo.)

The question raised by accused-appellant was settled by this Court in People vs. Muñoz (170 SCRA 107 [1989]) thusly:

In People vs. Gavarra, Justice Pedro L. Yap declared for the Court that "in view of the abolition of the death penalty under Section 19, Article III of the 1987 Constitution, the penalty that may be imposed for murder is reclusion temporal in its maximum period to reclusion perpetua," thereby eliminating death as the original maximum period. Later, without categorically saying so, the Court, through Justice Ameurfina A. Melencio-Herrera in People vs. Masangkay and through Justice Andres R. Narvasa in People vs. Atencio, divided the modified penalty into three new periods, the limits of which were specified by Justice Edgardo L. Paras in People vs. Intino, as follows: the lower half of reclusion temporal maximum as the minimum; the upper half of reclusion temporal maximum as the medium; and reclusion perpetua as the maximum.

The Court has reconsidered the above cases and, after extended discussion, come to the conclusion that the doctrine announced therein does not reflect the intention of the framers as embodied in Article III, Section 19(1) of the Constitution. This conclusion is not unanimous, to be sure. Indeed, there is much to be said of the opposite view, which was in fact shared by many of those now voting for its reversal. The majority of the Court, however, is of the belief that the original interpretation should be restored as the more acceptable reading of the constitutional provision in question.

The advocates of the Masangkay ruling argue that the Constitution abolished the death penalty and thereby limited the penalty for murder to the remaining periods, to wit, the minimum and the medium. These should now be divided into three new periods in keeping with the three-grade scheme intended by the legislature. Those who disagree feel that Article III, Section 19(1) merely prohibits the imposition of the death penalty and has not, by reducing it to reclusion perpetua, also correspondingly reduced the remaining penalties. These should be maintained intact.

A reading of Section 19(1) of Article III will readily show that here is really nothing therein which expressly declares the abolition of the death penalty. The provision merely says that the death penalty shall not be imposed unless for compelling reasons involving heinous crimes the Congress hereafter provides for it and, if already imposed, shall be reduced to reclusion perpetua. The language, while rather awkward, is still plain enough. And it is a settled rule of legal hermeneutics that if the language under consideration is plain, it is neither necessary nor permissible to resort to extrinsic aids, like the records of the constitutional convention, for its interpretation.

xxx xxx xxx

The question as we see it is not whether the framers intended to abolish the death penalty or merely to prevent its imposition. Whatever the intention was, what we should determine is whether or not they also meant to require a corresponding modification in the other periods as a result of the prohibition against the death penalty.

It is definite that such a requirement, if there really was one, is not at all expressed in Article III, Section 19(1) of the Constitution or indicated therein by at least clear and unmistakable implication. It would have been so easy, assuming such intention, to state it categorically and plainly, leaving no doubts as to its meaning.

One searches in vain for such a statement, express or even implied. The writer of this opinion makes the personal observation that this might be still another instance where the framers meant one thing and said another or — strangely, considering their loquacity elsewhere — did not say enough.

The original ruling as applied in the Gavarra, Masangkay, Atencio and Intino cases represented the unanimous thinking of the Court as it was then constituted. All but two members at that time still sit on the Court today. If we have seen fit to take a second look at the doctrine on which we were all agreed before, it is not because of a change in the composition of this body. It is virtually the same Court that is changing its mind after reflecting on the question again in the light of new perspectives. And well it might, and can, for the tenets it lays down are not immutable. The decisions of this Court are not petrified rules grown rigid once pronounced but vital, growing things subject to change as all life is. While we are told that the trodden path is best, this should not prevent us from opening a fresh trial or exploring the other side or testing a new idea in a spirit of continuing inquiry.

Accordingly, with the hope that "as judges, (we) will be equal to (our) tasks," whatever that means, we hereby reverse the current doctrine providing for three new periods for the penalty for murder as reduced by the Constitution. Instead, we return to our original interpretation and hold that Article III, Section 19(1) does not change the periods of the penalty prescribed by Article 248 of the Revised Penal Code except only insofar as it prohibits the imposition of the death penalty and reduces it to reclusion perpetua. The range of the medium and minimum penalties remains unchanged.

