The Lawyers Journal

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Part of The Lawyers Journal

Title: The Lawyers Journal
Issue Date: Volume XXV (Issue No. 9) September 30, 1960
Year: 1960
Language: English
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extracted text: APR 1 ~ 1976 ........ _"~-.. I 11u. iA WYERS JOURNAL VOLUME XXV VICENTE J. FRANCISCO EditoT and Publisher RICARDO J: FRANCISCO Assistant Edito'I' VICTOR 0. FRANCISCO Business Manager THE LAWYERS JOURNAL is published mnnthly by Hon. Vicente J. Francsico, former senator and delegate to the Constitutional Convention, practising attorney and president of the Francisco College (formerly Francisco Law School. ) MANILA, PHD..IPPINES SEPTEMBER 30, 1960 NUMBER 9 EDITORIAL: A TRIBUTE TO JUSTICES MONTEMAYOR AND ENDENCIA ... , •. , . , •...... , •. , , , , •. , ...... , , , 267 'fHE STRUGGLE ON REFORMS IN OUR JUDICIAL SYSTEM - 811 Justice Edmundo PiccU> ••• " ... "" """ 208 THE CASE OF THE SUSPENSION OF CONGRESSMAN SERGIO OSMERA, JR. Sen. L&renzo Taiia,da, ........ . . . . • . . . . • . . . . . . . . . . . . . . 261 Sen. Francisoo Rodrigo , , .. . Cong. Felicistm-0 OCGmpo (JNITED STATES SUPREME COURT ADVANCE OPINION 261 261. Eaton v. Price ·····························-·····--··-··········:.. 268 SUPREME COURT DECISIONS Florentino & Co. v. Johnlo Trading Co. - JU11tice BBrre1'a . , , .. , . . . . 2'71 Republic v. Paredes, .ct al. - Justice Montemayor . . . . . . . . . . . . . . . . . • . . 272 Operators Inc. v. National Labor Union - Justice BButiata Angelo ... , 273 Lapore v. Pascual -.Juatiee Gutitrrn David .. , .... , ; . , , , •. , . , .. , , . • 274 U. P. et al. v. Court of Industrial Relations et al. - Justice Gutierrez David 27& COURT OF INDUSTRIAL RELATIONS DECISION United Pepsi-Cola Sales Organization v. Pepsi-Cola et al. - P1'esiding Judge Bautista UEPUBLIC ACT Republic Act No. 3019 'fHE ANTI-GRAFT LAW IN SIMPLE TERMS - By Sen. Arturo Tolentino 1960 BAR EXAMINATION QUESTIONS Civil Law Land Registration and Mortgages .... , Rules on the Essay Contest sponsOred by the International Commission of Jurists .. 276 281 283 286 286 SUBSCRIPTION AND ADVERTISING RATES: Subscription. In the Philippines-P20.00 for one year; Pl0.00 for 6 months; P2.00 pl:r copy. In the United States and foreign countries$20.00 for one year; $10.00 for 6 months; $2.00 per copy. Advertising: Full page--P105.00; Half page-P65.00; One.fourth page-P45.00; One-eight page35.00; One-sixteenth pageP25.00; Back Issues: In the· !'uhei~~PP~~~~::~.oois~~.w~~ve t~; - '!~55""'""'""'""'""'!§;;;;;;!§!§;;;;;;§§§§9l!!§§§§§§§§§~=-' United States and foreign countries-$25.00-twelve issue$; $3.00-per issue. Entered as second class mail matter at the Post Office. BUSINESS OFFICES: R-508 Sa.manillo Bldg. Escolta, Manila - Tel. No. 4-13-18 . ( Jc. SPECIAL ANNOUNCEMENT for UWYERS AND UW STUDENTS Upon requests of many law students and lawyers, the East Publishing Co., in order to accommodate them, wishes to announce the extension to December of the current year of its special offer:: of one (1) set of t)ie R~les of Court, consisting of 9 volumes, authored by former Sen. Vice:rute J. Francisco, at a special reduced price of P200.00 (cash) from its regular priee of P266.60, but is g~od only if purchase is made directly to the East Pi>blishing CC?· and not thru its agents. THE EAST PUBLISHING CO. :a.508 Samanillo Building Escolta, Manila Tel. No. 4-13 .. 18 JUST A FEW MORE COPIES AVAILABLE! Francisco's . THE UWYERS DIGEST VOLUME I A-E What is the Lawyers Digest? It is a condensed compilation of Supreme Court doctrines alphabetically arranged 'by the topic. The facts of the decisions cited the-rein may be found in the corresponding pagie19 of the Lawyers Journal. The alphabetically arranged topics of. doctrines cited in the Digest is designed to furnish the busy lawyer with authoritative and ready-to-use citations of court decisions. Volume I covers decisions published iilr the Lawyers Journal from 1945 to 1950. r 5.00 per copy for subscribers of the Lawyers Journal PlO. 00 per copy for non-s&bscribers Additional Pl.20 for mailing charges Pl.ace your order direct to: THE LAWYERS JOURN~L R-508 Samani1lo Building Esoolta, Manila Tel. No. 4-18-18 FOREIGN SUBSCRIBERS OF THE LAWYERS JOURNAL Library of Congress W~shington 25, D.C., U.S.A. Cornell Universit)', Myron Taylor Hall, Ithaca, New York, U.S.A. American Bar Association Journal 114-0 North Dearborn St., Chicago, Illinois, U.S.A. University of California Berkely 4, California, U.S. A, Revh.ta Juridica dtl La Universidad de Puerto Rico Rio Piedras, Puerto Rico San Diego County Law Library 1105 Front Street · San Diego I, California, U.S.A. Indiana University School of La~ Bloomington, Indiana, U.S.A. Index to Legal Periodicals Harvard Law School, Longdele Halt Cambridge 38, Massachuse~ts: U. S, A. Institute of Judicial Administration 40 Washington Square South, New York 12, New York, U.S.A. National Probation & Parole Association New York 19, 1790 Broadway, Circle 6-8000, U.S.A. T(;mple University, School of Law 1715 North Broad St., Phil. 22, Penn. U.S.A. State University of Iowa Iowa City, Iowa, U.S.A. New York University Vanderbilt Hall, Wash:ngton Square, South New York. U.S.A. Vincent L. Bradford Law Library School of Law University Lexington, Virginia, U.S.A. Malcolm, Hon. Jorge A. 4947 Marathon St., Hollywood 29 California, U.S.A. Mr. Fred B. Rothman & Co. 57 Leuning Street, South Hackensack. New Jersey, U.S.A. Emory University Law School Atlanta 22, Georgia U.S.A. University of Miami Coral Gables 46 Florida, U.S.A. CJdo!Ual: A TRIBUTE TO JUSTICES MONTEMAYOR AND ENDENCIA AFTER fruitful years of dedicated service to their Montemayor was far from being the colorful and speccountry and people, Mm·celiano Montemayor and Pa.Btor 'tacular public servant. And the reason for this is that Endencia retired recently as justices of the Supreme Coiwt. it's not in his reserved natu1·e to make people sit up and Having left b1'illiant records in the government service, a take notice of him. But he was, without the lea.st doubt, word or two of commendation is in order. Public serv.ants the kind of official who· could be depended upon, the of their statun~. integrity and achievements a1·e entitled to level-headed, cool, erudite thi11:ker whose decisions were well-deserved· praise. reached only after protracted deliberations an.fl painstalc. The nation owes Endencia a lot for repeated acts of ing studies. probity and· strength of conviction which he set before As a jurist, Montemayo1· always demanded of la.wuers our people. During his entire caree1· in the pros~cution intellectual honesty and sincerity in the lunulling of their department of our gover?lment--as p1·ovincial fiscal in cases. He did not countenance the too wellknown. dllatory different provinces--a..l! well as in the judiciary, there we1·e tactics among not a few members of the legal profession. times when his independence as a public official 11Jas put He always counselled that lawyers go into the substance to the severest test, not just by the man in the street but of every case-justice-instead of resorting to all sorts of by individuals who were in a position to ruin his life tricks and stratagems. and technicalities. work and make a perfect mockery of the public service. The members of the local bench and bm· have not 1/~t As a 'JIOung provincial fisr:al in the Bicol •region, fo1· fo1 ·gotten Justice Montemayor's famous and scholarly opiinstance, Endencia was actually threatened with political nion in the- case involving more than a dozen cadastral harassment, as only enraged and vindictive politicos- are · judnes and judges-at-large who were legislated out by a capable of doing. Endencia stubbornly 1·e.fused to dismiss vindictive and politically-inspired and motivated C<>nf1rP.s8 criminal charges against the p1·oteges of a political mogitl not so long ago. His opinion against the highl11 objection.of a certain provitice, charges which had been filed by able and reprehensible piece of legislation-which h.e and opposing politician.3. At the same time, he a.lso stood his several other .iustices declared unconstitutional - is re:. ground, refused to be dicteted by the same set of politica.l pute.d to be a brilliant legal t1·ea.tise. We quote from his ~h.~:r:P:~:en~ told him to file criminai action against opinion the following passages: "There can be nothing more destrricti1~e of the morale ConaequerntZy, Endencia became the target of politicaL of jud.Qes and their sense of security and independence persecution. He was strongly denounced by the dis- l t th gruntled and frustrated politicos to the late President Que- than the possibility or threat of their remova , no ru . zon. But Endencia was not the type of man to be cowed ::.:t 01:i~t,:1:ft 0;n:b:fft£~~e~fl lhei~es;~!is b~~ bJ:i.e::a i~f by intimidations. Exasperated, aJthough still determined judicial reo1·ganization. Such indirect 1·emov<il brings to to fight, the youthful government prosecutor sent to Pres- a 1-ude and sudden end their life career, that •which for ident Quezon-another man of unshakeable conviction.-- many years had patiently and thru sac1·i.fices been strivhis letter of resignation. ing for and finally OJChieved. Under such circumstances. Quezon flatly told Endencia "No!" Instead, he praised and in that precarious situation, some jud.oes. thorourthly the fighting fiscal for bucking the top Bicol politicians disi1lusioned, may resign and step oot graoef'ldly before and for maintaining the independence and integrity of the being legislated out and notified by .the Departm.ent of prosecution office. As a reward for a magnificent job, Justice that the11 have ceased in office, and so should Endencia was later promoted to Pangasinan, which was vacate it, anut consider the whole thing as a mess and a then one of the first class provinces, in sn far as assign- son'Y business and rue the day that the"ll aspired to and ment of fiscals WCllS concerned. wo1·ked for a judicial career. Others, determined to .day While serving as secretary of edu.cation in 1954, En- in the judiciary and unwilling to lose their posts withnu.t dencia d.id not permit himself to be bamboozled by mem- doing anything a.bout it, may seek /;.elr>, and a»r>roa-ch ·bers of Congress. ·He let it be known to every one of those in a position to prevent or frustrate the threatened them that he would be courteous to them, that he would or impending abolition of their 72osts, or failing in thia, consider their recommendations of their proteges for see to it that they are retained in the service or are ahjobs but only on one condition:. that they bd fully qiwlified, so1·bed and 1·e-appointed in the new judicial set up. -From as requfrcd by the Civil Se1'"Vice Bureau. then on, could we still scvy that there is securit11 of judiEndencia's decision in n case of influence peddling is cial tenure, and that we have an independent judiciary? deserving of mention. An influence peddler, one close to "There was a time in England when the judge held :::u!'a~de';es!':°'}~:~el:i~~ !a1oc:frb::!fne~:~~1::dob~ai~e1: his judicial of.fice at the plea.sure of the King who a.pdollar allocation license from the Central Bank, sued for pointed him. The result was that the judiciary was subthe collection of several thousand pesos more. Endencia servient to the Crown that mcwle and unmade judges. not only decided the case against the human leech-u•hose Only with the establi8hment of the tenure of good bekind is definitely one of the curses of the p1·esent admin.is- haviour was the independence of the judiciary achieved. tration.--but he strongly scored, in the -same decision., the "We can have no independent judiciary if judicial evil practice of peddling influence. tenure rna.u be shortened or dn~trm1ed. by legislative. reJUSTICE MARCEL/ANO MONTEMAYOR. like his organization, how6'1Jer well int<mtionell a'nd· well meant. colleague from Mauban, Quezon Province,' enhanced the There is reaJ and grrove danger of the judiciary cvent1uilly prestige of the judiciary and earned for himself the p1·0- being subservient to a J .. egislature th.at thru abolition CJ/ found respect of legal practitioners in the places whM'e judicial posts by means of a judicial. 'reorganization can he once served as judge of the court of first instaince. (Continued n.e~t ~e) September 80, 1980 LAWYERS JOURNAL THE STRUGGLE ON REFORMS IN OUR JUDICIAL SYSTEM* By Justice EDMUNOO S. PJCCIO I was anxious to come here a couple of years ago when the lloilo Lions, roaring in convention, invited me to be their guest speaker. But the conflict about the date could not be reconciled and I really missed the pleasantries of that much appreciated invitation. So much so that when your genial Executive Judge Wenceslau Fernan, through Fiscal Consolacion, extended to me your invitation, I said, "This time I will not miss it, rain or shine" And so here I am with my heart on hand, to be with yau in fraternal embrace and to congratu,late you· most proft.Sely for the timeliness and fruitfulness of this convention. Now-a-days is a far-cry from those, to me, early fonnative years at the Iloilo Bar during the early 2-0's. Much of the scenefamiliar scene has changed, but the haunting, hallowed memories remained I . In the provincial capitol, the court-rooms, where many an interesting legal tilt bad been fought, &l'e still there and I could just reminesce on the abilities displayed by the stalwarts of. the local bar in those days; on some of the interesting traits of our . judges who, ever since, have passed to the great beyond: the thundering eloquent orders of Judge Fernando Salas imposing fines here and there for heavy foobsteps in his court-room; Judge Francisco Santamaria, with his inimitable wit and sarcasm and sophistry; Judges Opisso, Alzona and Rovira-looking owlish but respectable! Apropos to this last--Judge Rovira: I recalled how soon after hi11 transfer to Cebu he made interesting history in connection with the trial of a criminal case. The pre-war Ceb10. Court of First Instance was then housed along the corner of two important streets in the city. Betwixt the meeting of the two thoroghfares, there was a sign, "Blow your horn upon tuming". One morning, the •AddreBB delivtl'l"ed l>efore the Municip'll Judges and JuaticeR of the Peace Convention in lloilo City, August 6, 1960. A TRIBUTE . . . (Conti11ued f1·om page 257) unmake judges. And how could a Judiciary, which 1mder a. co.nstitutional form of gove1~ment, is supposed to a:[:t as a. check against the Legialature for any violation of the Constitution, do so when such Jiuli.eiary is :mlJser.vient to the Legislature it is S1tpposed to check~ X X X X· X X X X X A great jurist once said that a judge shall know everything about the case, but nothing about the partieR. That, perhaps was the reason or one of the reasons why Justice is symbolized by a lady holditig the scales in one hand and the sword on the other, with a bandage over her eyes-meaning that to her the merits and only the merits of the case as w'eighed in the scales are everything, and the parties thereto are nothing, to be utte1·ly dis1·egarded amd ignored. But if as in the p1·esent ca.o;e judges a1·e ma!k to realize that they may be legislated out of office 1mder the guise of a weU,,..intentioned reorganization, could we blame the lady with the scales and the sword, if as fl measure of precaution and so as not to jeopardize he1· tenure of office she would now and then. peep thru the bandage over her eyes and see if, in case of an advr.rse decision, airvy of the parties before her o:re in a position to work for a reorganization and eventual termination of her tenure of office, or, in case of a favorable decision, to help frustrate the threatened reorganization or if car1·ied out, to work for her retention in or reappoint to the judicic:ry Judge was much annoyed upon hearing a .1eri&s of horn-blowing; 9rdered for the apprehension of the driver-who was promptly fined ten pesos, whereupon, said driver, who happened to be a Chinaman, vigorously protested, adding that a week previous he was hailed by the police and later fined for not blowing his horn, and remarked, ''What kind of a law is this that fines both for blowing and for not blowing one's horn!" The judge forthwith retaliated, "Go ahead, pay the fine; our laws here are much better than those you have in Mongolia". It is this self-denying, self-asserting at times inconsistent positions of the Jaw that require an 'IO.nending process of interpretation, and maybe, constructioD,'. in our en'deavor for reformswhieh must have led Justice Holmes to pronounce, "Law is always approaching, and never rttaching, consistency. It is fo-rever adopting new principles from life at one end, and it always retains old ones from history at the other which have not yet been absorbed or sloughed off. It wil becoim entirely consistent only when it 'ceases to grow". Two recognized processes for reforms are by means of legis-lntive enactments and court-made rules. I have it on good authoority that in about a year our Supreme Court will release its new .Rules of Court. This, I t:.nderstand, will include portions of the amendments approved by the May, 1958 convention of judges, fis.cals and practicing attorneys chairmaned by the then Honorable Justice Secretary Jesus G. Barrera and submitted to the Supreme Court. A cursory examination of the draft reveals that the new rules will be characterized by symmetry, simplicity and practicability and with emphasis upon speed in the administration of Jus· tice, In the aforementioned convention, prominent private law practitioners (Diokno (Jose W.) Alafriz, Jose Feria and Agr-ava some of them) have taken active part and displayed like the judges and fiscals, in eloquent vain, keen knowledge of the subjects (Continued ne2:t page) in the new judicial set up. x x x x x x x x x "If that is the law, then the members of the Constit·utio'nal Convention have gra,vely blunde1·ed into building what they intended to be a permanent and lasting -independent judiciary on the sands of the desert or of the foresho1·e, easy prey and subject to wind and wave. But to me that is not the law, or the way the constiturlonal provision should be interpreted. That could not be the ·result of the prolonged efforts and labors of those who wrote and signed that instrument.· Properly interpreted I believe that thru section 9 Article VIII, they reall11 built an independent judiciary on solid rock that can with.stand wind and tide, with judges who can afford to be indepM1dent minded and fea,rless because not even the most hostil.e Legisl.ature or the strongest admini.stration may touch, much less destroy their tenure of office." The majority of the justices ruled tlf,at the law wa.s a rlfrect violation of the Constitution but mif01t1tnately tluwe we1·e not enough of them to constitute two-thirds of the total number of justices of our highest tribunal. Justices Marcelia.no Montemayor 0.nd Pasto1· Endencia are now private citizens, having completed the gre0>t work whi.ch took the best yea,rs of their liv.es. But these tu10 men can look back with immense p?"ide to the t7.sks the21 have accomplished with honor atid distinction. LA WYERS JOURNAL September SO, 1~60 THE STRUGGLE ••• (ConUn.ucd f,.om,. page 268) passed upon and a solieito108 desire W help improve our judicial system. It is a healthy sign that our Bar takes an absorbing, deepening interest in this crusade for all kinds of improvements in the admini6tration of justice in our jurisdiction, because the Bar ·and the public. perforce, shall have the administration of clamor for a prompt administration of justice. 11Balf the labor of the Bar'', someone has remarked, "was bestowed upon questions of pleadings and the Lawyer who mistook his form of action sometimes lost hiS case from that cause alone. The merits of the case were often wholly lost sight of and never brought to trial." justice that they deserve. I would like to repeat my congratulations for your having deIt may be of general public interest to consider the salient cided to hold this convention becal>Se under the prevailing social oepeets of that convention. The draft report of the measures dis- climate in our jurisdiction, there would seem to be need, if poscuHed, adopted and later submitted to the Supreme Court was sible, of at least an annual confererice of the judges of our scat. the result of a painstaking b&.t interesting discussion both in the tered lower courts to which may be invited the Chief Justice, the general convention and later, in the deliberations of the sub-com- Presiding Justice, and the Associate Justices of the Supreme ntittees. The court rules on substantive laws, procedure and ape- · Cow·t and the Court of Appeals as guest-speakers, for an exci~ civil a~ions were divided into groups and assigned to various change of impressions. The expen-sea to be incurred for such coneub-committees. vention, however, constit1,;.te a problem. Among the· interesting topics discussed was that on "appeal". The annual appearance of the President to deliver his &11.llual There were those who held the view thct an appeal, being merely message before the joint session of Congress is sanctioned by t~e a statutory and not a constituiional right, may be cG.?taiied as constitution as not altogether inimical to the so..cJ1,lled separation in England where even a judgme.,_t of conviction for life in a crim- of powers. I beg to jj;Uggest that this practice be extended to the lnal case, may not be carried on appeal to the House of Lords Chief Justice of our Supreme Court, at least on such occasions (the· highest judicial court when sitting as such) unless the At- where the constitutionality of an important pending law might be torney-General certifies that such appeal i-s meritorious .. The sug- at issue. In such event'!ality, the constitutionality of a pending gestion, however, was successfully blocked from further discus- bill might be determined beforehand-which will prevent, possibly, sion. Nevertheless, if after an exhaustive Gtudy, appeals in our a futune protracted litigation on that iss&.e, once it has been anjurisdiction could be curtailed to some extent, some improvements proved by Congress. In other words, some sort of a predictioil may be attained-that is, in the ultimate objective-the speedy· and ·should be had in order to avoid such eventuality. unhampered dispensation of justiae. This, of course, without cur- Let me likewise suggest the creation of a judicial council to tailing the need for an, exhaustive study of the issues in a parti- be composed of representatives from the bench, the bar and the ;~l~=v~~:i ~: :~~~~l ~::e.tri~. ob!~:;:b~':~:~:t a~:;~0;i:: public (which may include civic organizations and the press) as rule, however, aeems to lie in determining when is a case important well as the E:r.ecutive and the Legislature Departmen~if this. is and when not. possible. Then there is the consideration we would be willing or unwillfirstTi~:i:~~ep;::=c:n:f c:::~n!n!~~~~~~:;~~:reth~a:::n:: ~:ic:: a:e~em: ~!:c1e::-c:!le:eti•:~=-ic:.a;!:~·:~~=ict~:~::e'::ie i: the sobrequet of "rigodon de Jueces"-was not altogether without problem-the unen~ing conflict between substance and form. :.i;:ar!:r a!:~r~~a~:!":t 0~!i~ti:;'~r~n=-= :'!ew!~~;o': This problem would nonetheless be so difficult of solution if the ministration of justice in those judicial districts where dockets Court were allowed a broader field to eonstr~ the law. But we may be clogged. To some extent we have such regulation at preare ah"'ays reminded of the somewhat fossilized principle that sent, but perhaps. because of the difficulties atteJJ.dant to the a. Courts of Justice are there only to interpret, not to construe the signment, th~ practice is not resorted to. :::· th~:dth:m:n~~d::m~~::e ~o~e f~::f~~toa':ii:t p::~~;ui:~k t~~ Because under our prevaUing set-up, while some jlOdges in atrict, at times, blind interpretation, and refuse to blow life into :~:: ~:tripc:t~::r,e ::h:s •; n:!s~!:.nd;:.;:n j~~~!~ e~s:i::! what might otherwise be an anachronism in the law. If the ma. jority opinion in the Genato case of long ago did not reasonably sweat it out, and still with their dockets clogged. eonstfue the law (on theft), notwithstanding the brilliant dissent Of late, the local Federation of Bar Association has expressed of Justice Morela.">.d, what might have been the fate ever -since of 01· reflected the collective sentiment of private practitioners on the invisible, intangible "electric cunent" as a property, may now- the sloWl process in the administration of justice tn our jurisdiction adays be the subject o~ wild conjectureg. and attacked the Department of Justice for its alleged inability to More elasticity and flexibility in the interpretation and appli- resist political interference in the appointment of fiscals and judgea cation of our proced&.ral laws is what we need if we were to ac- upon which they lay most of the blame for the alleged ineompecelerate the speed with which such cases are disposed of. In plead- tence of those called upon to administer justice. A newspaper ings, fol" instance, amendments should be alloWed 8.t any" Stage of the editorial likewise reflected tl1e s&.ggestion of some who would have proceedings, and in any action pending in Court, and that amend· the Supreme Court iexercise the power to nominate or appoint men:ta be allowed, to some extent, even to change the form of ac- jud~ instead of the Chief Executive. =~~~e:.t:.nst:~:: ~:;i~t aorli!~;di~~~~:r p~~i~~7~:w:~ho:~ Our own experience during the last half century may well a new trial, when the verdict would :not be affected by the amend- serve as the basis for the pros and cons on this assertion. It is ment had it been made before trial", and that if a party is entitled deemed necessary, withal to look back to the experience .and the to :nelief on a writ of error-certiorari, mandamus, prohibition, or in- adopted systems-both Anglo-Saxon and American-in their· peojnnction-he should not be denied that relief simply because he mis- pies', like our own, 't&.nending quest for a good administration of took one special remedy for the other. In such way, we shall not justice. ' be curtailing st:.bstanee's bossing over form. During the 18th century, till the early, days of the 19th, it A simple, workable and efficient procedi.;.re Such as could be would have raised eyebrows to have considered appointments and well understood by the people, minus "that labyrinth of technicali· promotion to the bench of men whose political views were in contiea" which Chief Justice Vanderbilt referre<i to as "intricate flict with those of the administration. At least this was the exnonsense", is what we need nowadan when our Pt!Ople are wont .to (Conrinu«J m:i:e psg.e) I;AWYERS JOURN.U. THE STRUGGLE . . . (Continued from page 269) perienee in EngJand, Scotland and IreJand. "The an pervading impact of politics on appointments in those days", said former Chief of Justice of England, Lord Goddard, "m~y be illustrated by a passage in one of Professor Dicey's books, an author well-known on both sides of the Atlantic when he said that the greatest· service that monument of incapacity and jobbery, the Duke of New Castle, so long Prime Minist.er to Georgie II ever did, was to persuade the King not to appoint Sir William Blackstone Regius Professor of Civil Law at Oxford, because he was not sure of his politics." The great seer that was President Lincoln, whose insight into the inner character and qualities of man was incomparable, entireiy forgot himself and politics when it came to the selection of men ~or i"m.jiortant public offices-one of th~ most difficult problems In political philosophy. Upon Chief Justice Roger Tanney's death, by ~neral consensus, the most eminent name to fi11 the vacant post was that of Salmon P. Chase, former Secretary of the Treasury in Lincoln's administration. But Chase was critical, even contemptul)us of LincoJn, yet contrary to an expectations, Lincoln p)llced the interest of the nation abovf\ everything else and ap]10inted him. While judicial assets and not political capacity shor.Id be the guiding criterion in the selection and appointment of judges, still there is no sense in preventing one frl)m occupying a judicial posi. ti~~ simply because he h11S had somehow, in some way, a prom"inent participation in politics. Some of the great names in the American judiciary-Taft, Hughes, Warren, not to mention Chief Justice Marshall himself who was among the top leaders of the Federalists, were prominent in politics before their judicial appointments. In our case, We have Gregorio Araneta, Recto, Laurel, ImPerial who have been in our high coutt. Also our incumbent St.r preme Court Chief Justice Ricardo Paras who has had a stint as Representative b"om Marinduque, and Supreme Court Justice Alejo Labador, Representative from Zambales, both of Vlhom have emi· bent judicial career. And in all these cases it was the Chief Exec:ntive of the nation who appointed them. Theie is not, in the least, an intention to blindly imitate what is there in other judicial systems, yet, when it comes to administering justice, it is the English, and for that matter, the American judicial system that attracts ~ first. Because it ia of common knowledge· that it is in England 'Where the administration of justice has, with lingering pride, attained the highest level of efficiency and a.:hievements. And yet, there they are not much concerned 1J.bout 0 the so-called "separation of powers" such as we are very Particular about in our own jurisdiction, as well as in the United States. . WhUe strictly adhering to their age-long practice of se~ecti'!g .their judicial appohi.tees from among the barristers as much as possible, some of these appointees are at the same time members Of the Parliament. The Attorney-General and the Solici· tor General are almost always members of the House of Commons where they "take part in piJoting intricate bills and thus make decisions on matters connected with the laws of the nation". As long as these prospective appointees are competent lawyers and reveal a judicial temperament, it is considered quite a wrong practice for them to be exckded from judicial appointments simply because they havie been. in the Parliament and support the government on behalf of their respective poiitical parties. On matters of judicial appointments, the Supreme Court ae the highest pansophic dispenser o-f justice, evidently, ·would be a!!. excellent source, yet in a democratic set-up like ours, especially in important offices the ideal concept of"loyalty is involved. And this loyalty-not blind loyalty in common parlance-may be scattered within certain lower brackets, yet, the same should, however, be pyramided up toward a single entity-the President-because the Presidency is the symbolic embodiment of the nation and that it is to the nation that in the last analysis we altogether owe our accumulated loyalties. · Witho~t elaborating on the source or sources from where to draw candidates for appointments to the judiciary, granting that their academic preparation is sufficient, much, however, would depend upon the character and the spirit of self-discipline and selfsacrifice and patriotism of the appointee. Time is of the essence. \Ve "must learn to wait. For we are young and independent nation with over 300 years of the Spanish and later the· Americian