Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

L-69899 July 15, 1985 ROMMEL CORRO, petitioner, vs. HON. ESTEBAN LISING Presiding Judge, Regional Trial Court, Quezon City, Branch XCV HON. REMIGIO ZARI Regional Trial Court, Quezon City, Branch 98; CITY FISCAL'S OFFICE, Quezon City; LT. COL. BERLIN A. CASTILLO and 1ST LT. GODOFREDO M. IGNACIO, respondents,

government. Under these circumstances, the proper forum from which the petition to withdraw the articles should be addressed, is the Office of the City Fiscal, Quezon City and not with this Branch of the Court. It is to be further noted that it is not even with this Branch of the Court that the offense of inciting to sedition is pending. (p 29, Rollo) Hence, this petition for certiorari and mandamus, with application for preliminary injunction and restraining order to enjoin respondent Regional Trial Court, National Capital Region, Branch 98 from proceeding with the trial of Criminal Case No. S3-Q-29243, praying (a) that Search Warrant No. Q-00002 issued by respondent Judge Esteban M. Lising be declared null and void ab initio and that a mandatory injunction be issued directing respondents City Fiscal's Office of Quezon City and Lt. Col. Berlin Castillo and 1st Lt. Godofredo Ignacio jointly and severally to return immediately the documents/properties illegally seized from herein petitioner and that final injunction be issued enjoining respondents City Fiscal's Office of Quezon City, Lt. Col. Castillo and 1st Lt. Ignacio from utilizing said documents/properties as evidence in Criminal Case No. 29243; and (b) that respondent PC-CIS officers Lt. Col. Berlin A. Castillo and lst Lt. Godofredo Ignacio be directed to reopen the padlocked office premises of the Philippine Times at 610 Mezzanine Floor, Gochengco Building, T.M., Kalaw, Ermita, Manila. In Our Resolution of February 19, 1985, respondents were required to file their comment. The plea for temporary restraining order was granted and respondents City Fiscal's Office of Quezon City, Lt. Col. Berlin Castillo and 1st Lt. Godofredo Ignacio were enjoined from introducing as evidence for the state the documents/properties seized under Search Warrant No. Q-00002 in Criminal Cage No. Q-29243 (Sedition case against petitioner), pending before the Regional Trial Court of Quezon City, Branch 98, effective immediately and continuing until further orders from the Court. Respondents would have this Court dismiss the petition on the ground that (1) the present action is premature because petitioner should have filed a motion for reconsideration of respondent Judge Lising's order of January 28, 1985; (2) probable cause exists justifying the issuance of a search warrant; (3) the articles seized were adequately described in the search warrant; (4) a search was conducted in an orderly manner; (5) the padlocking of the searched premises was with the consent of petitioner's wife; (6) the findings of the Agrava Board is irrelevant to the issue of the validity of the search warrant; (7) press freedom is not an issue; and, (8) the petition is barred by laches. There is merit in the petition.

Reynaldo L. Bagatsing for petitioner.

RELOVA, J.: On September 29, 1983, respondent Regional Trial Court judge Esteban Lising of Quezon City, upon application filed by Lt. Col. Berlin Castillo of the Philippine Constabulary Criminal Investigation Service, issued Search Warrant No. Q-00002 authorizing the search and seizure of 1. Printed copies of Philippine Times; 2. Manuscripts/drafts of articles for publication in the Philippine Times; 3. Newspaper dummies of the Philippine Times; 4. Subversive documents, articles, printed matters, handbills, leaflets, banners; 5. Typewriters, duplicating machines, mimeographing and tape recording machines, video machines and tapes which have been used and are being used as instrument and means of committing the crime of inciting to sedition defined and penalized under Article 142 of the Revised Penal Code, as amended by PD 1835 ... (p. 24, Rollo) On November 6, 1984, petitioner filed an urgent motion to recall warrant and to return documents/personal properties alleging among others that: 2. ... the properties seized are typewriters, duplicating machines, mimeographing and tape recording machines, video machines and tapes which are not in any way, inanimate or mute things as they are, connected with the offense of inciting to sedition. 3. More so, documents or papers seized purporting to do the body of the crime has been rendered moot and academic due to the findings of the Agrava Board that a military conspiracy was responsible for the slaying of the late Senator Benigno Aquino, Jr. on August 21, 1983 at the Manila International Airport. The Agrava Board which has the exclusive jurisdiction to determine the facts and circumstances behind the killing had virtually affirmed by evidence testamentary and documentary the fact that soldiers killed Benigno Aquino, Jr. 4. More so, the grave offense of libel, RTC, Q.C. Branch XCV has dismissed said case against the accused on all documents pertinent and more so as we repeat, rendered moot and academic by the recent Agrava Report. (p. 27, Rollo) On January 28, 1985, respondent Judge Lising denied the motion in a resolution, pertinent portions of which state: ... The said articles presently form part of the evidence of the prosecution and they are not under the control of the prosecuting arm of the

Respondents contend that petitioner should have filed a motion for reconsideration of the order in question before coming to Us. This is not always so. When the questions raised before the Supreme Court are the same as those which were squarely raised in and passed upon by the lower court, the filing of the motion for reconsideration in said court before certiorari can be instituted in the Supreme Court is no longer a pre-requisite. As held in Bache & Co. (Phil.), Inc. vs. Ruiz, 37 SCRA 823, (t)he rule requiring the filing of a motion for reconsideration before an application for a writ of certiorari can be entertained was never intended to be applied without considering the circumstances. The rule does not apply where, the deprivation of petitioners' fundamental right to due process taints the proceeding against them in the court below not only with irregularity but also with nullity." Likewise, in Pajo, et al. vs. Ago, et al., 108 Phil. 905 and in Gonzales vs. Court of Appeals, 3 SCRA 465, this Court ruled that "it is only when questions are raised for the first time before the high court in a certiorari case that the writ shall not issue, unless the lower court had first been given an opportunity to pass upon the same." Further, in the case ofMatute vs. Court of Appeals, 26 SCRA 768, We held that "while as a matter of policy a motion for reconsideration in the lower court has often been considered a condition sine qua non for the granting of a writ of certiorari, this rule does not apply where the proceeding in which the error occurred is a patent nullity or where 'the deprivation of petitioner's fundamental right to due process ... taints the proceeding against him in the court below not only with irregularity but with nullity (Luzon Surety Co. v. Marbella et al., L-16038, Sept. 30, 1960), or when special circumstances warrant immediate and more direct action. ..." The records of this petition clearly disclose that the issues herein raised have already been presented to and passed upon by the court a

quo.

Section 3, Article IV of the 1973 Constitution provides: SEC. 3. ...no search warrant or warrant of arrest issue except upon probable cause to be determined by the judge, or such other

responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. and, Section 3, Rule 126 of the New Rules of Court, states that: SEC. 3. Requisites for issuing search warrant. A search warrant shall not issue but upon probable cause in connection with one specific offense to be determined by the judge or justice of the peace after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. Probable cause may be defined as "such reasons, supported by facts and circumstances, as will warrant a cautious man in the belief that his actions, and the means taken in prosecuting it, are legally just and proper (Burton vs. St. Paul, M & M. Ry. Co., 33 Minn. 189, cited in U.S. vs. Addison, 28 Phil. 566)." Thus, an application for search warrant must state with particularly the alleged subversive materials published or intended to be published by the publisher and editor of the Philippine Times, Rommel Corro. As We have stated in Burgos, Sr. vs. Chief of Staff of the Armed Forces of the Philippines, 133 SCRA 800, "mere generalization will not suffice." A search warrant should particularly describe the place to be searched and the things to be seized. "The evident purpose and intent of this requirement is to limit the things to be seized to those, and only those, particularly described in the search warrant- to leave the officers of the law with no discretion regarding what articles they should seize, to the end that unreasonable searches and seizures may not be committed, that abuses may not be committed Bache & Co. Phil. Inc. vs, Ruiz, supra)." The affidavit of Col. Castillo states that in several issues of the Philippine Times: ... we found that the said publication in fact foments distrust and hatred against the government of the Philippines and its duly constituted authorities, defined and penalized by Article 142 of the Revised Penal Code as amended by Presidential Decree No. 1835; (p. 22, Rollo) and, the affidavit of Lt. Ignacio reads, among others ... the said periodical published by Rommel Corro, contains articles tending to incite distrust and hatred for the Government of the Philippines or any of its duly constituted authorities. (p. 23, Rollo) The above statements are mere conclusions of law and will not satisfy the requirements of probable cause. They can not serve as basis for the issuance of search warrant, absent of the existence of probable cause. In fact, as a consequence of the search warrant issued, the items confiscated from the premises of the office of the Philippine Times at 610 Mezzanine Floor, Gochengco Bldg., T.M. Kalaw, Ermita, Manila were the following: 1. One bundle of assorted negative; 2. One bundle of assorted lay out; 3. Three folders of assorted articles/writings used by Philippine Times news and other paraphernalias; 4. Four tape alleged speech of Mayor Climaco, two alleged speeches of Aquino and a speech of one various artist; 5. One bundle Dummies; 6. Ten bundles of assorted copies of Philippine Times issued on different dates (Nos. 6, 7, 8, 9, 10, 11, 12, 13, 14 & 15): 7. One Typewriter Remington Brand Long Carriage with No. J-2479373; 8. OneTypewriterAdler-short with No. 9003011;

9. Three (3) bundles of Philippine Times latest issue for Baguio City (p. 26, Rollo) In Stonehill vs. Diokno, 20 SCRA 383, this Court held that search warrants authorizing the seizure of books of accounts and records "showing all the business transactions" of certain persons, regardless of whether the transactions were legal or illegal, contravene the explicit comment of the Bill of Rights that the things to be seized should be particularly described and defeat its major objective of eliminating general warrants. In the case at bar, the search warrant issued by respondent judge allowed seizure of printed copies of the Philippine Times, manuscripts/drafts of articles for publication, newspaper dummies, subversive documents, articles, etc., and even typewriters, duplicating machines, mimeographing and tape recording machines. Thus, the language used is so all embracing as to include all conceivable records and equipment of petitioner regardless of whether they are legal or illegal. The search warrant under consideration was in the nature of a general warrant which is constitutionally objectionable. Respondents do not deny the fact that the business office of the "Philippine Times" of which petitioner was the publisher-editor was padlocked and sealed. The consequence is, the printing and publication of said newspaper were discontinued. In Burgos, Sr. vs. Chief of Staff of the Armed Forces of the Philippines, supra, We held that "[sluch closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press guaranteed under the fundamental law, and constitutes a virtual denial of petitioners' freedom to express themselves in print. This state of being is patently anathematic to a democratic framework where a free, alert and even militant press is essential for the political enlightenment and growth of the citizenry." Finally, respondents argue that while the search warrant was issued on September 29, 1983 and was executed on the very same day, it was only on November 6, 1984, or one (1) year, one (1) month and six (6) days when petitioner filed his motion for the recall of the warrant and the return of the documents/personal properties. Having failed to act seasonably, respondents claim that petitioner is guilty of laches. Laches is the failure or neglect, for an unreasonable and unexplained length of time, to do that which by exercising due diligence, could or should have been done earlier. The negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it (Tijam vs. Sibonghanoy, L-21450, April 15, 1968, 23 SCRA 35). In his petition, Corro alleged that on October 1, 1983, less than fortytwo (42) hours after the military operatives shut down his newspaper on September 29, 1983, he was invited by the Director-General PC/INP, and subsequently detained. Thereafter, he was charged with the crime of inciting to sedition before the City Fiscal's Office in Quezon City, and on October 7, 1983, a preventive detention action was served upon him. Consequently, he had to file a petition for habeas corpus. It was only on November 8, 1984 when this Court issued its Resolution in G.R. No. 68976, entitled: In the Matter of the Petition for Habeas Corpus of Rommel Corro Angle Corro vs. Minister Juan Ponce Enrile, et al., releasing Rommel Corro on recognizance of his lawyers, Attys. Humberto B. Basco, Reynaldo Bagatsing and Edilberto Balce, In the same month, November 1984, petitioner filed his motion to recall warrant and to return the seized documents. When respondent judge denied the motion, he came to Us. Considering the above circumstances, the claim that petitioner had abandoned his right to the possession of the seized properties is incorrect. WHEREFORE, Search Warrant No. Q-00002 issued by the respondent judge on September 29, 1983 is declared null and void and, accordingly, SET ASIDE. The prayer for a writ of mandatory injunction for the return of the seized articles is GRANTED and all properties seized thereunder are hereby ordered RELEASED to petitioner. Further, respondents Lt. Col. Berlin A. Castillo and lst Lt. Godofredo M. Ignacio are ordered to REOPEN the padlocked office premises of the Philippine Times at 610 Mezzanine Floor, Gochengco Bldg., T.M. Kalaw, Ermita, Manila. SO ORDERED.

Teehankee, Makasiar, Concepcion, Jr., Melencio-Herrera, Plana, Escolin, Gutierrez, Jr., De la Fuente, Cuevas and Alampay, JJ., concur. Fernando, C.J., concur in the result. Aquino, J., took no part.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 121877 September 12, 2001

On August 31, 1993, the bricks were brought to the Police Crime Laboratory in Camp Delgado, Iloilo City for chemistry analysis. Angela Baldevieso, a forensic chemist of the PNP, who later testified for the prosecution, confirmed in her physical evidence report (Exh. D) that the bricks of dried leaves (Exh. B to C-7, inclusive) were marijuana, weighing 9.560 kilograms.8 Subsequently, a complaint for violation of Section 4 of R.A. 6425 was filed against appellant. Appellant denied her involvement in the drug transport. She claimed that at about 6:30 A.M. on August 30, 1993, she was standing along the national highway, having just come from a friends house in Tacas, Dueas. Just then, three policemen stepped out of a patrol car and asked her if she had a key to a black traveling bag they spotted in a trisikad which is about three arms length away from her. When she said "No", PO1 Pedroso invited her to the municipal hall where she was questioned. She said she never boarded the trisikad. Although she confirmed that there was a black bag in the trisikad, she denied ownership of said bag. She stated that the bag was closed and padlocked. She insisted that the black bag presented in court (Exh. E) was not the same black traveling bag taken from the trisikad.9 Lamera, the trisikad driver, testified that at about 6:30 A.M. on August 30, 1993, he was driving his vehicle with a male passenger when the latter suddenly told him to stop, saying he had forgotten something. His passenger told him to wait for him at the national highway, leaving a bag on top of his trisikad. When he arrived at the highway, he saw appellant and parked some three arms length away from her. He then left his trisikad to answer a call of nature. As he did, a police car stopped and three PNP members got off. They accosted him and asked who owned the bag. He replied that it belonged to his male passenger. When asked if appellant owned the bag, he answered "No." Lamera averred that appellant was not holding the handle of the bag when the policemen arrived. Nor was she wearing Ray Ban sunglasses. He claimed that he only learned about the contents of the bag when they were inside the police station. When a black traveling bag was shown him during the trial, Lamera stated that it was not the black traveling bag that was left in his trisikad. According to him, the bag presented in court was taller than the bag his male passenger left in his trisikad. He said the bag seized by the police was made of sackcloth, it had a zipper and wheels at the bottom.10 The court found for the prosecution, disbelieved the defense, and convicted appellant, thus: WHEREFORE, premises considered, the accused Erlinda Gonzales y Evangelista alias Linda Gonzales, is hereby found guilty beyond reasonable doubt of Violation of Sec. 4, Art. II of R.A. 6425 as amended, and is hereby sentenced to suffer the penalty of life imprisonment and to pay a fine of P20,000.00 and the costs. The nine kilos and 560 grams of compressed bricks of dried marijuana leaves and fruiting tops are ordered confiscated and forfeited in favor of the government and must be turned over to the Board through the National Bureau of Investigation, for proper disposition, pursuant to Sec. 20 of R.A. 6425, as amended. The accused, who is detained, is credited with the number of days she spent under detention if she is qualified, otherwise, she shall be credited only with four-fifths (4/5) of her preventive imprisonment. SO ORDERED.11

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ERLINDA GONZALES Y EVANGELISTA, accused-appellant. QUISUMBING, J.: On appeal is the decision1 dated March 8, 1995, of the Regional Trial Court of Iloilo City, Branch 39, in Criminal Case No. 42441, which convicted appellant Erlinda Gonzales y Evangelista of violating Section 4, Article II2 of the Dangerous Drugs Act (R.A. No. 6425) and sentenced her to life imprisonment. In an information dated December 23, 1993, the Provincial Prosecutor of Iloilo charged appellant with illegal transport of marijuana leaves and fruiting tops, allegedly committed as follows: That on or about August 30, 1993, in the Municipality of Dueas, Province of Iloilo, Philippines, and within the jurisdiction of this Court, the above-named accused, without any lawful purpose or justifiable motive, did then and there willfully, unlawfully and feloniously transport, deliver and/or distribute ten (10) kilos of marijuana leaves and fruiting tops (compressed in bricks) without being authorized by law to transport, deliver and/or distribute the same. CONTRARY TO LAW.3 On January 31, 1994, appellant was arraigned and with assistance of counsel pleaded not guilty to the charge. Trial on the merits ensued. The prosecution presented two witnesses, namely, PO1 Reggie Pedroso and Angela Baldevieso, forensic chemist of the PNP. In addition, the prosecution presented the following object and documentary evidence: (1) ten bundles of dried marijuana leaves or fruiting tops, weighing 9.560 kilograms;4 (2) Physical Sciences Report No. D-087-93 issued by Angela Baldevieso, PNP forensic chemist;5 and (3) black traveling bag.6 On the other hand, the defense presented appellant herself and Isaac Lamera, the trisikad driver. PO1 Reggie Pedroso narrated that in the evening of August 29, 1993, the Chief of Police of Dueas, Iloilo and other policemen on duty including himself, received information that a woman with long hair, wearing maong pants and jacket, and Ray Ban sunglasses would be transporting marijuana along the national highway. According to the tipped information, the woman would bring a black traveling bag and would ride a trisikad. Based on this information, the Chief of Police, that same evening, instructed his men to conduct mobile patrol at 5:00 A.M. in the morning of August 30, 1993, in the poblacion of Dueas and along the national highway. Three teams were formed. One was assigned to cover the public market. Another was dispatched to Barangay Tinocuan. The third team, composed of PO1 Pedroso, PO3 Queque, and SPO2 Baculina, was assigned to the national highway in Barangay Poblacion A. According to PO1 Pedroso, his team of policemen started patrolling at around 5:00 A.M. of August 30, 1993. They made the rounds on board a mobile car. At about 6:45 A.M., they passed by a woman who fitted the informers description. She was standing along the national highway holding a black traveling bag in a trisikad. The law enforcers were one meter away from her when they spotted her. They alighted from their car and asked her who owns the traveling bag. The woman denied ownership of the bag. When PO1 Pedroso inquired from the trisikad driver, later identified as Isaac Lamera, about the ownership of the bag, the latter pointed to the woman as the owner of the said bag. The policemen then requested the woman to open the bag but she refused. When asked regarding the contents of the bag, Lamera answered he does not know. Believing that the bag contained marijuana per tipped information, the policemen brought appellant, Lamera and the bag to the police station. There, the Chief of Police forcibly opened the locked black bag as the woman alleged that the key to the lock was with her three companions who were at the public market. Inside the bag, they found wrapped in newspaper ten (10) bricks of dried marijuana leaves. Later on, the woman was asked about her personal circumstances. She identified herself as Erlinda Gonzales, herein appellant. Afterwards, she was detained.7

Hence, this appeal, imputing the following errors to the trial court: I THAT THE HONORABLE LOWER COURT ERRED IN HOLDING THAT THE ACCUSED-APPELLANT WAS CAUGHT IN THE ACT OF TRANSPORTING NINE (9) KILOS AND 560 GRAMS OF DRIED MARIJUANA LEAVES AND FRUITING TOPS (COMPRESSED IN BRICKS) WHICH WERE PLACED IN A BLACK TRAVELLING BAG. II THE HONORABLE COURT ERRED IN NOT HOLDING THAT THE ARREST OF THE ACCUSED-APPELLANT WAS ILLEGAL AND THEREFORE THE MARIJUANA BRICKS ALLEGEDLY TAKEN FROM THE TRISIKAD IS INADMISSIBLE IN EVIDENCE AS AGAINST HER. III

THE HONORABLE LOWER COURT ERRED IN HOLDING THAT THE POLICE OFFICER WHEN THEY ARRESTED THE ACCUSED-APPELLANT WERE REGULARLY PERFORMING THEIR DUTIES. IV THE HONORABLE LOWER COURT ERRED IN NOT RECEIVING THE TESTIMONY OF THE ACCUSED-APPELLANT AND HER WITNESSES. V THE HONORABLE LOWER COURT ERRED IN NOT ACQUITTING THE ACCUSED.12 In sum, the pertinent issues for our resolution are: (1) Were the testimonies of prosecution witnesses credible and sufficient to prove appellants guilt beyond reasonable doubt? (2) Was appellants warrantless arrest legal, thereby making the bricks of marijuana leaves allegedly seized from her admissible in evidence? On the first issue, appellant states that she was not transporting marijuana in a black traveling bag aboard the trisikad. She denies being a passenger of the trisikad, or owning the black traveling bag containing marijuana. She claims she was not holding the bags handle when the police accosted her. She asserts that it is unusual for her to hold on to something containing contraband in the presence of police officers. She argues that the prosecution simply alleged that she was holding the handle of the bag in order to justify an illegal arrest and to escape a charge of arbitrary detention. Next, appellant assails the credibility of PO1 Pedroso. She argues that the trial court erred in giving credence to his testimony on mere presumption that PO1 Pedroso had regularly performed his duty. Finally, appellant faults the lower court for not believing the testimony of Lamera, the trisikad driver. She insists that Lamera had no reason to lie as they do not know each other. At the outset we note that, contrary to appellants fourth assignment of error, she and her witness, Lamera, were heard and their testimonies recorded by the trial court. Unfortunately for appellant, their version was not believed by said court. In essence, appellant now challenges the trial courts assessment of the testimonies of prosecution and defense witnesses. When credibility is in issue, this Court generally defers to the findings of the trial court considering that it is in a better position to decide the question, having heard the witnesses themselves and observed their manner and deportment during the trial.13 Its findings on the credibility of witnesses will be sustained by appellate courts unless the trial court overlooked, misunderstood, or misapplied some facts or circumstances of weight and substance which will alter the assailed decision or affect the result of the case.14 In this case, it appears plain to us that appellant failed to point to any fact or circumstance overlooked or ignored by the trial court to cast doubt on the credibility of the prosecution witnesses sufficiently. Appellants defense is bare denial. As held time and again, mere denial unsupported and unsubstantiated by clear and convincing evidence becomes negative and self-serving, deserves no weight in law and cannot be given greater evidentiary value over convincing, straightforward and probable testimonies on affirmative matters.15 Mere denial and allegations of frame-up have been invariably viewed by the courts with disfavor for these defenses are easily concocted. They are common and standard defenses in prosecutions involving violation of the dangerous drugs law.16 Moreover, it appears far-fetched that the police and the prosecution would claim that appellant was holding the handle of the bag merely to justify her arrest and avoid a charge of arbitrary detention. PO1 Pedroso categorically declared that appellant was holding the black traveling bag in the trisikad. He was just one meter from appellant when he alighted from the patrol car and accosted the appellant who had in her possession, according to the eyewitness, the black traveling bag. As pointed out by the Solicitor General, the positive testimony of the apprehending policeman outweighs appellants negative testimony. Additionally, appellant presented no evidence to rebut the presumption that PO1 Pedroso had performed his task in a regular manner. We are thus constrained to agree with the trial courts finding that the police testimony here is worthy of credence. In contrast, it plainly appears that defense witness Lamera flip-flopped in his testimony. On record, Lamera has two sworn statements. In the first affidavit dated August 30, 1993 executed before PO3 Gildo

Pelopero, Lamera claimed that he was hired by four persons to deliver a black bag at the national highway, one of whom rode his trisikad while the other three followed. Upon reaching the national highway, policemen intercepted them and brought them to the municipal building.17 In his affidavit dated September 1, 1993, executed before Judge Inocentes de Ocampo, Lamera stated that on the day of the incident, four persons flagged down his trisikad. However, only one of them, a woman, who turned out to be appellant, got in his trisikad and rode to the national highway where she was apprehended by the PNP.18 But during the trial Lamera testified differently, varying his testimony from his earlier sworn statements. This time, he declared that the black bag in question belongs to a male passenger. His testimony on the witness stand on September 27, 1994, reads: Q A About what time was that? 6:30.