The Court realizes that this interpretation may lead to certain inequities that would not have arisen under Article 248 of the Revised Penal Code before its modification. Thus, a person originally subject to the death penalty and another who committed the murder without the attendance of any modifying circumstance will now be both punishable with the same medium period although the former is concededly more guilty than the latter. True enough. But that is the will not of this Court but of the Constitution. That is a question of wisdom, not

construction. Of some relevance perhaps is the parable in the Bible of the workman who was paid the stipulated daily wage of one penny although he had worked longer than others hired later in the day also paid the same amount. When he complained because he felt unjustly treated by the hoe jurisdiction of the court over the person. An appearance may be madt agree with me for a penny?

The problem in any event is addressed not to this Court but to the Congress. Penalties are prescribed by statute and are essentially and exclusively legislative. As judges, we can only interpret and apply them and have no authority to modify them or revise their range as determined exclusively by the legislature. We should not encroach on this prerogative of the lawmaking body.

Coming back to the case at bar, we find that there being no generic aggravating or mitigating circumstance attending the commission of the offenses, the applicable sentence is the medium period of the penalty prescribed by Article 248 of the Revised Penal Code which, conformably to the new doctrine here adopted and announced, is still reclusion perpetua. This is the penalty we imposed on all the accused-appellants for each of the three murders they have committed in conspiracy with the others. The award of civil indemnity for the heirs of each of the victims is affirmed but the amount thereof is hereby increased to P30,000.00 in line with the present policy.

(at pp. 120-125.)

The above ruling was reiterated in People vs. Parominog (203 SCRA 673 [1991]) and in People vs. De la Cruz (216 SCRA 476 [1992]).

Finally, accused-appellant claims that the penalty of reclusion perpetua is too cruel and harsh a penalty and pleads for sympathy. Courts are not the forum to plead for sympathy. The duty of courts is to apply the law, disregarding their feeling of sympathy or pity for an accused. DURA LEX SED LEX. The remedy is elsewhere — clemency from the executive or an amendment of the law by the legislative, but surely, at this point, this Court can but apply the law.

WHEREFORE, the appealed decision is hereby AFFIRMED.

SO ORDERED.

Narvasa, C.J., Davide, Jr., Francisco and Panganiban, JJ., concur.


Manila

EN BANC

G.R. No. L-22301 August 30, 1967

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.MARIO MAPA Y MAPULONG, defendant-appellant.

Francisco P. Cabigao for defendant-appellant.Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General F. R. Rosete and Solicitor O. C. Hernandez for plaintiff-appellee.

FERNANDO, J.:

The sole question in this appeal from a judgment of conviction by the lower court is whether or not the appointment to and holding of the position of a secret agent to the provincial governor would constitute a sufficient defense to a prosecution for the crime of illegal possession of firearm and ammunition. We hold that it does not.

The accused in this case was indicted for the above offense in an information dated August 14, 1962 reading as follows: "The undersized accuses MARIO MAPA Y MAPULONG of a violation of Section 878 in connection with Section 2692 of the Revised Administrative Code, as amended by Commonwealth Act No. 56 and as further amended by Republic Act No. 4, committed as follows: That on or about the 13th day of August, 1962, in the City of Manila, Philippines, the said accused did then and there wilfully and unlawfully have in his possession and under his custody and control one home-made revolver (Paltik), Cal. 22, without serial number, with six (6) rounds of ammunition, without first having secured the necessary license or permit therefor from the corresponding authorities. Contrary to law."

When the case was called for hearing on September 3, 1963, the lower court at the outset asked the counsel for the accused: "May counsel stipulate that the accused was found in possession of the gun involved in this case, that he has neither a permit or license to possess the same and that we can submit the same on a question of law whether or not an agent of the governor can hold a firearm without a permit issued by the Philippine Constabulary." After counsel sought from the fiscal an assurance that he would not question the authenticity of his exhibits, the understanding being that

only a question of law would be submitted for decision, he explicitly specified such question to be "whether or not a secret agent is not required to get a license for his firearm."

Upon the lower court stating that the fiscal should examine the document so that he could pass on their authenticity, the fiscal asked the following question: "Does the accused admit that this pistol cal. 22 revolver with six rounds of ammunition mentioned in the information was found in his possession on August 13, 1962, in the City of Manila without first having secured the necessary license or permit thereof from the corresponding authority?" The accused, now the appellant, answered categorically: "Yes, Your Honor." Upon which, the lower court made a statement: "The accused admits, Yes, and his counsel Atty. Cabigao also affirms that the accused admits."