domination as a background. Some of the vestiges of colonial thinking still linger in our veins and we are not to be b1amed for that. It would take generations, at least a hundred years of in· C!E·pendent thinking to instill in the blood of any raCe that reveHnce for the law that all times and under any circumstances, is expected of every good citizen. Some Jessons may be derived from what • respectable J•panese citizen said in a friendly chat: "Th.e average Filipino public official is intelligent. But in matters of official performanceit someone goes, for instance to the Chief of Police of a city ol" a municipality,· as a general practice, he s&.mmons his sergeant who in turn orders a policeman to study an~ decide theml'~ While travelling in Tokyo, a few years ago, I· tendered a U.S. $20,00 traveling check to a store attendan~ for some purchases. He politely demurred, adding "please have this co~verted into yens in the nearest bank so our government could have it discounted". As I have humbly stated previously, much would depend upon the character, self-discipline and patriotism of our people-and eventuaUly everything, including ou.r administration of justice, shall proceed accordingly. For after all, a judicial system or any governmental system cannot rise above what we would wa.nt it to be. NEW QUALIFICATIONS FOR FISCALS MADE Additional qualification for provincial fiscals are p1-ovided by Rep_ublic Act 2527 (House No. 3920). The new law amends sectiotl ia7s ~f the revised administrative code. To be eligible for appointroont as provincial fisacl, a person shall: 1) Be a citizen of. the Philippines who has been duly admitted to practice in the courts of the co\:.ntry, and has been in actual practice for •t least six years prior to his appointment, or has held during a like period, within the Philippines, the office pf clerk of court, law clerk in a bureau of the ~ational gove1·n91ent, or .an office requiring the services of a lawyer; and 2) Be able to speak, writ& the Spanish language or the English language and, being conversant with one, he shall have at Wast a fair knowledge of the other; No person shall hold the office of city fiscal, or assistant city fiscal of Manila, provincial fiscal, or assistant provincial fiscal after he attains the age of 65 years; and after the thirty-first day of December, 1932, any city fiscal or assistant city fiscal of Manila, provincial fiscal or assistant provincial fiscal over· 66 years of age shall v-acab! his office. The new law fu1·ther amends section 16'l4 of the· revised administrative code, as amended, insofar as. it concerns the number of assistant provincial fiscals in the province of Ilocos Sur. This particular amendment increases the' assistant provincial fiscaJs of the province to six. LAWYERS JOURNkL. Soptemkr 80, 1960 THE CASE OF THE SUSPENSION OF CONGRESSMAN SERGIO OSMERA, .JR. Senator LORENZO TAAADA • Senator FRANCISCO RODRIGO• Many people have asked me-in tlll! past two or three" weeks My colleag&e and very good friend, Senator Lorenzo M. Taft.a. -what my views ar.e on the suspension of Congressman Sergio da, speaking bef~re the Rotary Club of Baguio City, defended and Osmeiia, Jr. The questions raised by the Osmefia case are ac- justified the action of the House ol Representatives in suspending tually not very .difficult to answer or to resolve. What is mone your Congressman, Hono~able Sergio OsmeDa, for a period of 16_ difficult, is to convince the people you talk to that those answers months. I am glad that Senator Taiia.:la finally came out with a are impartial and even impersonal, and qti.ite uninfluenced by .one's stand on this vital and transcendental constitutional question, own politieal inclinations or sympathies, though somewhat belatedJy. Senator Tafiada is considered an au1 would like to discuss the Osmeiia case with you, today, but, thority on constitutional law, and his opinion will certainly help as lnuch as possible, I would likte to discuss it as a student of crystallize some definite principles on this issue. I wish that other co1U1.titutional law, that is impartially and academically. · recognized authorities on the subject would likewise express their It is contended by many--among whom are distinguishfllld, views so that o\i.t of the ferment of divergent &piuions we may members of the Senate and the Bar that the disciplinary action distill some clear precipitate of correct legal doctrines. taken by the House aB-ainst Osmeiia was il11egal and unconstitu· The Issue Taken. Up By Senator Ta.iiada. tional. Their defense is principaJJy this-that Mr. Osmeiia's con- Now, I shall discuss the isSue taken up by Senator Taiiada. troversial speech was delivered on the floor Of the Hou~ and As I said in the beginning, the. orJy is.sue discussed by him what is delivered on the floor of Congress is invest!d with the is as follows: "What is "in question is whether Congress itself can sacred mantle of Parliamentary privilege. discipline a member for speech unbecoming a Congressman and It is claimed that the privilege of parliamentary immunity a Representative of the people of the Philippines.'" • exists with no limits whatever, that it is absolute, that there- , Let me clarify our stand on this point. fore a Congressman or a Senator can say anything at all that We do· not contest the power of either House of Congress to may please him at. the moment-provided, of co~e. he takes care "punish its members". No lawYer or even law student "\\"o&ld to saf it "\\ithin the four walls of Congress-and he shall then contest this, because there. is a specific provi$ion in our Constitu~. be free of any responsibility 'vhatever for what he may have said tion negarding this point, namely Article VI, Section 11) (3) -whether this be truie or untrue, sober or absurd, fair or foul, which reads as follows: · seemly or obscene. To hold any view to the contrary is, in the "(3) Each House may determine the rules of its pro: eyes of Mr. Osmeiia's defenders, "legally unsound." ceedings, punish its Members for disorderly behavior, ·and, Many authorities have b(en cited to prove that this is the with the concurrence of two-thirds of all its Memb?ra, expel correct view-that Mr. Osmeiia is immune from any kind of ai> a Member." countability for what he has said. On examination, all tliese It was therefore a waste of time and effort for Senator Tafiada, citations tend t& prove, indeed, that Mr. Osm.eiia ts safe from all to belabor this point, because it is obvious and nobodJ denies it. liability for damaB-es or otMrwise outside Congress. But is this The pertinent question is: What is the apetific ground stated the point in issue? by the constitution for which a ~her may be punished? Everybody admits that no one, not even the President him- Senator Taiiada claims that he may be punished "for speeeh self, can prosecute Mr. Osmeiia for the remarks he has made unbecoming a Congressman and a Representative · of the· people against the President. What is in queation ia whether Congress (Continued nelllO ,,Qge) (Continued n.e:i:t page) • Speech deli'l™"ed before the Baguio Rotaf"JI Club mt Auguat 20, 1960. • Po-rOimi of the siieech deli1'N""d in. am"uder to Senato-r T,orfln:tn Taiiade before the Rotbrtt Club of Cebu City on August 26, 1960, squarely dwelling on the isau.e raii.sed by Sena.tor Ta.iiadt.i. Congressman FELICISIMO OCAMPO• There are two complementary provisions in the Constitution that must be considei-ed. Section 10 (3) of Article VI provides: "Each House may determine the rules of its proceiedings, punish. its Members fo-r disorderly behavior, and, With the concurmnce of two-thirds of all its Members, expel a Member." Then Section 16 of the same article provides: "The Senators a.nd Members of the House of Representatives shall in aU casss exaept treason, felony, and bmach of the . peace, be privileged from arrest du1ing their attendance at the sessions of the Congress, and in going to and neturning from the same, a.nd for a.ny speech or debate tlierei11>, they ahall not be questioned in anv other place." The pertinent parts of these two sections are the undr?rlined portions, that is, the power of each Hol>Se to punish its Members for disorderly behavior, and the guaranty that for any .speech or debate therein they shall not be questioned in any other place. I had opposed the suspension of Mr. Osmeiia for fifteen months on two grounds, namely: Th:lt this co-p.troversial speech • Due to space limitation, some parts of this speech which do not meet the issue raised in the speech of Sen. Taiiada have been omitted. was within the range of the legislative function and- could not by any manner serve as a basis for punishment aa for "disorderly behavior; and that the House has no constitional power to suspend a Member for fifteen months. I shall first address n'lyself to the first ground of my objection. The question of whether or not either House of Congress has "the constitutional power to s&.spend a member in the exercise of its power to- punish for disorderly behavior, is not new. It was presented and decided in Alejandrino vs. Quezon, 4.6, Phil. BS, in 1924. On Febrtoary 6, 1924, the Philippine Senate adopted a r.eso1ution SU$pending Senator Jose Alejandrino for ane yoa.r beginning January 1st of that year, for having assaulted Senator Vicente de Vera. The resolution reads: "Resolved: That the Honorable Jose Alejandrino, Senator for the Twelfth District, be as he is hereby, declared guilty of disorderly conduct and flagrant violation of the privileges of the Senate for having treacherouslr · assaulted the Honor(Continued ne~o page) S .. 11emb<r a&; .. 1960. LAWYERS·. JOURNAL SEN. TARADA ••• itself oaaii diaciplin. a. ~.,. fat' 11peech. unbecoming a. Congt•ees." man and a. RepresenOati11e of the people of the Philippi1f.es. Is a Congressman really absolutely immune for all that he may say and do in Congress even from disciplinary action by Congress itself? There has been no single authority cited to dem011strate that he is. The citations prove indeed, that, to quote one, "members of Congress are absolutely immune from liability for damage done by their acts or speech, even though knowingly false or wrong." But this is not the immunity we speak of now. We iat"S di6cussi11g tke im.munity a. Cottgresstl'l4n is claimed to have e:vC1i ft'<Jm, Congressional disciplinary action. The authorities upholding the disciplinary power of Congorees are on the other hand weighty and numerous. . Let us begin with the Constitt.tion itself. What does it provide 'regarding the parliamentary privilege of freedom of apr?eeh? The pertinent Constitutional provision on this is found in the last clause of See. 15, Article VI. which reads, " ... and for any speech or debate therein, they· (Senators and Members of the House of Representatives) shall not be questioned in any other pl8ce." Much importance is attached by some to the word "shall," which they take to mean mandatory and so indicating· the absoluteness of the privilege. But this again confuses the question becaust the privilege i3 absolute insofar as immunity f'rom lia.abilify outside Congress ia concerned'. The more important phrase seems to be the very last one, namely, "in. an.11 other place." This in itself seems to be clear enough indication or proof that Congres;nnen may rightly be questioned in Congress for a speech or debate they may make therein. To deny this would be to take away all meaning from the. word other in the phrase "in an.y other place." But then perhaps, it may be argued, the meaning of the phrase is that a Congressman may be q1:.fftioned on the floor by other Congressmen, but not punished or otherwise disciplinEid by Congress for what he may state. This conbention, however, woUld have the effect of placing two separate and distinct meanings on the WOl'd queatWned. one meaning for "questioning'' outside Congness and another for "questioning'' within the haJls of Congress. If being questioned outside Congress does not simply mean being '8ked to elucidate or clarify a statement but also being held accountable or 0liablle for one's statements, it must have the same meaning when applied to "questioning'' which under the Consti· tution is impliedly b~t unmistakably permitied within the halls (Continued fl.e%0 page) . , CONG. OCAMPO •.• able Vicentie de Vera, Senator for the Sixth District on the occasion of certain phrases being uttered by the latter in the course of the debate regarding the credentials of said Mr. Alejandrino; "Resolved, further: That the Honorable Jose Alejandrino be, as he is hereby, deprived of all his prerogatives, privileges and emoluments as such Senator during one year from the first. of January, nineteen h~dred and twenty-four; "And resolved, lastly: That the said Honorable Jose Ale. jandrino, being a Senator appointed by the Gover·nor-General of. theie Islands, a copy of this resolution be furnished said. Governor-General for his information." Sena.tor Alejandrino questioned the validity of his suspension in the Supreme Court, and that highest tribunal ruled that the Senate as a body did not have the constitutional power to suspend a member. Said the Court: "It is noteworty that the Congress of the United St.ates has not in all its long history susp<'...nded a member. Ana the reason is obvious. Punishment by way of reprima.nd or fine vindicates the outraged dignity of the Houe without depriving the constituency of representation; expulsion, when pennis· aible, likewi!!<e vindicates the honor of the legislative body while giving to tha eonatituiency an opportu-nity to elect anew; SEN. RODRIGO .•• of the Philippines." I regret that I cannot agree with this. The constitution is explicit that either House may "punish its members for diaorc:Url11 beh.Gvior." The constitution has limited the exercise of said power to that one ground, disorderly behavioir. Congress may not punish a member of any other ground. While it may be debatable whether' or not either House, by a vote of 2/3 of all its members, may expel a member for any reason besides disorderly behavior, there can be no doubt that any other punishment, aside from .expulsion, can only have for its basis "disorderly behavior". "However, to the Senate and the House of Represen. tatives, respectively, is granted the power to 'punish its members for disorderly behavi~r and, with the concurrence of two.thirds, expel an elective member.' (Organic Act, sec. 18.) Either House may thl:.S punish an appointive member for disorderly behavior. Neither House may expel an appointive member for any reason.'' (AlejandrinQ v. Quezon, 46 Phil. 96.) Now, in the case of Congressman Osmeiia, where the penalty imposed was not expulsion but suspension it is very .evident that the only ground allowed by the constitution for the imposition of said penalty is "disorderly behavior," What is "disorderly behavior"? In the case of Commonwealth vs. Barry, it was decided that to punish an officer for "disorderly behavior" auck misbelia:vior m'ltlJt be BUck cia affects the performa:nce of hi6 duties Gr the legal or ordinary procedure of the body of wliieh he is a member, and not disorderly bektwior which · affects liis character cia a privtzte individual. (See Alejandrino vs. Qu.ezon, Supra, p. 102; Underscoring supplied). The question to be answered therefore is: Did the privilege speech of Congressman Osmeiia "affect the performance a.f bis duties or the legal or ordinary procedure of the body of which he is a member"? The records show that it did not. Therefore his speech did not constitute disorderly behavior, and it is not within the power of the HouE"e to punish him for it. The following quotation from Corpus Juris Seeundum is also very pertinent: "No act is punisha.ble tu\less it is of a nature to obetruct tM perfornfMI« of the duties of the legi.sleture (Jurney v. MacCracken. App. D.C. 55 S.Ct. 376, 294 U.S. 126, 79 L. Ed. 802); and hence there is no power where there is no legislative duty to be performed (Jurney v. MacCraelaen, supra), or where the act c011tplailled o/ is not! a ch,a..r(Contintied ne:t:t page) but suspension deprives the electoral district of represenfation without that district being afforded any means by which to fill the vacancy. By suspension, the Seat remains filled but the occupant is silenced. Suspension for one year is equivalent to qualified expulsion or removal.'' While the Court riefu.sed to intervene in deference to the principle of separation of powers, it called attention to tlie desirability of preserving due respect for the Constitution. Thus: ''While what has ju&t been said may be unnecessary for a correct decision, it is inserted so that the vital question argued with so much ability may not pass entirely unnoticed, and so that there may be at least an indication of the attitude of the court as a restraining force, with respect to the checks and balances of government. The Supreme Court, out of respect for the Upper House of a coordinate branch of gov. ernment, tak.es no affirmative action. B"'t the perfection of the en.tire syatem suggests the thought that no action should be taken elsewhere which would constitute, or even seem to constitute, disMgard for the Constitution.'' I have always believed that close adhetence to settled principles is indispensable to the reality and vitality of constitutional government. And the Congress should be first to realize that necessity. If we could violate the fUndament&l law with impunity, (Continued ne%tJ page) LA WYERS JOURNAL September 80, 1960 SEN. TARADA • • • SEN. RODRIGO ••• of Congress. In other words, a Congressman, while lie cannot Ja.Cter ta obatruot the legi8la.tive procna (Jurney v. Macbe held to account for his Congressional statements outside Con- Crack.en, supra; Marshal v. Gordon, supra)" (91 CJS. 87-88; gi:ess, can rightly be held so accountable by Congre111 itself. Underscoring supplied.) This sense becomes clear when we recall the origin of the par- Our own Supreme Court, in the case of Arnault v. Nazareno, liamentary privilege of free speech. The cen,turies long St1148'le 86 Phil., 57, said the following: between the English Parliament and the Monarchy is a fact no "In Marshal v. Gordon, the question presentr..d was wbedoubt well known to you. You may remember the climax of this ther the House has the power under the Constitution to deal struggle when Charles II, angered by attacks made against him with the conduct of the district attorney in writing a vexa.. in the House by five members of Parliament tried to break into tious letter as a contempt of· its authority, and to inflict the Commo-ns, accompanied, according to the JouriwU of the House, punishment upon the writer for such contempt, as a mat. by "a Great Multitude of Men, armed in a Warlike Manner with ter of legislative povsier. The co&.rt held that the House bad Halberds, Swords, and Pistols ... to the Groat Terror and Distur. no such power because the writing of the lettu did n.ot enhance of the Members then Sitting." He demanded the st:.rrender 4mger the preservation of the House to ca,.,,, out its legiB· of t~e five Royal crWcs. And the Spealrer of the House, Lent. ltitive authority." (Marshal v: Gc-rdon, 248 U.S. 521 j 61 L. hall, came forth from the Chamber to face his King an.d answer ed., 881; Underscoring supplied) his demand with these famous words, "May it please your Majesty, On the basis of this ruling, the questio-n to be answered, I have neither eyes to see, nor tongue to speak in this plac;e, but in the caEie of Congressman Osmefia is: Did hie speech "obsas the House is pleased to direct me, whose servant I am here." truct the performance of legislative duty and x x x endanger This point in histOry marked the beginning of the era of the preservatio-n of ·the House to carry out its legislative authC). parliamentary supnemacy. But Lenthall's wo-rds themselves sug· rity"? Obviously not. The?'lefore, the House was without cons· gest to us the self.imposed limit on that supremacy-it was not a titt:.tional autho-rity to punish him Ior his speech, total blindness nor a total dumbness that he was asserting for ' What I just expounded are the expness provision of our Parliament against the demands of his King, but the blindness constitution and pronouncement by our Supr.eme Court and . by and the dumbness that the House itself was "pleased to direct." recognized authorities on the subject. B&.t Senator TaiiadQ, much What was being asserted therefore was not that the five to my surprise, expounds the principle thart. "CongTess itae]jf' Members who had outraged their King were in their own iight 'can discipline a member for speech ttnbecotn*ig a Congressman su.p:neme, but that the body, Parliament, was supreme; that these and a Rtepresentative of the people of the Philippines". This Members enjoyed privileges, because Parliament possessed those principle makes me shudder because it is fraught w~th very privileges before them; that these Members were in a sense soV& dangerous implications. reign and inunune, because Parliament by a prior and original The definition of the word '°unbecom.ing", according to Websright was sovereign and immune. ters International Dictionary ia: "N()t becoming; unsuitable; And so, ahortly afterwards, as a res.uli of the bloodless Reva. incLeC()rous: improper." lution of 1688, there was enshrined in the English Bill of Righta Does Senator Taii.ada mean to say that a member of Con· of 1689 the great privilege: "That the freedom of speech and de- gress can be punished, nay, suspended, merely because he utbates on proceedings in Parliament, oue:ht not to be impeached· or tered something "unsuitable, indecorous and improper"? Let us questioned in any court or place out of Parliament." (Art.9) not forgot that what is "indecorot:..s, unsuitable and improper" Commenting oil. this Article of the Bill of Rights, the eele-- is not necessarily imm"oral or essentially wrong. In fact, stand· brated British authority on Parliament, Sir Thomas Erskine May, ards of pi-opriety and decorum can and do vary among persons notes that "Recognition of the right of each House itself to ad- imbued with the same moral and ethical values. And who will judicate upon the conduct of its Members in their Parliamentary decide whether or not certain utterances of a n,.ember pf Con· capacity may be found in th!s Article... This provision not only gress ane indecorous and improper? protects freedom of speech in Parliament from outside interference If we were to follow such a dangerous policy, then every but also indica.tu the method by wh'Ch it ma11 be controlled, by member of Congress, especially those who are in the minority, (Continued ne:r.t page) (Continued ne:i:t page) CONG. OCAMPO ••• we can never expect from our people the trt:.st and faith which that sacred instniment needs for its stability. Th&~ were the thoughts that crowded into my mind when I voted against the suspension of Mr. Osmeii.a. I now proceed to my second ground of objection. There seems to be no disagreement between the distinguished Senator and myself as to the legal ·proposition that the freedom of speech and debate, invested by the Constitution on members of Congress, is not without limit. What I only do not see in his long discussion is any line of demarcaOion between what is subject to punishment by the HotUe and what is free. I would not confine, and authorities and precedents do not confine, the disciplinary power of ieach House only to physical misbehavior. In other words, "disorderly behavior'' does not mean only physical misbehavior. Without attempting to rise to the heights of erudition, and to dig into duty tomes, for after all the meaning and extent of parliamentary immunity have long agQ become crystallized and settled, I find. in Cooley's Constitutional Limitations, pp. 190, 191, '7th ed., a comprehensive statement of the rule and its limitations. Says Judge Cooley: "Each house had also the power to punish members for disorderly behavior, and other contempts of its authority, as well aa to expel a member for any cause which seems to the body to render it unfit that he continue to occupy one of its seats. Thia power is generaUy enumerated in the ®nstitution among those which the two houses may exercise, but it need not be specified in that instrument, Bi-nee it wotdd e:i:iet whether ezpreBBly c&n/tATed or not'. It is 'a necessary and incidental power to enable the house to perform its high func· tions, and it is necessary to the safety of the state. It Is a power of protection. A member may be physically, mentally, or morally wholly unfit; he may be af~ted with a cont&· gioua disease, or insane, or noisy, violent, and disorderly, or in the luibit oj using profane, obscme, and abusive language-.' And, 'independently or parli&m?ntary customs and uaages, our legislative houses have the power to protect themselves by the punishment and expulsion of a member;' and the courts cannot inquire into the j&atice of the decision, or even so much as examine the prOt'.eedings to see whether or not the proper opportunity for defense was furnished." We must then accept that the habit of using profane, obscene or abusive language by a member of Congress on the floor of that body would justify the House concerned in· punishing him as for disorderly behavior. Mr. Osmeiia's controversial speech on the floor of the House was not eharged to be abusive? To abuse is "to WMng in speech, reproach coarsely, disp'arage, ~le, malign'' (Continued ne:ct page) LAWYERS JOURWAL Jl68 SEN. TARADA .•• SEN. RODRIGO •.. ecich House OV6"' itB own members.' will always be under a constant ·threat and danger of being Now, we must remark on the striking similarity of the decla- punished for statements which, in his own judgment, are proration, "That the freedom of speech and debates on proceOOings p~r, but which, in the biaaed and hostile judgment of the conin Pa.rliament, ought not to be impeached or questioned in any trolling majority are "unbecoming." court or place out of Parliament," and our own Constitutional pro- I scrutinized the authorities cited in the speech of Senator vision on. the same privilege: " ... and for every speech or debate 'l'aii.ada as well as other authorities available to me, bt:.t I did therein they shall not be questioned in any other place." not see any pronouncement to the effect that Congress can dia"In any court or place out of Pa.rliament," in any other plaa!," eipline a member merely for a 0 speech unbecoming a Congress"but a.a the House iB plea.led to dir.ect me, whose sll'r'Vant I am man". · here"-these hold the key to the true meaning of the parliament- I venture to say that if this "Taiiada Principle" were to be arjr privilege of free speech. The privilege exists for each member strictly followed in Congress today, and the uniform penalty imbecause the privilege is necessary to the proper exercise of the posed were suspension, thene would not be enough members left vital functions of Parliament or Congress in a democracy. It is to constitute a quorum. necessary because in order that legislation may be expedient and Abuse of the Pri'lrilege. Elffective the discussion and debate- leading to it must be free and Senator Taiiada unnecessarily belabored another point, namefearless, and so, immune from liability for damages or otherwise ly the abuse of "parliamentary immunity". outside the legislature. This was not at all necessary, because all of us are against Tke int1mt behind the privileQe wa.s, and ~ tfz4.t free disauasion abusing this privilege. But akse of a right is no argument for deny. or deba.te ougkt to lea.d towards tM mrilu"ttg of 'Wise laws. The ing the right itself. Almost anything in this world can be abused. ~urpose of parliamentary free speech is therefore quite clear; that But there are certain rights whlch ar.e better abused than cur· it serve the function of Congi-ess, and primarily this function is ,, tailed. the making of laws. When th.Ur pu't'p()se is obvioUBly 0 1t0t served An example is the immunity of nf.wspapermen against com· and yet thB pri1111ege i8 made use of, there is Gt& abuse of the pulsion to reveal the source of their news. No doubt, this right privilege, Now when there is such an abuse, although the member has been abused by some. But the consequent evil if this right is yet protectl!!d from accountability outside the House, he - be- js curtailed is greater, much greater, than to make allowance for comes answerable to the House itself for conduct unb'ecomi1ig a. its occasional abuse. member thereof. Consider the predicament of every member of Congress, iesThis is, fin:t of all,' common sense. Congress must have auth- peeially those who are in the minority, if the Osrneiia ease wene ority over its own members to ensure that they conduct themaelves to be established as a pr.ecedent. Each one of us will have to with dignity and decorum. The members cannot have rights and weigh every sentence, every phrase and every word that we utter privileges superior to those of the body of which they are only in the floor of Congress. We in the minority will· especially be members, The body r1'.les the members. The members are no- most careful in saying anything that might hurt the sensibilities thing exrept in relation to the body. When a member so behaves of the Pi:esidient of the land, whose tremendous powers give him that he brings shame to the House, the House is in its right a commanding influence upon the members of Congress. For if t~ protect itself .by punishing the culprit. To assert otherwise we should attack him, h8 can make him weight bear upon our is to enco111rage disorder and anarchy in Congress, and soonr?r or Colleagues to punish and suspend us-and, after accomplishing bis later the degradation of that body, and ultimately, the very des· . purpom, give those who. meekly bowed to his desire an "appreeiatraction of the privileg19 which is claimed to be defended. If we tion banquet" at the Lapu-Lapu. were to decide today that a Representative or a Senator may in And the most tormenting aspect of the siti;.ation is that we Congress state .any thing at all that be may please-gossip, libel, will be investigated, judged and punished· by our own prosecu· slander, treason, obscenity-what value do you suppose would still tors. This was what happened to Congressman Osmeiia who was 8.ttaeh to "privilege speeches" twenty years from today? They invieatigated by a 15-man committee, eleven (11) of whom were would be completieJy discredited and despised and Congress would members of the paity that expelle.d him; nn'd condemned by the (Continued nezt page) (Continued ne:i::t page) CONG. OCAMPO ••• (See note to People vs. King, 48 A.L.R. 74'1). To my way of thinking, a speech on the floor of the House can be ablA.sive only if, apart from the resentment of those thereby offeuded, it goes abso1utely beyond the range of the legislative function. For then, the offending member ceases to be a repreaentative of the people, in which capacity they have clothed him with the immunity, the better to :represent and protect their in. ......... We have largely patterned our Constitution from the Constitution of the United States and the various states thereof. Section 5 of the Federal Constitution provides: "Each House may determine the rules of its proceedings, punish its Members for disorderly behavior, and, with the Concurrence of two thirds, expel a Member." Section 6 provides: "x x x, and for any speech or debate in either House, they (Senators and Representatives) ahall not be questioned in any other place." The Federal Supreme Court had occasion to trace the BOla'ce of the foregoing provisions in 1880 in Kilborn vs. Thompson, 103 U.S. 168, saying that "While the framers of the Constitution did not adopt the le~ et oonBU6tudo of the English Parliament, as a whole, they did incorporate sueh parts of it, and with it such privileps of Parliament, as they thought proper to be applied to the two Houees of Congreaa." The Court then referred with approval to the illuminating discussion of the Supreme Court of Massachusetts in the early ease of Coffin vs. Coffin, 4 Mass. 1, tleeided in 1808. In this case the Cot.rt said: "In considering this article, it appears to me that the privilegie secured by it is not so much the privilege of the House as an organized body, as of each individual member composing it, who is entitled to this privilege, even against the dieelared will of the house. For he does not hold thi-8 pri.. vikge at the pleasure oi this house, but <krives it from the will of the people, ezpressed in the co1t8titution, which is ~ mount to the will of either of both branches of legislature. In this respect, the privileg1e here secured resembles other privileges attached to each member by another part of the constitution, by which he is exempted from arrest on means (or original) precess duing his going to, returning from, or attending the General Court. Of theae privite11es,. tlhus seaured to e.ack 1fl,.6mber, luJ cannot be deprived by a 1"esotn of the house, or by itm a.ot of legialature. "These privileges are thus secured, not with the intention: of protecting the members against prosecution for their own benefit, but to support the rights cf the people, bj enabling their representatives to execute the func;tions cf their office without fear of prosecutions, civil or criminal." (Continued nezt page) LAWYERS JOURNAL September SO, 1960 SEN. TA1'/ADA ... be turned to little more than a fish ma1·ket. But, you may retort, :worse speeches have been uttered in the past, on the very same floor of Congree. I ask you then, in turn: Does not this fact, which is, unfortunately, too true, have some bearing as well on that other fact, also unfort10.11ately, too true, the fact of the diminishing esteem ovel' the years that our people have held for Con..,...? This is, secondly, parliamenta1·y practise and tradition. As early as the sixteenth century, the Speaker's Petition on behalf of the House before the opening of Parliament in England, after "laying claim by humble Petition to His Majesty to all their ancient and undoubted rights and privileges; especially to fl'e-dom pf speech in debate ... " proceeded to qualify this with the words, "that if any should chance of that lower Ho&.se to offend or not to d'o or say as should become him or if any should offend any of them being called to that his highness court: tlhat they themBt!l-ves might (according to 1Jhe ancie-nt cu.stoms) ha.