Q And you said that man whom you claim, you did not know loaded a black travelling bag on your trisikad? A Yes, sir. xxx Now, when the man that man whom you said you did not know hailed you and loaded to the trisikad a black bag, did you not ask the man what is inside the black Q travelling bag? A

No, sir.

Q Neither that man tell you what is inside or what is the contents of that black travelling bag? A No, sir.

Q What was when that man put the travelling bag on your trisikad did not that man say anything to you? A He asked me if I am going to the highway and I answered yes. Q And when you said yes, what else did that man say if he said anything else?

He said wait a minute I will alight here in the intersection because I forgot something.
A xxx Q Now, when he said or after he said wait a minute I will alight here, what did the man do?

He went back and then he told me to go first to the highway and wait for him.
A Q A Went back to where? From the place where he rode. xxx Q Did that man tell you a particular or given place to the highway where you will wait for him? A Yes, sir.

Q The man told you that you have to bring that travelling bag at that place where there was a woman waiting? A No, sir.

Q Did not the man tell you to bring the travelling bag to that particular part of the highway where the accused was waiting? A Q No, sir.

Basic is the rule that no arrest, search or seizure can be made without a valid warrant issued by a competent judicial authority. The Constitution guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.21 Any evidence obtained in violation of said right shall be inadmissible for any purpose in any proceeding.22 Nevertheless, the constitutional proscription against warrantless searches and seizures admits of certain legal and judicial exceptions, as follows: (1) warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court and by prevailing jurisprudence; (2) seizure of evidence in plain view; (3) search of a moving vehicle; (4) consented warrantless search; (5) customs search; (6) stop and frisk; and (7) exigent and emergency circumstances.23 Moreover, a lawful arrest without a warrant may be made by a peace officer or a private person under the following circumstances: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts and circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with Section 7 of Rule 112.24 In this case, the trial court found and held that appellant was caught in flagrante carrying marijuana leaves and fruiting tops at the time of her arrest. A crime was actually being committed by the appellant; thus, her arrest and the search of her black traveling bag fall squarely under paragraph (a) of the aforecited provisions of the Rules allowing a warrantless search incident to lawful arrest. On this score, we are in agreement with the trial court. While it is true that the apprehending officers were not armed with a search warrant when the search was conducted over the personal effects of appellant, nevertheless under the circumstances of the case, there was sufficient probable cause for said police officers to believe that appellant was then and there committing a crime. Probable cause signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious mans belief that the person accused is guilty of the offense with which he is charged; or the existence of such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the items, articles or objects sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched.25 The required probable cause that will justify a warrantless search and seizure is not determined by a fixed formula but is resolved according to the facts of each case.26 In People vs. Valdez,27 we had occasion to recall several instances where tipped information, as in this case, has become a sufficient probable cause to effect a warrantless search and seizure. There, a policeman was tipped off by a civilian "asset" that a thin Ilocano person with a green bag was about to transport marijuana from Banaue, Ifugao. Said information was received by the policeman the very same morning he was waiting for a ride in Banaue to report for work in Lagawe, the capital town of Ifugao province. Thus, faced with such on-the-spot information, the law enforcer had to respond quickly to the call of duty. Obviously, there was not enough time to secure a search warrant considering the time involved in the process. In fact, in view of the urgency of the case, the policeman together with the civilian "asset" proceeded immediately to Hingyon, Ifugao, to pursue the drug trafficker. In Hingyon, he flagged down buses bound for Baguio City and Manila, and looked for the person described by the informer. The target of the pursuit was just the "thin Ilocano person with a green bag" and no other. And so, when the policeman inspected the bus bound for Manila, he just singled out the passenger with the green bag. Evidently, there was definite information of the identity of the person engaged in transporting prohibited drugs at a

And you brought the black travelling bag at the very place where the accused was there also?
A

there.

It was only a coincidence that the accused was

Q And that woman or the accused was at that time wearing a maong jacket? A Q A Q A Q A Q A No, sir. She was wearing a black jacket. It is not a dark maong? No, sir. She had a rayban or goggles at that time? None, sir. She had a long hair at the time? Yes, sir. She was also wearing maong pants? Yes, sir.

Q Now, while driving your trisikad with that black travelling bag did you not try to feel it just for curiosity sake to know what is inside? A None, sir.

Q Because that man whom you said you did not know return for no reason at all, did you not suspect that the travelling bag is containing a marijuana or any contrabands goods? A None, sir.

Q And according to you, it was there at the highway that policemen arrived and confronted the accused about the travelling bag? A Yes, sir.

Q You were also confronted by the police officer about the travelling bag? A Yes, sir.

Q And the two of you were brought to the municipal hall of Dueas, Iloilo? A Yes, sir. [Emphasis ours.]
19

The foregoing testimony of Lamera on the witness stand materially contradicts his sworn statements dated August 30, 1993 and September 1, 1993. A witness who makes two sworn statements which are contradictory to his testimony in court impeaches his own credibility.20 Hence, in our view, the trial court committed no error in discounting Lameras statements by giving them no evidentiary value. Moreover, appellant failed to present other and more credible witnesses to support or corroborate her own as well as Lameras testimony. On the second issue, appellant contends that her arrest was illegal, hence, the marijuana bricks are inadmissible in evidence. But after a careful consideration of the testimony of witnesses and the arguments adduced by the parties, we find that appellants contention is bereft of merit.

particular time and place. The law enforcer already had an inkling of the identity of the person he was looking for. As a matter of fact, no search at all was conducted on the baggage of other passengers. In the case at bar, the police officers were tipped off only on the evening of August 29, 1993. The contraband was to be transported early in the morning of the following day. Certainly, the law enforcers had no time to secure the needed warrants. The only recourse left to the police was to arrest the courier in flagrante. Note that the law enforcers had a definite target for their arrest, that is, a woman with long hair, wearing maong pants and jacket and Ray Ban sunglasses, carrying a black traveling bag. There was a description about the identity of the person engaged in transporting prohibited drugs at a particular time and place. The law enforcers already had an inkling of the personal circumstances of the person they were looking for. Accordingly, when the police officers saw the woman who fitted the tipped description given earlier and who was later identified as the appellant, standing near a trisikad, along the national highway holding the handle of a black traveling bag on a trisikad, they had probable cause to apprehend appellant. In our view, appellants arrest was legal and the search of her bag conducted by the police was not illegal. Consequently, the marijuana bricks seized from appellant during the search is admissible in evidence against her since they were taken incidental to a lawful arrest. A final word on the penalty. With the passage of R.A. No. 7659, the penalty for violation of Section 4 of the Dangerous Drugs Law is reclusion perpetua to death and a fine ranging from P500,000.00 to P10,000,000.00 if the marijuana involved weighs 750 grams or more. Here, the marijuana involved weighs more than 9 kilograms. However, R.A. No. 7659 took effect only on December 31, 1993, while the offense herein was committed earlier on August 30, 1993. Thus, the law at the time of the commission of the offense, R.A. 6425, applies. R.A. No. 7659 cannot be made to apply retroactively, for it obviously is not favorable to the accused-appellant. However, we find that the trial court sentenced appellant to "life imprisonment." This is error, for here the applicable penalty is reclusion perpetua. Life imprisonment and reclusion perpetua are distinct penalties.28 The penalty of reclusion perpetua entails an imprisonment of at least 30 years, after which the convict becomes eligible for pardon. It carries with it accessory penalties. Life imprisonment does not have a fixed duration and does not carry with it accessory penalties.29 Under Section 4, Article II of R.A. 6425, the applicable statute, the prescribed penalty for the transport of prohibited drugs is reclusion perpetua to death, not life imprisonment. Absent qualifying circumstances, the penalty imposable in the present case is only reclusion perpetua. WHEREFORE, the decision of the Regional Trial Court of Iloilo City, Branch 39, in Criminal Case No. 42441, finding appellant ERLINDA GONZALES Y EVANGELISTA, guilty beyond reasonable doubt of illegal transport of marijuana is AFFIRMED, with the MODIFICATION that appellant is hereby sentenced to suffer the penalty of reclusion perpetua and to pay the fine of Twenty Thousand Pesos (P20,000.00) and the costs. SO ORDERED.

INTERNAL DEFENSE COMMAND, OTHERWISE KNOWN AS IdC MAJOR ARNOLD BLANCO IN HIS CAPACITY AS COMMANDING OFFICER OF THE PHILIPPINE MARINES AND 1ST LIEUTENANT DARWIN GUERRA IN HIS CAPACITY AS ACTS SUPERVISOR, INTERNAL DEFENSE COMMAND, ARMED FORCES OF THE PHILIPPINES, respondents.

CRUZ, J.: On November 25, 1984, a contingent of more than two hundred Philippine marines and elements of the home defense forces raided the compound occupied by the petitioners at Gov. Alvarez street, Zamboanga City, in search of loose firearms, ammunition and other explosives. 1 The military operation was commonly known and dreaded as a "zona," which was not unlike the feared practice of the kempeitai during the Japanese Occupation of rounding up the people in a locality, arresting the persons fingered by a hooded informer, and executing them outright (although the last part is not included in the modern refinement). The initial reaction of the people inside the compound was to resist the invasion with a burst of gunfire. No one was hurt as presumably the purpose was merely to warn the intruders and deter them from entering. Unfortunately, as might be expected in incidents like this, the situation aggravated soon enough. The soldiers returned fire and a bloody shoot-out ensued, resulting in a number of casualties. 2 The besieged compound surrendered the following morning, and sixteen male occupants were arrested, later to be finger-printed, paraffin-tested and photographed over their objection. The military also inventoried and confiscated nine M16 rifles, one M14 rifle, nine rifle grenades, and several rounds of ammunition found in the premises. 3 On December 21, 1984, the petitioners came to this Court in a petition for prohibition and mandamus with preliminary injunction and restraining order. Their purpose was to recover the articles seized from them, to prevent these from being used as evidence against them, and to challenge their finger-printing, photographing and paraffin-testing as violative of their right against self-incrimination. 4 The Court, treating the petition as an injunction suit with a prayer for the return of the articles alleged to have been illegally seized, referred it for hearing to Judge Omar U. Amin of the regional trial court, Zamboanga City. 5After receiving the testimonial and documentary evidence of the parties, he submitted the report and recommendations on which this opinion is based. 6 The petitioners demand the return of the arms and ammunition on the ground that they were taken without a search warrant as required by the Bill of Rights. This is confirmed by the said report and in fact admitted by the respondents, "but with avoidance. 7 Article IV, Section 3, of the 1973 Constitution, which was in force at the time of the incident in question, provided as follows: Sec. 3. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall not be violated, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized. It was also declared in Article IV, Section 4(2) thatSec. 4(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. The respondents, while admitting the absence of the required such warrant, sought to justify their act on the ground that they were acting under superior orders. 8 There was also the suggestion that the measure was necessary because of the aggravation of the peace and

Bellosillo, Buena, and De Leon, Jr., JJ., concur. Mendoza, J., in the result.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-69401 June 23, 1987 RIZAL ALIH, NASIM ALIH, AISAN ALIH, MIJAL ALIH, OMAR ALIH, EDRIS MUKSAN, MULSIDI WARADIL, BILLY ASMAD RAMSID ASALI, BANDING USMAN, ANGGANG HADANI, WARMIKHAN HAPA, GABRAL JIKIRI, ALLAN TAN, MUJAHIRIN MARAJUKI, KENNEDY GONZALES, URDUJA ALIH, MERLA ALIH, and NURAISA ALIH VDA DE FEROLINO, petitioners, vs. MAJOR GENERAL DELFIN C. CASTRO, IN HIS CAPACITY AS COMMANDER SOUTHCOM AND REGIONAL UNIFIED COMMAND, REGION IX, ZAMBOANGA CITY, COLONEL ERNESTO CALUPIG, IN HIS CAPACITY AS COMMANDING OFFICER OF THE SPECIAL FORCES GROUP (AIRBORNE) AND

order problem generated by the assassination of Mayor Cesar Climaco. 9 Superior orders" cannot, of course, countermand the Constitution. The fact that the petitioners were suspected of the Climaco killing did not excuse the constitutional short-cuts the respondents took. As eloquently affirmed by the U.S. Supreme Court in Ex parte Milligan: 10 The Constitution is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. The precarious state of lawlessness in Zamboanga City at the time in question certainly did not excuse the non-observance of the constitutional guaranty against unreasonable searches and seizures. There was no state of hostilities in the area to justify, assuming it could, the repressions committed therein against the petitioners. It is so easy to say that the petitioners were outlaws and deserved the arbitrary treatment they received to take them into custody; but that is a criminal argument. It is also fallacious. Its obvious flaw lies in the conclusion that the petitioners were unquestionably guilty on the strength alone of unsubstantiated reports that they were stockpiling weapons. The record does not disclose that the petitioners were wanted criminals or fugitives from justice. At the time of the "zona," they were merely suspected of the mayor's slaying and had not in fact even been investigated for it. As mere suspects, they were presumed innocent and not guilty as summarily pronounced by the military. Indeed, even if were assumed for the sake of argument that they were guilty, they would not have been any less entitled to the protection of the Constitution, which covers both the innocent and the guilty. This is not to say, of course, that the Constitution coddles criminals. What it does simply signify is that, lacking the shield of innocence, the guilty need the armor of the Constitution, to protect them, not from a deserved sentence, but from arbitrary punishment. Every person is entitled to due process. It is no exaggeration that the basest criminal, ranged against the rest of the people who would condemn him outright, is still, under the Bill of Rights, a majority of one. If the respondents did not actually disdain the Constitution when they made their illegal raid, they certainly gave every appearance of doing so. This is truly regrettable for it was incumbent on them, especially during those tense and tindery times, to encourage rather than undermine respect for the law, which it was their duty to uphold. In acting as they did, they also defied the precept that "civilian authority is at all times supreme over the military" so clearly proclaimed in the 1973 Constitution. 11 In the instant case, the respondents simply by-passed the civil courts, which had the authority to determine whether or not there was probable cause to search the petitioner's premises. Instead, they proceeded to make the raid without a search warrant on their own unauthorized determination of the petitioner's guilt. The respondents cannot even plead the urgency of the raid because it was in fact not urgent. They knew where the petitioners were. They had every opportunity to get a search warrant before making the raid. If they were worried that the weapons inside the compound would be spirited away, they could have surrounded the premises in the meantime, as a preventive measure. There was absolutely no reason at all why they should disregard the orderly processes required by the Constitution and instead insist on arbitrarily forcing their way into the petitioner's premises with all the menace of a military invasion. Conceding that the search was truly warrantless, might not the search and seizure be nonetheless considered valid because it was incidental to a legal arrest? Surely not. If all the law enforcement authorities have to do is force their way into any house and then pick up anything they see there on the ground that the occupants are resisting arrest, then we might as well delete the Bill of Rights as a fussy redundancy. When the respondents could have easily obtained a search warrant from any of the TEN civil courts then open and functioning in Zamboanga City, 12 they instead simply barged into the beleaguered

premises on the verbal order of their superior officers. One cannot just force his way into any man's house on the illegal orders of a superior, however lofty his rank. Indeed, even the humblest hovel is protected from official intrusion because of the ancient rule, revered in all free regimes, that a man's house is his castle. It may be frail; its roof may shake; the wind may enter; the rain may enter. But the King of England may not enter. All the forces of the Crown dare not cross the threshold of the ruined tenement. 13 If the arrest was made under Rule 113, Section 5, of the Rules of Court in connection with a crime about to be committed, being committed, or just committed, what was that crime? There is no allegation in the record of such a justification. Parenthetically, it may be observed that under the Revised Rule 113, Section 5(b), the officer making the arrest must have personal knowledge of the ground therefor as stressed in the recent case of People v. Burgos. 14 If follows that as the search of the petitioners' premises was violative of the Constitution, all the firearms and ammunition taken from the raided compound are inadmissible in evidence in any of the proceedings against the petitioners. These articles are "fruits of the poisonous tree. 15 As Judge Learned Hand observed, "Only in case the prosecution which itself controls the seizing officials, knows that it cannot profit by their wrong, will the wrong be repressed. 16 Pending determination of the legality of such articles, however, they shall remain in custodia legis, subject to such appropriate disposition as the corresponding courts may decide. 17 The objection to the photographing, fingerprinting and paraffin-testing of the petitioners deserves slight comment. The prohibition against self-incrimination applies to testimonial compulsion only. As Justice Holmes put it in Holt v. United States, 18 "The prohibition of compelling a man in a criminal court to be a witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material." The fearful days of hamleting salvaging, "zona" and other dreaded operations should remain in the past, banished with the secret marshals and their covert license to kill without trial. We must be done with lawlessness in the name of law enforcement. Those who are supposed to uphold the law must not be the first to violate it. As Chief Justice Claudio Teehankee stressed in his concurring opinion in Lacanilao v. De Leon, 19 "It is time that the martial law regime's legacy of the law of force be discarded and that there be a return to the force and rule of law." All of us must exert efforts to make our country truly free and democratic, where every individual is entitled to the full protection of the Constitution and the Bill of Rights can stand as a stolid sentinel for all, the innocent as well as the guilty, including the basest of criminals. WHEREFORE, the search of the petitioners' premises on November 25, 1984, is hereby declared ILLEGAL and all the articles seized as a result thereof are inadmissible in evidence against the petitioners in any proceedings. However, the said articles shall remain in custodia legis pending the outcome of the criminal cases that have been or may later be filed against the petitioners. SO ORDERED.

Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.
Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. L-22554 August 29, 1975 DELFIN LIM and JIKIL TAHA, plaintiffs-appellants, vs. FRANCISCO PONCE DE LEON AND ORLANDO MADDELA, defendants-appellees.

Ricardo L. Manalilig for plaintiffs-appellants. Iigo R. Pea for defendants-appellees.

MARTIN, J.: Appeal on a question of law from the decision of the Court of First Instance of Palawan in Civil Case No. 416, entitled "Delfin Lim and Jikil Taha vs. Francisco Ponce de Leon and Orlando Maddela", dismissing the complaint of the plaintiffs and ordering them to pay each of the defendants jointly and severally the sum of P500.00 by way of actual damages; P500.00 by way of attorney's fees; and P1,000.00 by way of exemplary damages. On April 29, 1961, plaintiff-appellant Jikil Taha sold to a certain Alberto Timbangcaya of Brooke's Point, Palawan a motor launch named M/L "SAN RAFAEL". A year later or on April 9, 1962 Alberto Timbangcaya filed a complaint with the Office of the Provincial Fiscal of Palawan alleging that after the sale Jikil Taha forcibly took away the motor launch from him. On May 14, 1962, after conducting a preliminary investigation, Fiscal Francisco Ponce de Leon in his capacity as Acting Provincial Fiscal of Palawan, filed with the Court of First Instance of Palawan the corresponding information for Robbery the Force and Intimidation upon Persons against Jikil Taha. The case was docketed as Criminal Case No. 2719. On June 15, 1962, Fiscal Francisco Ponce de Leon, upon being informed that the motor launch was in Balabac, Palawan, wrote the Provincial Commander of Palawan requesting him to direct the detachment commander-in Balabac to impound and take custody of the motor launch. 1 On June 26, 1962, Fiscal Ponce de Leon reiterated his request to the Provincial Commander to impound the motor launch, explaining that its subsequent sale to a third party, plaintiff-appellant Delfin Lim, cannot prevent the court from taking custody of the same. 2 So, on July 6, 1962 upon order of the Provincial Commander, defendant-appellee Orlando Maddela, Detachment Commander of Balabac, Palawan, seized the motor launch "SAN RAFAEL" from plaintiff-appellant Delfin Lim and impounded it. On July 15, 1962 plaintiff-appellant Delfin Lim pleaded with Orlando Maddela to return the motor launch but the latter refused. Likewise, on September 20, 1962, Jikil Taha through his counsel made representations with Fiscal Ponce de Leon to return the seized property to plaintiff-appellant Delfin Lim but Fiscal Ponce de Leon refused, on the ground that the same was the subject of a criminal offense. All efforts to recover the motor launch going to naught, plaintiffsappellants Delfin Lim and Jikil Taha, on November 19, 1962, filed with the Court of First Instance of Palawan a complaint for damages against defendants-appellees Fiscal Francisco Ponce de Leon and Orlando Maddela, alleging that on July 6, 1962 Orlando Maddela entered the premises of Delfin Lim without a search warrant and then and there took away the hull of the motor launch without his consent; that he effected the seizure upon order of Fiscal Ponce de Leon who knew fully well that his office was not vested with authority to order the seizure of a private property; that said motor launch was purchased by Delfin Lim from Jikil Taha in consideration of Three Thousand Pesos (P3,000.00), Two Thousand Pesos (P2,000.00) of which has been given to Jikil Taha as advance payment; that as a consequence of the unlawful seizure of the motor launch, its sale did not materialize; and that since July 6, 1962, the said motor launch had been moored at the Balabac Bay, Palawan and because of exposure to the elements it had become worthless and beyond repair. For the alleged violation of their constitutional rights, plaintiffs-appellants prayed that defendantsappellees be ordered to pay jointly and severally each of them the sum of P5,750.00 representing actual, moral and exemplary damages and attorney's fees. In their answer, defendants-appellees denied the material allegations of the complaint and as affirmative defenses alleged that the motor launch in question which was sold by Jikil Taha to Alberto Timbangcaya on April 29, 1961 was sometime in April 1962, forcibly taken with violence upon persons and with intent to gain by Jikil Taha from Alfredo Timbangcaya without the latter's knowledge and consent, thus giving rise to the filing of a criminal charge of robbery against Jikil Taha; that Fiscal Ponce de Leon, in his capacity as Acting Provincial Fiscal of Palawan ordered Orlando Maddela to seize and impound the

motor launch "SAN RAFAEL", for being the corpus delicti of the robbery; and that Orlando Maddela merely obeyed the orders of his superior officer to impound said launch. By way of counterclaim, defendants-appellees alleged that because of the malicious and groundless filing of the complaint by plaintiffs-appellants, they were constrained to engage the services of lawyers, each of them paying P500.00 as attorney's fees; and that they suffered moral damages in the amount of P5,000.00 each and actual damages in the amount of P500.00 each. They also prayed that each of them awarded exemplary damages in the amount of P1,000.00. On September 13, 1965, the trial court rendered its decision, upholding the validity of the seizure of the motor launch on the ground that "the authority to impound evidences or exhibits or corpus delicti in a case pending investigation is inherent in the Provincial Fiscal who controls the prosecution and who introduces those exhibits in the court." Accordingly, the trial court dismissed the complaint of plaintiffsappellants and ordered them to pay jointly and severally each of the defendants-appellees the amount of P500.00 by way of actual damages another amount of P500.00 for attorney's fees and P1,000.00 as exemplary damages. Hence, this appeal. Two vital issues call for resolution by this Court. First, whether or not defendant-appellee Fiscal Ponce de Leon had the power to order the seizure of the motor launch in question without a warrant of search and seizure even if the same was admittedly the corpus delicti of the crime. Second, whether or not defendants-appellees are civilly liable to plaintiffs-appellants for damages allegedly suffered by them granting that the seizure of the motor launch was unlawful. The gravamen of plaintiffs-appellants' argument is that the taking of the motor launch on July 6, 1962 by Orlando Maddela upon the order of Fiscal Ponce de Loon was in violation of the constitutional guarantee against unreasonable searches and seizures since it was done without a warrant. The pertinent provision of the Constitution then in force reads: 3) The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized. 3 A cursory reading of the above provision easily brings into focus the unreasonableness of the seizure of the aforementioned motor launch. A search and seizure to be reasonable, must be effected by means of a valid search warrant. And for a search warrant to be valid: (1) it must be issued upon probable cause; (2) the probable cause must be determined by the judge himself and not by the applicant or any other person; (3) in the determination of probable cause, the judge must examine, under oath or affirmation, the complainant and such witnesses as the latter may produce; and (4) the warrant issued must particularly describe the place to be searched and persons or things to be seized. 4 Thus in a long line of decisions, this Court has declared invalid search warrants which were issued in utter disregard of the constitutional injunction. 5 Defendants-appellees admitted that when Orlando Maddela entered the premises of Delfin Lim and impounded the motor launch he was not armed with a search warrant; that he effected the seizure of the motor launch in the absence of and without the consent of Delfin Lim. There can be no question that without the proper search warrant, no public official has the right to enter the premises of another without his consent for the purpose of search and seizure. 6 And since in the present case defendants-appellees seized the motor launch without a warrant, they have violated the constitutional right of plaintiffsappellants against unreasonable search and seizure. Defendants-appellees however would want to justify the seizure of the motor launch even without a warrant because of Fiscal Ponce de Leon's alleged inherent power to order the seizure of a personal property which is the corpus delicti of a crime, he being a quasi judicial officer who has the control of the prosecution and the presentation of the evidence in the criminal case. They argue that inasmuch as the motor launch in question was allegedly stolen by Jikil Taha from Timbangcaya, Fiscal Ponce de Leon could order its seizure even without a search warrant. We cannot agree. Under the old Constitution 7 the power to issue a search warrant is vested in a judge or

magistrate and in no other officer and no search and seizure can be made without a proper warrant. At the time the act complained of was committed, there was no law or rule that recognized the authority of Provincial Fiscals to issue a search warrant. In his vain attempt to justify the seizure of the motor launch in question without a warrant Fiscal Ponce de Leon invoked the provisions of Republic Act No. 732, which amended Sections 1674 and 1687 of the Revised Administrative Code. But there is nothing in said law which confers upon the provincial fiscal; the authority to issue warrants, much less to order without warrant the seizure of a personal property even if it is the corpus delicti of a crime. True, Republic Act No. 732 has broadened the power of provincial fiscals to conduct preliminary investigations, but said law did not divest the judge or magistrate of its power to determine, before issuing the corresponding warrant, whether or not probable cause exists therefor. 8 Moreover, under Sections 2 and 3 of Rule 122 of the Rules of Court 9 which complement the constitutional provision earlier cited, two principles are made clear, namely: (1) that in the seizure of a stolen property search warrant is still necessary; and (2) that in issuing a search warrant the judge alone determines whether or not there is a probable cause. The fact that a thing is a corpus delicti of a crime does not justify its seizure without a warrant. As held in U.S. v. de los Reyes and Esguerra, 10 citing McClurg v. Brenton: 11 The mere fact that a man is an officer, whether of high or low degree, gives him no more right than is possessed by the ordinary private citizen to break in upon the privacy of a home and subject its occupant to the indignity of a search for the evidence of crime, without a legal warrant procured for that purpose. No amount of