Forthwith, the fiscal announced that he was "willing to submit the same for decision." Counsel for the accused on his part presented four (4) exhibits consisting of his appointment "as secret agent of the Hon. Feliciano Leviste," then Governor of Batangas, dated June 2, 1962;1 another document likewise issued by Gov. Leviste also addressed to the accused directing him to proceed to Manila, Pasay and Quezon City on a confidential mission;2 the oath of office of the accused as such secret agent,3 a certificate dated March 11, 1963, to the effect that the accused "is a secret agent" of Gov. Leviste. 4

Counsel for the accused then stated that with the presentation of the above exhibits he was "willing to submit the case on the question of whether or not a secret agent duly appointed and qualified as such of the provincial governor is exempt from the requirement of having a license of firearm." The exhibits were admitted and the parties were given time to file their respective memoranda.1äwphï1.ñët

Thereafter on November 27, 1963, the lower court rendered a decision convicting the accused "of the crime of illegal possession of firearms and sentenced to an indeterminate penalty of from one year and one day to two years and to pay the costs. The firearm and ammunition confiscated from him are forfeited in favor of the Government."

The only question being one of law, the appeal was taken to this Court. The decision must be affirmed.

The law is explicit that except as thereafter specifically allowed, "it shall be unlawful for any person to . . . possess any firearm, detached parts of firearms or ammunition therefor, or any instrument or implement used or intended to be used in the manufacture of firearms, parts of firearms, or ammunition."5 The next section provides that "firearms and ammunition regularly and lawfully issued to officers, soldiers, sailors, or marines [of the Armed Forces of the Philippines], the Philippine Constabulary, guards in the employment of the Bureau of Prisons, municipal police, provincial governors, lieutenant governors, provincial treasurers, municipal treasurers, municipal mayors, and guards of provincial prisoners and jails," are not covered "when such firearms are in possession of such officials and public servants for use in the performance of their official duties."6

The law cannot be any clearer. No provision is made for a secret agent. As such he is not exempt. Our task is equally clear. The first and fundamental duty of courts is to apply the law. "Construction and interpretation come only after it has been demonstrated that application is impossible or inadequate without them."7 The conviction of the accused must stand. It cannot be set aside.

Accused however would rely on People v. Macarandang,8 where a secret agent was acquitted on appeal on the assumption that the appointment "of the accused as a secret agent to assist in the maintenance of peace and order campaigns and detection of crimes, sufficiently put him within the category of a "peace officer" equivalent even to a member of the municipal police expressly covered by section 879." Such reliance is misplaced. It is not within the power of this Court to set aside the clear and explicit mandate of a statutory provision. To the extent therefore that this decision conflicts with what was held in People v. Macarandang, it no longer speaks with authority.

Wherefore, the judgment appealed from is affirmed.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro and Angeles, JJ., concur.

Republic of the PhilippinesSUPREME COURTManila

G.R. No. 93833 September 28, 1995

SOCORRO D. RAMIREZ, petitioner, vs.HONORABLE COURT OF APPEALS, and ESTER S. GARCIA, respondents.

KAPUNAN, J.:

A civil case damages was filed by petitioner Socorro D. Ramirez in the Regional Trial Court of Quezon City alleging that the private respondent, Ester S. Garcia, in a confrontation in the latter's office, allegedly vexed, insulted and humiliated her in a "hostile and furious mood" and in a manner offensive to petitioner's dignity and personality," contrary to morals, good customs and public policy." 1

In support of her claim, petitioner produced a verbatim transcript of the event and sought moral damages, attorney's fees and other expenses of litigation in the amount of P610,000.00, in addition to costs, interests and other reliefs awardable at the trial court's discretion. The transcript on which

the civil case was based was culled from a tape recording of the confrontation made by petitioner. 2

The transcript reads as follows:

Plaintiff Soccoro D. Ramirez (Chuchi) — Good Afternoon M'am.

Defendant Ester S. Garcia (ESG) — Ano ba ang nangyari sa 'yo, nakalimot ka na kung paano ka napunta rito, porke member ka na, magsumbong ka kung ano ang gagawin ko sa 'yo.

CHUCHI — Kasi, naka duty ako noon.