-ve the r>uniahment of them." (Sir Thomas· Smith.: De Republiea Anglorum; p. 60) . This was confirmed in 1621 when the Commons, in a protestation against claims of the King of England, affirmed that "every Member had freedom from all impeachment, imprisonnfent or molestation, other "Ohan by censure of th.e House itself, for or concerning any bill, speaking, reasoning, 01· dteclaring of any matter or matters touching the Parliament o:r Parliamentary busiqess." It is, finally, settled jurisprudence of at least thl'ffl and a half centuries standing. I call your attention again to the last part of the Speaker's Petition in the 16th century: " ... that they themselves (the House itself) might (according to the ancient cusloms) have the punishment of them." On this sarne point, Sir Thomas Erskine May, whom I have before cited, in his "Treatise of the Law, PriYileges, Proceedings, and Usa~ of Pal.'liament" remarks, "But this freedom from external influence or interference :does not invol'fte any unrestrainE:d license of speech '\\-ithin the walls of the House . . . The oases in which members hiwe been called to account and pu:nished fO'I' offensive words spoken before the House Ora too numerous to mention. Some have been •dmonished, others imprisoned, and in the Commons, some have Peen expelled ... " (underscoring supplied). Lord Campion, for eleven years Clerk of the House of Commons, writes, "Freedom of speech has been one of the m.ost cher· ished privileges of parliament from early times . . . S&.eh a privilege is essential to the independence of parliament and to the (Continued nezt page) CONG. OCAMPO ••• Admitb>..dly as may be gleaned from the foregoing passages, the privilege of speech and debate is primarily intended to protect a lawmaker from civil or criminal prosecution for whatever he may say in the exercise thereof, thereby enabling him to discharge his legislative functions with firmness and s1'.ccess. He n:iay defame; he may incite people and cct1leagues to sedition or even to revolution and treason; but ht.. c-.nnot be held accountable in the courts unless, as the l<'ederal Supreme Court intimated in Kilborn vs. Thompson, "we could suppore the member& of these bodies so far to forget their high functions and the noble instrument under Which they act as to imitate the Long Parliament in the execution of the Chief Magistrate of the Nation, or to follow the example of the French Assembly in assuming the f&nction of a court for capital punishment." But while the primary purpose of the frE:edom of speech and debate is to shelter a m.ember of Congress againsi civil or criminal harassment outside of it, it does ·not follow that either House may ·take or curtail it in the exercise of their power to punish for dis~ .orderly behavior. Here, I submit, a distinction, must be made. When a member of Congress in a speech 'or debate on the floor disparages, reviles or maligns another person, whether a co-member or not, for no other purpose than to satisfy his rage or feeling of hate, he ceases to discharge the high functions of his SEN. RODRIGO ..• members of the House, an overwhelming majority of vrhom could n~t afford to defy the wishes of the presklent who happens to wield the powers that can build or destroy their political fortunes. The very penalty itself imposed upon Congressman Osmeiia is the most eloquient proof of the arbitrary abuse of the "power to punish a member." Suspemion /of" fiftUn months. Why fif· teen months? This is most unnatural. One month, six months or one year is natural-bu.t not fifteen months. • Is it perhaps because there are fifteen members Of the committee, and they allocated the punishment among themselves at one month per member? This is ridiculous. The only plausible reason for this extraorttinary period of suspension is to- completely .deprive Congressman Osmeiia, whose suspension is up to October 1961 (a month before elections), of any chance to attend any subsequent session of Congress, whethrn- regular or special, and thereby in· sure that he is not afforded a chance to- deliver another "Message to Garcia". I honestly have not come across a more patent ease of muzzling a representative of the people. To come back to the point, Senator Taiiada who waxed eloquent about his concern over indh'idr..al abuses of "parliamentary immunity" seems to have ignored the more serious abus.es by a regimented majority controlled by a vindictive president. I should not leave this point without giving you the following quotations from the book "Constitution of the Philiiipines" by Taiiada and Fernando: ' "What was deemed even more significant by Justice Frankfurter was that the legislative freedom was so C&l'lefulty protected by the framers of the constitution at a time when Jefferson impressed fear of legislative excess." (Tenney v. Brandhove, 341 U.S. 86'7); Taii.ada and Fernando, Vol. II, 8'71. "In order to enable and encourage a representative of the public to discharge his p1'.blic trust with firmness and success, it is indispensably necessary that he should enjoy the fullest liberty of speech, and that he should be protect;.. ed from the resentment of every one, however powerf\ll, ·to whom the exercise of that liberty may occasion offense." (Ten1;1ey v. Brandhove, supra) Taii.ada and Fernando, Vol. II, a1i. "To paraphrase a leading case in point,. this particular provision ought not to be construed strictly but liberally, that the full design of it may be answered." Taiiada and Fernando, Vol. II 8'72 (paraphrasing· Coffin v. Coffin, 4 (Continued~ page 26'7) office, and while he may not be held to account by the offended party outside Congress, he is amenable to the disciplinary power of the House to which he belongs for his abuse of the priviL?-ge, amounting to disorderly behavior. But when M 1Weaks on a. ma.tt61" that is within. the 1't11rtf/e of legislMion, or upo,; which the legislati-ve proceBB may be oalled upon to opera.ts, kia s,,,eech may oc:caaion o/fenae to others, ma.g di8pt11raga or f"evile or ma.Mgti. thEl'n!i end yet his collf/tlgues in· tM House may not ccmstitutiO?Uilly puni.sk him. The reason is obvious. The purpo!e of parliamen,tary immunity would be ·defeated if a Senator or Congressman, while free from harassing actions in courts for their legislative utterances, are to labor under constant ftear or apprehension that their colleagues in Congress could 'substit1'.te a more punitive measure in the form of punishment or expulsion. The freedom of speech and debate would be a myth. No ()'1116 1taB e'VM" believed or asserted Chat the duties of II lawmaker reqUire him to back up AJery th1'ng ks sa.ys in speech 01' dsba.te with e1litlen.ce that can sta11d be.fore a. court or ang impa.rtial body. He '71Ully h~e IJ.nf()f"IYl4fMra &f an. e"lril Pf#"• pehted by public officialJJ, f"eqtti:ri'lfl/1 lsgiala.tive CO'l'f"ection or a,o. tion, but doe11 not at tM moment possess enough fWOO'f tha-t ca.ti sa.risf'll a.n unbiased mind. n i.s his right, 111''11· his duty, to bring th.et 007!dition of a,f/fJ.if"s to the attention of hia ooUeagues so that (Continued ne:tt pa.gs) "Sc".'.Ptember 80, · 1960 LAWYERS :rouRNAL ·aes SEN. TARADA , , , protection of members of the discharge of their duties, But, while it protects memb2rs from molestation elsewhere, it leaves them open to censure or other punishment by the House it.self whenever they abuse their privilege and transgress the rules of orderly debate." In another work, the same author repeats, "A member remains accountable to the House itself for words spoken in debate. In old days members were punished by imprisonment and even expu1sion. Now the milder penalties provided by the Rules of the House (i.e., s&.Spension, admonition, reprim&nd) usually suffice . . . " In the Encyclopaedia of Parliament (written by Norman Wit· ding and Philip Laundy, Casaell & Co., 1955), we read, 11The iinportanee of the privilege today lies in the immunity it confers upon t:he Members of Parliament from the laws of slander. All members &lie, ho~ever, subject to the discipline of the House itself and it is their bounden duty not to abuse the privilege." In 'the British Approach to ;E'olitics,'' written by Michaei Stewart, (George Allen and' Unwin Ltd., 1956): "Offensive expressiOns are forbidden and the natural rules of civilized debatie must be observed.'' In "A Parliamentary Dictionary" prepared by L .. A. Abraham, Principal Clerk of Committees, House of Commons and S. C. ltawtrey, Senior Clerk in the Journal Office, House of Commons: "The :right of freedom of speech does not mean that a member can say anything he likes in the House whenever he likes, . : "; "niembers are .expected to observe moderation of langLage in de-, ·bate, and a number of, words and expressions have at various times been decided by the Speaker to be "unparliamentary ... "; ; "the use Of unparliamentary languillge leads to an immediate de-. mand by the chair for a withdrawal; and a refusal on the part of J the member to comply with such a demand is a aeriou.s breach of: order." (Italics supplied). In ''What Goes on BeJ11eath Big Ben," Charles Bateman, Chief Of the Parliamentary Staff of "Daily Telegraph" and Past Chairman of the Press Gallery and of the Lobby Journalists, observes: "Ii does not follow that personal comment is completely unbridled. The Commons has its own code of good manners and fair play ... " American authorities to the same effect are not lacking. In Cochran v. Couzens (42 F. 2nd 783), which has been cited in Mr. Osmeiia's own .defense, the Supreme Court of the United States after expo1:...n.ding the basis of the rule of immunity granted members of the U.nited States Congress, concludes "The (Constitt.tioCONG. OCAMPO ••• remedial measures mag be taken. It is for the Precise purpose of determining the solid basis foll wise legislation that tluJ pow.r of legislati"'ve inquirt1, with corresponding power to punish for contempt, Ma been. recognfaed to b.e an indispensable pa;rt of t1te legislative fu:nction. In that inquiry, the Congress or either House tbereof, will have full occasion to find out the existence or non· Gxistenee of the evil so1.0ght to hie remedied or prevented. If the faets gathered or brought out do not warrant any legislative actiOn, the matter will be dropped. But has angmz• oonceived that the Senator or Congressman who initiated the inquiry 1·endera himaelf pu:nisluible by his coUeaguee for ff'Jil1we to prove his cl!Drgea nr the truth- of hUI i£nformat-Wn? The Constitution provides for the removal of the President, Vice President, members of the Supreme Court, members of the Commission on Elections, and the Auditor General only by impeachment on certain specified grounds, among which is bribery. On the House of Representatives is lodged the power of initiating the proceeding by adopting the articles of impeachment, While on the Senate is lodged th.e power of sitting in judgment of the ae-cused. While impeachment proceedings do not involve the making Of any law, ~y are nevertheless a part of the legislative function under the Constitution. If a member of fhe House in apeeoh or debate oh;a,rg.ea an im.peacluible official of the Republic with bribe.,,, on informati01& recf'ivsd from constituents or frisnda, witho-...t proof on hand. at the nal) provision is, therefore, grounded on public policy and should be liberally construed" but in the next sentence, the Court takies care to point out that, "Presumably legislators will be restrained in the e»ercise of such privilege by the responsibilities of their office. Moreov6'', in the event of their failure in that regard, th61} will be subject to discipline by theiir colleagues.'' (Emphasis sup. plied.) In Barsky v. U.S. (167 F .2nd 250), also cited in Mr. Osmeiia's defense, the Court indicates two possible remedies against abues of Congressional privileges committed either individually or by committees, remedies which the Court declared were available without violation of the rule of absolute immunity outside Congmss, thus: "The remedy for unseemly conduct, if any, by Committees of Congress, is for Congress or for the people; it is political and not judicial." The Court then cited the ruling of Mr. Justice Frankfurter in U.S. v. Lovett (328 U.S. 303) who in tun was citing the famed American jurist, Oliver Wendel Holmes in his decision in Missouri K. & T. Ry. of Texas v. May, (1944 US 267). Mr. Justice Holmes' words have a particular relevanae to the Pftsent case where the abuse of a privilege has resulted in injury to the good name of a citizen, indeed several citizens of this Republic. Mr. Holmes wrote, "It must be remembered that legi.slaturea atre ultimate 0Ua.rdiat1a of tlie libet"tiea atld U!!tlfri,n of thtt people in quite as great a degree as the courts." This then is the conclusion we mt>St draw: Every Senator and dveey Representative is confessedly immune, and immune abs~ lutely, from liability outside of Congress for anything he may do or say in Congress. But because, this immunity is not granted capriciously, but for a purpose, the immunity can be abused, as when it ia availed of purely for personc.t pa.rtiaan. e7UlB wr~iclr. luwe no honest -relation to the legislative prOoe88 rw the ends of good goveni.menO and, particularly, when. this abu86 does mjtl;f'JI t.l the chmraoter of otke1- J)eraona. In such caa.os, the House concerned bas all the right to correct the abuse and discipline the erring Member to maintain the dignity of its proceedings and preserve its own good name, and this correction may take place e\"en after the abuse has already been committr.d and constlm· mated, because the purpose of the disciplnie is not merely preventive but ,cornective and exemplary to enst-.re that no similar abuses arc ·repeated in the future. (Jurney v. MacCracken, App. D.C. 66 S. C~ 876). But may not this autho1ity of the House to punish members {Continued nft:t page) moment, he ce-rtainl11 ezercisea a part of thfi kgiala.tive /unction, and his actuation. c:unnot be considered abusive. He may be asked 01· required by the House to submit the proofs be has, and it is his duty to co-operate. But it is a very dangerous doctrine to h(lld that if he fails to prove his chargq he may be punished or (ll:pelled as for disorderly behRvior. If this were the rule, minorit:r memlr-rs of both Houses of Congress would have to be certain at every instance that for everything they say 011: the floor, that may reflect on others, they have admissible proofs to show the truth. The parliamentary right of speech and 'debate had not been conceimd in that light. Who is to judge whether a langua~ used in speech or debate is profane, obscene or ab~ive? ()f course, the chamber itself whem it is delivered. And as Judge Cooley said, "the courts cannot inquire into the justice of the decision, or even so much as examine the proceedings to see whether or not the proper opportunity for defense was furnished." This exclusive power of decision would all the more counsel us to go slow in Ia:ring down a precedent that can be easily abused. After all, as Justice Malcolm once said, "The interest of society and the maintenance of good government cll?mand a f&.11 discussion of public affairs .. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incisio-n of its probe :nelieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust accusation; the wound can ~ assuaged. with the balm of a clear conscience." # LAWYERS JOURNAL September 80, 1960 SEN. TARADA ••• be itself abused so as effectively to nullify the freedom of speech and debate of members beJonging, let us say, to the nu"nority? This is, of course, possible. But it is possibility we must accept under the scheme of government that we have adopted, under which each branch of governmient is supreme in its own sphere. It has rightly been written, " ... that each House has exclusive jurisdiction' over its own internal proceedings , . . and though the courts do not consider that the decisions of the Houses are binding on them, they admit that no appeal lies to them from the decision of either Ho1'Se that a given act constitutes a breach of its privileges ... To this extent, therefore, each House is the sole judge of its privileges, .. " ( Parliamentary Dictionary, pp. 146-147). The House ~s hence the "sole judge of its privileges" and in judging these, it may indeed abuse its authority. But will it in faet do so? I personally have the strong feeling about Congress that, though it may be compos~ of sometimes ~edifying' personalities, when acting together as a body, it becomes invested with. a dignity and a good sense which makes thle possibility of this abuse remote. We might as well argue-in a similar vein -that Congress can pass a law which, though quite constitutional, is grievously injurious to the country. This would be well within the legislative powers of Congress. But has Congress ever passed such an obviously bad law, or allowed such a law to remain long on its statute books? Another point we might take into acco1'.nt is that Congress 'itself is accountable to' one last authority, the sovereign people who can "'lmy effectively, through the polls, express their displeasure over any such abuses that may be committed by Congress as a body and punish the political party responsible for such abuses. But now, consider on the other hand the poS11ible, .even probable, consequences of allowing Congressmen a wholly untra111meled freedom of speech. What is to stop one Member from taking the floor one day and directing calumnies against a bitter personal or political enemy, who might be the President of the country, or an ordinary citizen? Or what is to preve:nt him from uttering obscenities or otherwise making a mockery and a ridicule of what ought, after all, to be the august and noble institution of Congress? Can this be covered by the congressional privilege of speech and debate? Those who would uphold the pdviLege by claiming for it a total immunity do it a great disservice in fact, because in effect they defend its abuse and nothing hastens the ultimate destruction of a right more effectively than its aburie. I should like to c011clude this speech by reflecting briefly on the nature of a privilege in general. The idea of a privilege seems to connote a certain distinction, a recognition of a certain loftiness in a person, a certain aristocracy, Privileges are conferred on men because they are adjudged' worthy to carry those privileges with honor and good graae, to bep true to them in word and deed and spirit. The great parliamentary privileges bestowed upon Senators and Representatives..:....like tbie fl'eedom of speeeh and debate we have here discussed at some length, an'i freedom from arrest during mssi011s-refleet some of the most vital principles of our system of politics and governmertl. They are vested in preswnably select men and women. They are given or perhaps more exactly, lent,-to grace the person while he holds a very high office, to invest him with the dignity and authority required by the nature Of his responsibilties. On matters of such high moment, it seems rash to quibble over words or fret over legalistic interpretations that take no account of their larger implications. We c&nnot agree that the great and historic privilege of .free meant to be a cloak to conceal or protect ill vrill and foul play, to defend personal jealousies or to abet vulgarity in speech. or conduct. All is not fair, after all, in love or war or politics. Decent men expect and demand gallantry and fair play even in the "sordid" field of politics, Criticism of one's political opponents must be just and reasonable,-accusations must be supported by proofs. Politics cannot simply mean a battle of wild words and wilder chargies. There are rt:Jes to be followed, decencies ·to be observed. There is room in this "sordid;, game .for honor and chivalry. If there were not, then the successful politician would have to be the man who whips up the baser passions of people by hurling spectacular charges he can never prove, crying scandal and doom but offering nothing substa.ntial as an alternatiV'e policy 01· program of government. Thie man is 1t0 cntsader, for G cnr.sader fights with. cle<tn k4nds and a clean -rwiml, nor a m.cwtvr f<W a. ma.rtlyr auffera, Bnd is 'Y'M'el1/ a. populM hero at the moment of hie mart11rdom. Suck a. man is no atatesma.n. He is ;uat a deo mJJ,gogue. If this is the only way to fiJht i'raft and corruption in the government today, then I believe you and I can not enlist in this fight. The problems of our country are numerous ienough and mortifying enough for aiiy sensible citizen to want to add to them the other problems that demagoguery must sooner or lat.er bring in its train-Uke mass bewilderment and loss of coilfidenC'EI in the democratic processes, a general disgust and disenchantment with government as a whole. When a man consciously and deliberately pretio..nds to fight graft and corruption in this fashion, aware of its possible consequences, then is he really fighting graft and conuption or merely fighting his ovm personal struggle for political power? But there is another way to fight governmental graft "aitU t."Orruption, It is the long way, the tediot.S, undramatic way. But it is the just way; the way of democracy, the way of due process-charges precisely if unapecta.cu!Grty made, proofs presenbed. a fair hearing and a judgment on the merits. We ~an understand the impatience of our people for clean government. We have not had it before we became independent. We do not have it now. But having chosen, at tht birth of our nation, the way of freedom and democracy, we -are under grtt.ve obligatibn to submit St al11 times but most specially in ·trying Olm.es, to submit, I repeat, to the long and tedious and 1'll.dramatic processes of fno..edom and democracy. It is the very length and tediousness and sobriety of these processes that assu1" us their justicej_ustice, which is at the very basis of freedom.-# SEN. RODRIGO. • • (Continued from pa,ge 266) Mass. 1) 7'he Remi.ed11 Senator Taiiada claimed in his speech that, unless Congress itself disciplines its members who abu.sc their parliamentaey pri· vilege, the members Of Congress might run riot and ultin\ately destroy the prestige of Congress. This. is not qt;.ite accurate to my mind. First of all, the erring member can be put to shame right on the floor of CongrP.ss by his colleagues who can call him down for hiR improper and unRavory remarks. Secondly, the m~mbers of our vigilant press can and will expose and ca&tigate him before the people. Thirdly; our people themselves will resent his remarks and penalize him by denying him their votes, if they believe that what he said is ir.justified-like they did to Congressman Bengzon after he hurled a scurrilous charge against the late President Magsaysay. In brief, the safeguard ap.inst such abuses, within the framework of our constitutional democracy, is what Justice Frankfurter said in the case of Tenney vs. Brandhove, 841 U.S. 867 (quoted in Constitution of the Philippines by Taii.•da and Fernando, Vol. II, p. 8'76): "Self-discipline and the vote"rs must be the ulti·mate reliance for discouraging or· correcting such abuses." s.ptember·.80, · 1960 LAWYERS JOURNAL UNITED STATES SUPREME COURT Advance Opinion OHIO EX REL. EATON, Appellant, v PRICE, Chief of Police -US-, 4 L ed 2d 1708, 80 S Ct(No. 30) Argued April 19, 196(). Decided June 27, 1960. SUlllMARY The a'ppellant was committed. to jail, to wait trial on charges M having violated an Ohio municipal ordinance authorizing housing inspectors, upon sh1>wing appropriate identification, to enter dwellings and requiring the owners or occupants to give· such inspectors free access tQ the dWellings. The Ohio Common Pleas Court, finding the ordinance unconstitutional, discharged appellant from custody; but the Cou'rt of Appeals of Ohio reversed (105 O~io App 376, 6 0 Ops Zd 168, 152 NE2d 776), and its judgment was upheld by the Supreme Court of Ohio. (168 Ohio St 123, 6 0 Ops 2nd 377, 161 NE2d 628.) On appeal, the Supreme Court of the United States affirmed by an equally divided court. BRENNAN, J., with the concurrence of WARREN, Ch. J., and BLACK and DOUGLAS, JJ., expreHed the view that thP. ordinance was unconstitUtional. HEAD NOTES Classified to U.S. Supreme Court Digest, Annotated Search and Seizure sec. 25--Warrant-house inspection. 1. Judgment of the Supreme Court of Ohio holding that a constitutional provision prohibiting unreasonable searches and seizures was not violated by a municipal ordinance authorizing· a housing inspector to make inspections of dwellings and requiring the owner or occup8nt, on pain of penalties, to give the inspecto?' free access to the dwelling, without a warrant, affirmed by an equally divided court, Courts sec. 772--;-precedenta--eqnal division. 2. A judgment of the Supreme Court of the United States rendered by an equally divided court is without force as precedent. (From separate opinion by Brennan, .J., Warren, Cb. J., and Black and Douglas, JJ.) Courts sec. 77i-precedenta--divided court. 8: A single decision of the Supreme Court of the United States, by a clQsely divided court, unsupported by tho confirmation of time, cannot check the course of constit:itional o.djudication in the court. (From separate opinion by Drennan, Jr., Warren, Ch. J., and Black and Douglas, JJ.) APPEARANCES OF COUNSEL Greene Chandler Furman and Elbert E. Blakely argued the cause for appellant. Charier S. Rhyne and Joseph P. Duffy argued tho cause for appellee. OPINION OF THE COURT Per Curiam.. The jUdgment is affirmed by an equa11y divided Court. Mr. Justice Stewart took no part in the consideration decision of this case, SEPARATE OPINION Mr. Justice Brennan, with whom The Chief Justice, Mr. Justke Black, and Mr. Justice Dougku join. The judgment of the Ohio Supreme Court in th;s is being affirmed ex necessitate, by an equaJly divided Coul't. Four of the Justices participating are of opinion that the judgment should be affirmed, while we four think it should be reversed. <\ccordingly, the judgment is without force aa precedent. The Ant;i!Jope (US) 10 Wheat 66, 126 6 L ed 268, 282; Etting v Bank of United States (US) 11 Wheat 59, 78, 6 L. ed 419, 423. In such circumstances, as those leading cases indicate. the usual practice is not tn express any opinion, for such an expression is unuecessary where nothing is settled. But in this case even before the cause was argued, four Justices made public record of their votes to affinn the judgment, and their b8sis therefor. 360 US 246, 248, z.49. These four Justices stated that they· were "of the vie\V that this case is. controlled by, and should be affirmed on tbc authority of Frank v. Maryland, 359 U. S. 360." Their opinion further states that they deemed "the decision in the Maryland case io be com· p1eted controlling upon the Ohio decision." In a longer t•pinion, one of the four Justices developed his views on the merits further. 