(6) Illegal search; xxx xxx xxx (1) Acts and action referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34 and 35. Pursuant to the foregoing provisions, a person whose constitutional rights have been violated or impaired is entitled to actual and moral damages from the public officer or employee responsible therefor. In addition, exemplary damages may also be awarded. In the instant case, plaintiff-appellant Delfin Lim claimed that he purchased the motor launch from Jikil Taha in consideration of P3,000.00, having given P2,000.00 as advanced payment; that since or seizure on July 6, 1962 the motor launch had been moored at Balabac Bay and because of exposure to the elements it has become worthless at the time of the filing of the present action; that because of the illegality of the seizure of the motor launch, he suffered moral damages in the sum of P1,000.00; and that because of the violation of their constitutional rights they were constrained to engage the services of a lawyer whom they have paid P1,500.00 for attorney's fees. We find these claims of Delfin Lim amply supported by the evidence and therefore should be awarded the sum of P3,000.00 as actual damages; P1,000.00 as moral damages and P750.00 for attorney's fees. However, with respect co plaintiff Jikil Taha, he is not entitled to recover any damage which he alleged he had suffered from the unlawful seizure of the motor launch inasmuch as he had already transferred the ownership and possession of the motor launch to Delfin Lim at the time it was seized and therefore, he has no legal standing to question the validity of the seizure. Well settled is the rule that the legality of a seizure can be contested only by the party whose rights have been impaired thereby, and that the objection to an unlawful search and seizure is purely personal and cannot be availed of by third parties. 17 Consequently, one who is not the owner, lessee, or lawful occupant of the premise searched cannot raise the question of validity of the search and seizure. 18 Jikil Taha is not without recourse though. He can still collect from his co-plaintiff, Delfin Lim the unpaid balance of P1,000.00. Defendant-appellee Fiscal Ponce de Leon wanted to wash his hands of the incident by claiming that "he was in good faith, without malice and without the slightest intention of inflicting injury to plaintiff-appellant, Jikil Taha" 19 when he ordered the seizure of the motor launch. We are not prepared to sustain his defense of good faith. To be liable under Article 32 of the New Civil Code it is enough that there was a violation of the constitutional rights of the plaintiffs and it is not required that defendants should have acted with malice or bad faith. Dr. Jorge Bocobo, Chairman of the Code Commission, gave the following reasons during the public hearings of the Joint Senate and House Committees, why good faith on the part of the public officer or employee is immaterial. Thus: DEAN BOCOBO. Article 32, regarding individual rights; Attorney Cirilo Paredes proposes that Article 32 be so amended as to make a public official liable for violation of another person's constitutional rights only if the public official acted maliciously or in bad faith. The Code Commission opposes this suggestion for these reasons: The very nature of Article 32 is that the wrong may be civil or criminal. It is not necessary therefore that there should be malice or bad faith. To make such a requisite would defeat the main purpose of Article 32 which is the effective protection of individual rights. Public officials in the past have abused their powers on the pretext of justifiable motives or good faith in the performance of their duties. Precisely, the object of the Article is to put an end to official abuse by the plea of good faith. In the United States this remedy is in he nature of a tort. Mr. Chairman, this article is firmly one of the fundamental articles introduced in the New Civil Code to implement democracy. There is no real democracy if a public official is abusing, and we made the article so strong and so comprehensive that it concludes an abuse of individual rights even if done in good faith, that official is liable. As a matter of fact, we know that there are very few public officials who openly and definitely abuse the individual rights of the citizens. In most cases, the abuse is justified on a plea of desire to enforce the law to comply with one's duty. And so, if we should limit the scope of this article, that would practically nullify the object of the article.

incriminating evidence whatever its source, will supply the place of such warrant. At the closed
door of the home be it palace or hovel even bloodhounds must wait till the law, by authoritative process, bids it open. (Emphasis supplied.)

Defendant-appellee Fiscal Ponce de Leon would also invoke lack of time to procure a search warrant as an excuse for the seizure of the motor launch without one. He claimed that the motor launch had to be seized immediately in order to preserve it and to prevent its removal out of the locality, since Balabac, Palawan, where the motor launch was at the time, could only be reached after three to four days' travel by boat. 12 The claim cannot be sustained. The records show that on June 15, 1962 13 Fiscal Ponce de Leon made the first request to the Provincial Commander for the impounding of the motor launch; and on June 26, 1962 14 another request was made. The seizure was not effected until July 6, 1962. In short, Fiscal Ponce de Leon had all the time to procure a search warrant had he wanted to and which he could have taken in less than a day, but he did not. Besides, there is no basis for the apprehension that the motor launch might be moved out of Balabac because even prior to its seizure the motor launch was already without its engine. 15 In sum, the fact that there was no time to secure a search warrant would not legally justify a search without one. 16 As to whether or not they are entitled to damages, plaintiffs-appellants anchor their claim for damages on Articles 32 and 2219 of the New Civil Code which provide in part as follows: ART. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages. xxx xxx xxx (9) The rights to be secure in one's person, house, papers, and effects against unreasonable searches and seizures. xxx xxx xxx The indemnity shall include moral damages. Exemplary damages may also be adjudicated. ART. 2219. Moral damages may be recovered in the following and analogous cases: xxx xxx xxx

Precisely, the opening object of the article is to put an end to abuses which are justified by a plea of good faith, which is in most cases the plea of officials abusing individual rights. 20 But defendant-appellee Orlando Maddela cannot be held accountable because he impounded the motor launch upon the order of his superior officer. While a subordinate officer may be held liable for executing unlawful orders of his superior officer, there are certain circumstances which would warrant Maddela's exculpation from liability. The records show that after Fiscal Ponce de Leon made his first request to the Provincial Commander on June 15, 1962 Maddela was reluctant to impound the motor launch despite repeated orders from his superior officer. 21 It was only after he was furnished a copy of the reply of Fiscal Ponce de Leon, dated June 26, 1962, to the letter of the Provincial Commander, justifying the necessity of the seizure of the motor launch on the ground that the subsequent sale of the launch to Delfin Lim could not prevent the court from taking custody of the same, 22 that he impounded the motor launch on July 6, 1962. With said letter coming from the legal officer of the province, Maddela was led to believe that there was a legal basis and authority to impound the launch. Then came the order of his superior officer to explain for the delay in the seizure of the motor launch. 23 Faced with a possible disciplinary action from his Commander, Maddela was left with no alternative but to seize the vessel. In the light of the above circumstances. We are not disposed to hold Maddela answerable for damages. IN VIEW OF THE FOREGOING, the decision appealed from is hereby reversed and another one entered declaring the seizure illegal and ordering defendant-appellee Fiscal Francisco Ponce de Leon to pay to plaintiff-appellant Delfin Lim the sum of P3,000.00 as actual damages, plus P1,000.00 moral damages, and, in addition, P750.00 for attorney's fees. With costs against defendant-appellee Fiscal Ponce de Leon. SO ORDERED.

12210 12211

People vs. Carlito Fortun People vs. Jarail Majini People vs. Amelita Dy People vs. Angelito Dy People vs. Jesus Aloyan People vs, Bebot Lauron People vs. Mariano Trani Antonio Monghit

12212 12213

12214 12215 12216

12217

People vs. EIorde Subingbing Fernando Sagay

12218 12219

People vs. Perla Trasga People vs. Renato Dayan People vs. Edgardo Dayan People vs. Benito Sy Ibaez People vs. Benito Sy Ibaez

12220 12221 12222

Castro (Chairman), Teehankee, Makasiar and Esguerra, JJ., concur. Muoz Palma, J, is on leave.
Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-60349-62 December 29, 1983 CITY FISCAL NESTORIO M. PLACER, ASST. CITY FISCALS AGELIO L. BRINGAS, ERNESTO M. BROCOY, RAFAEL V. FLORES, FELIXBERTO L. GUIRITAN, MACARIO B. BALANSAG and ROSARIO F. DABALOS, all of Butuan City, and the PEOPLE OF THE PHILIPPINES, petitioners, vs. HON. JUDGE NAPOLEON D. VILLANUEVA, in his capacity as City Judge of Butuan, respondent.

The Solicitor General for respondent.

These informations, except the last four, docketed as Criminal Cases Nos. 12219 12220, 12221. and '2222, were certified to by the respective investigating Fiscals as Follows: "that a preliminary examination has been conducted by me in this case, having examined 'the complainant and his witnesses; that on the basis of the sworn statements, and other evidence submitted before this Official there is reasonable ground to believe that the crime charged has been commited and that herein accussed is probably guilty thereof " The informations in Criminal Cases Nos. 12219 and 12220 bore the certification of 3rd Assistant Fiscal Felixberto Guiritan that I am filing this information upon directive of the Minister of Justice, who upon review of this resolution of the undersigned investigating fiscal has found prima facie case against herein accused, 1 while the informations in Criminal Cases Nos. 12221 and 12222 were certified to by 2nd Assistant Fiscal Ernesto M. Brocoy in this wise: "I am filing this information upon directive of the City Fiscal pursuant to the provisions of P.D. No. 911, who, upon review of the resolution of the investigating fiscal now on temporary detail with the office of the Provincial Fiscal of Surigao del Sur, has found prima facie case against the herein accused." 2 Following receipt of said informations, respondent judge issued an order setting on April 5, 1982 the hearing of said criminal cases for the purpose of determining the propriety of issuing the corresponding warrants of arrest. After said hearing, respondent issued the questioned orders dated April 13, 15, 16 and 19, 1982, requiring petitioners to submit to the court the affidavits of the prosecution witnesses and other documentary evidence in support of the informations to aid him in the exercise of his power of judicial review of the findings of probable cause by petitioners. 3 Petitioners filed two separate motions for reconsideration of said orders, contending that under P.D. Nos. 77 and 911, they are authorized to determine the existence of a probable cause in a preliminary examination/investigation, and that their findings as to the existence thereof constitute sufficient basis for the issuance of warrants of arrest by the court. 4 On April 28, 1982, respondent judge denied said motions and reiterated his order to petitioners to submit the supporting affidavits and other documents within five (5) days 5 from notice. Slight Phy. Inj.

ESCOLIN, J.: The legal question raised in this petition is whether the certification of the investigating fiscal in the information as to the existence of probable cause obligates respondent City Judge to issue a warrant of arrest. The antecedent facts are not disputed. During the period from March 30 to April 14, 1982, petitioners, The City Fiscal of Butuan City and his assistants filed in the City Court of Butuan the following informations, to wit: CRIMINAL CASE NO. 1220 TITLE People vs, Jimmy Tan

Hence, petitioners filed this petition for certiorari and mandamus to set aside the aforesaid orders and to compel respondent to issue the warrants of arrest in Criminal Cases Nos. 12209-12222. Meanwhile, the respondent, in addition to his duties as presiding judge of Branch I of the City Court of Butuan, was also assigned to preside over Branch II of said court, as Judge Jesus Ruiz, presiding judge of said sala, had retired from the service. The informations filed by petitioners in Branch II likewise remained dormant because of respondent's firm refusal to issue the corresponding warrants of arrest for want of affidavits of the witnesses. Thus, as disclosed by petitioner's urgent motion, 6 no warrants had been issued in 113 informations as of July 15, 1982. On July 12, 1982, respondent judge received Our May 19, 1982 Resolution requiring him to comment on the petition. However, interpreting the same as a denial of the petition itself, respondent issued on the following day, July 13, and Omnibus Order directing petitioners to submit immediately the supporting affidavits and other evidence in Criminal Cases Nos. 12209-12222. Having failed to secure a reconsideration of said Omnibus Order, petitioners finally submitted the required affidavits and documents on July 15, 1982 in order to avoid further delay in the prosecution of these cases. This move on the part of the petitioners would have rendered the instant petition moot and academic. But while respondent gave due course to some of said cases either by issuing the warrants of arrest or taking some other appropriate action, 7 he refused to issue the warrants in Criminal Cases Nos. 12417, 12418, 12419, 12420 and 12422, and instead ordered the records thereof remanded to the City Fiscal "for further preliminary investigation or reinvestigation," for on the bases of said affidavits, respondent found no prima facie case against the accused. Petitioners therefore filed a motion with this Court to restrain respondent from enforcing the orders subject of the main petition and to compel him to accept, and take cognizance of, all the informations filed in his court. They contend that the fiscal's certification in the information of the existence of probable cause constitutes sufficient justification for the judge to issue a warrant of arrest; and that such certification binds the judge, it being supported by the presumption that the investigating fiscal had performed his duties regularly and completely. Upon the other hand, respondent justifies his order as an exercise of his judicial power to review the fiscal's findings of probable cause. He further maintains that the failure of petitioners to file the required affidavits destroys the presumption of regularity in the performance of petitioners' official duties, particularly in the light of the long standing practice of the Office of the City Fiscal of Butuan of attaching to the informations filed with the court the affidavits of prosecution witnesses and other documentary evidence presented during the preliminary investigation. The issue to be resolved is whether or not the respondent city judge may, for the purpose of issuing a warrant of arrest, compel the fiscal to submit to the court the supporting affidavits and other documentary evidence presented during the preliminary investigation. We sustain the position of respondent judge. The primary requirement for the issuance of a warrant of arrest is the existence of probable cause. Section 3, Article IV of the 1973 Constitution provides that... no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer, as may be recognized by law, after examination under oath or affirmance of the complainant and the witnesses he may produce .... P.D. No. 911 authorizes the fiscal or state prosecutor to determine the existence of probable cause. Thus, If on the basis of complainant's sworn statements and documents submitted, the investigating dismiss the raise. If probable cause is established by complainant's evidence, he shall notify the respondent by issuing a subpoena .... (Sec. 1 [b], RA 5180, as amended by P.D. Nos. 77 and 911).

The fiscal or state prosecutor shall certify under oath in the information to be filed by him that he has examined the complainant and his witnesses; that on the basis of the sworn Statements and other evidence submitted before him there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof ... (Sec. 1[d], Id.). There is thus no dispute that the judge may rely upon the fiscal's certification of the existence of probable cause and, on the basis thereof, issue a warrant of arrest, But does such certification bind the judge to come out with the warrant? We answer this query in the negative. The issuance of a warrant is not a mere ministerial function; it calls for the exercise of judicial discretion on the part of the issuing magistrate. This is clear from the following provisions of Section 6, Rule 112 of the Rules of Court: Warrant of arrest, when issued. If the judge be satisfied from the preliminary examination conducted by him or by the investigating officer that the offense complained of has been committed and that there is reasonable ground to believe that the accused has committed it, he must issue a warrant or order for his arrest. Under this section, the judge must satisfy himself of the existence of probable cause before issuing , a warrant or order of arrest. If on the face of the information the judge finds no probable cause, he may disregard the fiscals certification and require the submission of the affidavits of witnesses to aid him in arriving at a conclusion as to the existence of a probable cause. This has been the rule since U.S. vs. Ocampo 8 and Amarga vs. Abbas. 9 And this evidently is the reason for the issuance by respondent of the questioned orders of April 13, 15, 16, 19, 1982 and July 13, 1982. Without the affidavits of the prosecution witnesses and other evidence which, as a matter of longstanding practice had been attached to the informations filed in his sala, respondent found the informations inadequate bases for the determination of probable cause. For as the ensuing events would show, after petitioners had submitted the required affidavits, respondent wasted no time in issuing the warrants of arrest in the cases where he was satisfied that probable cause existed. German to the issue at hand is the Rule on Summary Procedure in Special Cases 10 applicable to the following, to wit: I. B. Criminal Cases: (1) Violation of traffic laws, rules and regulations; (2) Violations of the rental laws; (3) Violations of municipal or city ordinances; (4) All other criminal cases where the penalty prescribed by law for the offense charged does not exceed six (6) months imprisonment, or a fine of One Thousand Pesos [1,000.00], or both irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising therefrom; Provided, however, that in offenses involving damage to property through reckless negligence, this Rule shall govern where the imposable fine does not exceed Ten Thousand Pesos [10,000.00]. In said cases, the filing of the affidavits of witnesses with the court is mandatory. Section 9, par. 2 of said Rule prescribes that "the complaint or information must be accompanied by the affidavits of the complainant and of his witnesses in such number of copies as there are defendants plus two (2) copies for the court's files. Section 10 of the Summary Rule provides: On the basis of the complaint or information and the affidavits accompanying the same, the court shall make a preliminary determination whether to dismiss the case outright for being patently without basis or merit, or to require further proceedings to be taken. In the latter case, the court may set the case for immediate arraignment of an accused under custody, and if he pleads guilty, may render judgment forthwith. If he pleads not guilty, and in all other cases, the court

shall issue an order, accompanied by copies of all the affidavits submitted by the complainant, directing the defendants to appear and submit his counter-affidavit and those of his witnesses at a specified date not later than ten (10) days from receipt thereof. Failure on the part of the defendant to appear whenever required, shall cause the issuance of a warrant for his arrest if the court shall find that a probable cause exists after an examination in writing and under oath or affirmation of the complainant and his witnesses. The obvious purpose of requiring the submission of affidavits of the complainant and of his witnesses is to enable the court to determine whether to dismiss the case outright or to require further proceedings. One last point. It appears that after petitioners had submitted the required affidavits of witnesses, the respondent judge ordered Criminal Cases Nos. 12417, 12418, 12419, 12420 and 12422 remanded to the City Fiscal for further preliminary investigation or reinvestigation. We hold that respondent did not abuse his discretion in doing so. From the informations and affidavits presented to him, he found the charges patently without basis or merit. For respondent to issue the warrants of arrest and try the accused would only expose the latter to unnecessary harrassment, anxiety and expense. And as already pointed out, under the Rule on Summary Procedure in Special Cases, the respondent judge has the power to order the outright dismissal of the charge if, from the information and the affidavits attached thereto, he finds the same to be patently without basis or merit. WHEREFORE, the petition is hereby dismissed. No costs. SO ORDERED.

In the decision promulgated on 21 February 1994, 2 this Court dismissed G.R. Nos. 108478-79. The complainant then filed on 23 November 1994 a motion to revive this complaint. On 23 February 1995, the respondent judge filed an Additional Comment and Observation to stress that what he did was to quash the warrant of arrest, determine probable cause on the basis of the record and documents available, order the arrest of the accused, and grant bail to those against whom the evidence of guilt was weak. Issues having been joined and the revival of this complaint being in order, this Court required the parties to manifest whether they agree to submit this case for decision on the basis of the pleadings they have submitted. In their separate manifestations, the parties responded in the affirmative. The antecedent facts which gave rise to the instant complaint (as well as to G.R. Nos. 108478-79) are summarized in the decision in G.R. Nos. 108478-79 as follows: On November 4, 1990, Patrolman Celso Reyes, Bgy. Captain Pedro Panganiban and Armando Vitug were ambushed along Ipo-road, Kay-Pian, San Juan del Monte, Bulacan, resulting in the untimely death of Reyes and Panganiban. The National Bureau of Investigation conducted an inquisition of the incident and after which charged petitioners Estelita Hipolito and Alfredo Bolsico, together with Romeo Adviento, Romeo Permejo, Rolando Gozum and four (4) John Does with the crimes of murder and frustrated murder before the Municipal Trial Court of San Jose del Monte, then presided over by Judge Virginia Pagarogon. Judge Pagarogon conducted a preliminary investigation of the witnesses and on November 14, 1990 issued an order admitting the complaint and ordering the detention of all the accused after finding that the crimes charged have been committed and there is reasonable ground to believe that the accused are probably guilty thereof. No bail was recommended. Judge Pagarogon then forwarded the records of the cases to the Provincial Prosecutor's Office of Bulacan for appropriate action. The Investigating Prosecutor, without conducting a thorough investigation of the cases, concluded that there was no probable cause and ordered motu proprio the release of the accused from custody. So, the widow of Patrolman Reyes petitioned the Department of Justice to disqualify the Provincial Prosecutor's Office from conducting the preliminary investigation and prosecution of the cases. In due course, the DOJ acted favorably on the petition and designated State Prosecutor Santiago Turingan to take over and handle the cases. The State Prosecutor found probable cause for murder and frustrated murder against all the accused and consequently, they were formally charged with said crimes on March 13, 1991, before the Regional Trial Court of Malolos, Bulacan, docketed as Criminal Cases No. 487-M-91, 488-M-91 and 489-M-91. No bail was recommended and the corresponding warrants of arrest were issued. The accused were quick to learn of the filing of the informations. On the same day (March 13, 1991), they filed a "Manifestation and Motion to Defer the Issuance of Warrants of Arrest," praying for the suspension of court proceedings on the ground that they are filing a petition for review of the resolution of the State Prosecutor. On March 21, 1991, the accused, who were not yet arrested or placed under the jurisdiction of the trial court (after their precipitate release earlier), filed a "Petition to Grant Bail" in C.C. Nos. 487-M-91 and 488-M-91 and a "Petition to Reduce Bail in C.C. No. 489-M-91. On March 25, 1991, the trial court issued an order denying the petitions since the accused had not yet surrendered and/or apprehended and, therefore, the court has not acquired jurisdiction over their persons. On the same day (March 25, 1991), the accused filed another petition entitled "Reinstatement of the Petition to Grant Bail in the above entitled cases and Motion to Reduce Bail Bond and Motion to Set Petition for Hearing with

Makasiar (Chairman), Concepcion, Jr., Guerrero, Abad Santos and De Castro, JJ., concur. Aquino, J., took no part.
Republic of the Philippines SUPREME COURT Manila EN BANC

A.M. No. RTJ-93-983 August 7, 1995 GUILLERMA DE LOS SANTOS-REYES, complainant, vs. JUDGE CAMILO O. MONTESA, JR., Pairing Judge, Branch 18, Regional Trial Court, Malolos, Bulacan,respondent.