ESG — Tapos iniwan no. (Sic)

CHUCHI — Hindi m'am, pero ilan beses na nila akong binalikan, sabing ganoon —

ESG — Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic) mag explain ka, kasi hanggang 10:00 p.m., kinabukasan hindi ka na pumasok. Ngayon ako ang babalik sa 'yo, nag-aaply ka sa States, nag-aaply ka sa review mo, kung kakailanganin ang certification mo, kalimutan mo na kasi hindi ka sa akin makakahingi.

CHUCHI — Hindi M'am. Kasi ang ano ko talaga noon i-cocontinue ko up to 10:00 p.m.

ESG — Bastos ka, nakalimutan mo na kung paano ka pumasok dito sa hotel. Magsumbong ka sa Union kung gusto mo. Nakalimutan mo na kung paano ka nakapasok dito "Do you think that on your own makakapasok ka kung hindi ako. Panunumbyoyan na kita (Sinusumbatan na kita).

CHUCHI — Itutuloy ko na M'am sana ang duty ko.

ESG — Kaso ilang beses na akong binabalikan doon ng mga no (sic) ko.

ESG — Nakalimutan mo na ba kung paano ka pumasok sa hotel, kung on your own merit alam ko naman kung gaano ka "ka bobo" mo. Marami ang nag-aaply alam kong hindi ka papasa.

CHUCHI — Kumuha kami ng exam noon.

ESG — Oo, pero hindi ka papasa.

CHUCHI — Eh, bakit ako ang nakuha ni Dr. Tamayo

ESG — Kukunin ka kasi ako.

CHUCHI — Eh, di sana —

ESG — Huwag mong ipagmalaki na may utak ka kasi wala kang utak. Akala mo ba makukuha ka dito kung hindi ako.

CHUCHI — Mag-eexplain ako.

ESG — Huwag na, hindi ako mag-papa-explain sa 'yo, makaalala ka kung paano ka puma-rito. "Putang-ina" sasabi-sabihin mo kamag-anak ng nanay at tatay mo ang mga magulang ko.

ESG — Wala na akong pakialam, dahil nandito ka sa loob, nasa labas ka puwede ka ng hindi pumasok, okey yan nasaloob ka umalis ka doon.

CHUCHI — Kasi M'am, binbalikan ako ng mga taga Union.

ESG — Nandiyan na rin ako, pero huwag mong kalimutan na hindi ka makakapasok kung hindi ako. Kung hindi mo kinikilala yan okey lang sa akin, dahil tapos ka na.

CHUCHI — Ina-ano ko m'am na utang na loob.

ESG — Huwag na lang, hindi mo utang na loob, kasi kung baga sa no, nilapastangan mo ako.

CHUCHI — Paano kita nilapastanganan?

ESG — Mabuti pa lumabas ka na. Hindi na ako makikipagusap sa 'yo. Lumabas ka na. Magsumbong ka. 3

As a result of petitioner's recording of the event and alleging that the said act of secretly taping the confrontation was illegal, private respondent filed a criminal case before the Regional Trial Court of Pasay City for violation of Republic Act 4200, entitled "An Act to prohibit and penalize wire tapping and other related violations of private communication, and other purposes." An information charging petitioner of violation of the said Act, dated October 6, 1988 is quoted herewith:

INFORMATION

The Undersigned Assistant City Fiscal Accusses Socorro D. Ramirez of Violation of Republic Act No. 4200, committed as follows:

That on or about the 22nd day of February, 1988, in Pasay City Metro Manila, Philippines, and within the jurisdiction of this honorable court, the above-named accused, Socorro D. Ramirez not being authorized by Ester S. Garcia to record the latter's conversation with said accused, did then and there willfully, unlawfully and feloniously, with the use of a tape recorder secretly record the said conversation and thereafter communicate in writing the contents of the said recording to other person.

Contrary to law.

Pasay City, Metro Manila, September 16, 1988.

MARIANO M. CUNETA

Asst. City Fiscal

Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash the Information on the ground that the facts charged do not constitute an offense, particularly a violation of R.A. 4200. In an order May 3, 1989, the trial court granted the Motion to Quash, agreeing with petitioner that 1) the facts charged do not constitute an offense under R.A. 4200; and that 2) the violation punished by R.A. 4200 refers to a the taping of a communication by a person other than a participant to the communication. 4

From the trial court's Order, the private respondent filed a Petition for Review on Certiorari with this Court, which forthwith referred the case to the Court of Appeals in a Resolution (by the First Division) of June 19, 1989.