360 US, at 249, 250. The usual practice of not expressing opinions upon an equal division has the Salutary force of preventing the identification of the Justices holding the differing views as to the issue, and this may weU enable the next case presenting it to be approached with less commitment. But the action we have described prevents this from being the case here; and so the reasnn for the usual practice is not applicable. Accordingly, since argu'rnent has been had, and votes on the merib are now in order, we express our opinion. This case involves Earl Taylor, who is in his sixties and bas been working at his trade of plumber for 40 years, and the home at 180 Henry Street, in Dayton, Ohio, which he and his wife bought and in which they have lived for over a decade. He describes it as a little cottage, all on one floor, with a front room and a middle room, two bedrooms, a dining room and a little utility room, and a bathroom and little kitchen at the back. What was evidently Taylor's first involvement with the criminal law occurred in this fashion. One day three men who were housing inspectors came to his door, and said they wanted to come in the house and go through the house and inspect the inside of the house. They had no credentials, only a sheet of yellow note paper, and Taylor said to them, "You have nothing to show me you have got a right to go through my house." The response was, ••we don't have to have, according to the law passed four years ago." Replied "faylor, "That don't show me that you got anything in there that you want for inspection, and, further, I don't have nothing in my ho&ae that has to be inspected." The man said, "Well, you know, according to this ordinance, that we got a right to go through your house and inspect your house." "No, I don't think yon h::.ve, unless you got a search warrant," answered Taylor. This. has been his position ever since, and it is the issue that divides us. The men went away, but later there was a second attempt to gain access to Taylor's house, and a telephone call to the same end. Taylor said, "I don't see what right that you got coming into my house. Until you show me in writing, or some kind of facts, that you got a right to come· into my house and inspect the house, l will not let you in." The third time the men eame~ there were two of them. One had some sort of credential with a photo on it. Neither had a warrant of any kind. One said the housing in11opector wanted to inspect Taylor's house. Taylor said, "What do you have in there that you want to inspect? l have nothing in my house for inspection." He was told: "We have a right to come in your house, go through your house, inspect the whole inside of your house." Taylor's reaction to this was: "You have nothing wrote down on paper. You don't have a thing to show me you are going to come in there to inspect anything, and as far as that goes you aren't coming in unle11s you ha\•e a search warrant to get in." The men never came back with a search warrant, but as they left, one said. "If you ain't going to let us in, we are entitled to get tn, and if you don't let us in, I am going to leave it up to the prosecutor." Whereupon Taylor said: ''I don't care what you do. You aren't coming in." Taylor later LAWYERS JOURNAL September SO, 1960 testified that then the man "walked over and got in his car and that was the end of it!' But it was not. Taylor and his wife each received through the mail a registered letter from the city p1·osecutor, notifying them to appear at his office to answer a complaint ag:iinst them. They did not appear; whereupon the police came to Taylor's home, and finally served him with a warrant-a warrant to appear in court to 8.nswer criminal charges brought against him for failing to admit the inspectors to his home. He appeared in court and was held for trial; and not being then able to make bond of $1,000, he was committed to jail, to a.wait ti·ial on the charges, which could have resulted in a fine of ~200 and . an incarceration of. 30 days for each day's recalcitrance. One Eaton, al'I. attorney, filed a petition for habeas corpus on Taylor's behalf in the State Common Pleas Court. The Common Pleas Court found the ordinance' unco~stitqtional, and discharged Taylor from custody; but the Court of Appeals reversed, 105 Ohio App 376, 6 Ohio Ops 2:d 1953, 162 NE2d 776, and its judgment was upheld by the Ohio Supreme Court. 168 Ohio St 123, 6 Ohio Ops 2d 377, 151 NE2d 628. We noted probabl9 jurisdiction. 360 US 246, 3 L ed 2'd 120fl, 79 S Ct 978. The municipal ordinance in question provides numerous requirements for dwellings, deemed by the city to be appropriate in thP. interests of the public health, safety and comfort. Several of the requirements apply to private dwelling houses, :meh :?.s_ the Taylors. None of these requirements is at all questioned here. What is questioned is the ordinance provision, Code of General Ordinances 806-30, auth'orizing the Housing Inspector to enter at any reasonable hour any dwelling whatsoever, and commanding the owner or occupant to give him free access at any reaMnab1c hour for the purpose of his inspection. It was armed with the naked authority of this provision, and not with any warrant (the ordinance pi-ovides for none) that the inspectors approach<'d Taylor's door, even after he had made clear to them his int·.:::nt not• tn admit them on this basis. Neither before a magistrate empowered to issue warrants,· nor in this proceeding, have the inspecto1·s offered any justification for their entry. They have not !hown any probable cause for grounds to believe that a prescribed c'lndition existed within the cottage, or even that they had suspicion or complaint thereof. They have not shown that they desired to tnak~ the inspection in pursuance of a regular, routinized spot check of individual homes, or in pursuance of a planned blanket cheek of all the homes in a particular neighborhood, or the like. Thes~ might be said to be the usual reasons which would impel inspectors to seek to gain admittance to a private dwelling; but none of them is shown by the record to have been present. Most sig· nificantly, on the initial recalcitrance of Taylor, the inRpectol'ff were not required to, and did nOt, repair before any independent magistrate to demonstrate to him their reasons for wanting to gain access to Taylor's- cottage, and to obtain his warrant for their entry-the authorization on which Taylor was insisting. The judgment below is, on this record, bottomed on the proposition that the inspectors have the right to enter a private dwelling, and the householder can· be bounCl under criminal penaltie:i to admit tbeni, though there is demonstration neither of reason to believe there exists an improper condition within the dwelling, nor of the existence of any· plan of inspection, apart from such a belief, which would includ,e the inspection of the dwelling in question. We think that affirmance of this judgment would reduce the protection of the householder "against unreasonable searches" to the vanishing point. In support of the judgment below, much reli'ance at the bar ha's 'been put on Frank v. Maryland, 369 US 860, 3 L ed 2d 877, 79 S Ct 804. We wo'uld not be candid to say that on its own facts we have become reconci1ed to that judgment. To us, it remains "the dubious pronouncement of & gravely divided Court." Cooper v Aaron, 868 US 1, 24, 8 I~ ed 2d 6, 22, 78 S Ct 1401 (conCurrlng opinion). "A single decision, by & closely divided cOurt, unsupported by the confirmation of time, cannot check" the course ol constitutional adjudication here. See Kovacs v Cooper, 336 US 77, 89, 93 L ed 613, 623, 69 S Ct 448, 11> ALR.2d 608 (concurring opinion). We continue to go with Judge Prettyman ju District of Columbia v Little, 86 App DC' 242, 178 F2d 13, 17, 13 ALR2d 964, affd on other grounds 339 US 1, 9-l L ed 699, 70 S Ct 468, that: "To say that a ·man suspected of erime1has a right to protection against search of his home without a warrant, but that a man not suspected of crime has no such protection, is a fantastic absurdity." Nothing demonstrated in the Frank Case indicates otherwise to us. But the present case goes much further than Frank; and as to the reasonableness of searches, it has been stressed that factual differences may weight heavily. Go-Bart Importing Co. v United States, 282 US 844, 357, 76 L ed 374, 382, 61 S Ct 158. The search in Frank was for the nesting place of rats. There were ample grounds on the put of the inspecting of!ficer to believe its exis~nce in the house. There had been complaint of rats in the nei1rhborhood: and an extern=:.l inpeet'ion of the house jn question revealed that it was "in an extreme state of decay" and that behi~d it there was a pile llf "ri:odent feces mixed with straw and trash and debris to approximately half a ton." Sec 359 US, at 861. The case was decide•l by th:? narro,vHt 'of divisions; and one member of the majority found it necessarY to express in a concurring opinion that the sole purj)ose of the search was an attempt to "locate the habitat of disease--carrying rodentS known to be somewhere in the immediate area." 359 US, at 378. There was no case of a "systematic area-b:v-area rea.rch" before the Court, and although certain remarks were Dlade as applicable to such a search, 369 'GS, at 872', their charactm' as dicta is patent. Thus, even accepting the judgment in Frank, of snch expressions the classic langua.ge of Justice .Brandeis, dissenting in Jaybird Min. Co. v. Weir, 271 US 60l!i:.619, 70 T .. ed 1112, , 117, 48 S Ct 692, can be said again: "It is !;.~iar virtue of our system of law that the process of inclusiGn and, .exclusion,. s.o often employed in developing a rule, bi not allowed to end with its enunciation and that an expression in an opinion yi~ds la~ to the impact of facts ·unforeseen." In this case we pass beyond the aituati!Pn in Frank, where the in&:peetor was looking for a specific violation, an•l where he had, and was able to demonstrate, considerable grounds to believe it existed in Frank's house. Here it would appear frnm Taylor's testmfony that, even without a warrant, If a specific matter was cited to him by the inspector, he would ha"Ve permitted the inspection in that regard. On the cantrary, Frank's denial of access was described as based on "a rarely vo~ced denial of any official justification for seeking to enter his home." 869 US, at 366. There then was a specific demand for inspection, met by ~ refusal on the broadest of grounds. Here we have t.he most general of demands, supported herebt no particuh:.rized. justific11tion, either directed at· the conditions in Taylor's cottae:e, or in terms of Sl)me over-all systematic plan which would. include it. Thie is met not by an attitude of defiance, but by a request by the househalder that a spedffo authorization be furnished . him. Not a searr,h warrant, but a. criminal complaint is the upshot. We would g'!'Ossly tone down the protection afforded the householder by the Constitution were we to put an authoritative sanction on the judgment that . condemns his refusal. Milch argument is made of the need 9f the authorities to :P•Tform inspections on a "spnt check" or on an area-by-area basis. 11ae judgment below C8:11110t be said to present this p!"Oblem, be:cause tliere was no evidence that this in fact WRs what was being done; that the inapecton in. fact were proceeding according to a reasonable plan of' one sort· or· another; For all ·~at appears- h~fe. Bep-ber· 8 .. -19tl0 LAWYERS JOURNAli the inspectots could have been acting in accordance with no particular plan of spot checks or area-by-area. searches which could be justified as "reasonable," and which would gi·.1e probabte cause for entry; their action could have been1based on caprice or on personal or political spite. It hardly contradicts experience to suggeRt that the practical administration of local gon'l'llment in thia:.counf;ey can be infected with such motives. BuildillC' inspection ordinances can lend them~ves readily to such abuse. We do not at all say this to be the case here, and Taylor has made no proof of it, to be snre; but that simply points up the issue. The inspectors have not been required to make any justification for their entry. The judgment below upholds the charges as sufficient as based on a de~and for entry without any such justification. ·But if we :were to assume that the inspectors were proceeding .according to a plan, and even if evidence of the plan were put in at the trial, we think that the result should be the Mme. The time to make such justification' is not in the criminal proceeding, after· the householder has acted at his peril in denying access. The time to make it is in advance of prosecution, and the place before ~ magistrate empowered to issue ·warrants, which wjll put the l!Jeal of legitimacy-the seal the Constitution specifically provides <for-on. the demand of the inspectors, if indeed it is a reasonable one. Such a warrant need not be sought except where the hous~ holder does not consent. This is precisely the procedure follOwed by England in this particular area, see Public Health Act. 1986, 26 Geo 6, & 1 Edw 8~ c. 149, 287(2); and no cotnnlaint is heard that this stultifies enforcement there of the regulation of the public health and safety. Certainly with this procedure availabletbe Procedure of antecedent justification before a magistrate that i1 eentral to the Fourth Amendment, see McDonald v United ·States, 836 US 461, 456, 466, 92 L ed 163, 69 S Ct 191-there is no need to be ntisfied with lesser standards in this area. Cf. Dean Milk Co v Madison, 340 US 349, 95 L ed 329, 71 S Ct 295. The publie interest in the eleanli~ess and adeQuacy of the dwellinirt1 of the peonle is great. So too is the pt:.blie interest that the tools of counterfeiting an'd the p_araphernalia. of the illicit narcotics traffic not rem"i::in active. On an adequate .and appropriate !!bowing in partieular cases, the privacy of the home must bow hefOre these interests of· the p~blic. Btit none of these interests J.lrovides an op_en sesame to those Who enforce them. The Fourth Amendment's procedure establishes the way in which these general publie interest~ are to be brought into specific focus to require the individual 'houaeh'o1der to open bis door. It bas been suggested that if the Fourth Amedment's requirement of a sesreh warr.ant is aclmowled~ed to be applicable here, the result will be a R"eneral watering-down of the standards for the issuance of seareh warrants. Io~or it is said that since it is agreed that a. warrant for a health and safety inspection can be made on a showi~g quite different in kind from that which would, for example, justify a search tor narcotics, magistrates win become Jax· generally in issuing warrar.ts. The sUIZ'.:tested preventive for tti.is laxity is a drastic one: dispense with warrants for these inspections. We cannot believe that here it is necessary thus to bum down the house to roast the pig. To be sure, the showing that will justify a housing' inspction to cheek complumce with health and safety regulations is different from that which would justify a search for narcotics. But we should not !l.Ss.ume that magistrates will become so obtuse as not to bear this in mind. Seareh warrants to look for counterfeting equipment, f'>r example, are not issued on a showing of probable cause to believe the existence of an untaxed still. To each specific 'warrant, Rn appropriate specifie showing is necessary. This can scarcely be thought to tax the capacities of the magistrate. And of course where the rule prevai1s that evidence obtained in violation of the constitutional guarantee is not admisstble, there will be judicial review of the magistrate's action if the fruits of a search are tendered in evidence. Apart from the very si.gnjficant factual distinctions. prese~ted by this case from the Frank Case, there is another reason why we would re....-erse the judgment here. It has now become elear that the Frank decision may have turned in substantial part on the positing of a distinction between the affirmative gual'ant:v of privacy against official incursion raised by the Fourth Amendment against federal action, and that rAised by the Due Process Clause of the Fourteenth against state action. The concurring opinion of one of the majority in. that sharply divided decision indicates some coneern in that respect. 369 US, at 873. After the greatest eonsideration, this Court in Wolf v Colorado, '338 US 25, 27, 93 L ed 1782, 1786, 69 S Ct 1869, declared: .,The security of one's privacy against arbitrary intrusion by the pQlice-wbtch is at the core of the Fourth Amendment-is basic to a free society. It is therefore implicit .in the coneept of ordered liberty, and as sueh enforceable against the State through the Due Process Clause." It is now c]eat,: that part of the majority of the Court in the Frank case does not subscribe to the clear import of that statement. Elkins v. United States, 4 L ed 2d 1669, 16911. (dissenting opinion). But the Wolf statement continues to be the ' ruling. doctrine in this C.ourt. Elkins v. United States, 4 L ed 2d 1669.. The guarantees are of the same di~ension, matters (!f enforeement such as tbe exclusionary rule, aside. The classic d~bate on the import of the Fourteenth Amendment's Due Process Clause as to the applicability of the Bill of Rights to the States we submit, does not even involve the theory that the matter is one for the judges to solve on an ad hoc basil', aceording to their over-all reaetion to particular cases. Some of us have expressed the conviction that the preferable view of the Fourteenth Amendment is that it makes the guarantees of the Bill ' of Rights generally enforceable against "Qle States. See Adamson v. California, 382 US 46, 68, 91 L ed 1903, 1917, 67 S Ct 1672, 171 ALR 1223 (dissenting opinion). But to them", &s well as to us, who have neither accepted nor rejected that view, it is clear that the celebrated passage of Justice Cardozo's opinion in Palko . v. Conneeticut, 302 US 319, 323-326, 82 L ed 288, 290-292', 68 S Ct 149, can have no common ground :with the view of the Wolf 1Case tbat a minority of the Court now expounds.· And see Adamson v. California, supra (332! US at 86, 86, 89) (dissenting opinion). For the Palko opinion refers to "a process of absorption," 502 US,· at 326, of specific Bill of Rights guarantees in the Fourteenth Amendment's standard. It is not & license to the judiciary to administer a watered-down, subjective version of the individual guarantees of the Bill of Rights, when state cases come before us. To be snre, the eontrary view has been urged, occasionally with ~nccess; tbs right to eounsel was put on an ad hoe basis, Betfis v. Braily, 816 US 466, 86 L ed 1696, 62 S .ct 1262, despite what seems the clear implication to the contrary in Palko, 302 US, at 324; n.nd recently the surprising suggestion has even been made (never by the Court) that the freedom of speech and Qf the press may be secured by the Fourteenth Amendment with _less vigor than it is secured by the First. See Beauharnais v. Illinois, 848 US 250, 288, 96 L ed 919, 944, 72 S Ct 726 (dissenting opinion); Roth v. United States, 854 US 476, 605, 606, 1 L ed 2d 1498, l618, 1918, 77 St Ct 1804 (separate opinion); Smith v. California, 861 US 147, 169, 4 L ed 2d 206, 220, 80 S Ct 216 (separate opinion). In Elkins today we have rej€'cted such a -..:iew of the illirmativo guarantees of the Fourth Amendment. The opinion of the Court in Frank is very likely a produet of such a rejected approach. For that reason, even if it were on all foµrs with the present ease, It should not be followed, and the judgment below should be revenied. LAWYERS JOURNAL S'ejitember 80, 1960 SUPREME COURT DECISIONS M. B. Florentino & Co., Ltd., Petitiott.61", vs. Jok11.lo Tradi11.g Company, and Lipsett Pacific Cot'poration, Respondenta, G. R. No. L-8888, June 30, 1960, BARRERA, J, 1. CIVIL PROCEDURE; DEFAULT; APPEAL.-lt is a wellsettled rule that a defendant who has been declared in default loses not only his right to be heard in court, but alsll the right to appeal from the judgment on the merits. Since the defaulting defendant can not appeal from the decisfon, upon expiration of the period within which an appeal may be instituted, the decision as to him shall become final and executory and, even in case of appeal by the other defendantJ, shaJl remain undisturbed. ' 2. ID.; ID.; FINALITY OF JUDGMENT.-Th.e law gives even a defaulting party certain degree of protection in the sense that plaintiff, despite the absence of the defendant, is still required to s1,1bstantiate his allegations in the complaint and the court is directed to render judgment and grant relief as thus proved; but this rule can not override the cardinal principle regarding finality of judgment. 8. ID.; ID.; ID.-Where, as in the case at bar, the judg°ment rendered by the trial court jl.gainst a defaulting delendant has become finul and e'ecutocy, the appellate court is not justified in setting aside and modifying said judgment on the ground that the trial court erred in its appreciation of the evidence admitted during the hearing and overlooked certain proofs in favor of the defaulting def.endant. Dia:i & Baiga.s, for petitioners. J, A. Wal/son, fot' the respondents. DECISION This is a petition to revie• by certiorari the decision ol the Court of Appeals (in CA-G. R. No. 11848-R). In a complaint filed in the Court of First. Instance of La Union against Johnlo Trading Company (hereinafter referred to aa JOBNLO) and Lipsett Pacific Corporation (hereinafter referred to as LIPSETT), both foreign corporations doing business in the Philippines, M. B. Florentino & Co., Ltd. sought recovery from the former, under the first cause of action, the sum of Pl.\1,804.19, with legal interest thereon from August 18, 1949 until fu~ly paid, representing unpaid charges for the loading, hauling and stevedoring services allegedly rendered by plaintiff for said defendant pursuant to their contracUi of June 30, July 22, and Novembe::- 16, 1948. Under its second cause of action, plaintiff prayed for the rescission of the contract entered into by defendant corporations on October 3, 1949, by vittue of which JOHNLO sold, tranl!lerred and conveyed unto LIPSETr, its. sister corporation in consideration of the sum of Pl00.00, all its properties and equipment in tbs PbUippinos, it being charged that such contract was executed to defraud plaintiff and other creditors of JOHNLO. Pl,intiff also claimed for damages, allegedly suffered by reason of JOHNLO's refusal to pay the charges due the said company, amounting to Pl0,000.00, and for attomey's fe·es in the sum of P2,000.00. Defendant LIPSETI' timely filed an answer denying the allegations in both the firs.t and second causes of action. Defendant JOHNLO, however, which was served summons through Charles T. Balcoff, failed to file an anew.er and upon plaintiff's motion was declared in default. Said defendant's motion to lift the order of default having been denied, the question of the regularity and sufficiency of the service of summons on Charles T. Balcoff, who disclaimed being JOHNLO's representative or agent in the Philippines, was raised before this C!Jurt in a petition for ce1tiorari (G. R. No. L-8987). ·In our decision of May 18, 1951, it wa<t held that the service of summons for JOHNLO upon Charles .T. Balcoff, who had previousJy been acting for said foreign corporation in a representatve capacity, may be considered as sufficient under Section 14, Rule 7 of the Rules of Court. Subsequently, JOHNLO filed in the lower court a motion for relief from the order of default, which motion was denied ori July 25, 1951. On September 80, 1952, the lower court after due tl'ial r.endered judgment (1) ordering defendant JOHNLO, under the first cause of •action, to pay to plaintiff, for unpaid services rendered to said defendant, the sum of P14,304.19, with legal intere~t thereon from August 18, 1949, plus damages in tlie sum of PS,000.00 and another P2,000.00 as attomey's fees; and (2) declaring the deed of sale dated October 3, 1949, executed by JOHNLO in favor of LIPSE'rl', fraudulent for lack of adequate consideration Dnd, hence, nun and ·void, and accordingly directing the attachment of the ~um of P25,000.00, which was considered exclusive property of JOHNI.O, from the bank deposit of LIPSETT to be paid to plaintiff, Defend•ant LIPSETT was further requlred to pay plaintiff the sum of P6,000.00 as. damages. Both defendants filed notice to appeal the decision to the Court of Appeals. Plaintiff, however, moved for ' the dismissal of the appeal of defendant JOHNLO on the ground that, having b!len declared in default and having faile.1 to cause ' the lifting of the said default order, and defendant had no person, ality to appeal from the decision on the merits. This motion was sustained by the lower court and JOHNLO's appeal was, conse· quently, disapproved. Passing upon the appeal interposed by defendAnt LIPSETT, the Court of Appeals ruled that the evidence, Exhibit C, t.pon which the lower court's finding that plaintiff was underpaid by 1490.84· long tons, amounting to Pl5,578.88, was based, was incompe"tent for being hearsay; thus, the appealed decision was modifbd by holding JOHNLO liable only for the sum of PS,108.'74 (for the services in connection with the 19.68 long tons shipped by S. $. Asyesis , Nomikos), plus. damages in the sum of P3,000.00. The contract between JOHNLO and LIPSETT was declared invand only to the extent of the properties involved therein necessary to cover the aforementioned amounts. It is this decision of the Court of Appe~ls that M. B. Florentino & Co., ,Ltd., asks this Court to. review by means of the instant petition for certriorari. There is no question that by orders of November 14, 196Z and February 2'7, 1953, the lower court disapproved JOHNLO's notice of appeal, which orders, neediess to say, already became final. It is clear, therefore, that th& appeal in the Court of Appeals concerned merely the issues and defenses peculiar to defendant. LIPSETT. As aforestated, however, the Court of Appeals not only passed upon the validity of the contract between LIPSETT and JOHNLO but took cognizance of the -evidence and issues relative to the liability of JOHNLO. Herein petitioner now claims that the Court of Appeals erred: · 1. In modifying the judgment of the trial court in this case, insofar as said judgment affected and bound a defendant who did not appeal and who, in fact, was, by reason of its default, barred form interposing an appeal, and 2. In modifying the judgment of the trial court in this case on the basis of its finding that the petitioner's Exhibit "C" is incompetent and inadmissible hearsay evidence. The rule is well-settled that a defendant who has been declared in default loses. not only his right to be heard in cou1·t, but also the right to appeal from the judgment on the merits. (Lim Toco v. Go Fay, G. R. No. L-1423, Jan. 31, l!H8; 45 Off. Gaz. No. R, p. 8350.) (t) Thus, as the defaulting defendant can not appeal from the decision, upon expiration of the period within which an appeal may be instituted, the decision as to him shall becom'! final and executory and, even in case of appeal by the other defendants, ~ted in Gequillana v. Buenaventura, L-2184, September 1, 1958; Son v. Melendres, L-8824, May 16, 1961; Reyes v. Roman Catholic Archbishop of" Manila, L-3607, .A.pril-20, 1961. seyb>..mber 30, 1960 LAWYERS JOURNAL 271 shall remain undisturbed. (Municipality of Orion v. Concha, 60 Phil. 679.) It is true that an exception to this rule exists, that is-"x x :x. If the judgment can only be sustained upon the liability of the one- who appeals and the liability of the othe1· cojudgment debtors depends solely upon the question of whether or not the appellant is liable, and the Judgment is revoked as to that appellant, then the result of his appeal will inure to the benefit of all." (Municipality of Orion v. supra, citing 4 C.J. 1184.) This situation is not obtaining in the instant case. As Stated before, the complaint against JOHNLO alone, under the first cause of action, was based on contracts between plaintiff and said defendant, of which contracts defendant LIPSE'rl' had no interest or participation whatsoever. LIPSETT was only inelu,ded as a defendant, under the second cause of action, because it is a party to· the contract plaintiff claims to have been executed to defraud the crediton of JOHNLO. It is clear theL'efrom that a declaration of the liability of defendant JOHNLO for unpaid charges, under the first cause of action, does not necessarily affect the rights of LIPSE'IT ·who, to exculpate itself from any liability under the second cause of action, must only establish that the transfer of JOHNLO's properties to said corporation was valid. The resolution of LIPSETT's appeal from the adverse -decision of the lowet" court, therefore, does not necessitate a reappraisal of the evidence upon which the judgment, finding defendant JOBNLO liable to pay plaintiffs claims was based. The evidence tending to establish the liability of JOHNLO to plaintiff has. nothing to do and is different and independent of the evidence regarding the transfer of JOHNLO's Jlroperties to LIPSETT, and vice-versa. A judgment against JOHNLO can not affect LIPSETT if the transfer is valid. On the other band, a judgment in favor or aaginst LIPSETl' will have no bearing on JOHNLO's liability to plaintiff. In other words, the only CO?Ulecting link between the two causes of action is that the first establishes plaintiff a& a cniditor (the :imount is absolutely immaterial) of JOHNLO which qualifies plaintiff to seek the relief under the second cause of action. It wovld have been a different matter had the appeal been instituted by JORNLO. Any reversal of tho decision affeetinr JOHNJ..O's liability will necessarily benefit I.JPSE'IT, because it plaintiff's claim against the former can not be established, the Sl!cond cause of ·action would consequently fail. It would then be immaterial whether ·the transfer of JOHNLO's properties to LIPSETT wes valid or not. Respondents, nevertheless, maintain that the Court of Appeals baa jurisdiction to review the evidence even as between plaintiff and defendant JOHNLO considering that the lower court allowed LIPSE'rl' to present proof touching upon the liability of JOHNLO under. the first cause of action, and that LIPSETT bad appealed not only from the portion of the judgment concerning the validity of the contract, but from the entire decision. This contention is without merit. The mere fact that the lower court admitted such evidencP., presumably over the objection of plaintiff, did not mak-a LIPSETT & party under the first cause of action nor did It operate to lift the order of default against JOHNW and restore its standing in court. In fact, the trial, In disposing of the ~ase on the merits, disregarded such evidence in its final decision. Admittedly, the law gives even a defaulting party certain de· gree of protection; 0henee, plaintiff, despite the absence of the defendant, is still required to substantiate ita allegations in the complaint and the court is directed to render Judgment and grant relief as thus proved. (Sec. 6, Rule 36; Sudeco v. Sande, L-4226, April 28, 1962). But this rule can not ovenide the ca1dinal principle regarding finality of judgment (Sec. 2, Rule 86). Granting, tbe1·efore, airguendo, that the court a quo erred in its appreciation of the evidence admitted during the hearing and overlooked certain proofs in favor of the defaulting defendant, sue~ fact does not jueti:fy the appellate court's setting aside and modifying a judgment against such defendant which, afte1· the lapse of 30 days from notice thereof, becomes final and executory. WHEREFORE, and in. view of the foreg'>ing considerations, the decision of the Court of Appeals insofar as it i'educes the liability of JOHNLO is hereby set aside, and the judgment of the court a. quo on the matter reinstated. In all other respects, thE' decision appealed from is affirmed. With costs against the respondents. SO OIUlERED. PMa.B, CJ., Bengzon, Ba.utista Angelo, Labra.dQr, Concepoiiri, a.nd J.B.L. Reyes, JJ., concurred. v<~:::, ::::.::'.J:~.:::,=~~::~. vs. r,u= P. Pa1·ede•, et al., Defen.da.ntll, Globe Aasnmnce Compa.n11 Inc., Defendant-Appellant, G. R. No. L-12646, Mau 20, 1960, MONTEMAYOR, J. 1. CIVIL PROCEDURE; PURPOSE OF FILING OF CROS~ CLAIM.-The filing of a cross-claim aa provided for in SE'ctions- 2 and 8, Rule 10 of the Rules of Court, is for the purpose of settling in a single proceeding all the cl,\ims of the different parties against each other in the c1tse in order to avoid multiplicity of suits. · 2. ID.; CROSS-CLAIM;. DETERMINATION OJ.' CROS~-CLAIM BY APPELLATE COURT.