PER CURIAM: In her complaint filed on 23 March 1993, Guillerma de los SantosReyes charges the respondent judge with gross ignorance of law and evident dishonesty in the performance of his work in that he granted bail to the accused in Criminal Cases Nos. 487-M-91, 488-M-91, and 488-M-91 without the required petition for bail and without conducting any hearing to accord the prosecution an opportunity to establish that the evidence of guilt of the accused was strong. In compliance with the resolution of 24 May 1993, the respondent judge filed his comment wherein he disclosed that the issue raised was the subject of G.R. Nos. 108478-79 1 pending before the Second Division of this Court. On 22 September 1993, this Court, upon the recommendation of the Office of the Court Administrator (OCA), dismissed this case, "the issues raised . . . being sub-judice but without prejudice to its revival should the Court in G.R. Nos. 108478-79 find the orders to have been issued with grave abuse of discretion."

Manifestation to Surrender the Accused on the Hearing of this Petition." On April 4, 1991, the trial court, apparently with a change of heart, issued an order consolidating the petitions for bail, set them for hearing on April 6, 1991, and directed the DOJ and/or the Office of the Provincial Prosecutor to forward to it the records of the preliminary investigation of the cases within ten (10) days from notice. On April 15, 1991, petitioners filed an urgent motion to quash the warrants of arrest alleging want of probable cause. On April 22, 1991, the accused withdrew their motion for reinstatement of their petition for bail bond and opted to pursue their motion to quash the warrants of arrest. On May 2, 1991, the trial court quashed the warrants of arrest and set the hearing on May 15, 1991 for the purpose of determining the existence of probable cause. On May 17, 1991, after examining the records of the cases as forwarded to him by the prosecution, the trial court found the existence of probable cause but instead of issuing the corresponding warrants of arrest, for the purpose of acquiring jurisdiction over the persons of the accused upon their apprehension or voluntary surrender, it ex mero motu granted bail to them despite the absence of (because it was previously withdrawn) a petition for bail and, worse, the lack of a hearing wherein the prosecution could have been accorded the right to present evidence showing that the evidence of guilt is strong. On August 23, 1991, the prosecution filed an omnibus motion praying for the cancellation of the bail bonds as well as the issuance of warrants of arrest on the fundamental ground that the trial court could not legally grant bail in a capital offense without the prosecution being accorded the right to show that the evidence of guilt is strong. On October 28, 1991, the trial court denied the prosecution's motion on the principal ground that its questioned orders had become final and executory. On December 2, 1991, the motion for reconsideration was likewise denied. On March 3, 1992, the prosecution filed a petition for certiorari, prohibition and preliminary injunction with prayer for a temporary restraining order before respondent Court of Appeals, CA-G.R. S.P. No. 27430, assailing the following orders of the trial court: the May 17, 1991 order which granted bail to the accused; the October 28, 1991 order which denied the prosecution's omnibus motion praying for the issuance of warrants of arrest's as well as the cancellation of what it perceived to be irregularly posted bail bonds; and the December 2, 1991 order which denied the prosecution's motion for reconsideration. Upon the filing of said petition, respondent court issued the temporary restraining order. On the other hand, petitioners filed a petition for certiorari, mandamus and prohibition before the same court, CA-G.R. S.P. No. 27472, seeking: (a) to annul the orders of the trial court resetting the hearings on different dates for being dilatory and violative of their constitutional right to a speedy trial; (b) to command the trial court to dismiss with prejudice all the criminal cases; and (c) to perpetually prohibit the prosecution of the criminal cases. On July 31, 1992, respondent [Court of Appeals] ruled in favor of the prosecution. The dispositive portion of its consolidated decision reads: WHEREFORE, the instant petition (SP No. 27430) is hereby granted and the questioned orders of respondent Court dated May 17, 1991, October 28, 1991, and December 2, 1991 are annulled and set aside. Accordingly, the accused herein (private respondents) are ordered arrested/committed pending the trial of their cases, without prejudice on their part to file in the proper court a petition for bail after the arrest,

detention or deprivation of their liberty, wherein the prosecution is accorded the right to present evidence to prove that evidence of guilt is strong. SP No. 27472, on the other hand, is hereby DISMISSED for lack of merit, considering that the delays incurred herein were due to unavoidable circumstances and were therefore reasonable in nature. No costs in both instances. SO ORDERED. Their motion for reconsideration having been denied, petitioners Hipolito, et al. filed with this Court a petition for review, docketed as G.R. Nos. 108478-79, which, as earlier stated, was dismissed on 21 February 1994. Respondent judge asserts that he is not administratively liable for what he did because he was merely guided by the doctrine in Lim vs. Felix, 3 to the effect that the determination of probable cause for the issuance of a warrant of arrest should be personally determined by the judge. Since in these cases the issuance of the warrants of arrest was based solely on the certification of the state prosecutor, he granted the motion to quash the warrants of arrest and, considering that on the date of the hearing to determine probable cause the witnesses for the prosecution did not appear and the private prosecutor submitted the issue on the basis of the proceedings had at the preliminary investigation and the affidavits of witnesses, he formally resolved it on such basis. He further alleges that since he found the evidence purely circumstantial, except as against Romeo Permejo who was positively identified as the gunman, he believed that the evidence of guilt as against the others was not strong and, accordingly, admitted them to bail in the amount of P80,000.00 each. The explanation of the respondent judge is wholly unacceptable for, contrary to his belief that he has shown perfect knowledge of the rules on the issuance of warrants of arrest and grant of bail, he has demonstrated either gross ignorance of the constitutional and statutory principles and settled jurisprudence thereon or gross incompetence which no claim of good faith can exculpate or even mitigate. From the above recitals of the factual and procedural antecedents of the criminal cases before the trial court, it is obvious that the accused filed their petitions to grant bail and to reduce bail, motion to reinstate petition to grant bail and urgent motion to quash warrants of arrests before the court acquired jurisdiction over their persons either through the effective service and enforcement of the warrants of arrest or their voluntary surrender, i.e., before they were placed in the custody of the law or otherwise deprived of their liberty. Such being so, the trial court, initially, denied correctly the petition for grant of bail but subsequently disregarded law and jurisprudence when it favorably acted on the motion to reinstate the petition for grant of bail and set the motion for hearing on 6 April 1991, directing, for that purpose the Department of Justice and the Office of the Provincial Prosecutor to forward to it the records of the preliminary investigation. In this jurisdiction it is settled that a person applying for bail should be in the custody of the law or otherwise deprived of his liberty. 4 While it may be true that the disregard of this precept was not consummated, it was not because the respondent judge corrected himself, but because the accused withdrew their petition for the grant of bail and opted to pursue their urgent motion to quash the warrants of arrest grounded on want of probable cause. Instead of retracing his steps back to the proper judicial path, the respondent judge, still forgetting that the accused remained scot-free, not only quashed the warrants of arrest, but, thereafter motu proprio converted, in effect, the "hearing" for the determination of probable cause for the issuance of the warrant of arrest, which he set on 15 May 1991, to a hearing on the matter of admission to bail, as his order of 17 May 1991 indisputably shows. In so doing, the respondent judge had either utterly confused the proceeding to determine probable cause for the issuance of a warrant of arrest from the proceeding on a petition for admission to bail, order deliberately ignored the basic requisites for the grant of bail. The determination of probable cause in the issuance of a warrant of arrest is mandated by Section 2, Article III of the Constitution. 5 Probable cause for the issuance of a warrant of arrest means such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested. 6 A hearing is not

necessary therefor. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge, following the established doctrine and procedure, shall either (a) personally evaluate the report and the supporting documents submitted by the prosecutor regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest, or (b) if on the face of the information he finds no probable cause, he may disregard the prosecutor's certification and require the submission of the supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. 7 This procedure is dictated by sound public policy; otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. 8 At this stage of a criminal proceeding, the judge is not tasked to review in detail the evidence submitted during the preliminary investigation; it is sufficient that he personally evaluates the report and supporting documents submitted by the prosecution in determining probable cause. 9 This judicial function does not carry with it a motu proprio review of the recommendation of the prosecutor in a capital offense that no bail shall be granted. Such a recommendation is the exclusive prerogative of the prosecutor in the exercise of his quasi-judicial function during the preliminary investigation, which is executive in nature. 10 In such cases, once the court determines that probable cause exists for the issuance of a warrant of arrest, the warrant of arrest shall forthwith be issued and it is only after the accused is taken into the custody of the law and deprived of his liberty that, upon proper application for bail, the court on the basis of the evidence adduced by the prosecution at the hearing called for the purpose may, upon determination that such evidence is not strong, admit the accused to bail. 11 Since the accused unilaterally withdrew their petition for bail, there was then nothing to be heard or acted upon in respect thereof. Even if they did not withdraw their petition, they have no right to invoke the processes of the court since they have not been placed in the custody of the law or otherwise deprived of their liberty by reason or as a consequence of the filing of the information. For the same reason, the court had no authority to act on the petition.12 Even if it be conceded for the sake of argument that the application for bail was regularly filed, the respondent judge wantonly ignored the due process requirement of hearing to afford the prosecution reasonable opportunity to prove that evidence of guilt of the applicants is strong. 13 To grant an application for bail and fix the amount thereof without such hearing duly called for the purpose of determining whether the evidence of guilt is strong constitutes ignorance or incompetence whose grossness cannot be excused by a claim of good faith or excusable negligence 14 or constitutes inexcusable conduct which reflects either gross ignorance of the law or cavalier disregard of its requirements. 15 At the very least, the respondent judge exhibited gross incompetence. Gross ignorance of law and incompetence are characteristics and quirks impermissible in a judge. A judge is called upon to exhibit more than just a cursory acquaintance with statutes and procedural rules; it is imperative that he be conversant with basic legal principles.16 He should he studious of the principles of the law, 17 and he must be faithful to the law and must maintain professional competence. 18 The respondent judge does not have an enviable record as a living personification of justice and the rule of law. 19 In Administrative Matter No. RTJ-91-753, 20 for abuse of discretion, this Court censured the respondent judge for issuing an order granting bail to an accused without affording the prosecution the opportunity to present evidence to show that the evidence of guilt was strong. In Administrative Matter No. RTJ-91-742, 21 for gross ignorance of law and serious misconduct, the respondent judge was admonished to be more circumspect in the resolution of the cases before him and given a last warning that any form of infraction cases hereafter would be dealt with severely. The respondent judge has indisputably failed to comply with the strict and exacting demands of the public-trust character of his office. WHEREFORE, for gross ignorance of law or incompetence and conduct prejudicial to the best interest of the service, respondent Judge CAMILO O. MONTESA, JR., Presiding Judge of Branch 18 of the Regional Trial Court of Bulacan, is hereby ordered DISMISSED from the service with forfeiture of all benefits and with prejudice to reemployment in any branch or service of the government, including

government-owned or controlled corporations. His dismissal shall take effect immediately upon his receipt of a copy of this decision which must be personally served by the Office of the Court Administrator. Let a copy of this decision be attached to the records of the respondent with this Court. SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza and Francisco, JJ., concur. Hermosisima, Jr. J., took no part.
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 71410 November 25, 1986 JOSEFINO S. ROAN, petitioner, vs. THE HONORABLE ROMULO T. GONZALES, PRESIDING JUDGE, REGIONAL TRIAL COURT OF MARINDUQUE, BRANCH XXXVIII; THE PROVINCIAL FISCAL OF MARINDUQUE; THE PROVINCIAL COMMANDER, PC-INP MARINDUQUE, respondents.

CRUZ, J: Once again we are asked to annul a search warrant on the ground that it violates the Constitution. As we can do no less if we are to be true to the mandate of the fundamental law, we do annul. One of the most precious rights of the citizen in a free society is the right to be left alone in the privacy of his own house. That right has ancient roots, dating back through the mists of history to the mighty English kings in their fortresses of power. Even then, the lowly subject had his own castle where he was monarch of all he surveyed. This was his humble cottage from which he could bar his sovereign lord and all the forces of the Crown. That right has endured through the ages albeit only in a few libertarian regimes. Their number, regrettably, continues to dwindle against the onslaughts of authoritarianism. We are among the fortunate few, able again to enjoy this right after the ordeal of the past despotism. We must cherish and protect it all the more now because it is like a prodigal son returning. That right is guaranteed in the following provisions of Article IV of the 1973 Constitution: SEC. 3. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall not be violated, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized. SEC. 4. (1) The privacy of communication and correspondence shag be inviolable except upon lawful order of the court, or when public safety and order require otherwise. (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. Invoking these provisions, the petitioner claims he was the victim of an illegal search and seizure conducted by the military authorities. The articles seized from him are sought to be used as evidence in his

prosecution for illegal possession of firearms. He asks that their admission be temporarily restrained (which we have) 1 and thereafter permanently enjoined. The challenged search warrant was issued by the respondent judge on May 10, 1984. 2 The petitioner's house was searched two days later but none of the articles listed in the warrant was discovered. 3 However, the officers conducting the search found in the premises one Colt Magnum revolver and eighteen live bullets which they confiscated. They are now the bases of the charge against the petitioner. 4 To be valid, a search warrant must be supported by probable cause to be determined by the judge or some other authorized officer after examining the complainant and the witnesses he may produce. No less important, there must be a specific description of the place to be searched and the things to be seized, to prevent arbitrary and indiscriminate use of the warrant. 5 Probable cause was described by Justice Escolin in Burgos v. Chief of Staff 6 as referring to "such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched." As held in a long line of decisions, the probable cause must refer to only one specific offense. 7 The inclusion of the requirement for the "examination under oath or affirmation of the complainant and the witnesses he may produce" was a refinement proposed by Delegate Vicente J. Francisco in the1934 Constitutional Convention. His purpose was the strengthening of the guaranty against unreasonable searches and seizures. Although the condition did not appear in the corresponding provision of the federa Constitution of the United States which served as our model it was then already embodied in the Code of Criminal Procedure. Nevertheless, Delegate Jose P. Laurel, Chairman of the Committee on the Bill of Rights of that body, readily accepted the proposal and it was thereafter, following a brief debate, approved by the Convention. 8 Implementing this requirement, the Rules of Court provided in what was then Rule 126: SEC. 4. Examination of the applicant. The municipal or city judge must, before issuing the warrant, personally examine on oath or affirmation the complainant and any witnesses he may produce and take their depositions in writing, and attach them to the record, in addition to any affidavits presented to him. The petitioner claims that no depositions were taken by the respondent judge in accordance with the above rule, but this is not entirely true. As a matter of fact, depositions were taken of the complainant's two witnesses in addition to the affidavit executed by them. 9 It is correct to say, however, that the complainant himself was not subjected to a similar interrogation. Commenting on this matter, the respondent judge declared: The truth is that when PC Capt. Mauro P. Quinosa personally filed his application for a search warrant on May 10, 1984, he appeared before me in the company of his two (2) witnesses, Esmael Morada and Jesus Tohilida, both of whom likewise presented to me their respective affidavits taken by Pat. Josue V. Lining, a police investigator assigned to the PC-INP command at Camp Col. Maximo Abad. As the application was not yet subscribed and sworn to, I proceeded to examine Captain Quillosa on the contents thereof to ascertain, among others, if he knew and understood the same. Afterwards, he subscribed and swore to the same before me. 10 By his own account, an he did was question Captain Quillosa on the contents of his affidavit only "to ascertain, among others, if he knew and understood the same," and only because "the application was not yet subscribed and swom to." The suggestion is that he would not have asked any questions at all if the affidavit had already been completed when it was submitted to him. In any case, he did not ask his own searching questions. He limited himself to the contents of the affidavit. He did not take the applicant's deposition in writing and attach them to the record, together with the affidavit presented to him.

As this Court held in Mata v. Bayona:

11

Mere affidavits of the complainant and his witnesses are thus not sufficient. The examining Judge has to take depositions in writing of the complainant and the witnesses he niay produce and attach them to the record. Such written deposition is necessary in order that the Judge may be able to properly determine the existence or non-existence of the probable cause, to hold liable for perjury the person giving it if it wifl be found later that his declarations are false. We, therefore, hold that the search warrant is tainted with illegality by the failure of the Judge to conform with the essential requisites of taking the depositions in writing and attaching them to the record, rendering the search warrant invalid. The respondent judge also declared that he "saw no need to have applicant Quillosa's deposition taken considering that he was applying for a search warrant on the basis of the information provided by the aforenamed witnesses whose depositions as aforementioned had already been taken by the undersigned." 12 In other words, the applicant was asking for the issuance of the search warrant on the basis of mere hearsay and not of information personally known to him, as required by settled jurisprudence." 13 The rationale of the requirement, of course, is to provide a ground for a prosecution for perjury in case the applicant's declarations are found to be false. His application, standing alone, was insufficient to justify the issuance of the warrant sought. It was therefore necessary for the witnesses themselves, by their own personal information, to establish the apphcant's claims. 14 Even assuming then that it would have sufficed to take the depositions only of the witnesses and not of the applicant himself, there is still the question of the sufficiency of their depositions. It is axiomatic that the examination must be probing and exhaustive, not merely routinary or pro-forma, if the claimed probable cause is to be established. The examining magistrate must not simply rehash the contents of the affidavit but must make his own inquiry on the intent and justification of the application. 15 A study of the depositions taken from witnesses Esmael Morada and Jesus Tohilida, who both claimed to be "intelligence informers," shows that they were in the main a mere restatement of their allegations in their affidavits, except that they were made in the form of answers to the questions put to them by the respondent judge. Significantly, the meaningful remark made by Tohilida that they were suspicious of the petitioner because he was a follower of the opposition candidate in the forthcoming election (a "Lecarista") 16 did not excite the respondent judge's own suspicions. This should have put him on guard as to the motivations of the witnesses and alerted him to possible misrepresentations from them. The respondent judge almost unquestioningly received the witnesses' statement that they saw eight men deliver arms to the petitioner in his house on May 2, 1984. 17 This was supposedly done overtly, and Tohilida said he saw everything through an open window of the house while he was near the gate. 18 He could even positively say that six of the weapons were.45 caliber pistols and two were.38 caliber revolvers. 19 One may well wonder why it did not occur to the respondent judge to ask how the witness could be so certain even as to the caliber of the guns, or how far he was from the window, or whether it was on the first floor or a second floor, or why his presence was not noticed at all, or if the acts related were really done openly, in the full view of the witnesses, considering that these acts were against the law. These would have been judicious questions but they were injudiciously omitted. Instead, the declarations of the witnesses were readily accepted and the search warrant sought was issued forthwith. The above-discussed defects have rendered the search warrant invalid. Nonetheless, the Solicitor General argues that whatever defect there was, was waived when the petitioner voluntarily submitted to the search and manifested his conformity in writing. 20 We do not agree. What we see here is pressure exerted by the military authorities, who practically coerced the petitioner to sign the supposed waiver as a guaranty against a possible challenge later to the validity of the search they were conducting. Confronted with the armed

presence of the military and the presumptive authority of a judicial writ, the petitioner had no choice but to submit. This was not, as we held in a previous case, 21 the manifestation merely of our traditional Filipino hospitality and respect for authority. Given the repressive atmosphere of the Marcos regime, there was here, as we see it, an intimidation that the petitioner could not resist. The respondents also argue that the Colt Magnum pistol and the eighteen have bullets seized from the petitioner were illegal per se and therefore could have been taken by the military authorities even without a warrant. Possession of the said articles, it is urged, was violative of P.D. 1866 and considered malum prohibitum. Hence, the Wegal articles could be taken even without a warrant. Prohibited articles may be seized but only as long as the search is valid. In this case, it was not because: 1) there was no valid search warrant; and 2) absent such a warrant, the right thereto was not validly waived by the petitioner. In short, the military officers who entered the petitioner's premises had no right to be there and therefore had no right either to seize the pistol and bullets. It does not follow that because an offense is malum prohibitum, the subject thereof is necessarily illegal per se.Motive is immaterial in mala prohibita, but the subjects of this kind of offense may not be summarily seized simply because they are prohibited. A search warrant is still necessary. If the rule were otherwise, then the military authorities could have just entered the premises and looked for the guns reportedly kept by the petitioner without bothering to first secure a search warrant. The fact that they did bother to do so indicates that they themselves recognized the necessity of such a warrant for the seizure of the weapons the petitioner was suspected of possessing. It is true that there are certain instances when a search may be validly made without warrant and articles may be taken validly as a result of that search. For example, a warrantless search may be made incidental to a lawful arrest, 22 as when the person being arrested is frished for weapons he may otherwise be able to use against the arresting officer. Motor cars may be inspected at borders to prevent smuggling of aliens and contraband 23 and even in the interior upon a showing of probable cause. 24 Vessels and aircraft are also traditionally removed from the operation of the rule because of their mobility and their relative ease in fleeing the state's jurisdiction. 25 The individual may knowingly agree to be searched or waive objections to an illegal search. 26 And it has also been held that prohibited articles may be taken without warrant if they are open to eye and hand and the peace officer comes upon them inadvertently. 27 Clearly, though, the instant case does not come under any of the accepted exceptions. The respondents cannot even claim that they stumbled upon the pistol and bullets for the fact is that these things were deliberately sought and were not in plain view when they were taken. Hence, the rule having been violated and no exception being applicable, the conclusion is that the petitioner's pistol and bullets were confiscated illegally and therefore are protected by the exclusionary principle.

Teehankee, C.J., Feria, Yap, Fernan, Melencio-Herrera, Alampay, Gutierrez, Jr and Paras, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-64261 December 26, 1984 JOSE BURGOS, SR., JOSE BURGOS, JR., BAYANI SORIANO and J. BURGOS MEDIA SERVICES, INC.,petitioners, vs. THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, THE CHIEF, PHILIPPINE CONSTABULARY, THE CHIEF LEGAL OFFICER, PRESIDENTIAL SECURITY COMMAND, THE JUDGE ADVOCATE GENERAL, ET AL., respondents.

Lorenzo M. Taada, Wigberto E. Taada, Martiniano Vivo, Augusto Sanchez, Joker P. Arroyo, Jejomar Binay and Rene Saguisag for petitioners. The Solicitor General for respondents.

ESCOLIN, J.: Assailed in this petition for certiorari prohibition and mandamus with preliminary mandatory and prohibitory injunction is the validity of two [2] search warrants issued on December 7, 1982 by respondent Judge Ernani Cruz-Pano, Executive Judge of the then Court of First Instance of Rizal [Quezon City], under which the premises known as No. 19, Road 3, Project 6, Quezon City, and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City, business addresses of the "Metropolitan Mail" and "We Forum" newspapers, respectively, were searched, and office and printing machines, equipment, paraphernalia, motor vehicles and other articles used in the printing, publication and distribution of the said newspapers, as well as numerous papers, documents, books and other written literature alleged to be in the possession and control of petitioner Jose Burgos, Jr. publisher-editor of the "We Forum" newspaper, were seized. Petitioners further pray that a writ of preliminary mandatory and prohibitory injunction be issued for the return of the seized articles, and that respondents, "particularly the Chief Legal Officer, Presidential Security Command, the Judge Advocate General, AFP, the City Fiscal of Quezon City, their representatives, assistants, subalterns, subordinates, substitute or successors" be enjoined from using the articles thus seized as evidence against petitioner Jose Burgos, Jr. and the other accused in Criminal Case No. Q- 022782 of the Regional Trial Court of Quezon City, entitled People v. Jose Burgos, Jr. et al. 1 In our Resolution dated June 21, 1983, respondents were required to answer the petition. The plea for preliminary mandatory and prohibitory injunction was set for hearing on June 28, 1983, later reset to July 7, 1983, on motion of the Solicitor General in behalf of respondents. At the hearing on July 7, 1983, the Solicitor General, while opposing petitioners' prayer for a writ of preliminary mandatory injunction, manifested that respondents "will not use the aforementioned articles as evidence in the aforementioned case until final resolution of the legality of the seizure of the aforementioned articles. ..." 2 With this manifestation, the prayer for preliminary prohibitory injunction was rendered moot and academic. Respondents would have this Court dismiss the petition on the ground that petitioners had come to this Court without having previously sought the quashal of the search warrants before respondent judge. Indeed, petitioners, before impugning the validity of the warrants before this Court, should have filed a motion to quash said warrants in the court that issued them. 3 But this procedural flaw notwithstanding, we take cognizance of this petition in view of the seriousness and urgency of the constitutional issues raised not to mention the public interest generated by the search of the "We Forum" offices, which was televised in Channel 7 and widely publicized in all metropolitan dailies. The existence of this special circumstance justifies this Court to exercise its inherent power to suspend its rules. In the words of the revered Mr. Justice Abad Santos in the case of C. Vda. de Ordoveza v.