On February 9, 1990, respondent Court of Appeals promulgated its assailed Decision declaring the trial court's order of May 3, 1989 null and void, and holding that:

[T]he allegations sufficiently constitute an offense punishable under Section 1 of R.A. 4200. In thus quashing the information based on the ground that the facts alleged do not constitute an offense, the respondent judge acted in grave abuse of discretion correctible by certiorari. 5

Consequently, on February 21, 1990, petitioner filed a Motion for Reconsideration which respondent Court of Appeals denied in its Resolution 6 dated June 19, 1990. Hence, the instant petition.

Petitioner vigorously argues, as her "main and principal issue" 7 that the applicable provision of Republic Act 4200 does not apply to the taping of a private conversation by one of the parties to the conversation. She contends that the provision merely refers to the unauthorized taping of a private conversation by a party other than those involved in the communication. 8 In relation to this, petitioner avers that the substance or content of the conversation must be alleged in the Information, otherwise the facts charged would not constitute a violation of R.A. 4200. 9 Finally, petitioner agues that R.A. 4200 penalizes the taping of a "private communication," not a "private conversation" and that consequently, her act of secretly taping her conversation with private respondent was not illegal under the said act. 10

We disagree.

First, legislative intent is determined principally from the language of a statute. Where the language of a statute is clear and unambiguous, the law is applied according to its express terms, and interpretation would be resorted to only where a literal interpretation would be either impossible 11

or absurb or would lead to an injustice. 12

Section 1 of R.A. 4200 entitled, " An Act to Prohibit and Penalized Wire Tapping and Other Related Violations of Private Communication and Other Purposes," provides:

Sec. 1. It shall be unlawfull 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 a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise described.

The aforestated provision clearly and unequivocally makes it illegal for any person, not authorized by all the parties to any private communication to secretly record such communication by means of a

tape recorder. The law makes no distinction as to whether the party sought to be penalized by the statute ought to be a party other than or different from those involved in the private communication. The statute's intent to penalize all persons unauthorized to make such recording is underscored by the use of the qualifier "any". Consequently, as respondent Court of Appeals correctly concluded, "even a (person) privy to a communication who records his private conversation with another without the knowledge of the latter (will) qualify as a violator" 13 under this provision of R.A. 4200.

A perusal of the Senate Congressional Records, moreover, supports the respondent court's conclusion that in enacting R.A. 4200 our lawmakers indeed contemplated to make illegal, unauthorized tape recording of private conversations or communications taken either by the parties themselves or by third persons. Thus:

xxx xxx xxx

Senator Tañada: That qualified only "overhear".

Senator Padilla: So that when it is intercepted or recorded, the element of secrecy would not appear to be material. Now, suppose, Your Honor, the recording is not made by all the parties but by some parties and involved not criminal cases that would be mentioned under section 3 but would cover, for example civil cases or special proceedings whereby a recording is made not necessarily by all the parties but perhaps by some in an effort to show the intent of the parties because the actuation of the parties prior, simultaneous even subsequent to the contract or the act may be indicative of their intention. Suppose there is such a recording, would you say, Your Honor, that the intention is to cover it within the purview of this bill or outside?

Senator Tañada: That is covered by the purview of this bill, Your Honor.

Senator Padilla: Even if the record should be used not in the prosecution of offense but as evidence to be used in Civil Cases or special proceedings?

Senator Tañada: That is right. This is a complete ban on tape recorded conversations taken without the authorization of all the parties.

Senator Padilla: Now, would that be reasonable, your Honor?

Senator Tañada: I believe it is reasonable because it is not sporting to record the observation of one without his knowing it and then using it against him. It is not fair,

it is not sportsmanlike. If the purpose; Your honor, is to record the intention of the parties. I believe that all the parties should know that the observations are being recorded.

Senator Padilla: This might reduce the utility of recorders.

Senator Tañada: Well no. For example, I was to say that in meetings of the board of directors where a tape recording is taken, there is no objection to this if all the parties know. It is but fair that the people whose remarks and observations are being made should know that the observations are being recorded.

Senator Padilla: Now, I can understand.