-Since in the case at bar, the notice of appeal, appeal bond and record on appeal w.eM all filed within the reglem.entary period, the judgment of the trial court which did not includ~ in it the determination of the crossclaim was still open to appeal to the Supreme Court, which by reason of its appellate jurisdiction could and should correct said judgment by passing upon the cross-claim. DECISION The Globe Assurance Company, Inc. is appealing the decision of the Court of First Instance of Manila in Civil Case No. 206~9 for the latter's failure or refusal to render judgment O"ll its crossclaim. On September 20, 1966, plaintiff Republic nf the Philippines commenced an action against defendants Lucas P. Pared.es, Aurora C, Paredes and appellant Globe Assurance Company for the recovery of the amount of fl48,629.19, representing unpaid taxes and for the confiscation of Globe Bond No, 1226, issued by the defendants in favor of the Bureau of Internal Revenue. In its amended answer which was accepted by the trial Court, appellant company included a eross--elalm against Lucas and Aurora, alJeging that they had bound themselves to indemnify it (company) for any damages which it may sustain as a result of the execution of said bond, and praying that. in case judgment was rendered against it on the complaint of plaintiff, Lucas and Aurora be condemned in the same judgment jointly and severally to indemnify it in the same amount as that of the judgment. Lucas and Aurora were declared in default and evlcfe"'".e against them was presented by plaintiff. Appellant company likewise presented its evidence on the cross-claim against Lucas and Aurora. The case between the pJaintiff-appellee and defendantappellant was submitted on a question of law. After hearing, the trial court on March 28, 1967 nndered a decision without however any judgment on appellant's cross-claim. For purposes of reference, we reproduce the said decision: "This is an action :rresented by the Reputlic of the Philippines to collect from the defendants the e.mount of P48,629.13 for back taxes. "The evidence in this case shows that on January 22, 1966, the defendants Lucas P. Paredes and Aurora C. Paredes executed an ordinary bond for the payment of taxes in favot" of the Republic of the Philippines in the amount of P53,629.18. Tb.is bond was furnished by the defendant Globe Assurance Company, Inc. The eondition of the s8.id bond is that the defendant will pay to the Republic of the Philfppines the amount above-stated, representing the ir;icome tax obligation of defendant spouses Lucas P. Paredes and Aurora C. Pare· des, including the corresponding surcharges and interests and LA WYERS JOURNAl. September so, 1960 that in default thereof, the Globe Assurance Company, Inc. As to what the trial court could have done to correct this assumed and promised to pay the said amount. With tha error, the members of this Tribunal are not in complete agreement. e:l'ception of the initial payment of P5,00U.00 the defendants Some believe that it could have corrected its error or omission Lucas P. Paredes. and Aurora C. Paredes have made no after its attention was called to it by the motion for reconsid~ra further payment to the Republic of the Philippines, By reason tion. True, said motion was filed more than thirty days after thereof they are still indebted to the plaintiff in the amount notification of judgment. However, it was still witbin the discretion of P48,529.18. Demands h&ve been made upon the defendants and jurisdiction ol said court to amend its decision, considerto pay the said obligation but they have failed up to the ing that the record on appeal had not yet been approved, ·the present to pay the same. · record being still in its custody and it had not yet lost jurisdiction over the case. · "IN VIEW OF THE FO-REGOlNG, judgment is hereby rendered in favor of the plaintiff and against the defendants, "And since judges are human, susceptible to mistakes, ordering the defendants Lucas P. Paredes and Aurora C. Pa- and they are bound to administer justice in accordance with i-edes to pay to the Republic of the Philippines the amount of law, they are given the inherent power of ame1•ding their. !'48,529.13, plus interest, and that in case of their failure to orders or judgments so as to make them conformable to law do so, the bond furnished by defendant Globe Assurance Com- and justice, and they can do so before they lo'se their juris-. 'pany, Inc.,.Globe Bond No. 1226, is hereby ordered confiscatf"d diction of the case, that is before the time to appeal has and forfeited in favor of the plaintiff. With costs against expired and appeal has been perfected." (Moran, Comments defendants." on the Rules of Court, Vol. 3, 1957 ed., pp. 608-04, and authorities cited therein). filed 0: n~:!e 2cd 1:::;al~:inap~:al 1!!:°:~~1! :~::· i:p!:~:! Other members of the Tribunal, however, are of the opinion that !:!~~~~~~~:~1~:~m:.~~~: f~;:~?id::·~:·;l.:;:J!:.~;.~~ !~:~1=!· :::EEri1·rr::~1;~mK~";t::~:::!::::.~:;: May 16, 1957, the trial court granted the motion for extension but .. ~~:lu::cti~h!! :: ::::~::io:oto~e~~e=:~~~:~7~d ~!~au::spt: denied the motion for reconsideTation on the ground that it was approval of the record on appeal was still lacking, and that confiled out of time. The appeal was taken directly to this Court: ,sequently, the records of the case were still in the cus(ody of the Appellant assigns only one error, namely, "the lower court erred court. All the members, however, are unanimous in the holding in refusing to render judgment on the cross-claim of defendant- that inasmuch as the notice of appeal, the corresoonding appeal · appellant". The Solicitot General filed no brief for the appellee, bond and the record on appeal were a11 filed within the TeeleRepublic of the Philippines, on the ground that whatever be the mentary period, the said judgment was still open to appeal to this outcome of appellant's appeal, its adjudicated rights would not be · Tribunal, which by reason of its appellate jurisdiction could and affected. should correct the e:rror. Instead of remanding tlie case to the Although appellant is appeaHng the judgment of the trial court, trial court so that it may correct ita error by passing judgemnt nevertheless, it does not eUher in its brief or in its memorandum on the cross-claim, to save time, the caae being about four years in lieu of oral argument, question th~ said judgment in so far .as old, and in the interest of justice, we propose to make the cor-. it orders confiscation of its bond in the event its codefendants · rection ourselves. Lucas and Aurora :(ail to pay the same judgment credit. It does IN VIEW OF THE FOREGOING, the appealed decision is not controvert the decision in favor of the plaintiff. Its main hereby modified by adding the following paragraph: argument or contention is that the trial court should ha\Te rendered On the cross-claim of appellant, judgment is hereby rendered judgment on its cross-claim against its codefendants and sperially ordering defendants Lucas P. Paredes and Aurora c. Paredes to after "its attention was called to said error by its motion for recon· pay appellant jointly and severally the amoun• eqtiivalent to sideration. It admits that said motion was filed beyond the thirty 15% of the judgment as indemnity for damages, plus interest day period. It contends, however, that the court coald f>till act on thereon at 12% interest per annum on said indemnity, from the said .motion and render judgment on the cross-claim for the reason date this judgment becomes final, plus costs. And in the event that its appeal had not yet been perfected at the time because that appellant pays the judgment. debt to . the Reputlic of the the record on appeal had not yet been filed and approved. M•>re- Philippines, def.endanta Lucas P. Paredes and Aurora C. Paredes over, .it claims that since there was no written or verbal judg- are also hereby ordered jointly and severally to reimburse appel~ ment on his cross-claim, it could properly ask that judgment lant the amount so .paid. Defendants Lucas P. Paredes and Aurora :.~;n~::4!i!h~=~: even if the decision in the main case had al- C. Paredes will pay the costs in both instances. 7s, C.J., Beng:ion, Padilla, Bautista Angelo, Labrador, ConIt is clear that the trial court erred in not passing upon and c Endencia, Barrera and Gutierrez Da.vid, JJ., concurred. determining the cross-claim. The filing of a cross-claim is provided - for in Rule 10, Sections 2 and 8 of the Rules of Court, the purpose Ill being to settle in a single proceeding all the claims of the dif- Operator's Inc., Petitioner, .,,.. NatiMiai La&or Union, RIJB. ferent parties against each other in the case in order to avoid pondent, G. R. No. L-15078, ·May 26, 1960, BAUTISTA ANGELO, multiplicity of suits. And appellant evidently did just that to J. avoid multiplicity of suits; otherwise, it would have hat! to file a separate action against its codefendants for indemnity for any LABOR LAW· CIRCUMSTANCES SHOWING JUSTIFIED DISdamages arising from the execution of the bond. In fact, the filing MISSAL OF0 -EMPLOYEES; VIOLATION OF STANDING of the cross-claim was permitted by the trial court. Inasmuch as POLICY OF COMPANY.-In the case at bar, R, employee, left the codefendants were declared in default, ·the etidenct? presented her employment without previous permission of the manager by the defendant-appellant was not controverted, and the case was and stayed away for about one month and half contrary to submitted on a question of law. It was just a question of '"XJl.min- the standing policy of the company that before leaving she ing the exhibits presented by the defendant-appellant, which were must obtain previous permission. This requirement is reasc-nthe bond itself, the paragraph on indemnity, and the payment of able, its purpose being to enable the man&gement to mu.ke interest in case of delay, in payment, as well as the different let- the necessary adjustment in order that the work may not be ters of demand made by the defendant-appellant on its codefend- paralyzed. The court found that the efopement ol R ia uot ants. We are willing to presume tha~ the trial court merely over- Jus.tification for violating the standing policy of the company looked or forgot the cross-claim, conc.entrating its attention on which R knew. Furthermore,. when she returned to work the main case or on the claim of the Republic of the Philippines after such long abseince the management' did .not exactly turn against the three defendants. her away but merely .required her to file a. new application Sepmmber 81>, 1960. LAWYERS' JOURNAL .. because of its belief that she had already abandoned her work, another requirement which is reasonable, but she l'Bfu!5ed, and instead instituted the present action charging the company with unfair labor practice. Such attitude is rep:roehensible und justifies her separation from the service. Rafa,el Dinglaaan, for the petitioner. Eulogio R. Lerum, for the respondent. This ia a petition for review by way of appeal from a decision of the Court of Industrial Relations penned by Hon. Judge Baltazar M. Villanueva which dismisses the complaint for unfair labor practice filed by complainant union against respondent, while on the other hand, order& the . immediate reinstatement of Rosalia Ricohermoso without backpay to her fonner position and without losa of rights an<i dimiii.ution of privileges. The facts as found by the industrial court are: Rosalio Ricohermoso was a daily wage worker of the Operator's Inc. having been employ.ad .bY it Since J a.nuary 27, 1964; that on ,April 8, 1957, she absented herself from work without lirst obtaining permission from the management because she eloped; that on May 21, 1967, she reported for work but was asked by the manager to file a new application form so that sh~ could lie re-admitted; that Rosalia Ricohermoso refused to follow the .:Juggestion because she would be a newcomer and she wanted to be reinstated to her old position; and that she refused to work ~nee then, whereupon the National Labor Union, of which Rosali~ is a member, filed a corp.plaint for unfair labor practice agamst • the company alleging, , among other things, that Rosalia wns dismissed on May 21, 1967 for being a member of said union and for having participated in the petition for the removal of respondent's forewoman, Flor."'..ntina Wi. RespOndent corporation answered the complaint specifically denying the charge of unfair labor practice and alleging as special defense that because Rosalia absented herself from work without previous permission on April 8, 1967 and failed to repOrt for work on the following days, the management considered her to have abandoned her job thus justifying the company in (.mploying another worker to replace her. After trial, the industrial court found that the evidence of the complainant on -the charge of unfair labor practice is "shado_wy aud unsubstantial" and dismissed the same. However, having found that there was no 11-nimus of abandonment on her part but that her absence was merely due to her .elopement, and that if she was not able to continue working it was not because sho was dismissed but because of the requirement that she file a new application for employment which she refused, the industrial court ordered her reinstatement without loss of rights and diminution of privileges as stated in the early part of this decision. Henoe the present appeal. The errors assign.!d by petitioner are: (1) that the lowe: court erred in holding that the. continuous absence of Rosalia Ricqhermoso did not constitute abandonment of her work but Was mE!rel;y due to her sudden elopement and intervening Vt-eakftess and affection; and (2) that the lower court erred in ordering her immediate reinstatement to her former position without loss of rights and diminution of privileges. Aftler ·finding that the management has not committed auy act of unfair labor practice when it considered Rosalia as having abandoned her employment for having left the same without first obtaining pennission from the manager as required by a standing policy of the company, the industrial court made the following comment: "The truth of the matter is that Ricohermoao was iequired to file an application for employment on that c:ay because of her abs.ence from April 8, 1957 to May 21, 1957. When she was absent on those days without previous 1iermission from management, she was considered as having abandoned her employment. In fact she admitted having been absent for those days without obtaining pr.evious permission from management because she eloped and went to Apalit, Pampanga. She justified her absenc.es by decW.Ting that after the elopement she was sick of infiuenza an'J small pox. But this is no justification for violating a s.tanding policy of respondent of which herself knew. This policy was that befor.e any employee could take a leave of absence, he must first secure permission from the management a day in advance." As it would appear, notwithstanding the conclusion of the court that Rosalia's absence without first obtaining the permission of the manager is not a justification for violating a standing policy of the company because she eloped with the man she loved, yet it ordered her reinstatement without backpay, because she did so in response to an overpowering impulse of love. Thus, the industrial court cOrnmented: "As rational part :>f creation, we are all subject to the Divine Command that we must grow and multiply to cover the earth. Hence, we Qre st.bjlt!cted to ·the ommipotent sway of instinctive love and mating for our survival. And to this universal cycle of life, Rosalia Ricohermoso, like anyone of us, "is no exception." With this conclusion we disagree, for it is inconsistent witl1 the finding that Rosalia" left her employment without previc>lt1'1 permission of the manager and stayed away for about one mcmth and a half contrary to the standing policy of the company that: ·before leaving she must obtain previous permission. This requirement is reasonable, its purpose being undoubtedly to enable the management to mak.e the necessary adjustment in order that the work may not be paralyzed. The court itself found •..hat the elopement of Rosalia is "no justification for violating a standing policy of respondent which she herself knew." But this is not all. When she returned to work after such long absence the management did not exactly turn her away but merely required· her to file a new application because of its belief that she had already abandoned her work. another requirement which we find rensonable, but shl! refused, an"d insta.d she instituted the present action charging the company with unfair labor practice. Such uttitude is indeed reprehensible and, in our opinion, justifies her separation from the service. At this point, we find it fitting to quote what this Court has said in a similar case: "But much as we should expand beyond economic orthodoxy, we hold that an employer cannot legally be compelled to continue with the. employment of a person who ndmittedly was guilty of misfeasance or malfeasance towards his employer, and whose continuance in the service of the latter is patently inimical to his interest. The law in protecting the rights of the labo1·er, authorizes neither oppression nor self-destruction of the employer" (San Miguel Brewery, Inc. v. National Labor Union, et al., G. R. No. L-7906, July 80, 1955). Wherefore, the decision appealed from is modified in the i.ense that Rosaiia Ricohermoso is not entitled to reinstatement. No costs. PMas, C. J., Benuzon. P~dillo1 Mo11teniayo1·, Labraclo1·, Concep. ·r· n a Gutierrez David, JJ., C01klUfT6d. "\ B rrera, J., reserved his vote, IV Maria C. Vda.. de Lapore, Plaintifl-a.ppello.nt, 111. NGtit:idad L. Pascual, ;oined by her hu1ba-nd, Demetrio Piiscual, JJefendant1-appellees, G. R. No. I..-12679, April 27, 1960, Gutierrez Dcwid, J. · LAND REGISTRATION LAW; CQNCLUSIVENESS OF DECREE CONFIRMING A PARTY'S TITLE AS TO MATTERS INVOLVED" IN REGISTRATION PROCEEDINGS.-Tbe rule is settled that a decree entered by the Jand registration court confirming a party's title to the parcel of Jand applied for and directing its registration in his name, is conclusive not only on the questions actually contested and determined but upon 274 LAWYERS. JOURNAL SepWmber·:80, 1960~ all matters that might have been litigated and decided in the registration proceedings. Conrado A. Banzon, for plaintiff-appellant. Panfilo B. Villanueva., for dekndant--appellee. DECISION Direct appeal to this Court from an order of the Court of First Instance of Negros Oecidental, dismissing plaintiff's complaint on the ground that it is barred by prior judgment. It appears that onJ January 28, 1954, plaintiff Maria C. Vda.. de Lapore executed a "Deed of Sale with Right to Repu1chase" by virtue of which she sold Lot. No. 485-2, formerly a portion of Lot No. ,485, Cadastral Survey of Racolod, to herein defendant Natividad L. Pascual, the same to be repurchased on or before January 28, 1955. As plaintiff failed to exercise her right to repu~hase within the period stipulated, the vendee Natividad L. Pascual instituted proceedings in the land registration court fo"r consolidation and confirmance of title to the lot in question in her name. (Cadastral Case No. 2, G.L.R.O. No. 55.) The hearing of the petition was, up9n agreement of the parties, postponed a number of times with a view to enabling the vendor Maria C. Vda. do Lapore to pay the repurchase price. The said vendor, however, failed to do so, and when the petition was last called for hearing on December 15, 1956-about a year from "the- filing thereof-neither she nor her counsel appeared. On that same date, the court issues an order consolidating title to the lot in dispute in the name of the petitioner, herein defendant Natividad L. Pascoal, and directing the Register of Deeds of the prov.ince of Negros Occidental to issue the corresponding certificate of title • In her name. On February 22, 1957, after the order in the registration proceedings had become final and executory, Maria C. Vda. de Lapore filed the present complaint in the court below to annul the "Deed of Sale with Right to Repurchase" on the ground that it wai. fictitious, the real agreement between the parties being one of mortgage. Instead of answering, the defendant Natividad L. Pascual, assisted by her husband Demetrio Pascual, filed a motion to dismiss, alleging that the complaint was barred by prior Judgment. Plaintiff opposed the motion, but the lower court, after hearing, overruled the opposition and, on April 29, 1957, issued an order dismissing the complaint. From that order, plaintiff took the present appeal. . The rule ts settled that a decree entered by the land rel'ristration court confirming a party's title to the parcel of land applied for- and directing its registration in his name, is conclusive not only on the question aCtually contested and determined but upon all M!ltters that might have been litigated and decided in the registration proceedings. (Dizon et al. vs. B&nues, C. R. No. L-10222, August 29, 1958.) Needless to say, the estoppel app1ies to defenses .available therein which are sought to be used in "another action aa the foundation of a claim for relief. In the case at bar, the legaliiy and validity of the "Deed of Sale with Pacto de Retro" should have been assailed in the land registration proceedings by the appellant. This she failed to do. What is more, she was given ample opportunity to repurchase the land in question, but she did ·not avail herself of such opportunity. She did not even appear at the bes.ring of the case. And when the land registration court entered a decree consolidating and confirming title in the name of herein appellee Natividad L. Pascual, appellant did not even appeal therefrom, thereby allowing it to become final. In the circ&mstances, we do not think the count below erred in dismissing the present complaint. Wherefore, the order of dismissal appealed from is affirmed, with costs against appellant. PMtUJ, C.J., BengzonJ Padilla,, Montemayor, &r.utiata. Angelo, LalYrado'I', Coneepcion. J .. L. Reyes, Endencia and Ba.rrera, JJ., ~oncurred. v f'he U-nivsrsitv of the Philippines and Concepcion D. Ano1ics, Petitioners, vs. Cou'l't of lnduatriat Relations, TM Uni.vnsity (If the Philippines Employees Welfare Association (UPEWA), Fa.bia.na Borines, Epifania. Abijay and Alicia Ebalo, Resp011dent., G.R. No. L-15416, April 28, 1960, Gutierrez Davill., J. I. I,ABOR LAW: UNFAIR LABOR PRACTICE: JURISDIC· TIONi UNIVERSITY OF THE PHILIPPINES DOES NO'r FALL UNDER THE JURISDICTION OF COURT OF INDUSTRIAL RELATIONS.-The University of the Philippines is maintained by the government and performs a legitimate government function; it· declares no dividend and is not a corporation created for profit but an institution of higher education and therefore not an industrial or business organization. Consequently, the Court of Industrial Relation baa no jurisdiction to hear and determine the complaint for unfair labor practice filed against said_ university. 2. ID.; TEMPORARY EMPLOYEES MAY BE SE PARA TED FROM EMPLOYMENT WITHOUT SHOWING THAT TERMINATION IS FOR CAUSE.-In the case at bar, since it clearly appears from the face of the complaint that the complaining union members were merely temporary employees whOS'! period of employment has terminated, their separation from the service is justified. It is '&. settled rule that one who holds a temporary appointment has no fixed tenure of office and as such his employment. can be terminated at the pleasure ~f the appointing power, there being no need to show that the termination is for cause. , AcOg. Sol. Gen. Gufllerm.a E. TON"ea & Sol. Camilo D. Quia.zon, for the petitionel'S. Eulogio R. Lenini, for the respondents . DECISION This is a petition for certiorari with preliminary injunction t" annual certain orders of the respondent Court of Industrial Relations and to restrain it from further proceeding in the action !or unfair labor practice pending before it on the ground of lack of jurisdiction, Giving due course to the petition, thi!I Court ordered the issuance of the writ of preliminary injuctioD prayed for without bond. The action for unfair labor practice in the court below was, upon complaint of the respondent labor onion and its complainiTlg members, 1''abiana Borines, Epifania Abijay and Alicia Abafo, filed by an acting prosecutor of the Industrial Court against herein petitioners University of the Philippines and Con"cepcion · Anonas, the matron and officer-in-charge of the UP Women's South Dormitory at the University compound in Diliman, Quezon City. The complaint alleged that said. Univeraitf and matron dii-.criminated against the three afore-named union members in regard to their hire and tenure of employment by not "reappointing'' them in retaliation to their demands for better wo1·king conditions. Answering the complaint, the petitioner& University and C'oncepcion Anonss, through counsel, denied the charge of unfair labor practice and alleged that the employi:v.ent of the complaining union members as helpers in the UP Women's South Dormitory was temporary and that they were not reappointed because of negligence in the performance" of their duties, insubordination and disloyalty, as found by an . investigating committee. The"after, before the case could be heard, the said petitioners filed a motion to dismiss the case on the ground of lack of jurisdiction, it being alleged that the University of the Philippines is an agency of the State performing gov-ernmental functions, and that, at any ram, it is a non-profit organization and therefore not subject to the operation of Republic Act No. 875. The mot.ion, however, was denied. Entering appearance as counsel for bere!.n petitioners, the Solicitor General filed a motion for reconsideration of the court's order denying the motion to dism1s1:1, b10.t the Industrial Court in ba.nc resolved to deny it for having been filed beyond the 5-day reglementary period as providr">..d for its rules, Reconsideration of that resolution having been also denied, pPtitioners brought the case to this Court through the present petition for certiorari, contending that the; University of the .Philippines does not fall under the jurisdiction of the Cou1t (Continued on po,ge 287) Sepbember 80, 1960 LAWYERS JOURNA'L COURT OF INDUSTRIAL RELATIONS DECISION United Pepsi-Cola Sales Organization (PAFLU), Complainants vs. PBPri-Cola Bottling Cotnpany of the Philiypines, Willia.1n Yonan. George Anculale and, Pepai-Col4 Labor Unity, respondmta, Ca.e No. 1294-ULP, August 22, 1960, JOSE S. BAUTISTA, Pnriding Judge (CIR). 1. LABOR LAW; CERTIFICATION ELECTION; COLLECTIVE BARGAINING AGREEMENT.-A Company was justified and perfectly within its legal right to defer the negotiation and conclusion of & new collective · bargaining contract with the union, pending the outcome of the certification election caso filed with the Court of Industrial Relations, for to do . othE'rwise, will in effect violate tlbe provisions of ltepublic Act No. 875, particularly SeCtion 12, paragi-aph (b) thereof. From the moment the petition for certification election was filed before this Court, the question of majority representation was placed into doubt. 2. ID: ID; ID.-In the case at bar, the Company could not enter into said agreement without verifying first as to which union po~sesses the majority representation and with more reason, it eoold not enter into a new collective bargaining with complainant union, when upon the expiration of its agreement with the company, a certific..,tion election filed by various contending unions is pending before the Court of Industrial Reb.tion11. 3. ID; RF.FUSAL TO BARGAIN; UNFAIR LABOR PRACTICF.. -In the instant case, it can not be said that the company refused to bargain in good faith with the union for it is clearly established that the company not only answered all communications relative to the union's proposals, but also attended conference called upon bf the Conciliation Service ,1f the De.pt. of Labor to thresh out their differences. The company's reasons in rejecting the proposals of the union are sound nnd reasouable. 4. ID; REFUSAL TO BARGAIN DISTINGUISHED FROM RE· FUSAL TO ENTER INTO COLLECTIVE BARGAINING; UNFAIR LABOR PRACTICE.-A distinction should be estab· lished between the term refusal to bargain and refusal to enter into a collective ba1·agining agreement provided in Sec. r. in relation to Sections 13 and 14 of Republic Act ~75. In the present case, the company promptly answered all communic1ttions and readily met with representatives of the union and therefore, the charge of refusal to bargain would not stand. As to the refusal to enter into a coUective bargaining agreement pending the termination of a certification election case, the law is clear. The company could not be forced or compelled into an agreement· with the union if it honestly believed that in doing so, it would prejudiced its rights and interests, or when the ·terms of the proposals are excessive and unreasonable. The company could go to the extent of rejecting any proposals presented by the union if it believes in good faith that the proposal is unjust, still it could not be charged of unfair labor practice, provided it answers the communications of the union within the prescribed period and confe1·s with the union's representatives. What is contemplated by the law in makinJ refusal to bargain an unfair labor practice is when a given proposal is presented by a certain union and the company deliberately fails to answer such proposal and refuses to meet and confer with the union in a ba1·gaining table conference. Then1 could not be unfair labor practice for the non-acceptance by the company the union's proposals in the c8.se at bar. 5. ID; STRIKE; WHEN DISMISSAL OF STRIKES LEGAL.-ln the case at bar, it was established that respondimt GA requested the president of the union to advice the strikers te report for work, but they did not; that several supervisors o~ the company went to see the strikers to ask them to report for work, but they refused unless the company concludes a collective bargaining agrffment; that the unreasonable deman<b by the union was implemented ·by intimidation, coercion and violence by striking members against the properties and nonstriking personnel of the company and that in order that the operation of the plant and business of the company would not be paralyzed, GA had no other alternative but . to dismiss the strikers who refused to return ·to work. These nets do not constitute unfair labor practice. On the contrary, the strikers refused to reum to work unless their do?mands, which are unreasonable, be granted by the company. The dismissal of t.he strikers who refused to return was, thereforP., legal and proper. 6. ID: ID; STRJKE CHARACTERIZED BY COERSION, INTI~ MIDATION AND VIOLENCE ILLEGAL.-The strike nf April 16, 1967 in the present case could not be considered within the orbit of the legal i·ight to sttike for it wns characterized by coercion, intimidation and violence perpetrated by the striking members of the union against the persons of the non-striking employees and officials of the company nnd the company's properties. Neither can it be considered that the purpose and means employed therein were reasonable and justifiable. 7. ID; ID; ID.