Stonehill v. Diokno established this rule which was later expressly

affirmed in the 1973 Constitution. While conceding that there may be occasions when the criminal might be allowed to go free because "the constable has blundered," Chief Justice Concepcion observed that the exclusionary rule was nonetheless "the only practical means of enforcing the constitutional injunction" against abuse. The decision cited Judge Learned Hand's justification that "only in case the prosecution which itself controls the seizing officials, know that it cannot profit by their wrong, will the wrong be repressed. " The pistol and bullets cannot, of course, be used as evidence against the petitioner in the criminal action against him for illegal possession of firearms. Pending resolution of that case, however, the said articles must remain incustodia legis. Finally, it is true that the petitioner should have, before coming to this Court, filed a motion for the quashal of the search warrant by the respondent judge in accordance with the normal procedure. But as we said and did in Burgos, "this procedural flaw notwithstanding, we take cognizance of this petition in view of the seriousness and urgency of the constitutional issues raised. 28 WHEREFORE, Search Warrant No. 1-84 issued by the respondent judge on May 10, 1984, is hereby declared null and void and accordingly set aside. Our restraining order of August 6,1985, is made permanent. No costs. SO ORDERED.

Raymundo, 4 "it is always in the power of the court [Supreme Court] to

suspend its rules or to except a particular case from its operation, whenever the purposes of justice require it...".

Respondents likewise urge dismissal of the petition on ground of laches. Considerable stress is laid on the fact that while said search warrants were issued on December 7, 1982, the instant petition impugning the same was filed only on June 16, 1983 or after the lapse of a period of more than six [6] months. Laches is failure or negligence for an unreasonable and unexplained length of time to do that which, by exercising due diligence, could or should have been done earlier. It is negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it. 5 Petitioners, in their Consolidated Reply, explained the reason for the delay in the filing of the petition thus: Respondents should not find fault, as they now do [p. 1, Answer, p. 3, Manifestation] with the fact that the Petition was filed on June 16, 1983, more than half a year after the petitioners' premises had been raided. The climate of the times has given petitioners no other choice. If they had waited this long to bring their case to court, it was because they tried at first to exhaust other remedies. The events of the past eleven fill years had taught them that everything in this country, from release of public funds to release of detained persons from custody, has become a matter of executive benevolence or largesse Hence, as soon as they could, petitioners, upon suggestion of persons close to the President, like Fiscal Flaminiano, sent a letter to President Marcos, through counsel Antonio Coronet asking the return at least of the printing equipment and vehicles. And after such a letter had been sent, through Col. Balbino V. Diego, Chief Intelligence and Legal Officer of the Presidential Security Command, they were further encouraged to hope that the latter would yield the desired results. After waiting in vain for five [5] months, petitioners finally decided to come to Court. [pp. 123-124, Rollo] Although the reason given by petitioners may not be flattering to our judicial system, We find no ground to punish or chastise them for an error in judgment. On the contrary, the extrajudicial efforts exerted by petitioners quite evidently negate the presumption that they had abandoned their right to the possession of the seized property, thereby refuting the charge of laches against them. Respondents also submit the theory that since petitioner Jose Burgos, Jr. had used and marked as evidence some of the seized documents in Criminal Case No. Q- 022872, he is now estopped from challenging the validity of the search warrants. We do not follow the logic of respondents. These documents lawfully belong to petitioner Jose Burgos, Jr. and he can do whatever he pleases with them, within legal bounds. The fact that he has used them as evidence does not and cannot in any way affect the validity or invalidity of the search warrants assailed in this petition. Several and diverse reasons have been advanced by petitioners to nullify the search warrants in question. 1. Petitioners fault respondent judge for his alleged failure to conduct an examination under oath or affirmation of the applicant and his witnesses, as mandated by the above-quoted constitutional provision as wen as Sec. 4, Rule 126 of the Rules of Court . 6 This objection, however, may properly be considered moot and academic, as petitioners themselves conceded during the hearing on August 9, 1983, that an examination had indeed been conducted by respondent judge of Col. Abadilla and his witnesses. 2. Search Warrants No. 20-82[a] and No. 20- 82[b] were used to search two distinct places: No. 19, Road 3, Project 6, Quezon City and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City, respectively. Objection is interposed to the execution of Search

Warrant No. 20-82[b] at the latter address on the ground that the two search warrants pinpointed only one place where petitioner Jose Burgos, Jr. was allegedly keeping and concealing the articles listed therein, i.e., No. 19, Road 3, Project 6, Quezon City. This assertion is based on that portion of Search Warrant No. 20- 82[b] which states: Which have been used, and are being used as instruments and means of committing the crime of subversion penalized under P.D. 885 as amended and he is keeping and concealing the same at 19 Road 3, Project 6, Quezon City. The defect pointed out is obviously a typographical error. Precisely, two search warrants were applied for and issued because the purpose and intent were to search two distinct premises. It would be quite absurd and illogical for respondent judge to have issued two warrants intended for one and the same place. Besides, the addresses of the places sought to be searched were specifically set forth in the application, and since it was Col. Abadilla himself who headed the team which executed the search warrants, the ambiguity that might have arisen by reason of the typographical error is more apparent than real. The fact is that the place for which Search Warrant No. 20- 82[b] was applied for was 728 Units C & D, RMS Building, Quezon Avenue, Quezon City, which address appeared in the opening paragraph of the said warrant. 7 Obviously this is the same place that respondent judge had in mind when he issued Warrant No. 20-82 [b]. In the determination of whether a search warrant describes the premises to be searched with sufficient particularity, it has been held "that the executing officer's prior knowledge as to the place intended in the warrant is relevant. This would seem to be especially true where the executing officer is the affiant on whose affidavit the warrant had issued, and when he knows that the judge who issued the warrant intended the building described in the affidavit, And it has also been said that the executing officer may look to the affidavit in the official court file to resolve an ambiguity in the warrant as to the place to be searched." 8 3. Another ground relied upon to annul the search warrants is the fact that although the warrants were directed against Jose Burgos, Jr. alone, articles b belonging to his co-petitioners Jose Burgos, Sr., Bayani Soriano and the J. Burgos Media Services, Inc. were seized. Section 2, Rule 126 of the Rules of Court, enumerates the personal properties that may be seized under a search warrant, to wit: Sec. 2. Personal Property to be seized. A search warrant may be issued for the search and seizure of the following personal property: [a] Property subject of the offense; [b] Property stolen or embezzled and other proceeds or fruits of the offense; and [c] Property used or intended to be used as the means of committing an offense. The above rule does not require that the property to be seized should be owned by the person against whom the search warrant is directed. It may or may not be owned by him. In fact, under subsection [b] of the above-quoted Section 2, one of the properties that may be seized is stolen property. Necessarily, stolen property must be owned by one other than the person in whose possession it may be at the time of the search and seizure. Ownership, therefore, is of no consequence, and it is sufficient that the person against whom the warrant is directed has control or possession of the property sought to be seized, as petitioner Jose Burgos, Jr. was alleged to have in relation to the articles and property seized under the warrants. 4. Neither is there merit in petitioners' assertion that real properties were seized under the disputed warrants. Under Article 415[5] of the Civil Code of the Philippines, "machinery, receptables, instruments or implements intended by the owner of the tenement for an industry or works which may be carried on in a building or on a piece of land and which tend directly to meet the needs of the said industry or works" are considered immovable property. In Davao Sawmill Co. v. Castillo 9 where this legal provision was invoked, this Court ruled that machinery which is movable by nature becomes immobilized when placed by the owner of the tenement, property or plant, but not so

when placed by a tenant, usufructuary, or any other person having only a temporary right, unless such person acted as the agent of the owner. In the case at bar, petitioners do not claim to be the owners of the land and/or building on which the machineries were placed. This being the case, the machineries in question, while in fact bolted to the ground remain movable property susceptible to seizure under a search warrant. 5. The questioned search warrants were issued by respondent judge upon application of Col. Rolando N. Abadilla Intelligence Officer of the P.C. Metrocom. 10 The application was accompanied by the Joint Affidavit of Alejandro M. Gutierrez and Pedro U. Tango, 11 members of the Metrocom Intelligence and Security Group under Col. Abadilla which conducted a surveillance of the premises prior to the filing of the application for the search warrants on December 7, 1982. It is contended by petitioners, however, that the abovementioned documents could not have provided sufficient basis for the finding of a probable cause upon which a warrant may validly issue in accordance with Section 3, Article IV of the 1973 Constitution which provides: SEC. 3. ... and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. We find petitioners' thesis impressed with merit. Probable cause for a search is defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched. And when the search warrant applied for is directed against a newspaper publisher or editor in connection with the publication of subversive materials, as in the case at bar, the application and/or its supporting affidavits must contain a specification, stating with particularity the alleged subversive material he has published or is intending to publish. Mere generalization will not suffice. Thus, the broad statement in Col. Abadilla's application that petitioner "is in possession or has in his control printing equipment and other paraphernalia, news publications and other documents which were used and are all continuously being used as a means of committing the offense of subversion punishable under Presidential Decree 885, as amended ..." 12 is a mere conclusion of law and does not satisfy the requirements of probable cause. Bereft of such particulars as would justify a finding of the existence of probable cause, said allegation cannot serve as basis for the issuance of a search warrant and it was a grave error for respondent judge to have done so. Equally insufficient as basis for the determination of probable cause is the statement contained in the joint affidavit of Alejandro M. Gutierrez and Pedro U. Tango, "that the evidence gathered and collated by our unit clearly shows that the premises above- mentioned and the articles and things above-described were used and are continuously being used for subversive activities in conspiracy with, and to promote the objective of, illegal organizations such as the Light-a-Fire Movement, Movement for Free Philippines, and April 6 Movement." 13 In mandating that "no warrant shall issue except upon probable cause to be determined by the judge, ... after examination under oath or affirmation of the complainant and the witnesses he may produce; 14 the Constitution requires no less than personal knowledge by the complainant or his witnesses of the facts upon which the issuance of a search warrant may be justified. In Alvarez v. Court of First Instance, 15 this Court ruled that "the oath required must refer to the truth of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause." As couched, the quoted averment in said joint affidavit filed before respondent judge hardly meets the test of sufficiency established by this Court in Alvarez case. Another factor which makes the search warrants under consideration constitutionally objectionable is that they are in the nature of general warrants. The search warrants describe the articles sought to be seized in this wise: 1] All printing equipment, paraphernalia, paper, ink, photo (equipment, typewriters, cabinets,

tables, communications/recording equipment, tape recorders, dictaphone and the like used and/or connected in the printing of the "WE FORUM" newspaper and any and all documents communication, letters and facsimile of prints related to the "WE FORUM" newspaper. 2] Subversive documents, pamphlets, leaflets, books, and other publication to promote the objectives and piurposes of the subversive organization known as Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement; and, 3] Motor vehicles used in the distribution/circulation of the "WE FORUM" and other subversive materials and propaganda, more particularly, 1] Toyota-Corolla, colored yellow with Plate No. NKA 892; 2] DATSUN pick-up colored white with Plate No. NKV 969 3] A delivery truck with Plate No. NBS 524; 4] TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and, 5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 427 with marking "Bagong Silang." In Stanford v. State of Texas 16 the search warrant which authorized the search for "books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party in Texas," was declared void by the U.S. Supreme Court for being too general. In like manner, directions to "seize any evidence in connectionwith the violation of SDC 13-3703 or otherwise" have been held too general, and that portion of a search warrant which authorized the seizure of any "paraphernalia which could be used to violate Sec. 54-197 of the Connecticut General Statutes [the statute dealing with the crime of conspiracy]" was held to be a general warrant, and therefore invalid. 17 The description of the articles sought to be seized under the search warrants in question cannot be characterized differently. In the Stanford case, the U.S. Supreme Courts calls to mind a notable chapter in English history: the era of disaccord between the Tudor Government and the English Press, when "Officers of the Crown were given roving commissions to search where they pleased in order to suppress and destroy the literature of dissent both Catholic and Puritan Reference herein to such historical episode would not be relevant for it is not the policy of our government to suppress any newspaper or publication that speaks with "the voice of non-conformity" but poses no clear and imminent danger to state security. As heretofore stated, the premises searched were the business and printing offices of the "Metropolitan Mail" and the "We Forum newspapers. As a consequence of the search and seizure, these premises were padlocked and sealed, with the further result that the printing and publication of said newspapers were discontinued. Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press guaranteed under the fundamental law, 18 and constitutes a virtual denial of petitioners' freedom to express themselves in print. This state of being is patently anathematic to a democratic framework where a free, alert and even militant press is essential for the political enlightenment and growth of the citizenry. Respondents would justify the continued sealing of the printing machines on the ground that they have been sequestered under Section 8 of Presidential Decree No. 885, as amended, which authorizes "the sequestration of the property of any person, natural or artificial, engaged in subversive activities against the government and its duly constituted authorities ... in accordance with implementing rules and regulations as may be issued by the Secretary of National Defense." It is doubtful however, if sequestration could validly be

effected in view of the absence of any implementing rules and regulations promulgated by the Minister of National Defense. Besides, in the December 10, 1982 issue of the Daily Express, it was reported that no less than President Marcos himself denied the request of the military authorities to sequester the property seized from petitioners on December 7, 1982. Thus: The President denied a request flied by government prosecutors for sequestration of the WE FORUM newspaper and its printing presses, according to Information Minister Gregorio S. Cendana. On the basis of court orders, government agents went to the We Forum offices in Quezon City and took a detailed inventory of the equipment and all materials in the premises. Cendaa said that because of the denial the newspaper and its equipment remain at the disposal of the owners, subject to the discretion of the court. 19 That the property seized on December 7, 1982 had not been sequestered is further confirmed by the reply of then Foreign Minister Carlos P. Romulo to the letter dated February 10, 1983 of U.S. Congressman Tony P. Hall addressed to President Marcos, expressing alarm over the "WE FORUM " case. 20 In this reply dated February 11, 1983, Minister Romulo stated: 2. Contrary to reports, President Marcos turned down the recommendation of our authorities to close the paper's printing facilities and confiscate the equipment and materials it uses. 21 IN VIEW OF THE FOREGOING, Search Warrants Nos. 20-82[a] and 2082[b] issued by respondent judge on December 7, 1982 are hereby declared null and void and are accordingly set aside. The prayer for a writ of mandatory injunction for the return of the seized articles is hereby granted and all articles seized thereunder are hereby ordered released to petitioners. No costs. SO ORDERED.

inventory although appearing to have been prepared on said date were not actually submitted to respondent Judge until April 13, 1971 and the objects seized delivered only about a week later on April 19. There was a lengthy and detailed answer submitted by respondent Judge, the essence of which was substantial compliance with the requirements of the Constitution and the Rules of Court, the procedure followed by him conforming to the practice he found quite conducive to fruitful results in the campaign against smuggling, resulting in intensified tax collection. He asserted that he is legally and morally convinced of his innocence of the charge of gross inefficiency, his actuations being guided by the prescriptions of the Constitution and the rules or the spirit thereof as well as the best interest of the State. He then alleged that the application for the search warrant was filed by the Chief of Police of Baguio City, Colonel Victorino S. Calano duly supported by the affidavit of one Romeo Amansec, who was subjected to intensive examination and interrogation, the other witness, one Sergeant Victorino de Vera of the Philippine Constabulary, also being thus examined and interrogated, all three of them describing with particularity and in detail the place to be searched and the things to be seized; that the applicant and his witnesses arrived at his place at about 10:30 p.m. and the warrant issued at 11:45, the promptness with which he acted being due to the urgency of the matter; that there was only one specific offense therein covered, namely robbery in band with the use of a firearm then in the possession of the alleged leader Rogelio Roxas, who had allegedly taken by force a treasure in the form of a golden Buddha; that after the interrogation, he was convinced that the offense of robbery in band was committed and that the Buddha had to be seized before dawn as it would be taken out of Baguio and smuggled out of the country; that the delay in the delivery to the court could be explained by the conclusion reached by him that from the angle of security and safety, the articles seized should be kept and guarded by the CIS agents at Camp Holmes, only a few kilometers from Baguio, under tight security and personal responsibility of Colonel Calano and that as to those things taken or seized not covered by the warrant, the persons aggrieved could file a motion for their return, his duty to act on the matter starting to commence only when it is submitted judicially Respondent Judge prayed that the complaint be dismissed for lack of merit. The Complaint and the answer were then referred for investigation, report and recommendation to the then Associate, now Acting Presiding, Justice Magno S. Gatmaitan of the Court of Appeals, He conducted a thorough investigation arid thereafter submitted an exhaustive and comprehensive report on May 31, 1974. The grounds alleged in the complaint to show inefficiency he classified in the following: The first, the failure to follow the legal Procedure by respondent Judge when he issued tile warrant,; the second, the defects manifest on the face thereof as two offenses were included and the description of the premises to be searched and the object to be seized being too general; the third, the absence of the probable cause; and the fourth, the article seized having included objects not mentioned in the warrant and the delay in the delivery thereof to respond judge. As to the first ground, the failure to follow the legal Procedure by respondent Judge when he issued the warrant, Justice Gatamaitan stated the following in his Report: "There can be no question that from a reading of the application for search warrant by Col. Calano and the affidavit by witness Romeo Amansec is well as the search warrant itself, it can be decuded that the deposition in writing of Sgt. De Vera had not been taken to contrary to 4 of Rule 126; but Investigator must agree with defense that Respondent did examine under oath, Col. Calano and witnesses, Romeo Amansec and Sgt. De Vera for Investigator notes that complainant Secretary of Justice himself presented as his sole witness, Clerk of Court. Fernando R. Romero, and this witness declared that, 'Q.' Would you be able to tell us more or less what sorts of questions were propounded by Judge Marcos by way of interrogating these witnesses A I cannot repeat the words because it was a long time ago, but if I may be permitted to make a gist I may be able to relate. Q. Please do so. A. After administering the oath individually to Col. Calano Amansec and de Vera after giving their names and other personal circumstances, he dealt on the questions "What were those articles that were the subject of the application? And they described the articles, what I heard are a golden Buddha, a rifle with some ammunitions ' This being the case, Investigator is bound to accept this testimony and must hold that outside of the literal defect in that Respondent had not taken the written disposition of Sgt. de Vera, the proceedings he had adopted were not fatally wrong, in fact, it might as well be added that there is something very probable and thereof credible, in the testimony of this witness that time was of the extreme essence, the urgency of the situation could no longer permit further going back to the Office of the Clerk of Court for renewed typing of application and affidavits and warrant, at any rate, since it was complainant Secretary of Justice himself who presented Clerk of Court Romero, he should be bound by latter's testimony. ... " 2 As to the second ground consisting of the warrant Being defective because it was issued for two offenses and tile description of the

Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., MelencioHerrera, Plana, Relova, Gutierrez, Jr., De la Fuente and Cuevas, JJ., concur. Aquino, J., took no part.
Republic of the Philippines SUPREME COURT Manila EN BANC A.M. No. L-207-J April 22, 1977 SECRETARY OF JUSTICE, complainant, vs. HONORABLE PIO MARCOS District Judge, Second Judicial District, CFI of Benguet and Baguio City, Branch I, stationed at the City of Baguio respondent.

FERNANDO, J.: The administrative complaint for gross inefficiency filed by Secretary of Justice Vicente Abad Santos against the then respondent Judge Pio Marcos of the Court of First Instance of Benguet and Baguio City, now retired after having reached the age of seventy, 1 arose from the issuance of a search warrant past 12:00 midnight of April 4, 1971, and thereafter served and executed approximately two hours later, long before dawn. The grounds alleged were that the search warrant was not limited to one offense covering both illegal possession of firearms and violation of Central Bank rules and regulations; that it did not particularly describe the property to be seized; that he did not carefully examine under oath the applicant and his witnesses; that articles not mentioned were taken; and that thereafter the return and the

premises to be searched and the objects to be seized being too general, Justice Gatmaitan discussed the matter thus: "Since the warrant really stated that it as issued for, 'Illegal Possession of firearms and Violation of Central Bank Rules and Regulations,' and the body recited that, 'Accused Rogelio Roxas illegally possess[es] firearms and ammunition without license or permit to possess the same and a golden Buddha which he is keeping and concealing at his premises at No. 47 Ledesma St., Baguio City in violation of Central Bank Rules and Regulations; Investigator must concur with complainant that this warrant violated See. 3 of Rule 126 which provides that, 'No Search warrant shall issue for more than one specific offense.' Investigation must even add that the particular Central Bank circular or regulation is not determined: as to the attack on the description of the premises to be searched and the objects to he seized, what Investigator understands is that the test of a good description for purposes of sufficiency of the warrant 'is that it be one that would not permit seizure of the wrong property, indeed the very cited by Complainant where the search warrant described the objects as, 'books, documents, receipts, lists, chits and other papers used by him in connection with his activities as money lender charging a usurious rate of interest in violation of the law,' this description was held to be good enough the Supreme Court reasoning, 'Taking into consideration to nature of "he articles so described, it is clear that no other more adequate and detailed description could be given, particularly because it is difficult to give a particular description of the contents thereof, The description so made substantially complies with the legal provisions because the officer of the law who executed the warrant was thereby placed in a position enabling him to Identify the articles in question, which he did,' ... so that here, since certainly, no one would be mistaken in Identifying the Buddha, whose image is well known, and even the firearms and ammunition because these were those without permit to possess, and all located at No. 47 Ledesma St., Baguio City, so far as description was concerned, the search warrant perhaps could not be said to have suffered fatal defects. 3 As to the third charge that the search warrant was issued without probable cause, Justice Gatmaitan started with the affidavit of Amansec showing that " 'on or about 6:30 a. m. of March 31, 1971, I went to Baguio City and while I passed by a house at No. 47 Ledesma Street, Baguio City I was attracted by several persons inside the house; That I peeped from outside the house and when the curtain was moved I saw a Buddha that was inside the house; That I observed what was going on inside the house and I heard someone say that the golden Buddha was actually for sale and when I observed them closer I overheard that it was being offered for sale for 100,000 pesos; That I peeped again and I actually saw for myself again the Buddha and I heard one of the persons inside whom I later found out to be Mr. Rogelio Roxas that it was a golden Buddha but that a down payment was needed; That I am executing this affidavit because I actually saw the Buddha and that I also saw a firearms and some bullets inside the house.' which can easily sustain, contrary to complainant's position, that Amansecs knowledge was not hearsay at all; as to Sgt. De Vera, it will be seen that according to his testimony, 'Q. Upon arrival in Baguio, did you seek the coordination of the Police Force in Baguio? A. Not upon our arrival, but late in the evening, sir. Q. What else did you do between 10:00 a.m. and 4:00 p.m. that same day, April 4, 1971, when you went to see Col. Calano A. We conducted a survey and tried to find out and I found out that the Buddha is really existing in the house of Rogelio Roxas, at No. 47 Ledesma Street. Q. Were you able to pinpoint where the Buddha is? A. Yes, sir. We went to the place at No. 47 Ledesma Street, Baguio City to determine that. Q. What did you find out? A. That it was really existing.' ... from which investigator concludes that Sgt. de Vera's knowledge neither was hearsay either; now complainant point[ed] out certain alleged discrepancies between the affidavit of Amansec and his interrogation, ... but perhaps, neither should it be overlooked that all these if they existed at all were directed to the conscience of examining Judge, who was the one called upon to grade their credibility, to act with precision; the point is that while at this beginning the knowledge of witnesses had come thru their information from their undercover men, the fact also was that they were able to confirm the same with their own eyes, the existence of the suspected articles within the premises, and that was what they certified under interrogation, from respondent, as declared no less by complainant's own witness, the Clerk of Court, Fernando R. Romero who was present threat. 4 As to the fourth accusation of gross inefficiency, based on the delay in the return as well as the delivery of the objects seized, Justice Gatmaitan did concur "with complainant that the return was quite delayed; for in the words of See. 11, Rule 126, the searching officer should forthwith deliver the seized articles, yet, while search had been made on the night of 5 April, or better stated, early morning of 6 April, 1971, the return was made only on 13 April, 1971. As to the Buddha, it was stated in the return that it was, 'under the control and custody of Government Security Agents for safekeeping and will be turned over to this Honorable Court when directed to do so.' ... Now if it be remembered that Police chief Calano kept the Buddha in his residence in Camp Holmes, ... for several days, that provided the most fertile ground for suspicion of possible substitution; however, Investigator will concede that the duty to make immediate return devolved upon the searching party, perhaps a Judge cannot, considering that he has other duties, be expected to