Senator Tañada: That is why when we take statements of persons, we say: "Please be informed that whatever you say here may be used against you." That is fairness and that is what we demand. Now, in spite of that warning, he makes damaging statements against his own interest, well, he cannot complain any more. But if you are going to take a recording of the observations and remarks of a person without him knowing that it is being taped or recorded, without him knowing that what is being recorded may be used against him, I think it is unfair.

xxx xxx xxx

(Congression Record, Vol. III, No. 31, p. 584, March 12, 1964)

Senator Diokno: Do you understand, Mr. Senator, that under Section 1 of the bill as now worded, if a party secretly records a public speech, he would be penalized under Section 1? Because the speech is public, but the recording is done secretly.

Senator Tañada: Well, that particular aspect is not contemplated by the bill. It is the communication between one person and another person — not between a speaker and a public.

xxx xxx xxx

(Congressional Record, Vol. III, No. 33, p. 626, March 12, 1964)

xxx xxx xxx

The unambiguity of the express words of the provision, taken together with the above-quoted deliberations from the Congressional Record, therefore plainly supports the view held by the respondent court that the provision seeks to penalize even those privy to the private communications. Where the law makes no distinctions, one does not distinguish.

Second, the nature of the conversations is immaterial to a violation of the statute. The substance of the same need not be specifically alleged in the information. What R.A. 4200 penalizes are the acts of secretly overhearing, intercepting or recording private communications by means of the devices enumerated therein. The mere allegation that an individual made a secret recording of a private communication by means of a tape recorder would suffice to constitute an offense under Section 1 of R.A. 4200. As the Solicitor General pointed out in his COMMENT before the respondent court: "Nowhere (in the said law) is it required that before one can be regarded as a violator, the nature of the conversation, as well as its communication to a third person should be professed." 14

Finally, petitioner's contention that the phrase "private communication" in Section 1 of R.A. 4200 does not include "private conversations" narrows the ordinary meaning of the word "communication" to a point of absurdity. The word communicate comes from the latin word communicare, meaning "to share or to impart." In its ordinary signification, communication connotes the act of sharing or imparting signification, communication connotes the act of sharing or imparting, as in a conversation, 15 or signifies the "process by which meanings or thoughts are shared between individuals through a common system of symbols (as language signs or gestures)" 16 These definitions are broad enough to include verbal or non-verbal, written or expressive communications of "meanings or thoughts" which are likely to include the emotionally-charged exchange, on February 22, 1988, between petitioner and private respondent, in the privacy of the latter's office. Any doubts about the legislative body's meaning of the phrase "private communication" are, furthermore, put to rest by the fact that the terms "conversation" and "communication" were interchangeably used by Senator Tañada in his Explanatory Note to the bill quoted below:

It has been said that innocent people have nothing to fear from their conversations being overheard. But this statement ignores the usual nature of conversations as well the undeniable fact that most, if not all, civilized people have some aspects of their lives they do not wish to expose. Free conversations are often characterized by exaggerations, obscenity, agreeable falsehoods, and the expression of anti-social desires of views not intended to be taken seriously. The right to the privacy of communication, among others, has expressly been assured by our Constitution. Needless to state here, the framers of our Constitution must have recognized the nature of conversations between individuals and the significance of man's spiritual nature, of his feelings and of his intellect. They must have known that part of the pleasures and satisfactions of life are to be found in the unaudited, and free

exchange of communication between individuals — free from every unjustifiable intrusion by whatever means. 17

In Gaanan vs. Intermediate Appellate Court, 18 a case which dealt with the issue of telephone wiretapping, we held that the use of a telephone extension for the purpose of overhearing a private conversation without authorization did not violate R.A. 4200 because a telephone extension devise was neither among those "device(s) or arrangement(s)" enumerated therein, 19 following the principle that "penal statutes must be construed strictly in favor of the accused." 20 The instant case turns on a different note, because the applicable facts and circumstances pointing to a violation of R.A. 4200 suffer from no ambiguity, and the statute itself explicitly mentions the unauthorized "recording" of private communications with the use of tape-recorders as among the acts punishable.

WHEREFORE, because the law, as applied to the case at bench is clear and unambiguous and leaves us with no discretion, the instant petition is hereby DENIED. The decision appealed from is AFFIRMED. Costs against petitioner.

SO ORDERED. Padilla, Davide, Jr. and Bellosillo JJ., concur.

Hermosisima, Jr., J., is on leave.

co vs# 100776 (10.28.1993) ken

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