-The strikers formed a solid human wall to prevent the free entrance and exist of company v-:hicles; they barricaded themselves in front of the company's \•ehicles to block the same from going in and out of the company's prf!mises; drivers who tried to bring in and out said vehicles were stoned, beaten with woodcri clubs, spat upon, a:<isaulted with fist blows, mauled and manhandled and were threatened and insulted with offensive language; company's vehicle and properties were damage as a result of the rocks thrown by the strikers. Held: Under the foregoing fact aii.d circumstaRCP., the conelusion is that the purpcise and means employed by the striking members of the union in pursuing the strike are unreasonable and illegal, consequently, the dh1mi~sal of the striking employees was with justifiable cause. Since the striko was pursued without sufficient justification, coiipled with violence committed by participating employees against the persons and properties of the company, the law cannot extend its protection to the strikers from the consequences of their a.cts. Ciprisno CU & A&aociates, for complainants. Vicent1 J. Ft"Gnc:Uco, for respondents. Cesa;r C. Rer1, ·for respondent unton. DECISION Complainant United Pepsi-Cola Sales Organiz.ation (PAFLll)., through the Acting Prosecutor of the Court, charges the ab.O:V'!named respondents of unfair labor pl·actices as set forth and defint'.d in Section 4 (a), paragraphs 1, 2, 3, 4, and 6 of Republic Act .87~, specifically committed as follows: "%XJC xxx m "2. That on March, 1957, a charge was file.J. with this Court against respondents for unfair labor practice which is doeketed as' Case No. 1260-ULP, for interference with the union activities of said complainant; 3. That after the filing of said charg", conferences were supposed to be held before the Conciliation Service of the ·Department of Labor, but not a representatin of respondent company appeared at said office to proceed with the con: ference; 4. That on or about Mar.ch 9, 1961 an'1. continniDg_ the~ after, Wiiliam Yonan, sales manager of respondent company, told the members of complainant union like Casimiro SantoS, Manuel Valdez, Enrique Rei'ii.lado, Erne.sto Perio, Rafael Rodriguez, Epifanio Luna, Alejandro Sabasa, to join the PepsiCola Labor Union; LAWYERS JOURNAL 6. That also on March 9, 1967, William Yonan and other supervisors of respondent company distributed application forms of the Pepsi-Cola Labor Union to thll members of complainant union and asked them to join th'.! Pepsi-Cola Labor Union; 6. That because of respondent's continuous interference, illegal assistance to the Pepsi-Cola Labor Union, and refiis11l to bargain with complainant union, the latter went on strike on April 17, 1967; 7. That while the members of complainant union were on strike the supervisors· of respondent company like Alfredo Calileo, Elias Jerreos, Oscar Buan, Eliseo Gandete, and Jose Ramos, through orders of Mr. Yonan, approached said members to convince them to go back to work and also went to their homes and threatened them of dismissal if they did not go back to work; 8. That because of the refusal of the union members to return to work during the strike, the respondent company wrote on April 2~, 1967 a letter to the President of the union to the effect that all members of the union are dismissed from work effective April 16, 1967; and 9. That respondent company in favoring tlle Pepsi-Cola Labor Union gives leaves to the members of said ·union, and ·denies the same right to the members of complainant union." Praying that respondents be declared guilty of unfair labor practices !l-S charged; that they be ordered to cease and desist f-rom such unfair labor practices; dissolving the respondent Union •nd to do such affirmative actions as will effectuate the provisions of the Industrial· Peace Act.' Answering, respondent Pepsi-Cola Labor Unit:.y denied all the material allegations in the complaint, and prayed tha~ the complaint be· dismissed. {!pon being required to answer, respondent Pepsi-Cola Bottling: Company of the Philippines, William Yonan and George Anadale, denied each · and every pertinent allegations contained in pai;agraphs 3, 4, 6, 6, 7 and 8 of the complaint and averred in substance, that there is no sucih Pepsi-Cola Labor Unity; that it has always been the long standing policy of the company not to interfere or intervene in any manner whatsoever in the union activities of ib workers and employees. nor its respondent officials to order its supervisors to do acts imputed against them; and that the alleged grounds of dismissals of the members of complainant union are not those mentioned in the complaint but those embodied in the respondent company's letter to the President of complainant union under date of April 27, 1967, wherein it provided among other things, that since April 16, 1957, the members of complainant union· failed to report for work without any justifiable reason notwithstanding notice given to them through its president Jeny Miranda; that since Apri1 16, 1967 and continuously thereafter, the members of complainant union have prevented by means of force, violence and intimidation the non-striking employees of respondent company from entering its premises, which resulted in a complete cessation of respondent company's business and in which period, the company's products are most salable, thereby causing it irreparable injuries. By way of counterclaim, respondent prayed that complainant union be ordered to pay the sum Pl5,000.00 as damages anl r'5,000.00 as attorney's fees. During the hearing of tbis case, complainant move t.o withdraw its charge of company domination against respondent union and strike out and delete from the record all the testimonies of its witnesses regarding such charge. This motion was reiterated by complainant in the subsequent hearings that followed. From the pleadings as well as the evidence adduced, the issues to be resolved in this case are as follows: 1. Whether or not respondents had refused to bargain in gcod faith with complainant unicn. 2. Whether or not respondents had interferred with and/ or coerced the members of complainant in their union affiliations and/or actvities. S. Whether or not the dismissal of the striking memebrs of complainant union was with justifiable cause oe for unfair labor practices alleged by the said union. Complainant United Pepsi-Cola Sales Organization, (UPSO), hereinafter referred to as UNION is a legitimate labor organizaticn, comprising of employees and laborers working in the Sales & Adve1·tising Department of the respondent Pepsi-Cola Bottling Company (If the Philippines, and an affiliate of the Philippine Associations of Free Labor Union, hereinafter called the PAFLU for :.ohort. The Secretary General of the PAFLU iir' a certain Henry Santos, and the President of the UNION is Jerry Miranda, a salesman of the respondent company. While the respondent Pepsi-Cola Bottling Company of the Philippines, to be hereinafter name COMPANY is a business entity existing and operating under and by virtue of the laws of the Philippines, engaged in the business of bottling and selling soft drinks; and respondents Georg~ A. Anadale and William Yonan are its President & General Manager and Manager of th-.; Sales and Advertising Department, respectively. The UNION presented its president Gerry Miranda and board member Francisco Mendoza, tending to establish that the company had refused to meet and confer w.ith the UNION's respresentatives relative to its proposals for the renewal of their collective bargain· ing agreement. The record however, undisputedly show thRt there are four legitimate labor organization existing in the Compa;1y, namely: the Bottling Workers & Employees Association of the Philippines '(FFW), Pepsi-Cola Labor Unity, Pepsi-Cola Employee3 Union of the Philippines, and the union. Each of these labor unions c1aims that they have a collective bargaining agreement with the COMPANY and that they constitute the sole and exclusive bargaining representatives of a given unit in the said company. But however, the record is bare of proof that those unions claiming to be the exclusive bargaining agent of the employees in a certain unit of the company were certified to by this Court, or a certification election has been conducted designating those unions to be the certified sole bargaining representative in thei:r respective ·or ghren employer unit. The Bottling Workers & Employees Association of the Philippines (FFW) claims that out of the more or less two hundred employees of the COMPANY a great majority of whom are its members, consisting of bottlers, checkers, security guards, mechanics, yardman, including those employees holding sapervisory positions. While, the Pepsi-Cola Labor Unity, maintains that it is the exclusive collective bargaining agent of all the ieguJar and permanent workers in the Bottlin,8', Carpentry, Pa;nt.ing, Motor Pool, General Yard, Forklift and Mechanic. Departments in the main office and provincial warehouses of the COMPANY, pursuant to the collective bargaining contract concluded by and between it and the company on November 28, 1966. Whereas, the Pepsi-Cola Employees Union of the Philippines, avers that it executed a collective bargaining agreement with the COMPANY on October 11, 1956, thereby designating it as the sole collective bargaining agent of all employees of the Accounting, Personnel, Bodega, Checker, Cashier, security Departments of the said company, including those other employees who are its memberS. On the other band, the United Pepai-Cola Sa:les Organization (UNION) alleges, that by virtue of the collective bargaining contract it entered with the COMPANY on February 22, 1956, it became the exclusive bargaining representative of all the employees and workers in the Sales and Advertising Department of sai-:1 company; that it has also members in the other departments of said .:ampany. It further appears that the collective bar'laining agreement concluded by and between the COMPANY and the UNION was to expire on February 2Z 1967. On November 28, 1956, the Bottling Workers & Employees Association of the Philippines (FFW), filed a petition for certification election before this Court and docketed as Case No, ·410-MC, and praying that it lie certified to as the sole and exclusive bargaining agent .of all employees of the COMPANY. An answer thereto was accordingly filad by said company on December 18, 1966. Meanwhile, On Februaty 12, 1967, the UNION filed a petition for intervention, alleging that it join• LAWYERS JOURNAL 27• the petitioner Bottling Worken & Employees Association of the Philippines (FFW), with regards to its petition in order to determine the appropriate bargaining representative "lf the employees of the company. This was followd by motions for intervention filed by the Pepsi-Cola Labor Unity and the Pepsi-C(.lla Employees Union of the Philippines, alleging that the atipropriate bargaining unit should be the main plant of the respondent PepsiCola Bottling Company of the Philippines. The UNION in its petition for intervention prays that the Court arder it as one of the contending unions in the. said certification election. Following those turn of events, and while the afore-mentioned eertifieation election was pending for hearing, the UNION sent a letter to the COMPANY on January 23, 1957, requesting the latter to conclude a new collective bargaining contract and attached thereto was a set of proposals and/or labor demands. Subsequent to the receipt of said letter of proposals, the COMPANY through its president and general manager George Anadale readily made a conesponding reply on January SO, 1957, asking for mort\ time to study, evaluate and consider said proposals because c.f pressu1·e of work since he (Anadale) had only been recently appointed to his position. Said proposals were followed by two lettel's of th~ UNION and the PAFLU, respectively, urging company's representatives to confer with the UNION'S representatives in order to dh1CUSB the said proposals. To those letters, the COMPA"'f(.Y through its afore-cited president and general manager re!'lponded on March 5, 1957, evpressing its belief that it was not proper for the company to hold such conference in order to take up the af'1>redescribed proposals, due to the pending case for certification election (Case No. 410-MC) filed before this Court and the same being scheduled for hearing in 'the middle part of March 1957. On March 6, 1957, George Anadale received communication from the PAii'LU through its Executive Secretary Henry Santos, demanding that the COMPANY should make & reply to their proposals, and charging the Hid company in intentionally delaying and avoiding its dut)• to bargain, with a warning that should the COMPANY fail to comply with such demands, the UNION would be constrained to take the necessary steps to protect its members. Replying "to such letter, the COMPANY by its president and general manager stated that for the inoment there was nothing that could be done, the most that the parties could no is to wait for the decision of the Court in he certification election case, as to which union is to be certifiesl as the exclusive bargaining agent of all its employees; that if the coniplainant (UNION) being one of the intervenors in that case comes out as the union representing the maj'lrity of all the non-supervisory employees of the company, the COMPANY will enter into an agreement with said union without any hesitation. Thereafter, on March 11, 1957, the UNION through its president Jerry Mfranda, filed a notice of strike with the Department of Labor, alleging as ground thereof, the refusal of the COMPANY t.o bargain with the UNION in having allegedly rebsed to sit .down in a bargaining table conference regarding its proposals. That notwithstanding the notice of strike, several conferences in the Conciliation Service of the Department of Labor toolr: place. At the conference held on March 4, 1957, no agreement was at·tained because the parties stuck to their respective contentions. The UNION through its representative stated that they were ready to stage a strike even before the expiration of the SO day coolingoff period iri the event the COMPANY refUses to discuss the terms of their proposals. While the COMPANY through its counsel manifested. that, what inhibits it from taking the UNION'S Jlroposal was the pending - certification election case hefare this Court. During the subsequent conferences held in the Conciliation Servise of the Dapartment of Labor on March 26, 1957 and April 5, 1957, the COMPANY through counsel submitted to th'3 eonciliato1· a letter-memo1'8Ddums reiterating their previous stand in declining to consider the UNION'S proposal for the renewlll of their collective bargaining agreement. Aside from the prevbus reasons adduced by the COMPANY in its reluctance and,' apprehension in deferring the negotiation to the union's proposal, it also argues that two of the other contending unions have still unexpired collective bargaining agreement with it; that if the COMPANY enters into & collective bargaining agreement with the UNION pending a ctrtification election case, ii might be charged b:r the other contending unions for unfair labor practice; that there is a pending charge (Case No. 899-ULP) brought by the Pepsi-Cota Sales & Advertising Union against the COMPANY for having allegedly initiated and dominated the herein complainant (UNION), and for this reason, the COMPANY should be endangering itself if it Yiill negotiate and enter into a collective bargaining agreement with it, and to buttress its argument, the COMPANY cited the case of National Labor Union v. Zip Venetian Blind, Case No. 1028-ULP and 1041-ULP. In view of the stalemate and impasse in the negotiation and/or for reasons, which will be discussed hereafter, the members· of the UNION, on April 16, 1957 stag.ed a strike and picketed the premises of COMPANY up to May 1~, 1957. From the above undisputed facts gathered, it can be readily discerned that the COMPANY was justified and perfectly within its legal right to defer the negotiation and conclusion of c. new collective bagaining contract with the UNION, pending the outcome of the certification election case filed with this Court. To do otherwise, will in effect violate the provisions of Rapuhlic Act 875, particularly Section 12, paragiraph (b) thereof which provides: "Whenever a question arises concerning the representation of employees the Co11rt may investigate such controversy and certify to the parties in writing the name of the labor organization that has been designated or selected for the appropriate bargaining unit. In any such investigation the Court shall provide for a speedy and appropriate hearing upon due notice. If tltere i8 any ,.eaaonable doubt as to whom efw &mployeee ltave choaen. aa their t"epresentative for purpi>aes of ooUective bargaining, tM Court shall M'de-r a seCt"et ballot to be a.ecef'tain who i8 the freely cltosen. 1'epruentati11e of tlu mn,ployse lat which blllloting t"epre&entu.tives of the con.ttndint' parties sltall II.ave tlte rigltt to attend aa inapeotore. Such balloting sltall be knotu11. cia a "oertifiotitinn election." The organization receiving the majority of votaa cast in such election shall be eertified as the o:cluelve bargaining representative of such employee." (Un4erlining our) It should be emphasized that from the moment the petition for certification election (Case No. 410-MC) wo.s filed before this Court the question of majority representation was placed into doubt. With more reason such a11 in this particular case, where no specific union existing in the COMPANY has been certified to by this Court to be the exclusive bargaining representative of all the employees in said COMPANY, the COMPANY could not completely distegard or ignore tl1e said -pending eertification election case for fear of running counter to the afore-quoted provision of Republic Act 875. The COMPANY was, so to :-ay, playing safe in inhibiting or declining to commit itself in entering into a new collective bargaining agreement with the UNION for fear of getting involved into a tight situation, which later on, it cuuld not extricate itself from. If the COMPANY unknowingly, enters into an agreement prior to the termination of the pending certification election, he consequential effects are that, it may be made an unwilling party to a multiplicity of suit, such as, it might be declared in contempt of conrt for o\lstructing or delaying the administration of justice, or it might be charged of initiating and dominating a particular union, or the validity of the callerlive bar(taining agreement might be questioned or subjected to attack by the other contending unions. The COMPANY ther.,fore, tried its best to meet and bargain in good faith with the UNION,· in spite of being faced by a dilemma not of its own making. Moreover, from the afore-cited provisions of the Industrial Peace Act, this Court could not thrink from its duty to order a certification election when it is in doubt as to the issue of majority representation. The COMPANY in like manner, could not enteT into said agreement without cautiously verify,ng first ~s to which union possesses the majority representation, the COMPANY with more reason, could not enter into a new collective bargatning agreement with the UNION, when before the .expjration of its agreement with the COMPANY, a certification election filed by various contending unions is pending before this Court. This view finds 278 LAWYERS JOURNAL S"ej>tember 30, 1960 support in the case of PLDT Employees Union v. Philippine Long Distance Telephone Company and Free Telephone Workers Union (PAFLU), G. R. No. I..6188, promulgated August 20, 1955, citing Weme Op. Cit pp, 28-29, citing several cases, to wit: "A conh'act which provides for automatic renewal in the absence of notice by one of the contracting parties of the intention to alter, modify or terminate it prior to a &pecified period preceding the termination date, will operate as a bar to a.n. election. However, this rule doss not apply wMre a contracting union. has givm timely notice to the smpl"IJ(lr 01' filed a petition with the Board reasonably prior to tho apscified date for automatic renewal." (UNDERSCORING SUPPLIED) From the context of this authority and the facts as shown jn the case at bar, it could be safely stated that the issue iri the instant case squarely dovetails with the case cited. Furthermo1•e, it could not be said in this regard that the COMPANY has refused to bargain in good faith wtih the UNION. Apparently, it is clearly establiShed by the record that the former not only answered all communications relative to the latter's proposals, but also attended conference called upon by the Conciliation Service of the Department of Labor to thresh out their differenceis. On the contrary, the COMP ANY's reasons in rejecting the proposals brought forth by the UNION are believed to be sound and reasonable. Lastly, a distinction or demarcation line should be estabHEhed between the term refusal to bargain and refusal to enter into n collective bargaining aJreement provided in Section 6 in relation to Sections 13 and 14 of Republic Act 875. As already discusse.I above, the COMPANY promptly answered all the communications and readily met with the representatives of the UNION, so that any charge of refusal to bargain in thia score would not stand. With respect to the aspect of refusal to enter into :t. collective bargaining agreement pending the termination of the .:ertification election case, the law is clear. The COMPANY could not be forced or compelled into an agreement with the UNION if it honeStly believed that in so doing it would prejudice its rights and interesb, or when the terms "of the proposals are excessive and unreasonable. The COMPANY could go to the extent of rejecting any proposal presented by the UNION if it believes: in good faith that the proposal is unjust, still it could not be charged of unfair labor pra.ctiee, provided it answers the communications of UNION within the prescribt!d period and confers with the UNION'S representatives. What is contemplated by the law in making refusal to bargain an unfair labor practice is when a given proposal is pTeaented by a -certain union and the company deliberately fails to answer such proposal and refuses to meet and confer with the unioti in a bargaining table conference. In the instant case, there could not be unfair labor practice for the non acceptance by the COMPANY the union's proposal. This belief is in full accord with the blow quoted citati?ns, to wit: "It must be stressed that the duty to bargain collectively • :~::u:eot t~;n::~en:!th o;t c!1:1:c~~!y b:g::~ a::e~i:::ien! that either party shall be free to decide whether propo~al made to it are satisfactory." (Teller's Labor Dispute and Collective Bargaining p. 897). ' "The mere fact that it is made an obligation on the~ part of Lhe employer to bargain collectively does not mean) that the law intends to compel the making of an agreement between the parties. Section 18 of Republic Act 875, states~ that the duty to bargain collectively does not compel any party to agree to a proposal or to make concessfon." (Citinr Francisco's Labor Laws 2d. ed. p. 119). Anent the second issue, the UNION from the very allegations• of its complaint in this case, and the testimony: of its president~ Gerry Miranda, contends that between the moriths of Februarr, March and April, 1957 just before the strike of April 16, 1957, the following members, namely: Rodolfo Libuna, Rodolfo Soriano, Ruperto Sayco, Rufino Libuna, Eduardo Marquez, Pelagic Tiamzon, Eduardo Marquez, and others were urged and coerced by respondent William Yonan into reSigning with the UNION and join· ing the Pepsi-Cola Labor Unity. This witness also declared that the aforementioned members were also promised better positions by respondent Yonan if they Wound secede from the UNION and join the Pepsi-Cola Labor Unity. On the other hand, respondent Yonan .denied such imputations. The Court observes that not even one of those allegedly coerced members was even presented by the UNION il really there waa truth in tha charged of interference '·and coercion in the union affi~ liation and/or activities of the above-mentioned members levelled against respondent Yonan. Miranda also testified that l.e does not remember the supervisor who coerced the said members. What compelling reason or outside force could have prevented those union members from testifying, when their very rights and interests are involved, If indeed there is a scintilla of truth as to :.heir charge, they should be the very first ones to show interest or ~nitiative in prosecuting their case. The Court could not help but expressed its doubt in the motive of the UNION from desisting to present the supposed individual aggrieved parties. The testimony of the UNION president that the alleged acts of interference against the menibers in questioned we1·e only based on their verbal reports submitted to him and that he has no personal knowledge of the same. The Court opines that the alleged unfair labor practice stemmed from the verbal report of those subject members does not <.'arry much probative value or weight. The testimony of witness Miranda in , the opinion of this Court is merely coroborative and does not 'Satisfy the thirst for substantial evidence rule. As regards to the testimony of the UNION'S board member Francisco Mendoza that on March 28,' 1957, respondent William Yonan gave him a blank application membership form and was told to resign and join the Pepsi-Cola Labor Unity, was uncorroborated by anyone of the four witnesses whom Mendoza claimed were present in that incident. On the other hand, respondent Yonan was able to prove that the same assertion of Mendoza was not incorporated in the complaint in thia case, but incorporated in a prior case against the respondents (Case No. 1260-ULP), whieh case was dismissed by this Court. On top of this, not even on~ ' of those persons testified to by Mendoza to have been ~llegedly given blank application forms in favor of tho Pepsi-Cola Labor Unity were ever presented to substantiate the UNION'S charge contained in Ps.ragraph 6 of the complaint in this ~ase. It ia also worthwhile mentioning that witness for the UNION Ge.tty Miranda on cross-exa;mination admitted that he does not remember tho members of the UNION who were allegedly, given blank application forms. He also admitted that he does not remember either whether Francisco Mendoza was offered better position bJ Yonan provided the former would resign from the UNION. With respect to the charge that respondent Will!am Yonan offered Gerry Miranda a higher position if he would ::esign from the UNION, respondents were able to prove that sometime on February 1956, the COMPANY was In need of a supervisor in ita warehouse at San Pablo City. At that time the manner of choosing the supervisor was done by the supervisors thentselvea by selecting the most capable salesman for promotion. The supervisors selected Miranda among the salesm~n to fill in the vacancy, but Miranda turned down the offer because, according to him he. (Miranda) waa u. candidate in the forthcoming UNION election. Because of this, a certain salesman by the name of Pablo Herrera was given that position, being the second choice. This faet was never <·ontroveJ"ted by the UNION. Witness for the UNION, Miranda assie1·ted that be made a written reply to the offer of promotion, but unfortun· ately failed to produce a copy of said reply. Another factor that militates against the claim of the UNION that since February, 1957 there were already reports received from its members regarding the acts of interference and coercion. committed against them by the management of the COMPANY, it is strange, why the supposed acts ware never incorponted or in~ eluded in the notice of strike of Marc:h 11, 1957. One noticeable and glaring faet, is that the only ground alluded to by the UNION in filing the said notice of strike was the 8.lleged refusal of the respondents to bargain in good faith with the UNION. This conSeptember BG, 1960 LAWYERS JOURNttL 279 .tention Strengthens the argument against the UNION when Miranda _further admitted that on March 11, ·1967 before he signed the noticieof strike he had already called the attention of Henry Santos about the non-inclusion of the facts of unfair labor practice allegedly .committe~ by respondents. The UNION maintained that during the strike, the supervisors of the COMPANY through the orders of respondent William .Y on~n. approached its members and convinced them to go back to work and also went to the extent of going to their homes nnd threatened them with dismissal, if they did not return to work; that bec8.use of the refusal of said membera to rep'lrt for work whilP. ·on strike, the COMPANY in a letter addressed to the president of the UNION advised them that they were dismissed from work f!ffective April 16, 1967. William Yonan, however, testified tJtat it was general manager George A. Anadale, .who issued the orders to the supervisors to see and convince the striking work.:?rs to go back to work, because Anadale wanted to resume the operation of the plant and business of thl'l COMPANY, unfortun3tely, , they refused to return unleH the COMPANY entered into a collective bargaining agreement with the UNION; that since they refused to return to work they were dismissed form their jobs; and that thereafter, many strikers went to sec Anadale nnd pleaded for reinstatement and around sixty two of them were readmitted by :the COMPANY between the period of May 2, 1967 to Novembe1· 1, 1967. (Exhibit 7-deposition-Yonan). The testimony of William Yonan was corroborated by George A. Anadale and Juan Anasco-the persennel manager of the COMPANY. George Anadale declared that in· their conference with the UNION'S representatives at the .Conciliation Service of the Department of Labor on April 22, 1957, he requested the UNION president Gerry Miranda to advice the strikers to report for work but they did not; that se·1eral supervisors of the COMPANY went to see the striker3 many times upon 'bis instructions to ask them to report for work, but they refused unless the COMPANY concludes a collective bargaining agreement with the UNION; that the refusal of the strikers to return to work was unjust and unreasonable because, 811 he asked was the. deferment of the negotiation and conclusion of the collective bargaining agreement requested by the UNION \lntil the Court of Industrial Relations 'shall have decided the certification election pending before it; that the UNION wanted the COMPANY to accept that condition precedent preparatory to the return to work of its striking members; and that tl;i.e unreasonable demands of the UNION was implemented by intimidation, coercion and violence perpetrated by striking members against the propel1ies and non-striking personnel of the COMPANY; that in ordnr that the ·operation of the plant and business of the COMPANY would not be paralyzed, he had no other alternative but to dismiss them; that on the first day of May, 1967, the COMPANY decided to resume the operation of its plants and business and since the salesman and drive?"s who were on strike refused to return to work, the-COMPANY placed an ad in the Manila Times and Daily Mirror issue of May 2, 1967 and May 3, 1967 (Exhibits 80, 81 & 82) that it needed the serviCes of salesmen and drivers; that after the publication of said ads, many strikers went to see him and pleaded for reinstatement after explaining that they never intended to harm the business of the COMPANY that they had to obey the orders of Miranda, the UNION president; that he (Anadale) made it 1.1:lear to them that the UNION went on strike because of the refusal of the COMPANY to meet their unreasonable dt>mands and these strikers cot:.ntei'ed that they don't care about the collective bargaining agreement, and all they wanted was their jobs in order to support their families, and lmowing from exp.oirience that in many cases workers were victims of the ill adviJe (lf irresponsible labor leaders, so that he had to give them dUe allowance fo1· their shortcomings by accepting them back to work and as a matter of fact up to the present, they are still working with the COMPANY. The Court feels that the afore-described acts do not constitute -unfair labor practice. On the contrary, the strikers refused to return to work unless their demand be granted by the COMPANY, which demand are unreasonable as seen in the Jight of the discussions on the matter in the preceding paragraphs. Th.;, dismissal of the strikers who refused ·to return was therefore legal and proper. The UNION through its witnesses Gerry Miranda and Fril.n~iscp Mendoza endeavored to establish that when the members of the union staged a strike on April 16, 1967, the principal CR.UH of said strike was no longer the alleged refusal of the COMPANY to bargain In good faith with the said union as adverted to in the notice of strike filed with the Department of Lab!