immediately act and require immediate return; perhaps, if there might and probably could be, danger of substitution, the attention of the Judge should be immediately called to that, here it was not ever, at least, there is nothing in the evidence to that effect; ... However, the searching officer's duty is to immediately return to the Court with the seized articles; here the raiding party returned 7 days later, but without the Buddha, although Investigator sees that on that date, 13 April, 1971, when the return was made without the Buddha, respondent issued the order reading, "In the 1st Indorsement dated April 5, 1971 signed by the Acting Chief of Police of Baguio, the following articles were seized by virtue of Search Warrant No. 296 issued by the undersigned, to wit: One (1) Buddha allegedly golden about 28 inches in height more or less; ... . All these articles were delivered to this Court, except the first item which is , one (1) Buddha allegedly golden about 28 inches in height more or less.' To complete the record of search warrant No. 296, the Acting Chief of Police is hereby ordered to deliver to this Office the 'one (1) Buddha allegedly golden about 28 inches in height more or less. It is so ordered]. City of Baguio, Philippines, this 13th day of April, 1971. ... Although not mentioned in the memorandum but mentioned in the complaint, is the fact that article not mentioned in the warrant, i.e., '1 old saber with scabbard, and 14 pieces of brassbars, appearance similar to gold bars were seized ... as to this, respondent's answer that Fiscal had the right to take action, as well as aggrieved person to file corresponding pleading in court, ... this is correct. Therefore, as to the delay in the return and the seizure of other articles not mentioned in the search warrant, Investigator must conclude that he can find no way to blame respondent's. 5 The conclusions reached by Justice Gatmaitan follow: "From foregoing, Investigator come to the conclusions that Respondent: 1st Issued subject search warranty after examining the witnesses as well as complainant thereof under oath, that the examination sufficiently complied with the requirement as to the description of the place to be searched and the object to be seized and that the knowledge of the witnesses was not hearsay but on their own knowledge; however, insofar as the fact that the written deposition of witness Sgt. De Vera was not taken down and the same attached to the record, Respondent violated Sec. 4 of Rule 126; 2nd There was probable cause to issue the warrant; but the warrant itself suffered of the defect that it was for two (2) offenses and one of these was not even specified by stating with precision what Central Bank circular or regulation had been infringed contrary to Rule 126, See. 3; 3rd As to the delay in the return, and as to the seizure of brass bars and a saber not mentioned in the warrant, Therein Investigator has not seen that Respondent should be made liable. 6 Then came his recommendation: "In view whereof, while Investigator believes that aforecited defects in the search warrant might perhaps have justified setting it aside on certiorari, this being however an administrative case, maybe something more should have been shown to justify punishment, for otherwise, all Judges whose orders are assailed and annulled under the extraordinary legal remedies must be visited with definite sanctions, something more should have been shown, some partiality, bias, prejudice, wrongful motive, but which Complainant has not shown nor even attempted to show, and Investigator after some reflection having come to believe that in the extreme urgency in which Respondendt had found himself, even other judges, even investigator himself, would have fallen into the same mistake, therefore, he respectfully desist from recommending a specific severe or even less than severe punishments, this subject of course to his Highest Court's other wiser criterion. 7 What immediately attracts attention in the above sentence of Justice Gatmaitans recommendation is the extreme care he took to indicate that he is not to be understood as intruding in and way with the full discretion that appropriately belongs to his court. It reflects his high sense of delicadeza. Nonetheless, it would appear obvious, considering the exhaustive report and the 'language employed after his painstaking appraisal of the evidence of record, that there is not sufficient warrant for any disciplinary action against respondent, As he correctly pointed out, a certiorari proceeding could have been availed of for correctly purposes. Moreover, it must have been Justice Gatmaitans sense of realism fortified by long years of service as a trial judge and possibly excessive modesty that did lead him to say that he could have fallen into the same mistake. As ".'as categorically affirmed by retired Chief Justice Makalintal Dizon v. De Borja: 8 "To hold a judge administratively accountable for every erroneous ruling or decision he renders, assuming that he has erred, would be nothing short of harassment and would make his position unbearable. 9 Nonetheless, it is not inappropriate to place on record that a trial judge in the position of respondent ought to have abided with the settled juristic norm that a warrant should not be issued for more than one offense and that the deposition of the witness should be made in writing and thereafter attuned to the record.

One last word. It is to be recalled that, as noted at the outset, respondent judge retired on July 11, 1975. The writer of this opinion is of the view, following Diamalon v. Quintilla, 10 that as an administrative proceeding is predicated on the holding of an office or position in the government, the resignation or retirement calls for its dismissal. Nonetheless, in Perez v. Abiera, 11 this Court, in an opinion by Justice Muoz Palma, ruled: "In short, the cessation from office of a respondent Judge either because of resignation, retirement or some other similar cause does not per se warrant the dismissal of an administrative complaint which was filed against him while still in the service. Each case is to be resolved in the context of the circumstances present thereat." 12 WHEREFORE, the administrative complaint for gross inefficiency against Judge Pio Marcos is dismissed. Let a copy of this resolution be placed on his record.

That on or about February 23, 1991, in the City of San Pablo, Republic of the Philippines and within the jurisdiction of this Honorable Court, the accused above-named, conspiring, confederating and mutually helping one another, did then and there wilfully, unlawfully and feloniously sell, deliver, give way (sic) to another and distribute dried marijuana fruiting tops, leaves and seeds, a dangerous drug, without being authorized by law. CONTRARY TO LAW. 3 Accused Jaime Pagtakhan was charged with illegally possessing a regulated drug (shabu) and, thus, violating Section 16, Article III of the Dangerous Drugs Act, as amended, in an information which was docketed as Criminal Case No. 6710-SP (91) in the court a quo. Accused Sonia Dichoso y Vinerable could not be arrested because, in the words of the trial court, she "cannot be located." 4 The records do not show that the trial court took further steps to have her arrested. The three (3) cases were consolidated for joint trial in Branch 30 of the RTC of San Pablo City and trial proceeded as against accused Jaime Pagtakhan and Redentor Dichoso after the two had entered a plea of not guilty upon arraignment. NARCOM agents S/Sgt. Iluminado Evangelista, Sgt. Fabian Gapiangao, CIC Rolando Bisenio and P/Maj. Rosalinda Royales, the forensic chemist, testified for the prosecution. Accused Redentor Dichoso and Jaime Pagtakhan, as well as barangay captain Francisco Calabia, testified for the defense. The latter identified aSinumpaang Salaysay 5 in which he denounced the veracity of Exhibits "B," "C" and "D" and his signatures therein. The evidence for the prosecution is summarized by the trial court as follows: On February 22, 1991, the Narcotics Command of the 4th Regional Unit stationed at Interior M. Paulino St., San Pablo City applied for a search warrant to be issued on the house of spouses Redentor Dichoso and Sonia Dichoso located at Farconville Subd., Phase II, San Pablo City. After searching questions on the applicant and his deponent the Court was satisfied that there existed probable cause to believe that indeed said spouses were keeping, selling and using an undetermined quantity of methamphetamine hydrochloride (sic) (shabu) and marijuana in said residence. Consequently, Search Warrant No. 028 was issued by the Court (Exhibit "A"). On February 23, 1991, (Saturday) at about 2:00 P.M. at the local NARCOM stationed at Interior M. Paulino St., San Pablo City, T/Sgt. Iluminado Evangelista, the local District Commander organized a team to serve Search Warrant No. 028 upon the spouses Redentor Dichoso and Sonia Dichoso residing at Farconville Subd., Phase II, San Pablo City. Evangelista, the team leader, was with S/Sgt. Fabian Gapiangao, Sgt. Antonio Tila, CIC Rolando Besinio, Police Officer Michael Exconde and a driver. Upon approaching said residence the team met an old man and Evangelista introduced himself and his companions as Narcom agents duly armed with a search warrant. Evangelista asked for Redentor and Sonia and the old man opened the gate into the Dichoso compound for the Narcom Agents. The old man led them to the Nipa house where inside Redentor, Jaime Pagtakhan and two other persons were sitting near a small table with suspected shabu and paraphernalia on top thereof. Taken aback the foursome did not move. Evangelista told them that they were Narcom agents, and that they should not make any move and they had with them a search warrant to serve. He then asked Sgt. Tila, a team member, to fetch for the barangay chairman (sic). In the meantime Evangelista served a copy of the search warrant to Redentor. After about 15 to 20 minutes Chairman Francisco Calabia arrived and was met by Evangelista who forthwith showed him a copy of the said warrant. Calabia read the search warrant and explained the contents thereof to Redentor.

Makasiar, Antonio, Muoz Palma, Aquino, Concepcion, Jr., and Martin, JJ., concur. Castro, C.J., took no part. Barredo, J., concurs in the result.
Republic of the Philippines SUPREME COURT Manila THIRD DIVISION

G.R. Nos. 101216-18 June 4, 1993 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. REDENTOR DICHOSO y DAGDAG, SONIA DICHOSO y VINERABLE and JAIME PAGTAKHAN y BICOMONG,accused. REDENTOR DICHOSO y DAGDAG, accused-appellant.

The Solicitor General for plaintiff-appellee. Reynaldo M. Alcantara for accused-appellant.

DAVIDE, JR., J.: Accused Redentor Dichoso y Dagdag appeals from the 11 June 1991 Decision of Branch 30 of the Regional Trial Court (RTC) of San Pablo City in Criminal Case No. 6711-SP (91) and Criminal Case No. 6712-SP (91) 1 finding him guilty beyond reasonable doubt of violating Section 15, Article III and Section 4, Article II, respectively, of the Dangerous Drugs Act of 1972 (R.A. No. 6425), as amended, and sentencing him in each of the said cases to suffer the penalty of "reclusion perpetua with all its accessory penalties, to pay a fine of P20,000.00 and the costs of the suit." The informations in the above criminal cases were filed against Redentor Dichoso and his wife Dichoso y Vinerable on 8 March 1991. The accusatory portion of the information in Criminal Case No. 6711SP (91) reads as follows: That on about February 23, 1991, in the City of San Pablo, Republic of the Philippines and within the jurisdiction of this Honorable Court, the accused above-named, conspiring, confederating and mutually helping one another, did then and there wilfully, unlawfully and feloniously sell, deliver, give way (sic) to another and distribute 1.3 grams of methamphetamine hydrochloride (sic) (shabu) and 6 decks of aluminun foil of shabu, a regulated drug without being authorized by law. CONTRARY TO LAW.
2

while that in Criminal Case No. 6712-SP (91) states:

Thereafter, the search ensued inside the nipa house. Evangelista discovered 200 grams more or less of suspected marijuana wrapped in plastic inside a cabinet which was standing on the right side upon entering the door of the nipa house. Likewise discovered by him inside the cabinet are six (6) decks of suspected shabu wrapped in an aluminun foil and the "Golden Gate" notebook (Exhibit F) containing the list of suspected customers of dangerous and regulated drugs together with the corresponding quantity and prices. From Pagtakhan's right hand, Evangelista recovered a small quantity of suspected shabu. Then, the search was shifted to the main house of the Dichosos. However, the search produced negative results. Evangelista instructed Besinio to collect the confiscated items recovered at the nipa house of the Dichosos. Besinio separately wrapped the items whereupon he and Gapiangao made markings on the same. Besinio also put the names of Redentor and Sonia inside some of the pages of Exhibit "F". The team then got from the main house a plastic bag where all the confiscated items were put. Besinio sat in a corner of the nipa house and prepared in his own handwriting the PAGPAPATUNAY (Exhibit "B") attesting to the result of the search conducted by the NARCOM team listing thereon the different confiscated items, another PAGPAPATUNAY (Exhibit "C") attesting to the lawful manner the search was conducted, and the Receipt (Exhibit "D"), all dated February 23, 1991. Said exhibits were alternately given to Calabia who read the contents thereof before voluntarily affixing his signatures thereon. Then, he explained to Redentor and Pagtakhan the contents of said exhibits. Afterwhich, Redentor likewise voluntarily affixed his signatures thereon. (Exhibits B-1, C-1 and D-3). Pagtakhan also affixed his signatures on Exhibit "B" and "D" opposite the items confiscated in his possession by Evangelista. A certain Angelito Ancot affixed his signature on Exhibits B and C also as witness. Redentor was then given a copy each of Exhibits B, C and D (Exhibits B-4, C-4 and D-4). Subsequently, Calabia and the Narcom team left the Dichoso residence. Said team brought with them for further investigation at their headquarters Redentor, Pagtakhan and the two other persons found inside the nipa house. Said two other persons who were later known to be a certain "Jun" and a certain Bayani Salamat were set free by the Narcom after having convinced the investigators that they were innocent visitors or house guests of Redentor. Evangelista prepared a letter addressed to the PNP Crime Laboratory, Camp Vicente Lim, Calamba, Laguna, requesting examination of the confiscated drugs. At about 9:50 P.M. of that same day accused Redentor and Pagtakhan executed their separate waivers under Article 125 of the Revised Penal Code with the assistance of counsel (Exhibits "J" and "K"). On February 25, 1991 (Monday) the Narcom made a return of the search warrant and inventory to the Court (Exhibit E). On February 26, 1991 (Tuesday) Besinio handcarried the confiscated items to the PNP Crime Laboratory (Exhibits "L" and "L-2") for examination. That same day P/Major Rosalinda L. Royales, Forensic Chemist concluded, after qualitative examination, that the one (1) transparent plastic bag containing 1.3 grams of suspected methamphetamine hydrochloride (sic) (shabu) placed in a plastic bag with markings and the six (6) foils containing 0.3 grams of suspected metamphetamine hydrochloride (sic) (shabu) wrapped in a foil and placed in a plastic bag with markings gave positive results for methamphetamine hydrochloride (sic) (shabu). Additionally, the one (1) aluminum foil containing 0.02 grams of methamphetamine hydrochloride (sic) (shabu) placed in a plastic bag with markings as confiscated from Pagtakhan gave positive

results for methamphetamine hydrochloride [sic] (shabu) and the one (1) light green plastic bag containing 103.7 grams of suspected dried marijuana fruiting tops, crushed leaves and seeds wrapped in a newspaper gave positive results for marijuana (Exhibits M, series). 6 On 17 June 1991, the trial court promulgated its decision, 7 dated 11 June 1991, finding Jaime Pagtakhan and Redentor Dichoso guilty as charged. The dispositive portion of the decision reads: On the basis of the evidence on record, the Court finds that Redentor Dichoso violated Section 15, Article III and Section 4, Article II of the Dangerous Drugs Act. Also, it is the finding of the Court that Jaime Pagtakhan violated Section 16 of said Act. Both of them should be made to suffer the consequences of their unlawful acts. WHEREFORE, premises considered, the Court hereby renders judgment in Criminal Case No. 6710-SP finding JAIME PAGTAKHAN guilty beyond reasonable doubt of the offense charged in the Information, hereby sentences him to suffer the straight penalty of Six (6) years and one (1) of prision mayor and to pay the costs. In case he files an appeal, the bailbond for his provisional liberty is hereby fixed at double the amount of his present bailbond. In Criminal Cases Nos. 6711-SP and 6712-SP, the Court hereby renders judgment finding accused REDENTOR DICHOSO y DAGDAG guilty beyond reasonable doubt of the offenses charged in the Informations, hereby sentences him to suffer the penalty of reclusion perpetua with all its accessory penalties, to pay a fine of P20,000.00 and the costs of suit. 8 Acting upon the ex-parte motion of the Assistant City Prosecutor, the trial court, in its Order of 25 June 1991, 9clarified the sentence imposed on accused Dichoso by declaring that the sentence of reclusion perpetua refers toeach of the two (2) cases against him, and amended the decision by inserting the words "in each case" after the words "to suffer" and before the words "the penalty" in the decretal portion thereof. Accused Redentor Dichoso filed a Notice of Appeal.
10

The records does not disclose that accused Jaime Pagtakhan appealed from the decision. The transmittal letter of the clerk of court of the RTC, dated 7 August 1991, does not make any reference to Criminal Case No. 6710-SP(91) and its original record was not forwarded to this Court. 11 Nevertheless, the docket section of this Court entered in the docket the three (3) criminal cases in the court below and numbered them as G.R. Nos. 101216-18, erroneously including in the cover of the rollo the name of Jaime Pagtakhan as an accused-appellant. In the Appellant's Brief filed on 5 February 1992, 12 accused Redentor Dichoso, henceforth referred to as the Appellant, urges this Court to reverse the decision because the trial court erred in: I. . . . NOT QUASHING SEARCH WARRANT NO. 028 AND DISMISSING THE CASE AGAINST THE ACCUSED. II. . . . CONVICTING THE ACCUSED ON THE BASIS OF ILLEGALLY SEIZED AND/OR PLANTED EVIDENCE. III. . . . ADMITTING PROSECUTION'S EXHIBITS B, C AND D WITHOUT THE ACCUSED BEING ASSISTED BY COUNSEL. IV. . . . CONVICTING THE ACCUSED ON THE BASIS OF EVIDENCE INSUFFICIENT TO PROVE THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT. V. . . . COMPLETELY DISREGARDING ACCUSED'S EVIDENCE THAT THE LAND AND NIPA HUT FROM

WHERE THE PROHIBITED, REGULATED (sic) AND SETS OF PARAPHERNALIAS (sic) WERE ALLEGEDLY CONFISCATED BELONG TO ANOTHER PERSON. 13 In support of the first and second assigned errors which are jointly discussed, appellant contends that Search Warrant No. 028, obtained and executed by the NARCOM agents, is a general warrant because it was issued for "Violation of RA 6425 known as the Dangerous Drugs Act of 1972 as amended" and did not specify the particular offense which he violated under the said law, contrary to the requirements prescribed by the Constitution and the Rules of Court, and that it was issued in violation of Section 3, Rule 126 of the Rules of Court which provides that "no search warrant shall issue for more than one specific offense." It was, he asserts, issued for three (3) possible offenses, viz.: (a) illegal possession of marijuana dried leaves, (b) illegal possession of methamphetamine hydrochloride, and (c) illegal possession of opium pipe and other paraphernalia for prohibited drug. He then argues, following this Court's ruling in Stonehill vs. Diokno 14 which condemned general warrants and barred the admission of any evidence obtained by virtue thereof, that the articles seized from the nipa house could not be used as evidence against him and be made the basis of his conviction. Appellant further claims that he was framed by the police officers. He states that a certain Jun planted the deck of shabu found on the table where he and his companions were gathered around. Jun allegedly placed the shabu there after asking permission to use it, then he went out to meet Sgt. Evangelista and the members of the NARCOM team outside the house. Jun purportedly did not return to the hut anymore, leaving his friend Bayani Salamat behind. Appellant and Jaime Pagtakhan were also allegedly handcuffed immediately, while Salamat was not and was, in fact, released without being interrogated. To bolster his claim, appellant cites the testimony of Barangay Captain Calabia that the search which yielded the shabu, marijuana and drug paraphernalia was conducted even before his arrival, that when he arrived, the seized articles were already on the table, and that the appellant was already handcuffed. Calabia also assailed the veracity of Exhibits "B," "C" and "D". In his third assignment of error, appellant contends that (1) Exhibit "B" (a "Pagpapatunay" attesting to the result of the search conducted by the NARCOM team and listing the items confiscated), (2) Exhibit "C" (a "Pagpapatunay" attesting to the lawful manner of the search), and (3) Exhibit "D" (the Receipt for Property Seized) are inadmissible in evidence since he signed them while under police custody without having been accorded his Constitutional rights to remain silent and to counsel. These exhibits, he argues, constitute uncounselled extrajudicial confessions. In his fourth assignment of error, appellant alleges that he cannot be convicted for violation of R.A. No. 6425, as amended, for unlawfully selling, delivering and giving away to another, and distributing 1.3 grams of methamphetamine hydrochloride (shabu) and dried marijuana leaves, fruit tops and seeds since he was not caught "in flagrante." He posits the view that in the light of the definition of "delivering" and "selling" in Section 2 of the Act, only the overt acts of unlawfully selling, delivering, dispensing, transporting and distributing prohibited and regulated drugs are punishable under Sections 4 and 15 of the said Act, respectively. He points out that according to Article 3 of the Revised Penal Code, mere intention is not a crime. He further argues that Exhibit "F" cannot be a basis for his conviction because (1) the alleged transactions mentioned therein are undetermined and could refer to a loan, chattel mortgage or sale, but not to the dispensing and delivering of shabu and marijuana as the lower court presumed; (2) the names of Redentor Dichoso of "Redy Dichoso" and Sonia Dichoso appearing in the said notebook were entered or written by CIC Orlando Besinio himself, and without such entry, there is nothing therein which would associate it with the appellant; and (3) it is inadmissible in evidence because it is not among the items particularized in the search warrant. He concludes this assigned error with a claim that the trial court erred in holding that a considerable quantity of shabu and marijuana was found in his residence because 1.3 grams of shabu and six (6) decks of aluminum foil of shabu can by no means be characterized as "considerable," especially taking into account his admission that he sometimes uses shabu. In his last assigned error, appellant asserts that the nipa house and the lot where it is located do not belong to him but to his brother, Abner Dichoso, hence, the search conducted therein was unconstitutional and illegal and the items obtained thereby are inadmissible in evidence against him. Appellee, thru the Office of the Solicitor General, refutes the arguments raised by the appellant and prays that We affirm the assailed decision.

We shall now pass upon the assigned errors and the arguments adduced in support thereof.

On the validity of the search warrant: In its entirety, the search

warrant in question reads as follows:

Republic of the Philippines REGIONAL TRIAL COURT 4th Judicial Region, Branch 30 San Pablo City People of the Philippines, Plaintiff, -versus- SEARCH WARRANT No. 028 REDENTOR DICHOSO -forand SONIA DICHOSO of Farconville Sub., VIOLATION OF RA 6425 Phase II, San Pablo known as the "Dangerous City, Drugs Act of 1972" as amended Respondents.

SEARCH WARRANT
TO ANY OFFICER OF THE LAW: G r e e t i n g s: It appearing to the satisfaction of the undersigned after examining under oath, T/Sgt. Iluminada S. Evangelista and his witness Marlon Alcayde that there is probable cause to believe that the abovenamed defendants are illegally in possession of undetermined quantity/amount of dried marijuana leaves and Methamphetamine Hydrochloride (Shabu) and sets of paraphernalias (sic) stored inside the nipa hut within the compound of their residence at Farconville Sub., Phase II, San Pablo City which should be seized and brought to the undersigned. You are hereby commanded to make an immediate search at reasonable hour of the day or night of the premises above-described and forthwith seize and take possession of the abovestated marijuana leaves, shabu and sets of paraphernalias (sic) and bring the same to the undersigned to be dealt with as the law directs. Witness my hand this 22nd day of February, 1991, at San Pablo City.

It is clear that the search warrant cannot be assailed as a general search warrant because while it is for "Violation of RA 6425 known as the "Dangerous Drugs Act of 1992 as amended," the body thereof, which is controlling, particularizes the place to be searched and the things to be seized, and specifies the offense involved, viz., illegal possession of marijuana and shabu and paraphernalia in connection therewith. These are evident from the clause, "are illegally in possession of undetermined quantity/amount of dried marijuana leaves and methamphetamine Hydrochloride (Shabu) and sets of paraphernalias stored inside the nipa hut within the compound of their residence at Farconville Sub., Phase II, San Pablo City." Appellant's contention that the search warrant in question was issued for more than one (1) offense, hence, in violation of Section 3, Rule 126 of the Rules of Court, is unpersuasive. He engages in semantic juggling by suggesting that since illegal possession of shabu, illegal possession of marijuana and illegal possession of paraphernalia are covered by different articles and sections of the Dangerous Drugs Act of 1972, the search warrant is clearly for more than one (1) specific offense. In short, following this theory, there should have been three (3) separate search warrants, one for illegal possession of shabu, the second for illegal possession of marijuana and the third for illegal possession of paraphernalia. This argument is pedantic. The Dangerous Drugs Act of 1972 is a special law that deals specifically with dangerous drugs which are subsumed into "prohibited" and "regulated" drugs and defines and penalizes categories of offenses

which are closely related or which belong to the same class or species. Accordingly, one (1) search warrant may thus be validly issued for the said violations of the Dangerous Drugs Act. In Olaes vs. People, 16 which was cited by the Solicitor General, We sustained a search warrant similarly captioned and rejected the argument of the petitioner therein that it was a general warrant, thus: The petitioners claim that the search warrant issued by the respondent judge is unconstitutional because it does not indicate the specific offense they are supposed to have committed. There is, therefore, according to them, no valid finding of probable cause as a justification for the issuance of the said warrant in conformity with the Bill of Rights. In support of this argument, they cite Stonehill v. Diokno, where Chief Justice Concepcion struck down the search warrants issued therein for being based on the general allegation that the petitioners had committed violations of "Central Bank Laws, Tariff and Customs Laws, Internal Revenue Code and Revised Penal Code." . . . xxx xxx xxx We have examined the search warrant issued in the instant case and find it does not come under the strictures of the Stonehill doctrine. In the case cited, there was a bare reference to the laws in general, without any specification of the particular sections thereof that were alleged to have been violated out of the hundreds of prohibitions contained in such codifications. There is no similar ambiguity in the instant case. While it is true that the caption of the search warrant states that it is in connection with "Violation of RA 6425, otherwise known as the Dangerous Drugs Act of 1972," it is clearly recited in the text thereof that 'There is probable cause to believe that Adolfo Olaes alias "Debie" and alias "Baby" of No. 628 Comia St., Filtration, Sta. Rita, Olongapo City, has in their possession and control and custody of marijuana dried stalks/leaves/seeds/cigarettes and other regulated/prohibited and exempt narcotics preparations which is the subject of the offense stated above." Although the specific section of the Dangerous Drugs Act is not pinpointed, there is no question at all of the specific offense alleged to have been committed as a basis for the finding for probable cause. The search warrant also satisfies the requirement in the Bill of Rights of the particularity of the description to be made of the "place to be searched and the persons or things to be seized." The rationale We laid down in Prudente vs. Dayrit 17 holds true in the instant case. There, We upheld the validity of a search warrant assailed as having been allegedly issued for more than one (1) offense since it did not contain any reference to any particular provision of P.D. No. 1866 that was violated, when allegedly P.D. No. 1866 punishes several offenses. We said: In the present case, however, the application for search warrant was captioned: "For violation of PD No. 1866 (Illegal Possession of Firearms, etc.)." While the said decree punishes several offenses, the alleged violation in this case was, qualified by the phrase "illegal possession of firearms, etc." As explained by respondent Judge, the term, "etc." referred to ammunitions and explosives. In other words, the search warrant was issued for the specific offense of illegal possession of firearms and explosives. Hence, the failure of the search warrant to mention the particular provision of PD No. 1866 that was violated is not of such a gravity as to call for its invalidation on this score. Besides, while illegal possession of firearms is penalized under Section 1 of PD No. 1866 and illegal possession of explosives is penalized under Section 3 thereof, it cannot be overlooked that said decree is a codification of the various laws on

illegal possession of firearms, ammunitions and explosives; such illegal possession of items destructive of life and property are related offenses or belong to the same species, as to be subsumed within the category of illegal possession of firearms, etc. under P.D. No. 1866. . . . We, therefore, agree with the Solicitor General that the search warrant in question contains fatal infirmity that may justify its invalidation. Since Search Warrant No. 028 is valid, the articles seized by virtue of its execution may be admitted in evidence. Consequently, the trial committed no error in denying the appellant's motion to quash the said warrant and refusing to dismiss the informations filed against him.

Frame-Up: This Court rejects the appellant's claim that he was framed.

This defense requires strong and convincing evidence because of the presumption that the law enforcement agents acted in the regular performance of their official duties. 18 Appellant failed to rebut this presumption. He did not even attempt to prove that the NARCOM agents who obtained the search warrant, conducted the search and recovered the prohibited drugs had motives other than to enforce the law and stem the menace of drug addiction and trafficking which has already reached an alarming level and has spawned a network of incorrigible, cunning and dangerous operations.19 It may be stressed here that the defense of frame-up can be easily fabricated and the accused in drugs cases almost always take refuge in such a defense. 20 Furthermore, as correctly noted by the Solicitor General, appellant's claim of a frame-up only concerns the deck of shabu allegedly taken out of the pocket of one Jun who asked for and was readily permitted by the appellant to use shabu on that occasion. It does not concern, much less explain, the origin of the other prohibited drugs and paraphernalia seized during the search.

Admissibility of Exhibits "B," "C" and "D": There is merit to the

appellant's claim that Exhibits "B," "C" and "D" partake of the nature of uncounselled extrajudicial confessions made while under the custody of the NARCOM agents and, therefore, violative of Section 12, Article III of the 1987 Constitution. 21 These exhibits are not "simply inventories or receipts of articles seized from appellant" as the appellee wants this Court to believe. 22 A clearer examination thereof shows that CIC Rolando Bisenio, who prepared them, deliberately wrote, in bold letters below the name REDENTOR D. DICHOSO (over which the appellant was made to sign) the words "MAY-ARI" in Exhibit "B" and "MAY-ARI BAHAY" in Exhibit "C," while the word "OWNER" is printed below the sub-heading "COPY OF THE RECEIPT RECEIVED" in Exhibit "D." By such descriptive words, appellant was in fact made to admit that he is the owner of the articles seized (Exhibit "B"), the house searched (Exhibit "C") and the articles inventoried in the receipt (Exhibit "D"). Thus, while it may be true that the appellant was not asked specific questions regarding the vital issue of ownership, Bisenio obtained an admission from the former through the said exhibits. This was a clever way of circumventing the aforesaid Constitutional rights to counsel and to remain silent. Admittedly, at the time Bisenio prepared the exhibits, the appellant was already in the effective custody of the NARCOM agents deprived in a significant way of his freedom of action. The preparation of the exhibits substituted, for all legal intents and purposes, the custodial interrogation. There was no need of requiring the appellant to sign documents similar to Exhibits "B" and "C." As to Exhibit "D," which is the receipt for property seized, it is a document required by Section 10, Rule 126 of the Rules of Court to be given by the seizing officer to the lawful occupant of the premises in whose presence the search and seizure were made. It is true that in People vs. Olivares, 23 We made the following statements: Exhibits "A" and "L" which identically show the specimen signatures, are also admissible. These documents are part and parcel of a mandatory and normal procedure followed by the apprehending and seizing police officers. In these three Exhibits, the accused-appellant did not give any statement against his own interest. The mere signing of documents did not amount to Olivares' subjection to a custodial investigation wherein an accused is required to give statements about his involvement in the offense and wherein the right to be informed of his rights to silence and to counsel would otherwise be invoked. (People v. Rualo, 152 SCRA 635 [1987]). Guilt is proved by other evidence.

Yet, as explicitly indicated therein, Olivares "did not give any statement against his own interest," unlike in the case of the appellant whose name Bisenio described as the owner. Nevertheless, the above discussions do not alter the result of this appeal. As correctly stated by the appellee, these exhibits were not appreciated by the trial court as extrajudicial confessions but merely as proof that the articles therein enumerated were obtained during the search which, by the way, was sufficiently established by the testimonies of the NARCOM agents independently of the said exhibits.

In convicting the appellant as charged, the trial court relied mainly on Exhibit "F", which it considered as "conclusive proof" of the appellant's drug pushing, and the ruling in People vs. Toledo. 31 It said: Redentor may claim that no evidence exists to show that he was drug pushing i.e., selling, delivering, giving way (sic) to another and distributing shabu and marijuana. The Court is not convinced. Exhibits "F" among other things was found inside his nipa house where, according to Calabia, the said spouses reside. Redentor exercised control and custody of Exhibit F. He is commonly referred to by his nickname "Redy" which incidentally appears in some pages of Exhibits F. Pagtakhan, on the other hand, answers to the nickname "Jimmy" which also appears in Exhibit F. Bayani Salamat, one of the companion (sic) of Redentor inside the nipa house at the time the Narcom agents arrived, also appears to be a customer of Redentor (see pages 2 and 3 reverse side of page 5, Exhibits "F"). Redentor, according to Pagtakhan, is called for (sic) his nickname "Redy". That name appears on Exhibit F (see pages 2, 3, 4, and 5, thereof). The Court finds and so holds that Exhibit F contains conclusive proof of Redentor's unlawful business of selling shabu and marijuana to customers which includes Pagtakhan and Bayani Salamat. . . .. Furthermore, there is a considerable quantity of shabu and marijuana taken by the Narcom agents from the residence of Redentor which strongly indicates an intention of the part of Redentor to sell, distribute and deliver said dangerous and regulated drugs without being authorized by law (People vs. Toledo, 140 SCRA 259). 32 We find, however, that the conclusions drawn from Exhibit "F" are merely conjectural. For one, the prosecution did not attempt, and thus failed, to prove that the handwritten entries therein were made by the appellant. It could have easily done so by presenting, in accordance with the Rules, either a handwriting expert or an ordinary witness familiar with the handwriting of the appellant. 33 There is, as well, no competent proof that the said entries refer to transactions regarding shabu or marijuana and that the figures appearing therein pertain to prices of dangerous drugs. The facts in the instant case do not warrant the application of People vs. Toledo, 34 which the trial court and the appellee cited as authority. While in that case, this Court stated that the possession of a considerable amount of a prohibited drug (three (3) plastic bags of marijuana) coupled with the fact that the accused was not a user of the prohibited drug, indicate nothing except the intention to sell and distribute it, the conviction of Toledo for violation of Section 4 of the Dangerous Drugs Act of 1972, as amended, was not based on that ground alone, but on the accused's extrajudicial confession, held to be valid and admissible, wherein he disclose the details of his transactions of buying and selling marijuana by narrating how and from whom he bought the three (3) plastic bags of marijuana found in his possession, to whom he would sell it, and for how long he had been engaged in pushing prohibited drugs. In the instant case, appellant disclaims ownership of Exhibit "F" and avers that the names Redentor and Sonia Dichoso written on several pages thereof were actually written by prosecution witness CIC Orlando Bisenio. 35 Other than exhibit "F," there is no evidence of sale, delivery, distribution or transportation of prohibited drugs by the appellant. The other case cited by the appellee, People vs. Claudio, 36 is of no help to the prosecution. In that case, the accused was convicted of the violation of Section 4 of R.A. No. 6425 for her act of transporting marijuana and not of selling or delivering the same, thus: Claudio contends that there was no delivery as there was no recipient of the prohibited drugs. Therefore, she may not be convicted under Sec. 4 of Rep. Act No. 6425. The contention is without merit. A closer perusal of the subject provision shows that it is not only delivery which is penalized but also the sale, administration, distribution and transportation of prohibited drugs. Claudio was caught transporting 1.1 kilos of marijuana, thus the lower court did not err in finding her guilty of violating Sec. 4. 37

Seizure of Exhibit "F": It is contended by the appellant that Exhibit "F,"

the brown notebook containing the entries of names and figures, should not have been admitted in evidence because it was not one of those specifically mentioned in the warrant, hence, its seizure was unjustified. This so-called warrant rule that only those listed in the search warrant may be seized which the appellant claims to have been enunciated in 1920 in Uy Khetin vs. Villareal. 24 and which he now summons to his rescue, is not without exceptions. Among such exceptions is the plain view doctrine enunciated in Harris vs. United States 25 and Coolidge vs. New Hampshire 26 which has been adopted in our jurisdiction. 27 In Harris, the Federal Supreme Court of the United States of America ruled: It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence. Ker v. California, 374 US 23, 42-43, 10 L ed 2nd 726, 743, 83 S Ct 1623 (1963); United States v. Lee, 274 US 559, 71 L ed 2nd 1202, 47 S Ct 746 (1927); Hestor v. United States, 265 US 57, 68 L ed 2d 898, 44 S Ct 445 (1924). We are not, however, inclined to rule that the foregoing exception applies to this case, for the reason that the search warrant was not for unlawful sale of shabu or marijuana but for unlawful possession thereof as shall be hereinafter discussed and that the notebook per se is not an article possession of which is illegal or criminal. Exhibit "F" proves neither sale nor possession.

Ownership of the House Searched: The view of the appellant that the

search was illegal and the articles seized thereby cannot be used against him in evidence since he does not own the nipa house searched or the lot wherein it was built, is unmeritorious. It is not necessary that the property to be searched or seized should be owned by the person against whom the search warrant is issued; it is sufficient that the property is under his control or possession. 28 It was established, even by the defense's own evidence, that the appellant and his spouse have been using the said nipa house. He admitted that the nipa house is actually part of and adjacent to the big or main house in the Dichoso residential compound, and that he and his family have been using the nipa house as a resting place even before the search. 29 Any doubt as to the appellant's control over the nipa house where the seized articles were recovered is wiped out by the testimony of the defense's own witness, Francisco Calabia, who affirmed that the appellant and his wife Sonia Dichoso actually reside therein while Redentor's parents and brother reside in the big house. 30 And now to the culpability of the appellant. He contends that he could not be held guilty under Section 15, Article III (for unlawful sale of shabu) and under Section 4, Article II (unlawful sale of marijuana) of the Dangerous Drugs Act in Criminal Case No. 6711-SP (91) and Criminal Case No. 6712-SP(91), respectively, because he was not caught in the act of selling or delivering shabu and marijuana, and that the finding of guilt against him was based solely on Exhibit "F" which, according to the trial court, "contains conclusive proof of Redentor's unlawful business of selling shabu and marijuana to customers, which included Pagtakhan and Bayani Salamat." After a careful review and evaluation of the evidence on record, this Court finds that the evidence of the prosecution is insufficient to sustain a conviction for unlawful sale of shabu in Criminal Case No. 6711-SP (91) and for unlawful sale of marijuana in Criminal Case No. 6712-SP (91). There is, however, overwhelming evidence which establishes with moral certainty the guilt of the appellant for illegal possession of shabu and marijuana under Section 16, Article III and Section 8, Article II, respectively, of the Dangerous Drugs Act of 1972, as amended.

In a prosecution for illegal sale of marijuana, what is material is the proof that the selling transaction transpired coupled with the presentation in court of the corpus delicti as evidence, 38 and that to sustain a conviction for selling prohibited drugs, the sale must be clearly and unmistakably established. 39 In the case at bar, not a single witness of the prosecution, not even Sgt. Evangelista, claims to have seen the appellant sell or deliver shabu or marijuana to anybody. Although Sgt. Evangelista testified that he was sold by his civilian informer or agent that the latter was able to buy shabu from and was offered marijuana by the appellant, the said civilian informer, who was presented by the NARCOM when it applied for a search warrant, was not presented in court during the trial of the cases below.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-69803 January 30, l987 CYNTHIA D. NOLASCO, MILA AGUILAR-ROQUE and WILLIE C. TOLENTINO, petitioners, vs. HON. ERNANI CRUZ PAO, Executive Judge, Regional Trial Court of Quezon City; HON. ANTONIO P. SANTOS, Presiding Judge, Branch XLII Metropolitan Trial Court of Quezon City; HON. SERGIO F. APOSTOL, City Fiscal, Quezon City; HON. JUAN PONCE ENRILE, LT. GEN. FIDEL RAMOS and COL. JESUS ALTUNA, respondents.

The unlawful sale of shabu or marijuana must be established by unequivocal and positive evidence. 40
There is no doubt, however, that the appellant is guilty of unlawful possession of shabu under Section 16, Article III and unlawful possession of marijuana under Section 8, Article II of the Dangerous Drugs Act of 1972, as amended, in Criminal Case No. 6711-SP (91) and Criminal Case No. 6712-SP (91), respectively. The crime of unlawful possession of shabu, a regulated drug, under Section 16 is necessarily included in the crime of unlawful sale thereof under Section 15. Similarly, the crime of unlawful possession of marijuana under Section 8 is necessarily included in the crime of unlawful sale of marijuana under Section 4 of the Act. 41 The appellant cannot evade liability for illegal possession of dangerous drugs by his admission that he sometimes uses shabu. Section 30 of R.A. No. 6425, which provides that a drug dependent who voluntarily submits himself for confinement, treatment and rehabilitation in a center, shall not be criminally liable for any violation of Section 8 and Section 16 of the law, does not apply to the appellant because occasional "use" of a dangerous drug is not the same as "drug dependence" which is defined as "a state of psychic or physical dependence, or both, on a dangerous drug, arising in a person following administration or use of that drug on a periodic or continuous basis."42 Throughout the trial of the case below, the appellant, whose petition for bail due to health reasons was denied, he has not been shown to be a drug dependent and even if he was, indeed, a drug dependent, he did not voluntarily submit himself for rehabilitation as required by the law. On the contrary, appellant's admission during the trial that he used shabu "once in a while" 43 only helps ensure his conviction for violation of Section 16 of the Dangerous Drugs Act because the unauthorized use of a regulated drug like shabu is one of the acts punishable under the said section. The penalty for illegal possession of regulated drugs like shabu is "imprisonment ranging from six years and one day to twelve years and a fine ranging from six thousand to twelve thousand pesos." 44 The same penalty is provided for illegal possession of marijuana, a prohibited drug. 45 The Indeterminate Sentence Law 46 should, however, be applied. It provides that in imposing a prison sentence for an offense punished by a law other than the Revised Penal Code, the court shall sentence the accused to an indeterminate sentence, the minimum term of which shall not be less than the minimum fixed by law and the maximum of which shall not exceed the maximum term prescribed by the same. WHEREFORE, in view of all the foregoing, the appealed Decision of the Regional Trial Court of San Pablo City, dated 11 June 1991, in Criminal Cases Nos. 6711-SP (91) and 6712-SP (91) is hereby modified. As modified, accused-appellant REDENTOR DICHOSO y DAGDAG is hereby found guilty beyond reasonable doubt of violation of Section 16, Article III of the Dangerous Drugs Act of 1972 (R.A. No. 6425), as amended, in Criminal Case No. 6711-SP (91) and Section 8 of Article II of the said Act in Criminal Case No. 6712-SP (91). Applying the Indeterminate Sentence Law, he is hereby sentenced in each case to suffer the penalty of imprisonment ranging from eight (8) years as minimum to twelve (12) years as maximum, and to pay a fine of Twelve Thousand Pesos (P12,000.00). Costs against the accused-appellant. SO ORDERED.

MELENCIO-HERRERA, J.: For resolution are petitioners' and public respondents' respective Motions for Partial Reconsideration of this Court's Decision of October 8, 1985, which decreed that: WHEREFORE, while Search Warrant No. 80-84 issued on August 6, 1984 by respondent Executive Judge Ernani Cruz Pano is hereby annulled and set aside, and the Temporary Restraining Order enjoining respondents from introducing evidence obtained pursuant to the Search Warrant in the Subversive Documents Case hereby made permanent, the personalities seized may be retained by the Constabulary Security Group for possible introduction as evidence in Criminal Case No. SMC1-1, pending before Special Military Commission No. 1, without prejudice to petitioner Mila Aguilar-Roque objecting to their relevance and asking said Commission to return to her any and all irrelevant documents and articles. (Rollo, p. 154; 139 SCRA 165). In their Motion for Partial Reconsideration, public respondents maintain that the subject Search Warrant meets the standards for validity and that it should be considered in the context of the criminal offense of Rebellion for which the Warrant was issued, the documents to establish which are less susceptible of particularization since the offense does not involve an isolated act or transaction. In their own Motion for Partial Reconsideration, petitioners assail that portion of the Decision holding that, in so far as petitioner Mila AguilarRoque is concerned, the search made in her premises was incident to her arrest and could be made without a search warrant. Petitioners submit that a warrantless search can be justified only if it is an incident to a lawful arrest and that since Mila Aguilar was not lawfully arrested a search without warrant could not be made. On April 10, 1986, we required the parties to MOVE in the premises considering the supervening events, including the change of administration that have transpired, and pursuant to the provisions of Section 18 of Rule 3 in so far as the public respondents are concerned (which requires the successor official to state whether or not he maintains the action and position taken by his predecessor-in-office). In their Compliance, petitioners maintain that the arrest of petitioners and the search of their premises thereafter are both illegal and that the personalties seized should be ordered returned to their owners. The Solicitor General on behalf of public respondents, "in deference to the dissenting opinion of then Supreme Court Justice (now Chief Justice) Claudio Teehankee," now offer no further objection to a declaration that the subject search is illegal and to the return of the seized items to the petitioners. Respondents state, however, that they cannot agree to having the arrest of petitioners declared illegal. The pertinent portion of the dissenting opinion referred to reads: ... The questioned search warrant has correctly been declared null and void in the Court's decision as a general warrant issued in gross violation of the constitutional mandate that 'the right of the people to be secure in their persons, houses,

Feliciano, Bidin, Romero and Melo, JJ., concur.

papers and effects aqainst unreasonable searches and seizures of whatever nature and for any purpose shall not be violated' (Bill of Rights, sec. 3). The Bill of Rights orders the absolute exclusion of all illegally obtained evidence: "Any evidence obtained in violation of this . . . section shall be inadmissible for any purpose in any proceeding" (Sec. 4[2]). This constitutional mandate expressly adopting the exclusionary rule has proved by historical experience to be the only practical means of enforcing the constitutional injunction against unreasonable searches and seizures by outlawing all evidence illegally seized and thereby removing the incentive on the part of state and police officers to disregard such basic rights. What the plain language of the Constitution mandates is beyond the power of the courts to change or modify. All the articles thus seized fag under the exclusionary rule totally and unqualifiedly and cannot be used against any of the three petitioners, as held by the majority in the recent case of Galman vs. Pamaran (G.R. Nos. 71208-09, August 30, 1985). ... ACCORDINGLY, considering the respective positions now taken by the parties, petitioners' Motion for Partial Reconsideration of this Court's Decision of October 8, 1985 is GRANTED, and the dispositive portion thereof is hereby revised to read as follows: WHEREFORE, Search Warrant No. 80-84 issued on August 6, 1984 by respondent Executive Judge Ernani Cruz Pao is hereby annulled and set aside, and the Temporary Restraining Order enjoining respondents from introducing evidence obtained pursuant to the Search Warrant in the Subversive Documents Case hereby made permanent. The personalities seized by virtue of the illegal Search Warrant are hereby ordered returned to petitioners. SO ORDERED.