>r, but the acts of unfair labor practices supposedly committed by the COMPANY'S officials against said members. Having alr~ady found out that the alleged acts of unfair labor' practices alluded to by the UNION not to be supported by substantial evidence, the Court is mo1·e inclined to believe that the strike was mainly due to alleged charge of fefusal to bargain. This belief 'if· predieated on the admission by Gerry Miranda, the UNION'S presid~nt that thref! or four days before he signed the notice of strike, h9 called the attehtion of Henry Santos of the PAFLU about the nhn inclusion of the alleged acts of interference of the COMPANY'S officials but for no reason at all nothing was done about it. Furthermoro, it would be amiss to say that the alleged acts of interference which were supposedly perpetrated as early as February 1967 were never incorporated in the notice of stkire-it is indeed very striking. Incidentally and parentheticallf, from the testimonies as well as document evidence on record, the strike of April 16, 1967 could not be considered within tlie orbit of the legal right to strike for it was characterized by coercion, intimidation and violence perpetrated by the striking members of the UNION against the {lersons of the non-striking ~mployees and offi.::ials of the COMPANY, and the COMPANY'S properties. Neither could it be said that the purpose and means employed therein were rea;ionable and justifiable as already discussed earlier and the evidence on record shows otherwise. The record discloses that the strikers and · picketeen formed a solid human wall to block the ingress and egress of the officials and non-striking employees of the COMPANY (Exhibits 1 to 7 depositions), To prevent these officials and non-striking employees from entering the COMPANY'S premises and report for work, the strikers resorted to threat, intimidation and violence by using wooden clubs, handles of placards, fist, stones, itching :=>owder and offensive language, and in eo doing injuries were inflicted upon the persons of the said officials and employees which resulted in their confinement at the Lourdes Hospital for treatment, namely: Benedicto Chupongco, Rafael Crame, Jon Elordi, Bartolome Gloria, Andres Marcelino, Vicente Villegas, Jose Echevarri'!, German Sevilla, Pablo Berlegan, Pablo Villanueva and William Yonan. This faet remained uncontradieted. (See Exllibits 8, 9, 10~ 11, 12, 13, 14, 16, 16, 16-A, 17, 17-A depositjnns: testimnniH ~f WilliRm Yonan George Anadale, Benedicto Chupongco; Rafael Crame, and Bartolome Gloria). The record also show that the strikers and picketers formed a solid human wall in order to pnevent the free entrance and exit of company vehicles; that the strikers and picketers barricaded themselves "in front of COMPANY'S vehicles also to block the same from going in and out of the COMPANY'S premises. The drivers who tried to bring in or out those vehicles were stoned, beaten with wooden clubs, spat upon, ass3ulted with fist blows, mauled and manhandled. Others were threatened and insulted with offensive language. COMPANY'S vehicles and properties were damaged as a ·result of the rocks hurled by the strikers and left exposed to the elements because they were prevonted by the strikers and picketers from entering the prerniS89 of the COMPANY. (Exhibits 19, 20, 21, 22, 23, 24, 26, 26, ~---~--~·~~~--~-~~ positions). Cirilo Villanueva, n witse98 for the UNION even admitted that there were unlawful acts and violence committed in the picket line. Under the foregoiiig fact and circumstance, the inevitable conclusion is that, the purpose and means employed by the striking members of t~e UNION in pursuing the strike are unreasonable and illegal, consequently, it could be- stated that the diRmissal of the striking employees W8SI · with justifiable cause. And &ince the strike was pursued without sufficient justification, coupled with the violence committed by participating employees against the persons and properties of the COMPANY, the law therefore cann:>t extend its mantle of protection to the at1ikers from (Continued on page 282) LAWYERS JOURNAL. REPUBLIC ACT (REPUBLIC ACT NO. 8019) ANTI-GRAFT AND CORRUPT PRACTICES ACT Ite it enacted bu the Senate ~nd House of Repreamtatives of the Philippines in Congr.ess assembled: SECTION 1. Stbttmte"nt of policy.-It is the policy of the Philippine Government, in line with the principle that a public office is a public trust, to repress certain acts of public officers and pl'ivate persons alike which constitute graft or corrupt practices' or which may lead thereto. SEC. 2. De/initio-n. of terms.-As used in this Act, the term(a) "Government" includes the national government, the local go'Vlernments, the government-owned and government-controlled corporations, and all other instrumentalities or agencies of the Republic of the Philippines .and their bl'Bnches. (b) ''Pcl>Jic officer" includes elective and appointive officials and emplo.yees, permanent or temporary, whether in the classified or unclassified or exempt service i·eceiving compensation, even nominal, from the government as defined in the preceding subparagraph. (e) "Receiving any gift" includes the act ·of accepting directly or indirectly a gift from a person other than a member of the public officer's immedi&te family, in behalf of himself or of any member of bis family or relative within the fourth civil degree, either by consanguinity or affinity, even on the occasion of a family celebration or national festivity like Christmas, if the value of the gift is under the circumstances manifestly excessive. (d) "Person" includes natural and juridical persons, unless the context indicates otherwise. SEC. 3. Corrupt practkes of publie olfkfl}'s,-In addition to acts or omissions 6f public officers already penalimd by existing law, the following shall constitute corr1,:.pt practices of any publi~ officer and are hereby declared to be unlawful: (a) Persuading, inducing or influencing another public officer to perform an act constituting a violation of rules and reg\Jations duly promulgated by competent authority or an offense in conneetion with the official duties of the latter, or allowing himself to be persuaded, induced, or infhoenced to comm.it such violation or offense. (b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person, in connection with any contract or transaction between "the Government and any other party, wherein the public officer in his official capacity has to intervene under the law. (c) Directly or indirectly requesting or receiving any gift, present or other pecuniary or material benefit, for himself or for another, from any person for whom the public officer, in any manner or capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in consideration for the help given or to be given, without prejudice to Section thirteen of this Act. · (d) Accepting or having any member of his family accept emplorment in a private enterprise which has pending official businetJ~ with him during the pendency thereof or 1'rithin one year after its termination. (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest P,artiality, evident bad faith or gross inexcusable negligence. This provision sh•ll apply to officers and employees of offices or government corpo1·a· tions charged with the grant of licenses or permits or otht'r eoncession111. (f) Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable thn<! on any matter pending before him for the purpose of obtaining, directly or indirectly, benefit or advantage, or for purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party. (g) Entering, on behalf of the Government, into any contt"ar.t or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby. (h) Directly or indirectly having financial or pecuniary in~ terest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is pTohibited by the Constitution or by any law from having any interest. (i) Directly or indirectly becoming interested, for personal gain, or having a material interest in any transaction or act roquiring the approval of a board, panel or group of which he is a member, and which exercise of discretion in such approval, even if he votes against the same or does not participate in the acti9n of the board, committee, panel or group, Interest for personal gain sha11 be presumed against those public officers responsible for the approval of manifestly un· lawful, inequitable, or irregular transactions or acts by the board, panel or group to which they belong. .(•j) Knowingly apJ,roving or granting any license, permit, privilege or benefit in favor of any person not qualified for or not legally entitled to such license, permit, privilege or advantage, or of a mere representative or dummy of one who is not so qualified or entitled. (k) Divulging valuable information of a confidential charae. ter, acquired by his office or by him on account of his official ' position to unauthorized persons, or releasing such information in advance of its authorized release date. The person giving the gift, present, share, percentage or henefit referred to in subparagraphs (b) and (c): •or offe"ring or giving to the public officer the· emplojment mentioned in &Ub· paragraph (d); or urging the divulging or untimely release of the l!Onfidential information referred to in subnilragraph (k) of thid section shall, together with the offending public officer, be punished under Section nine of this Act and shall be permanently or tem· porarily disqualified, in the discretion of the Court, from transacting business in any form with the Government. SEC. 4. Pf"ohibition on pf'iva.te individ'wzla.-(a) It shall be unla.wful for any person having family or close personal relation with any public official to capitalize or exploit or take advantage of such family or clo1.1~ personal relation by directly or indirectly requesting or receiving any present, gift or material or pecuniary advantage from any other person having aomo business, transaction, applic'ation, request or contract with the government, in which such public official has to intervene. Family relation shall include the spouse or relatives by con111angoinity or affinity in the third civil degree. The word "close pet'eonal relation" shall include close personal friendship, social and fraternal connections, and professional employment all giving rise to intimacy which assures free access to such public officer. (b) It shall be unlawful for any person knowingly to induce or cause any public official to commit any of the offenses defined in Section 8 hereof. SEC. &. hohibition on amain nlatives.-lt shall be unlawful for the spouse or for any relative, by con'sanguinity or affinity, within the third civil degree, of the P.resident of the Philippinea, the Vice-President of the Philippines, the President of the Senate, or the Speaker of the House of Represen'.tativea, to intervene, directly or indirectly, in any business, transaction, contr~ or ~ber 80>1960 LAWYERS JOURNAL 281'-l application with the Government: PTovided, That this secLion shall not apply to any person who, prior to the assumption of office of any of the above officials to whom he is related, has been alreody dealing with the Government along the same line of business, nor to any transaction, contract or application already existing or pending at the time of such assumption of public o.ffic.?, nor to any application filed by him the approval of which is not discretionary on the part of the official or officials concerned but depends upon compliance with requisites provided by law, or rules or regulations issued pursuant to law, nor to ·any act lawfully ;performed in an official capacity or in the exercise of a profession. SEC. 6 PTohibition on Membe-rs of Congress.-It shall be un• lawful hereafte1· for any Member of the Congress, du1ing the tE;rin for which he has been elected, to acquire or receive any personal pecuniary interest in any specific business enterprise which will be directly and pa.rticulady favored or benefited by any law or resolution authored by him previously approved -or adopted by ~he Coi;igress during the same term. , The -provision of this section shall apply to any other public officer who recommended the initiation in Congress of the enact,ment ~r . adoption of any law or resolu~ion, and acquires or receives any such interest during his incumbency. It- shall likewise be unlawful for such member ot Congre.se or _other' public officer, who having such Interest prior to the ,approval of such law or resolution authored or recommended by him, continues for thirty days after such approval to retain such interest. · SEC. 7. StJatement of assets and li.abilities.-Every public of• ficer. within_ thirty days 'after the! approval of tl;iis Act or aftm- asSumpting office, and within the month of January of every other )'ear thereafter, as well as upon the expiration of his term of .office, or upon his resignation or separation from office, ahall prepare. and file with the office of the corresponding Depa~ment Head, or in the ease of_ a Head of Department or chief of an independent office, with the Office of the President, or in the case of members of the Congress and the officials. and employtP.s thereof, with the Office of the Secretary of the corresponding House, a true detailed and sworn statement of assets and liabilities, including a statement of the amounts and sources of bis income, thn amounts of his personal and family expenses and the amount of income taxes paid for the next preceding calendar year: • Provided, That public officers assuming office less than two months before the end of the calendar year, may file their fi~st 'statements in the following months of January. SEC. 8. DUnniasal due to une:t:plaVn.ed weiilth.-If in accordance with the provisions of Republic Act Numbered One thousand throo hundred seventy-nine, a public official has been found to have acquired during his incumbency, whether in hiSl name or in ihe name of other persons, an amount of property and/or money ·:manifestly out of proportion to his salary and to his other lawful income, that fact sba'l be a ground for dismissal or removal. Properties in the name of the si;iouse and unmarried children of such public official may be taken into con~ideration, when their acquisition. through legitimate means cannot be satisfactorily shown. Bank deposits shall be taken into consideration in the enforcement of· this section, notwithstanding any provision of law to the contrary. SEC. 9. Penalties for violations-Ca) Any public officer or private person committing any of the unlawful acts or omissions enumerated in Sections 3, 4, 5 and 6 this Act ehall be punished with imprisonment for not less than one year nor more than ten years, perpetual disqualification from public office, and confiscation or forfeiture in favor of the Government of any prohibited interest and unxplained wealth manifestly out~ of proportion to his salary and other lawful income. Any ·complaining- party at whose complaint the criminal pro.sect.tion was initiated shall, in case of conviction of the accused, be entitled to recover in the criminal action with priority over the forfeiture in favor of the Government, the amount of money or the thing ·be may have given ·to the accused, or the fair value ·of 11uch thing. (b) Any public officer violating ·all}' of the provisions of Section 7 of this Act shall be punished by a fine of not les'J than one hundred pesos nor more than one thousand pesos, or by imprisonment not exceeding one year, or by both such fine and imprisonment, at the discretion of the Court. The violation of said section proven in a proper ad~nistrative proceeding shall be sufficient cause for ·removal or dismissal of a. public officer, even if no criminal prosecution is instituted against him. SEC. 10. Competent coure.-Until otherwise provided by law, all prosecutions .under this Act shall be within the original jurisdiction of the proper Court of First Instance. SEC. 11. Prescription of offenses.-All offenses .. punts'bable under this Act shall prescribe in ten years. SEC. 12. Termination of office.-No public officer sha11 be allowed to resign or retire pending an investigS:tion, criminal or administrative, or pending a prosecution against him, for any offense under this Act or under the provisions of the Revised Penal Code on bribery. SEC. tS. Suspen.aion a:nd loss of b6'11.efits-Any public officer against whom any criminal prosecution under a valid information under this Act or under the provisions of the Revised P.enal Code on brihery is pending in court, irhall be suspended from office. Should he be convicted by final judgment, he shall lose all retireinent or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless In the meantime administrative proceedings have been filed against him. SEC. 14. E:t:ception-Unso!icited gifts or presents of small or insignificant value offered or given as a mere ordinary token of gratitude or friendship according to local customs or usage, shall be excepted from the provisions of this Act. Nothing in this. Act shall be interpreted to prejudice or prohibit the practice of any profession, lawful trade or occupat:on by any private person or by any public officer who under the law may legitimately practice his profession, trade or occuuatior., during his incumbency, except where the practice of such tirofession, trade or occupation involves conspiracy with any other person or public official to commit any of the· violations penalized In this Act. SEC. '15. Separability clause.-lf any proVision of this Act or tJie application of such provision to any pereon or circumstances is declared invalid, the remainder of the Act or the application of such provision to other person or circumstances shall not be affected by such declaration. SEC. 16. Elfecti'Vit11-This Act shall take •effect on its approval, but for the purpose of determining unexplained wealth, all prop«rty acquired by a public officer since he assumed office shall be taken nito consideration. Approved, August 17. 1960. C.1.R • ... (CMttmued from page 280) the conse"quenees of their act&. (National Labor Union, et al. T. Philippine Match Factory. 70 Phil., 300: Almeda, et al., v. Court of Industrial Relations et al., G. R. No. L-7420; National Labor Union v. CIR and Manila Gas Corporation, 40 0. G., 87: Lnzon Marine Department Union v. Roldan, et al., G. R. No. L-7165, Mar 30, 1960; and Philippine Education Co., Inc. v. CIR, an:l Union of Philippine Education Employees (NLU), G. R. No. L-7156, May 31, 1965. Upon the basis of the findings of facts, evidence nnd conelu· sions anived at, the Court finds that the version of respondent COMPANY is more worthy of credence.' While complainant UNION'S claim is not clearly and substantially borne out by the facts and evidence of the case. IN VIEW WHEREOF, let this case be, as it is h<'lreby, DISMISSED. "282 UAWYERS JOURNAL .September· ao,. 1960 THE ANTI-GRAFT LAW IN SIMPLE TERMS• By Sen. ARTURO ,M. TOLENTINO /.' Coverage of Law Example: A Cabinet member persuades the director of ta. I?: The law took .effect on August 17, 1960. Only acts com- restry to grant a timber uCense to an alien. Under the Consti.: mttted from and after that date are penalized. If the prohibited tution and the laws, an alien cannot exploit our natural resources .. act took place before that date, the law cannot be applied to it. Both the Cabinet member and the director are liable, even if neiBut when a public offiaer is investigated for unexplained wealth, ~her received any gift or benefit from the alien. all property acquired by him since he ass10JJ1ed office will be (b) It is uniawflJ. for a public officer, in the discharge of taken into account .,even if he acquired such property before Atiir- his fuctions, to cause undue injurY or give unwarranted J:enefits 'ust ·17, 1960. to any person, through manifest partiality, evident bad faith, or ¥.'AU offi~ials and employiees of the government, _\,Vhether elec-- gross negligence. tiv( or appointive, receiving compensation, even nominal, ~re co- Example: In the ·a:ercise of their discretion, the Reparation vered by the law.• These include those who are in the national Commissioners grant to only one applicant 20 fishing boats from and local governments,· in the government-owned or controlled cor- reparations, and turn down without cause four other applicants ~r.:;~s, and in any other instrumentality or ageru:y of the gov- who have the same qualification's as the favored one. (c) It is unlawful for a public officer to enter, on behalf of 3. The offenses penalized by this law are in addttion to the the Government, into ai:iy contract manifestly or grossly diaaderimes of public officers already punished under the Reviaed vantageous to the Government. ; : Code, such as bribery. Example: The PHHC .directors approve a co!'tract in which Receiving Gifts · the PHHC p~hases a piece of land at P5 per square meter when . A public officer is permitted to receive unsolicib!!d gifts the prevailing market value of the land is P.75 per square meter. ~a~:u~! :; ::i~:~~~~an:cc:~~~:g ~:e~oc:~ =~~~d:n:;y u::::~ of (d) It is unlawful for any public officer to grant a license i. permit, privilege or benefit tO any person who is not qualified for Gifts which are excessive in value are prohibited, even or is not legally entitled to it, or to one who is a mere dummy of if n on the occasion of some family celebration, like a birth- one who is not so qualified or entitled. ~~ris:.~:.edding anniversary, or On some national festiVity, liko Example: The director of lands grants a homestead patent to an alien who is not qualified to 2cquire public lands, or to 6. ~t is a gift of small value and what is excessive will a Filipino who is a dummy ·of such alien. depend on the circumstances. Ultimately, it is the court," in (e) It is unlawful for a public officer, who has acq1".ired, ease of prosecution, which will decide whether the gift is of valuable confidential information, to make a premature releHe of small lue or is' excessive under the circumstances. , such information or to release it to unauthorized person. The 7. Whether the gift is big or small, the public officer will be person who urges him to make such unauthorized release will also liable, if it is given or received in consideration of his office or be liable. · for him tl) do or refrain from doing son:P-thing in the discharge Example: A member of the Tariff Commission', knowiii.g that of htl"s icial duties. This would be bribery punished by the there is already a decision to make a change in the tariff rates of Revised enal Code. certain goods, gives advance information of .this decision to some 8. public officer who is prohibited to receive a gift is also merchants. prohi ted to receive gifts for any member of his family or relatives within the fourth civil degree. This wot.Id include gifts to his parents and gi:andparents, children and grandchildren, brothers and sisters, nephews and nieces, and first cousins. Neither can he receive gifts for the spouse of any of these relatives. 9. A public officer is permitted to receive gifts of any value from members O'f his' immediate family. Official Misconduct t. Thene are acts punished by this law in which it is not nece ary that the public officer should have profited or benefite The acts in themselves are considel'ICd inimical to pub1ic interest and are thus penalized, even if the public officer n:?Ceives no benefit. Thus--(a) It is unlawful for a pcl>Iic officer to induce or influence another public offioer to commit an offense or a violation of re.-· gulations in connecrt-ion with the latter's official duties. The pub1ic officer who allows himself to be so induced or influenced is also criminally liable. *Taken from the Philippine Free P1·esa, September 17 and October 1, 1960 issues. 1 In the Senate-approved version of the bill, even those who do not receive any compensation were covered, but upon insistence of the House of Representatives in the con:lerence committee, the application of the law was limited to those who receive compenlation. Corruption 11. Some of the acts or omissions punished by this law are akin to bribery in that the p\:.blic officer benefits directly or indirectly in connection with hi~. own official functions. Thus(a) When a public officer has to intervene in a contract or transaction between the Government and any other person it is unlavrful for him to receive any gift or benefit in connection with such contract or transaction. He is prohibited to receive such gift or benefit even through an intermediary, or for another person. He is liable, even if he did not ask for the gift or benefit received by him. The giver of the gift or benefit is also liable. If a public officer asks for the gift or benefit, directly or in· directly, even if it is not given to him, he becomes also liable. Example: The Department of National Defense conducts a public bidding for hats and shoes 'lf soldiers. The bidding is under the supervision of a committee which will decide· which bid shall be accepted. The secretary of tht1 department will have to pass upon the decision of the committee. H such secretacy accepts or requests any gift from any bidder, directly or indirectly, he becomes liable, even if the contract is . not awarded to 81".Ch bidder. (b) When a public officer has before him a matter affecting a private business enterprise, he cannot 8.ccept enployment in such enterprise during the pehdency. of the matter.: before :him Septiembo 80, 1960 LA WYERS JO URN' AL and for a period of one year after its termination. Neither can he place any member of his family in such employment during that period. The one giving the employment is also liable. The public .:ifficer, however, is not liable if he has no intervention in the employment of the member of his family. The law does not apply to employment secured before August 17, 1960. (c) . It is unlawful for a public officer to delay action on any ~atter pending before him for the pl:.rpose of obtaining any peeUniary benefit from any interested person, or for the purpose of favoring or discriminating against another interested party. Examples. A senator who is an engineer cannot contl'act with the Department of PlAhlic Works and Communications to un· dertake the construction of. roads, bridges, ete. A congressman ~~ become a stockholder in a corporation granted a radio fra111(""w-f:y t¥' Congress during his term of offiC13. (b) When a member of Congress is the author of any law or resoluP,on which directly and particularly benefits a specific business 'enterprise, he cannot acquire any personal pecuniary intereat in that enterprise during his term. lf he had alreadf such interest when he presented the bill or resolution, be must give up that interest within 80 daya after the approval of. such bill or reso]u.: tion. J Influence Peddling ' 12. If a pb.~Uc &fficer helps any person to get a government Example: The Congress passes a· law appropriating a certain license or permit, it is unlawful for him to accept or request A.DY amount as slAhsidy for an airplane company. The author of that gift or material ·benefit for such help. He is liable even if he re.. law cannot have even a share of stock in that airplane company. quests or receives such gift or benefit through an intermediary ~'fc) If the President, a department secretary, a bureau dior for another person. The pers.on giving it is also liable. ' reetor, or any other public officer has recommended the initiation. Example: A congreSsman writes to the Central Bank to re- in Congress of such a biU or resolution benefiting a particular commend approva1 of the dollar license of a businessman. After enterprise, he is also prohibited, just like the member of Congress ~he license is granted, he collects 10o/o of the allocation. who presents it from having an interest in such enterprise during ./ 18 •. If the public officer ~cts in the exercise ?f a ·pr~essio.n his incumbency. on a matter requiring professional knowledge, he 1s not hable if Example: The mayor of a city .recommends to the President he receives compensation for his services. a bill which grants a corporation in that city the privileie of ~xample: A congre1sman appears as counsel for a trlins- running a gambling casino. The President sends the bill to CQDportatio, company, before the Public Service Commission to sec~e gress, recommending approval. A congressman presents :the bill • a ce~ificate to operat& some trucks along a certain route. ::t a~!!~~~e T::y rn:~:~ ~~e !~::id~~~r:s~d i!h~h:on:;~:::~n ca:; Ii/ Conflict of Interest lied 1.. Th' ·s law seeks to prevent a conflict between public in- , Private Persons terest and private interests of a public officer. It is not necessary that the public officer should have act.ually taken advantage of 18. When a publie official has to intervene in some business his position to serve his personal interests. The purpose of the transaction, contract or application of any person with the goV~ Ja,-1s to avoid the possibility that he might do so. Thus - • :~n=!~e it.!; ;::':ulbe~~i:i;r:~la!:~s ;e:~o!~i::d~h~ 8: : : : (a) It is unlawful for a public officer to have some pecuniary of their closeness to· the public official concerned. interest in any busi~ess, contract or transaction in connection \vith which be intervenes or takes part in his official capacity. 19. Relativies who are prohibited to do this include the spouse of J;k6" public officer, his children and rrandchildren, his parents Example: The secretary of agricult~e and natural resources rid grandparents, bis brothers and sisters, and bis nephews and ;::a~~t ;!::te~n~o i~~re~:rinap~~~e:i. concession or pasture !and nieces. T~e spouse of any of the&.! relati'fes is also prohibited. 20. Friends who are prohibited to do this include all those (b) It is unlawful for any member of a board to have who are sufficiently intimate with the public officer as to have any interest in any transaction or act requiring the approval of fnee access to him, such as comp.8.dres, personal physicians, girl the board, even if he abst&:ins from voting or votes against ap~ friends, professional associates, etc. i:trov•lt Example: An appointment to & civil service position is pending ~xample: A member of the board of directors of the Philip· · with the commissioner of civil service. U his godson receives a National Bank cannot have an interest in any application piece of jewelry from the applicant because of his closeness to the loan which has t,o be approved by the board. commissioner, that godson becomes criminally liable, even if ac5. The prohibited interest may be direct or indirect. In- tually he does nothing to secure the approval of the appointment. direct intereat includes owning shares in a corporation. A public hi. Any private person who induces any public officer to com· ~:Cficer bas an indirect interest in the business of his spouse. mit any act constituting graft or corn..ptioi:i practice punished /. 16. The mere possibi1ity that in the future a public officer under this law (those explained in the Sept. 17 issue), becomes may have to act upon a contract or transaction or business of an liable just like the public officer. enterprise in which he has an interest, does not viole:te the law. /, Certain Relatives It is nece~ary that ;the contraCt or tra11saction in which the public ('Officer has an interest actually comes before him or befot·e the 22. In addition to the foregoing prohibitions on private per· board Of w~ich he is a member, for official action. sons, which apply to everyone, there is a special prohibition apPlicable to certain relativ.esj>f the President, the Vice-President, the p,~si nt of the Senate, and the Speaker of the House of Re~ Law-Makers /17. In addition to the prohibitions explained. in the Sept. 17 issue~ which apply to all publie officials, except those serving without compensation, ther.g are also special prohibitions applicable only to those who intervene in the making of laws. Thus(a) It is unlawful for any member of Congress to have a direct or indirect financial interest· in any contract with· the government, or in any franchise or special priv.ilege granted by the Congress during his term: of office. res tives. 28. The relatives covered by the special prohibi~ion are th!. .spouse and relatives within the third degree of such officials. Tlo3 third degree relatives include the parents and grandparents, ehil· dnen and grandchildren, brothers and . sisters, nephews and nieces, uncles and aunts. The spouses of tMse relatives are also included in the prohibition:. · 2'.. These relatives cannot intervene, directly or indirectly, ~ LAWYERS JOURNAL· Septen'lbef · 80, 1~60 any business, transaction, contract or application with the government, even if they do not receive any gift or benefit for such intervention. Examples: The First Lady cannot recommend to any public official the appointment of anyone to some position in the government. A brother of the Vice-President cannot help &D.'fone secure a dollar allocation in the Central Bank. A son Gf the Senate P1·esident cannot buy or borrow bulls from the Bureau of Animal Industry, or help anyone to do so. A nephew of the Speaker cannot sell office furnd.ture or equipment to government offices. /26. The prohibition does not apply to relatives who, even before the assumption of office of such President, Vice-President, Senate President, or Speaker, had already been dealing with the government in some line of business. ExampLe: Before Mr. X is elected President, his brother Y has · already been furnishing construction materials to the government because he is engaged in this business and he has been ~ te ing bids for s&ch materials. The election of X as President wi not disqualify Y from continuing in such business dealings h the government. ' 26. These relatives may file applications for themselves, the approval of which is not purely discretionary, but depends upon compliance with requisites provided by law or regula:tions. But they cannot assist or intervene for others in such applications. Eiiample: An: application fo-r homestead, or an application for civil J:erviee examinations. ;:11· If these relati\l'eS are tlwmselves public officials, their dealings in an official capacity with other government agencies are not prohibited. Example: The son of the Senate President is the chairman of the bo&Td of directors of a government corporation. As such chairman, he can enter into contracts on behalf of his corporation: with any other government agency. 28. Thelle are public officers who, under the Constitution and other laws, are allowed to practice their profession, trade or ocer.pation. Their right to such practice is not curtailed by t'his law, · 29. Professions' ane those which are regulated by law, such as law, medicine, enginr?ering, pharmacy, etc. Trades or occupations are those for which the government grants licenses or permits, such as tnerchandizing, importing, exporting, manufacturing, etc. JO; Not all activities of a professional are within the practice erhis profession. Th~ test is whether his professional knowledge is neeied in the particular activity in question. Infleunce peddling is not a profession. Example: A brother of the President is a lawyer and has opened a law office. As such, he can represent his cli~nts in competent courts or before administrative bodies. Hie can prepa;re contracts between his clients and government corporations. All these are within the practice of law; his legal knowledge is needed here. But if he simply follows up and secures the approval of a doJlar allocation, or of a timber concession or obtains a pardon for a convict, or represents a bidder for a government contract, thett.e acts are not within the practice etf law. Financial Statements 31. Statements of assets and liabilities must be filed at stated periods by all public officers, who receive any amo&J1.t of compensation, allowance or per diems, and private peTsons are not required to file scch statements. 32. The first statements were to be fihed not later than September 16, 1960, by those already in office. Those entering the ~ment service after September 16, 1960-, have 30- days afte1· assuming office in which to file their first statements. 33. The next statements are to be filed within the month of January of every othez< year thereafter. Thus, the next statements wi1l be filed in January, 1962. The last statements are to be filed upon the Wrmination of office or employment . • 36,.. :The' statements · af departm·ent heads · are filed ·with the Office of the President; those of members and employees O'f Congress are filed ~th the corresponding secretary of each House; those of the members and· employees of the Supreme Court are filed with the Office of -tile Chief Justic; and those of all other officers and employus are filed with the office of the corresponding department head. 35. Thie statement must be under oath. It must contain the following: (1) a list of the propertiea of the pl:.blic officer and their values, including bank deposits; (2) the amounts of his debts and obligations; (3) the amounts and sources of his income in the next preMding calendar year; (4) the amount of his personal and family expenses during that preceding year; and (6) the amount of income taxes paid during that preceding year. 36. Failure to file the statement, or the filing of a false statement, is a ground for dismissal or removal of the public officer 01· employee. He may also be criminally prosecuted. Unexplained Wealth 37. If a public offioer is found to have an amount of property or money manifestly ot:.t of proportion to bis salary and othe1· lawful income, and he cannot explain the legitimate source of that wealth, such unexplained "WeBlth is subject to confiscation by the government. All. property acquired by him since he assumed office will be taken into account. 38. In debermining the Vtealth of a public officer, property placed in the name of his spouse, ascendants, d~cendants, rela, tives and other persons. but in fact acquired by him, Bre- to bo included. · 39. For the purpose of determining unexplained vtealth, the bank deposits of the public officer can be looked into, in spfbeof the law making s1".Ch deposits secret and confidr'>..nti,al. For other purpose, howeve1·, such as in prosecutions for bribery Qr influence peddling, or income tax eases, bank deposits are atill secret. 40. Possesaion of unexplained weal.th is a ground for dismissal. removal of the public officer or emplQyee. Penalties 41. For not filing the statement of assets and liabilities at the time requind by law, or for filing a statement containing false information, the penalty in a criminal prosecution: is either a fine from PlOO to Pl,000, or imprisonment of not more than one year, or both such fine and imprisonment, at the discretion of the court. 42. For all othe1· violations ~f this law, whether committed by public officers or by private persona, the penalty includes: (1) imprisonment from one to ten years, (2) the confiscation by the government of any prohibited interest or Unexplained wealth, (3) perpetual disqualification from public office, and (4) the return to the complainant of any money o-r property he may h.Sm given to the guilty person. · Miscellaneous 43. When a pi.:.blic officer is under investigation or prosecution for bribery or any viola,tion of this law, he cannot be .allowed to resign or retine. This is true, whether the investigation is criminal or administrative. 1 44, The moment the fiscal files a criminal case in court against a public officer for bribery or the violation of this Jaw, he shall be suspended from offieie. If he is finally convicted, he loses all retirement and gratuity benefits given by any·law. If.he is acquitted, he is reinstated and given all th12 salaries and benefits he faiJed to receive while he was under suspension .. But if ad· ntinistrative procieedings have also been filed againsl: him, he wm remain suspended, in spite of the acquittal in the critnin:al case; until he is also cleared· in ·the administrative investigation or allowed under some other law to return to office. 45. Criminal cases for violations of this law may be. filed in court at any time within ten years from the. eOmmiHion of· the. offense. LAWYERS· JOURNAL. 1960 BAR EXAMINATION QUESTIONS .;f.t-11n.'u CIVIL LAW I. a) When did the Civil Code of the Philippines take effect? Discu'ss. b) State two new ri&"hts or causes of action created by the new Civil Code: c) State two subjects which were relulated by the old Civil Code but which have been omitted by the new Civil Code. II. ~) How does the conjugal partnership differ from nn · 01·Clinary partnership ? · b) How does the crmjugal partnership differ from co-ownership? III. Pedro Perez, husband of Maria Cruz, contracted tuberculosis in January of 1961. His illness becnme worse and on Scfltember 10, 196~ he could hardly move and could not leave his bed. On that date, the wife, Maria CrU~, eloped with Juan Pere:i.:, Pedro's brother, and .both went to live in 'the house of Maria's father. Since then Juan and Maria lived and treated each other as husband and wife. Pedro Perez died in January 1, 1953. His wife, Maria, stayed away and did not even attend his funeral. Then on June 17, l!.153, Maria gave birth to a baby boy named Jose Perez. Was Jose Perez a legitimate child 'l Give reasons for your apswer. IV. a) What is the period of prescription under the new Civil Code for the following causes of action: (1) Actio!l upon an · or .. 1 contract; (2) action for annulment of a subsequent marriage ~ntra~ted in the mistaken belief di.at the consort in the forn1er i;narriage was dead. · . .b) A cause of action accrued on January 10, 1949. The complaint to enforce the same was filed in Court on November 6, 1956. Assuming that under the old Code of Civil Procedure (Act 190) said cause of action prescribes in ten years, but under the new Civil Code it prescribes in only sbr: years, should the acthln filed in Court be considered now barred by extinctive prescription or not? Give reas'ons for your answer. V. A Constructed a house on land belonging to B in the belief that the land was bis own. Upon discovering the fact, B demanded that A should pay him the value of the land, but A !1iiled to do a) Did A's failure to pay automatically make B th<! owner of the house by right of accession? Give reasons. b) What remedies are available to the parties, Dii:;cuss. VI. An agent with general powers of administration, leased to another person two parcels of land belonging to the principal; one for five yeare at P600 papble annually and the other without a fixed term at PlOO a month payable monthly. The agent, desirous of improving the financial condition of his ~rincipal's business, sold another piece of ·land belonging to his principal, fo-r double the price that appeared in an inventory prepared by the principal before going abroad. Are the three contracts valid and binding upon tlle principal? Give reasons for your answer. . Vil. a) Decedent A left an estate worth P30,000, after paying his ·Obligations. He is survived by two legitimate children (B and C), one natural child (D), two illegitimate children not natural (E and F) and the· surviving spouse (G). In his lifetime the dec~ased A had donated Pl0,000 to his son B. Liquidate the estate and decide the legitime and actual share of each surviving heir, giving the substance of the legal provisions on which your computation is ·based. b) Decedent X, born illegitimate, is survived by only an illegitimate brother Y, and by Z, an iUegitimatc child of another illegitimate )))'other, who died ahead of X. State whether or not Z has any dghts in the intestate suceeasion of X, giving ,the substance of the legal principle.s applicable. VHI. ·a) Explain the various meanings of Lhe term "FRAUD" as used in the Civil Code in relaiion to obligations and contracts, and give illustrative exam.plea of each. b) What do you understand by "continuous possession of status of a (natural) child". as used in the Civil Code? Explain and illustrate witb examples. IX. In a collision between a public service passenger bus and a freight truck, one of the bus passengers ·suffered physical injuries. Both drive1·s were at fault, and the passengers filed s.uit against the owners of both vehicles in a single action. Each defendant sets up the defense that he exercised the diligence of a good father of a family in the selection and supervision of the respective driver. a) Are both defenses good if duly proved? Give y.mr reasons. b) Is plaintiff entitled to recover moral damages? Reasons. c) If the defenses are not proved, will the defendants be solid~ arily liable or not? Reasons for your answer. X. a) After securing, throuih collective bargaining, a closed shop contract, the union demands the dismissal of all employees who are not members of· the union, regardlefls of the date such non union employees were hired, whether before or after the contract. Is. the union's demand proper? Reasons for you answer: b) A guard of X Company is injured, while on duty, by the automobile of one of the customers of the company. He filed a claim under the Worlanen's Compensation Act and wins an award of Pa,000. Believing that the amount is not enough to compensate his injuries, the guard files a s&.it for damages against the owner of the automobile. If the latter was really at fault, is the action tenable? Decide with reasons. LAND REGISTRATION AND MORTGAGES I. (a) What do you understand by judicial confirmation of -an imperfect title? (b) Is there at present a law fixing the date when an application of thi~ kind can be filled? lf so,· what is • the deadline? II. (a) In voluntary dealing with i-egisteredl lands, what is the operative act that conveys or binds the land? Wbat documents are required to be presented in the office of the Register of Deeds? (b) When is a voluntary deed considered-registered? (c) Jn involuntary dealings, what documents are required to be prE.sented for registration in order to convey and bind .the property? State briefly the difference in the registration proceedings of a volu!l.tary dealing from one that is involuntary. · III. (a) 'l'he Register of Deeds doubts if a document you have presented is acceptable for registration. To whom should be Register of Deeds refer the matter for consultation? In the event the resolution is against the registration, can you appeal? State briefly the steps you should follow. (b) Is a lease contract in favor of an alien for 25 years of a titled land acceptable for registration? Is it not covered by the constitutional prohibition i-egarding acquisdtion of real property by aliens? IV. (a) A property waS wrongfully or erroneously registered in another person's name. Two years after the entry of the decree, the rightful owner discovered the registration. What is the remedy of the ownel'? Is the action subject to prescription? If so, what is the period of prescription? (b) Distinguish briefly constructive fraud from actual fraud. In an action for reconveyance or damages on the ground that the property was erroneonsly regi9tered in the name of the defendant, what kind of fraud should be proven in ord.er that the action may prosper? V. "A", "B" and "C" are co-owners of a titled land in thE' proportion of 1/3 each. "A" died. Juan Momez, posing as his only heir, sold the participation of "A" to· Guillermo Perez, who in turn sold the same portion to Enrique Fajardo. The sales. to Perez and Fajardo were registered and noted on· t"he title &nrl duplicate, but no new titles were issued tO Perez and Fajardo. Two tears after the sale to· Fajardo, Francisco Heredia, the rightful 286 LAWYERS JO.URNAi. s .. tember 30, 1960 heir of ''A", filed an action against Perez and Fajardo seeking the annu1ment of the deeds of sale. Perez and Fajardo claim that they are innocent purchasers for value. The evidence is clear that Gomez was an impostor. Is the defense of Perez and Fajardo tenable? Why? VI. Pedro Reyes, registered owner of a parcel of land, sold one-half ( 1 ,2) of the immovable property to "B". The deed wa!!I not registered. Reyes died leaving three sons: Juan, .Marcos and Antonio. Upon the death of Reyes, his sons instituted intestate proceeding for the settlement and distribution of his. e!ltate including the titled land one-half of which had been sold to "B". The entire parcel of land was adjudicated to the thre2 h1·others. Later, Marcos and Antonio so1d their share to their brother Juan, and ·a new: certificate of title was issued to Juan as the sole owner of the whole land. "B" filed .nn action for recon,.eyance of the one-half (%) of the property. Is the action of "B" te,nable? Explain your answer briefly. VII. (a) On July 1, 1942 Marcos Heras sold his ugricultural land to Juan Go, a Chinese. On September 4, 1942, during the enemy occupation, the Government of the Philippines &pproved a law prohibiting the acquisdtion of lands by aliens. In .1946, Juan Go filed a petition for registration. The Director of Lands opposed the petition on the ground that the Constitution of the Philippines does not allow aliens to acquire agricultural land. Is the opPosition tenable? Give your reasons for your answer. (b) A titled owner is desirous of mortgaging his land to an alien. May the alien accept a mortgage on the land? Are there any limitations imposed by law on his right as mortgagee? VIII. As a result of a previous ordinary registration proceeding a lot was registered in the name of "A" who is described as a widower. In a cadastral proceedings instituted subse~uf:ntly, can SUPREME C'OURf ... (Continued from page 275) of Industrial Relations, and that, furthermore, the complaint does not state a cause of action. Woe find the petition to be meritorious. The University of the Philippines was established "to provMe ndvanced instruction in literature, philosophy, the sciences, and arts, and to give professional and technical training." (Act 1870, Ree. 2.) Performing as it does a legitimate government function, the University is maintained by the Government. It declares no dividends, and is, obviously, not a corporation created for profit but an institution of higher education and therefore not an industrial or business organization. In the case of Boy Scouts of the Philippines vs. Araos (G. R. No. L-10091, promulgated January 29, 1958), this Court held that- · "x x x ou~ labor legislation from Commonwealth Act No. 103, creating the Court of Industrial Relations, down through the Eight Hour Labor Law, to the Industrial Peace Act, was intended by the Legislature to apply only to industrial employment and to govern the relations between employers engaged in industry and occupations for pur· poses of profit and gain, and their industrial employe.es, but noti to organizations and entities which are organized, operated, and maintained not for profit or gain, but for elevated and lofty purposes, such as, charity, soeial service, education and instruction, hospital and medical seTvice, the encouragement and promotion of character, patriotism and kindred virtues in the youth of the nation, etc. "In conclusion, we find and hold that Rep. Act No. 8'75, particularly, that portion thereof, regarding labrtr disputes and unfair labor practice, does not apply to t.he Boy Scouts of the Philippines, and consequently, the Court of Industrial Relations had no jurisdiction to entertain and decide the action or petition filed by respondent Araos. :x. x .z." "A" ask the· cadastral court that his title be cancelled, and, in lieu thereof, another title be issued in his name and that of his children? Suppose the land is mortgaged to "C" and the deed is noted in the title of "A", can "A" ask the cadastral court to issue the title without the incumbrance on the ground that the obligation is already paid? In ease an opposition is .filed by the mortgagee who alleges that the obligation has not been paid, has the cadastral court jurisdiction to decide the issue? IX. (a) In a mortgage Contract ,it is stated that the immovable property mortgaged consiSts of a parcel of land with a three door "accesoria". Before the obligation became due, the owner added two doors to his "accesoria". On account of the owner's failure to pay his obligation, foreclosure proceeding was instituted againft him. The mo1tgagor in his ar.swei claimed that t.he two doots should be excluded from the proceeding. Is the claim tenable? Why? (b) In 1930 "A" mortgaged his titled land to "B" to secure a loan payable within four (4) years. The deed was proper~ registered. In 1948 "B" filed foreclosure proceedings for faflu~e of "A" to pay his obligation. "A" asked for the dis.missal ~f the complaint on the ground th&t the action has prescribed. "B" countered that, according to law, "no title to registered land ln derogation to that of the registered owner shall be acquired by prescription or adverse possession" and since the mortgage is ·not~ , in the title, the action is not subject to prescription. IA this contention tenable? Why? X. (a) What is the concept embodied in the new Civil Co~e with regard to chattel mortgage? (b) Can a house of strong mat:.P~ials constructed on rented ]and be the subject of a chatt!'l mortgage? (c) A house constructed on rented land ~as coni:idcreld by the parties in a chattel mortgage contract as personal property. In case of foreclosure, can the sheriff sell the ·house as. pcrsoni:i-1 . property at the auction sale? The above ruling has been reiterated in our decision in the recent case of University of Santo Tomas vs. Villanueva fi!tc. et a1. (G. R. No. L-13748, promulgated October 80, 1959) and in the cases cite.d therein. Following the said ruling, it is obvious that t.he Industrial Court has no jurisdiction to hear and de~ermine the complaint for unfair labor practb:e filed against herein petitioners. In addition to the patent lack .of jurisdiction ot the respondent court, the complaint for unfair labor practiee should be diamiased for failure to state a valid· cause of action. According to t.he said complaint, petitioner Concepcion Anonas "notified said eo111· plainants that she had lost her confidence in them, for which reason, she did not recommend the renewal of their appointments which were supposed to be made on June 1, 1966." It also alleged that the refusal of petitioner Anonas "to recommend t.ho reappointment of the three complainants-employees was just a mere retaliation x x x." It clearly appearing upon the facie ot the complaint that the complaining uninon members were merely temporary employees' whose period of employment has tftol'minated, their separation from the service is, therefore, justifiad. Settled is the rule that one who holds a temporary appointment has no fixed tenure of offi~p and ll!' his emnlrwm1mt can be terminated at the pleasure of the appointing power, theN l)ein~ no need to show that the termin11tion is for c .. use. (Mendn11.A vs. Canzon, G. R. No. L-104668, April 12, 1953; University of the Philippines et al. vs. CIR et aJ. G. R. No. L-13064, December 20, 1968.) In view· of the foregoing, the petition for certiorari is tmmted. The orders complained of are set aside arid the complaint for unfair labor practice against the petitioners is dis,missed, with cosb against respondents other than the respondent court. Pcwas, C. J., Bengzon, Padilla, Montem!!yor, Ba.utiata Angelo Labrador, and Endeneia, JJ., concun-ecl. Ban-era, J., took no part. Sepb'.!mber 30, 1960 LA WYERS JOURNAL 288 IN!rERNATIONAL COMMISSION OF JURISTS Commission Internationale De Juristes Commission Intemacional De Juristas Internationale Juristen-Komm.ission 6, Rue Du Mont-De-Sion, Geneva, Switzerland TeJephone 25 63 00-Cable Address: INTERJURISTS ESSAY CONTEST ON Tke role of the laWl/61" in. the economic and sooial development of kia country within the framework of the Rule of Law In order to encourage law atudents and young lawyers Interested in the problems of the Rule of Law, the lnternational Commission of Jurists-a non-governmental organiza· tion in Consultative Status with the United Nations Economic and Social Council-announces an international essay conte~t on the theme: "The Role of the Lawyer in the Economic an:J Social Development of His Country Within the Framework of the Rule of Law;" Regulations 1. Subject formal instruction, as required in each particular country with a view. to becoming qualified as a judge or to practice law, In case of doubt as to the eligibility the Adjudica"t.ion committee shall decide in the last resort. 4. Languages Entries may be written in English, French, German or Spanish. 5, Form of sub1nission Esaays may be written on the theme in general or on any specific national or international aspect decided upon Entries must be typewritten, double-spaced, on one side by the entrant. The essays submitted should deal with the of the page only and :r.ubmitted in five copies, impact on each other of the need for economic and social development and the promotion and preservation of fundamen- 6 · l 4 ength tat freedoms under law. There should be a discussion of the Entries should contain a minimum of 10,000 words. queii;tion whether the Rule of Law is properly to be seen as aolely a defence again"St infringement.a of the fundamental 7. Adjudication freedoms or whether it requires a positive attempt by lawyers-in the broad sense of the term, i.e., judges, teachers of law and practising lawyers-to promote simultaneously the c10ndiiions in which man's legitimate social, economic, educational and cultural aspirations may be fulfilled, The essay sheuld be prepared in a publishable form, with proper citation of relevant material, 2. Closing Data Entries must be rtceived at the Geneva offices of the Commission not later than December 31, 1960. 8. Eligibilit11 The entrants must belong to one of the following categories: a) Persons "certified by their respective Dean, Tutor, or other responsible officer as registered students in a recognised school or faculty of law, or in a school or faculty of political and/or social science where instruction and examination in Jaw forms part of the curriculum leading to a dE:gree; I>) Persons who have graduated in law or in a subject which included an examination in law not earlier than 1957; o) Persons reading for the Be.r or otherwise undergoing Entries will be judged by an Adjudication Committee of distinguished judge9, academic lawyers and practitioners drawn from different countries as follows: MAUlUCE AYDA"LO'r, Pl'ocureur General, Court of Appnl, Paris; RoBERT R. BOWJE, Direator, Center for International Affairs, lilarvard Univer· sity; FREDE CASTBERG, Professor of Law and former Rector of the University of Oslo; MANUEL G. ESCOBEDO, Lawyer, former President of (Barra Mexicana); JEAN GRAVEN, President of the Court of Cassation, Geneva; C. J. HAMSON, Professor of Comparative Law, University of Cambridge; Mr. Justice W. B. van LARE, Judge, Court of Appeal, Accra; R. P. MOOXERJEE, Dean of the Faculty of Law, University of Calcutta, former Judge, High Court of Calcutta; L. A. SHERIDAN, Professor and Head of the Department of Law, University of Malaya, Singapore. National committees consisting of distinguished jurists may be appointed to judge national entries for submission as final entries to the international committee. 8. Awards First prize: Second prize: 3rd & 4th prize: Cash award of 2,000 Swiss francs; Cash award of 1,000 Swiss francs; Two cash awards of 600 Swiss francs; Winning entries as well as those receiving honorable mention will be published in the Journal or in another publication of the Commission, LA WYERS JOURNAL September 30, 1960 Lawyers Directory AN'l'ONIO, llOMAN II. ll-420' llmmm S1111loll llldir .• 1'111_,1 (loili, Mtmiln orr. 'l'ebl. a-111-110 B-6~·411 Rt11. Tel. 2-46-38 ARANAS, JOSE R-301 Bank of the Phil. I1lmnd Bldri. Piasa Cerunta, Menil• T•I. B·H·57 AllTIACA, SAN'l'IA(,;0 JU. Suile 3011 S11munillv llldK. Eaeult.11, Munllla AR'l'URO A. ALAl•'IUZ & ASSOCIA'l'E:i Atturneys &; Cou111ellvnJ ot L111Y Suite 41.16-4011 Jle1ri1u• Ul<lll'Eaculta, MnnU" .•rei..:s-n-38 B·U·&7 A.MA. 1.i.;uN I •. 1''mnc:IHe<• l.nw orn ...... ll-201 S111m1111Jh1 llldir. Jr.senll.11, M11uib1 'l'el.8-19-H hli:ILNAl,IJO, IUCAIUIO MAtL Aut. 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CllUACO C. • omee; R·3061Jm·ke Bide: E:!culln, M1u11lu 'Tel. 8·58-10 Jt...,ide11ce: r.M Sr111 Anloniu S1111 l'1·11nciaeu del Monie QUH!lll Cily SYCH', SALAZ/Ill & ASSOCIA'J'Ji:S filn l•"luu1·, 'l"rmle /\1101 Commerce llld• 216 J111111 J,111111, Mt111lln 'l\•bo. 2-6U·llll. ~-GU-01 6 2·GO·OB SYQIJIA & l•"JtANd1sco I.AW Ol•'l•'ICS J~NIUllUI~ I'. SY(llJIA CIU.:SGlrni;m M. ~'ll/\NCISCO Andn!ll In ll11llH"l'IU' Joae C. Lr.iuret11 303-U A,.re11 Bldir. 6311 Rizul Ave., M11ni/" Tebi.S-17-52&3-AIMI NOW AVAILABLE francisco's REVISED PENAL CODE BOOK TWO (Articles 114-24S) THIRD EDITION 1960 In this latest edition th and scholarly treatment ' f ~ comprehensiveness carried over: explanat· 0 its past editions are amplified by illustrat~on of each article is given decisions of the Su r~ve cases from the latest pmes, of th~. Uni tea S~ete Courts of the Philiptacts of each case dige.ste s and of Spain, with court rulings ar d for convenience while amend.ments of the ela:oted . ver~ati~. 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