As the petitioners stress in their motion for reconsideration, "(I)f the majority opinion becomes settled law, the constitutional protection would become meaningless. The military or police would no longer apply for search warrants. All that they would do is procure a search (sic) 4 warrant or better still a PDA, for the person whose house they would want to search Armed with a warrant of arrest or a PDA, the military or police would simply wait for the person to reach his house, then arrest him. Even if the person arrested does not resist and has in fact been taken away already from his house, under the majority ruling, the arresting party would still have the right to search the house of the arrestee and cart away and his things and use them as evidence against him in court. In such a situation, what then happens to that stringent constitutional requirement that 'no search warrant . . . . shall issue except upon probable cause to be determined by the judge, or such other responsible officers as may be authorized by law, after examination under oath or affirmation of the committed weapons or anything which may be used as proof of the commission of the offense. complainant and the witnesses he may produce and particularly describing the place to be searched, and the things to be seized' and the constitutional in unction that 'any evidence obtained in violation of this . ... shall be inadmissible for any purpose in any proceeding. 5 The better and established rule is a strict application of the exception provided in Rule 126, sec. 12 and that is to absolutely limit a warrantless search of a person who is lawfully arrested to his or her person at the time of and incident to his or her arrest and to "dangerous weapons or anything which may be used as proof of the commission of the offense." Such warrantless search obviously cannot be made in a place other than the place of arrest. 6 Applying the aforestated rule to this case, the undisputed act is that petitioner Mila Aguilar Roque was arrested at 11:30 and aboard a public vehicle on the road (at Mayon and P. Margal Sts.). The pronouncement by the majority at that time, that as an incident to her arrest, her dwelling at 239-B Mayon Street could be searched even without a warrant for evidence of the charges of rebellion filed against her was contrary to the constitutional prescription, as defined by law and jurisprudence. It was tantamount to sanctioning an untenable violation, if not nullification, of the basic constitutional right and guarantee against unreasonable searches and seizures. With the Court now unanimously upholding the exclusionary rule, in toto, the constitutional mandate is given full force and effect. This constitutional mandate expressly adopting the exclusionary rule has proved by historical experience to be the practical means of enforcing the constitutional injunction against unreasonable searches and seizures by outlawing all evidence illegally seized and thereby removing the incentive on the part of the military and police officers todisregard such basic rights. This is of special public importance and serves as a shield in the remote provinces and rural areas to the people who have no access to courts for prompt and immediate relief from violations of their constitutional rights against unreasonable searches and seizures. In this case, the arresting CSG group of the military themselves knew that they needed a search warrant but they obtained the void general warrant in question. Necessarily, the seizure of documents and personal effects with such a void warrant could not be justified "as an incident of an arrest" outside petitioner's dwelling and the Constitution bars their admissibility as evidence and ordains their return to petitioners.

Yap, Fernan, Narvasa, Alampay, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla and Bidin, JJ, concur.

Separate Opinions

TEEHANKEE, C.J., concurring: I felicitate my colleagues for granting petitioners' motion for reconsideration and now totally applying the exclusionary rule by declaring that the search and seizure of the personalities at petitioner Mila Aguilar Roque's dwelling at Mayon Street, Quezon City was illegal and could not be deemed as incident to her arrest earlier on board a public vehicle on the road away from and outside of her dwelling. Solicitor General Sedfrey A. Ordoez' stand in support hereof signifies one more great step in fulfillment of the pledge of the present government of granting full recognition and restoration of the civil and political liberties of the people and rejecting the oppressive and repressive measures of the past authoritarian regime. The original majority decision citing sec. 12, Rule 126 of the Rules of Court 1 had held that said Rule states "a general rule that, as an incident of an arrest, the place or premises where the arrest was made can also be searched without a search warrant. In this latter case, "the extent and reasonableness of the search must be decided on its own facts and circumstances, and it has been stated that, in the application of general rules, there is some confusion in the decisions as to what constitutes the extent of the place or premises which may be searched." "What must be considered is the balancing of the individual's right to privacy and the public's interest in the prevention of crime and the apprehension of criminals." " This pronouncement had the support of a majority of nine (9) Justices of the Court at the time. Three (3) members had dissented, 2 while two (2) other members took no part or reserved their vote. 3

Separate Opinions TEEHANKEE, C.J., concurring: I felicitate my colleagues for granting petitioners' motion for reconsideration and now totally applying the exclusionary rule by declaring that the search and seizure of the personalities at petitioner Mila Aguilar Roque's dwelling at Mayon Street, Quezon City was illegal and could not be deemed as incident to her arrest earlier on board a public vehicle on the road away from and outside of her dwelling. Solicitor General Sedfrey A. Ordoez' stand in support hereof signifies

one more great step in fulfillment of the pledge of the present government of granting full recognition and restoration of the civil and political liberties of the people and rejecting the oppressive and repressive measures of the past authoritarian regime. The original majority decision citing sec. 12, Rule 126 of the Rules of Court 1 had held that said Rule states "a general rule that, as an incident of an arrest, the place or premises where the arrest was made can also be searched without a search warrant. In this latter case, "the extent and reasonableness of the search must be decided on its own facts and circumstances, and it has been stated that, in the application of general rules, there is some confusion in the decisions as to what constitutes the extent of the place or premises which may be searched." "What must be considered is the balancing of the individual's right to privacy and the public's interest in the prevention of crime and the apprehension of criminals." " This pronouncement had the support of a majority of nine (9) Justices of the Court at the time. Three (3) members had dissented, 2 while two (2) other members took no part or reserved their vote. 3 As the petitioners stress in their motion for reconsideration, "(I)f the majority opinion becomes settled law, the constitutional protection would become meaningless. The military or police would no longer apply for search warrants. All that they would do is procure a search (sic) 4 warrant or better still a PDA, for the person whose house they would want to search Armed with a warrant of arrest or a PDA, the military or police would simply wait for the person to reach his house, then arrest him. Even if the person arrested does not resist and has in fact been taken away already from his house, under the majority ruling, the arresting party would still have the right to search the house of the arrestee and cart away and his things and use them as evidence against him in court. In such a situation, what then happens to that stringent constitutional requirement that 'no search warrant . . . . shall issue except upon probable cause to be determined by the judge, or such other responsible officers as may be authorized by law, after examination under oath or affirmation of the committed weapons or anything which may be used as proof of the commission of the offense. complainant and the witnesses he may produce and particularly describing the place to be searched, and the things to be seized' and the constitutional in unction that 'any evidence obtained in violation of this . ... shall be inadmissible for any purpose in any proceeding. 5 The better and established rule is a strict application of the exception provided in Rule 126, sec. 12 and that is to absolutely limit a warrantless search of a person who is lawfully arrested to his or her person at the time of and incident to his or her arrest and to "dangerous weapons or anything which may be used as proof of the commission of the offense." Such warrantless search obviously cannot be made in a place other than the place of arrest. 6 Applying the aforestated rule to this case, the undisputed act is that petitioner Mila Aguilar Roque was arrested at 11:30 and aboard a public vehicle on the road (at Mayon and P. Margal Sts.).lwphl@it The pronouncement by the majority at that time, that as an incident to her arrest, her dwelling at 239-B Mayon Street could be searched even without a warrant for evidence of the charges of rebellion filed against her was contrary to the constitutional prescription, as defined by law and jurisprudence. It was tantamount to sanctioning an untenable violation, if not nullification, of the basic constitutional right and guarantee against unreasonable searches and seizures. With the Court now unanimously upholding the exclusionary rule, in toto, the constitutional mandate is given full force and effect. This constitutional mandate expressly adopting the exclusionary rule has proved by historical experience to be the practical means of enforcing the constitutional injunction against unreasonable searches and seizures by outlawing all evidence illegally seized and thereby removing the incentive on the part of the military and police officers todisregard such basic rights. This is of special public importance and serves as a shield in the remote provinces and rural areas to the people who have no access to courts for prompt and immediate relief from violations of their constitutional rights against unreasonable searches and seizures. In this case, the arresting CSG group of the military themselves knew that they needed a search warrant but they obtained the void general warrant in question. Necessarily, the seizure of documents and

personal effects with such a void warrant could not be justified "as an incident of an arrest" outside petitioner's dwelling and the Constitution bars their admissibility as evidence and ordains their return to petitioners.

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 149878 July 1, 2003

PEOPLE OF THE PHILIPPINES, plaintiffappellee, vs. TIU WON CHUA a.k.a. "Timothy Tiu" and QUI YALING y CHUA a.k.a. "Sun Tee Sy y Chua," accusedappellant. PUNO, J.: This is an appeal from the decision of the Regional Trial Court (RTC) of Manila, Branch 27, convicting appellants Tiu Won Chua a.k.a. Timothy Tiu (Tiu Won) and Qui Yaling y Chua a.k.a. Sun Tee Sy y Chua (Qui Yaling) for violation of Section 16, Article III of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended by Republic Act No. 7659. Appellants were charged with the crime of illegal possession of a regulated drug, i.e., methamphetamine hydrochloride, otherwise known as "shabu," in an information which reads: The undersigned accuses TIU WON CHUA aka "Timothy Tiu" and QUI YALING Y CHUA aka "Sun Tee Sy Y Chua" of violation of Section 16, Article III in relation to Section 2 (e-2), Article I of Republic Act No. 6425, as amended by Batas Pambansa Blg. 179 and as further amended by Republic Act No. 7659, committed as follows: That on or about the 3rd day of October 1998, in the City of Manila, Philippines, the said accused without being authorized by law to possess or use any regulated drug, did then and there wilfully, unlawfully, knowingly and jointly have in their possession and under their custody and control the following, to wit: A sealed plastic bag containing two three four point five (234.5) grams of white crystalline substance; Four (4) separate sealed plastic bags containing six point two two four three (6.2243) grams of white crystalline substance; Sixteen (16) separate sealed plastic bags containing twenty point three six seven three (20.3673) grams of white crystalline substance; or a total of 261.0916 grams, and; An improvised tooter with traces of crystalline substance known as "SHABU" containing methamphetamine hydrochloride, a regulated drug, without the corresponding license or prescription thereof. Contrary to law.1 During arraignment, a plea of not guilty was entered. Appellants, with the assistance of counsel, and the prosecution stipulated on the following facts: 1. The authenticity of the following documents: a. The letter of Police Senior Inspector Angelo Martin of WPD, District Intelligence Division, United Nations Avenue, Ermita, Manila, dated October 12, 1998, to the Director of the NBI requesting the latter to conduct a laboratory examination of the specimen mentioned therein;

b. The Certification issued by Forensic Chemist Loreto Bravo of the NBI, dated October 13, 1998, to the effect that the specimen mentioned and enumerated therein gave positive results for methamphetamine hydrochloride, Exhibit "B"; and c. Dangerous Drug Report No. 98-1200 issued by Forensic Chemist Bravo, dated October 13, 1998, to the effect that the specimen mentioned therein gave positive results for methamphetamine hydrochloride; 2. The existence of one plastic bag containing 234.5 grams of methamphetamine hydrochloride, Exhibit "D"; four (4) plastic sachets also containing methamphetamine hydrochloride with a total net weight of 6.2243 grams, Exhibits "E", "E-1", "E-2" and "E-3"; additional 16 plastic sachets containing methamphetamine hydrochloride with a total net weight of 20.3673 grams, Exhibits "F", "F-1" to "F15", and one improvised tooter with a length of 8 inches more or less and with a red plastic band, Exhibit "G"; 3. Forensic Chemist Loreto Bravo has no personal knowledge as to the source of the regulated drug in question; and 4. Tiu Won Chua and Qui Yaling y Chua as stated in the information are the true and correct names of the two accused.2 The witnesses presented by the prosecution were SPO1 Anthony de Leon, PO2 Artemio Santillan and PO3 Albert Amurao. Their testimonies show that the police authorities, acting on an information that drugrelated activities were going on at the HCL Building, 1025 Masangkay St., Binondo, Manila, surveyed the place on October 2, 3, 4 and 5, 1998. At about 10 p.m. of October 6, they conducted a test-buy operation, together with a Chinese-speaking asset. They were able to buy P2,000.00 worth of substance from appellants, which, upon examination by the PNP crime laboratory, proved positive for methamphetamine hydrochloride.3 Nonetheless, they did not immediately arrest the suspects but applied for a warrant to search Unit 4-B of HCL Building, 1025 Masangkay St., Binondo, Manila. Their application to search the unit supposedly owned by "Timothy Tiu" was granted by Judge Ramon Makasiar of Branch 35 of the RTC of Manila on October 9.4 Armed with the warrant, they proceeded to the place and learned that Tiu Won was not inside the building. They waited outside but Tiu Won did not come. After several stakeouts, they were able to implement the warrant on October 12. Failing to get the cooperation of the barangay officials, they requested the presence of the building coordinator, Noel Olarte, and his wife, Joji, who acted as witnesses. During the enforcement of the warrant, there were three (3) persons inside the apartment, namely, appellants Tiu Won and Qui Yaling, and a housemaid. The search was conducted on the sala and in the three (3) bedrooms of Unit 4-B. On top of a table inside the masters bedroom, one (1) big pack, containing 234.5 grams of shabu, was found inside a black leather mans handbag supposedly owned by Tiu Won, while sixteen (16) small packs of shabu weighing 20.3673 grams were found inside a ladys handbag allegedly owned by Qui Yaling. Also contained in the inventory were the following items: an improvised tooter, a weighing scale, an improvised burner and one rolled tissue paper.5 The authorities also searched a Honda Civic car bearing Plate No. WCP 157, parked along Masangkay Street, registered in the name of the wife of Tiu Won and found four (4) plastic bags containing 6.2243 grams of shabu, which were likewise confiscated. A gun in the possession of Tiu Won was also seized and made subject of a separate criminal case. The defense presented appellants Tiu Won and Qui Yaling. They denied that Timothy Tiu and Tiu Won Chua are one and the same person. They presented papers and documents to prove that appellant is Tiu Won Chua and not Timothy Tiu, as stated in the search warrant. Tiu Won also claimed that he does not live in the apartment subject of the search warrant, alleging that he is married to a certain Emily Tan and is a resident of No. 864 Alvarado St., Binondo, Manila. Nonetheless, he admitted that his co-appellant, Qui Yaling, is his mistress with whom he has two children. Qui Yaling admitted being the occupant of the apartment, but alleged that she only occupied one room, while two other persons, a certain Lim and a certain Uy, occupied the other rooms. Both appellants denied that they were engaged in the sale or possession of shabu. They asserted that they are in the jewelry business and that at the time the search and arrest were made, the third person, whom the prosecution identified as a housemaid, was actually a certain Chin, who was there to look at some of the pieces of jewelry sold by Tiu Won. They also denied that a gun was found in the possession of Tiu Won.

Qui Yaling recalled that upon asking who was it knocking at the door of her apartment on October 12, the police authorities represented that they were electric bill collectors. She let them in. She was surprised when upon opening the door, around ten (10) policemen barged inside her unit. She, together with Tiu Won and Chin, was asked to remain seated in the sofa while the men searched each room. Tiu Won alleged that after a fruitless search, some of the policemen went out, but came back a few minutes later with another person. Afterwards, he was made to sign a piece of paper. Appellants also claimed that the policemen took their bags which contained money, the pieces of jewelry they were selling and even Qui Yalings cell phone. They both denied that shabu was discovered in the apartment during the search. Appellants were arrested and brought to the police station. In a decision, dated August 15, 2001, the RTC found proof beyond reasonable doubt of the guilt of the appellants and sentenced them to suffer the penalty of reclusion perpetua and a fine of P500,000.00 each.6 Thus, appellants interpose this appeal raising the following assignment of errors: I THE TRIAL COURT ERRED IN DISREGARDING THE LEGAL DEFECTS OF THE SEARCH WARRANT USED BY THE POLICE OPERATIVES AGAINST BOTH ACCUSED. II THE TRIAL COURT ERRED IN TAKING INTO CONSIDERATION EVIDENCES (sic) WHICH SHOULD HAVE BEEN EXCLUDED AND DISREGARDED WHICH RESULTED IN THE ERRONEOUS CONVICTION OF BOTH ACCUSED. III THE TRIAL COURT ERRED IN CONVICTING BOTH ACCUSED DESPITE THE ABSENCE OF PROOF BEYOND REASONABLE DOUBT. IV THE TRIAL COURT ERRED IN DISREGARDING THE FACT THAT THE CONSTITUTIONAL RIGHTS OF BOTH ACCUSED WERE SERIOUSLY VIOLATED BY THE POLICE OPERATIVES.7 These issues can be trimmed down to two i.e., the legality of the search warrant and the search and arrest conducted pursuant thereto, and the correctness of the judgment of conviction imposed by the RTC. As regards the propriety of the search warrant issued in the name of Timothy Tiu, which did not include appellant Qui Yaling, appellants contend that because of this defect, the search conducted and consequently, the arrest, are illegal. Being fruits of an illegal search, the evidence presented cannot serve as basis for their conviction. We beg to disagree. There are only four requisites for a valid warrant, i.e,: (1) it must be issued upon "probable cause"; (2) probable cause must be determined personally by the judge; (3) such judge must examine under oath or affirmation the complainant and the witnesses he may produce; and (4) the warrant must particularly describe the place to be searched and the persons or things to be seized.8 As correctly argued by the Solicitor General, a mistake in the name of the person to be searched does not invalidate the warrant,9 especially since in this case, the authorities had personal knowledge of the drugrelated activities of the accused. In fact, a "John Doe" warrant satisfies the requirements so long as it contains a descriptio personae such as will enable the officer to identify the accused.10 We have also held that a mistake in the identification of the owner of the place does not invalidate the warrant provided the place to be searched is properly described.11 Thus, even if the search warrant used by the police authorities did not contain the correct name of Tiu Won or the name of Qui Yaling, that defect did not invalidate it because the place to be searched was described properly. Besides, the authorities conducted surveillance and a test-buy operation before obtaining the search warrant and subsequently implementing it. They can therefore be presumed to have personal knowledge of the identity of the persons and the place to be searched although they may not have specifically known the

names of the accused. Armed with the warrant, a valid search of Unit 4-B was conducted. We affirm, however, the illegality of the search conducted on the car, on the ground that it was not part of the description of the place to be searched mentioned in the warrant. It is mandatory that for the search to be valid, it must be directed at the place particularly described in the warrant.12 Moreover, the search of the car was not incidental to a lawful arrest. To be valid, such warrantless search must be limited to that point within the reach or control of the person arrested, or that which may furnish him with the means of committing violence or of escaping.13 In this case, appellants were arrested inside the apartment, whereas the car was parked a few meters away from the building. In a prosecution for illegal possession of a dangerous drug, it must be shown that (1) appellants were in possession of an item or an object identified to be a prohibited or regulated drug, (2) such possession is not authorized by law, and (3) the appellants were freely and consciously aware of being in possession of the drug.14We also note that the crime under consideration is malum prohibitum, hence, lack of criminal intent or good faith does not exempt appellants from criminal liability. Mere possession of a regulated drug without legal authority is punishable under the Dangerous Drugs Act.15 In the case at bar, the prosecution has sufficiently proved that the packs of shabu were found inside Unit 4-B, HCL Building, 1025 Masangkay St., Binondo, Manila. Surveillance was previously conducted. Though no arrest was made after the successful test-buy operation, this does not destroy the fact that in a subsequent search, appellants were found in possession of shabu. The testimonies of the prosecution witnesses are consistent in that after the test-buy operation, they obtained a search warrant from Judge Makasiar, pursuant to which, they were able to confiscate, among others, several packs of shabu from a mans handbag and a ladies handbag inside a room in the unit subject of the warrant. Furthermore, the seizure of the regulated drug from Unit 4-B is proven by the "Receipt for Property Seized"16 signed by SPO1 de Leon, the seizing officer, Noel, the building administrator, and Joji Olarte, his wife, who were also present. De Leon attested to the truth and genuineness of the receipt which was not contradicted by the defense. Be that as it may, we cannot sustain the trial courts decision attributing to both appellants the illegal possession of the same amount of shabu. We note that nowhere in the information is conspiracy alleged. Neither had it been proven during the trial. As such, we need to look at the individual amounts possessed by each appellant. In his testimony, Tiu Won admitted ownership of the mans handbag where 234.5 grams of shabu were found, viz: Q: During those ten to 20 minutes, what were those policemen doing inside that unit? A: They went inside the rooms and started ransacking the drawers and everything. As a matter of fact, even handbags were searched by them. Q: Whose handbags were searched?

girl present at the apartment during the search. She contends that since the prosecution was not able to establish the ownership of the bag, then such could have also been owned by Chin. We do not subscribe to this argument. The defense failed to bring Chin to court, although during the course of the presentation of their evidence, they manifested their intention to present her testimony. Furthermore, a visitor does not normally leave her bag lying anywhere, much more in the masters bedroom. Being the occupant of the apartment, it is more logical to presume that the handbag belongs to Qui Yaling. The failure of the prosecution to present the bags and proofs that the bags belong to the appellants is immaterial because the bags, the license of Tiu Won found inside the mans handbag and the passport of Qui Yaling found inside the ladies handbag are not illegal. Having no relation to the use or possession of shabu, the authorities could not confiscate them for they did not have the authority to do so since the warrant authorized them to seize only articles in relation to the illegal possession of shabu.21 Not within their control, they could not have been presented in court. We now come to the penalties of the appellants. R. A. No. 6425, as amended by R. A. No. 7659, applies. Thus, since 234.5 grams of shabu were found inside the mans handbag, deemed to be owned by Tiu Won, he is guilty of violating Section 16, Article III of R.A. No. 6425, while Qui Yaling, whose handbag contained only 20.3673 grams of shabu is guilty of violating Section 20 thereof. Section 16, in connection with Section 20 (1st paragraph), provides the penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos where the amount of shabu involved is 200 grams or more. Where the amount is less than 200 grams, Section 20 punishes the offender with the penalty ranging from prision correccional to reclusion perpetua. IN VIEW WHEREOF, the decision of RTC Br. 27, Manila as to the penalty of appellant Tiu Won is affirmed, while that of appellant Qui Yaling is modified. Tiu Won Chua is sentenced to a penalty of reclusion perpetua, and a fine of five hundred thousand pesos (P500,000.00) in accordance with Section 16 and Section 20 (1st paragraph) of R.A. No. 6425, as amended by R.A. No. 7659. Qui Yaling y Chua is sentenced to an indeterminate sentence of prision correccional as minimum to prision mayor as maximum, there being no mitigating or aggravating circumstances. SO ORDERED.

Panganiban, Sandoval-Gutierrez, Corona, and Carpio-Morales, JJ., concur.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. L-25434 July 25, 1975 HONORABLE ARSENIO N. ROLDAN, JR., in his capacity as Acting Commissioner, Philippine Fisheries Commission, and THE PHILIPPINE NAVY, petitioners, vs. HONORABLE FRANCISCO ARCA, as Presiding Judge of the Court of First Instance of Manila (Branch 1) and MORABE, DE GUZMAN & COMPANY, respondents.

A: My bag, the one I was carrying that day, with jewelry and checks and others were taken by them.17(emphasis supplied) Qui Yaling, in her appellants brief, denied owning the handbag where 20.3673 grams of shabu were discovered. However, during her testimony, she admitted its ownership, viz: Q: Now, the police testified before this court that you has (sic) a bag and when they searched this bag, it yielded some sachets of shabu(.) (W)hat can you say about that? A: That is an absolute lie, sir. What they saw in my bag were my cosmetics.18 (emphasis supplied) An admission is an act or declaration of a party as to the existence of a relevant fact which may be used in evidence against him.19 These admissions, provided they are voluntary, can be used against appellants because it is fair to presume that they correspond with the truth, and it is their fault if they do not.20 Qui Yaling likewise argues that the lower court erred in attributing ownership of the handbag to her considering that there was another

Office of the Solicitor General Arturo A. Alafriz and Solicitor Augusto M. Amores for petitioners. J. C. Yuseco and A.R. Narvasa for private respondent.

MAKASIAR, J.: A petition for certiorari and prohibition with preliminary injunction to restrain respondent Judge from enforcing his order dated October 18, 1965, and the writ of preliminary mandatory injunction thereunder issued.

On April 3, 1964, respondent company filed with the Court of First Instance of Manila a civil case docketed as No. 56701 against petitioner Fisheries Commissioner Arsenio N. Roldan, Jr., for the recovery of fishing vessel Tony Lex VI (one of two fishing boats in question) which had been seized and impounded by petitioner Fisheries Commissioner through the Philippine Navy. On April 10, 1964, respondent company prayed for a writ of preliminary mandatory injunction with respondent court, but said prayer was, however, denied. On April 28, 1964, the Court of First Instance of Manila set aside its order of April 10, 1964 and granted respondent company's motion for reconsideration praying for preliminary mandatory injunction. Thus, respondent company took Possession of the vessel Tony Lex VI from herein petitioners by virtue of the abovesaid writ. On December 10, 1964, the Court of First Instance of Manila dismissed Civil Case No. 56701 for failure of therein petitioner (respondent company herein) to prosecute as well as for failure of therein defendants (petitioners herein)to appear on the scheduled date of hearing. The vessel, Tony Lex VI or Srta. Winnie however, remained in the possession of respondent company. On July 20, 1965, petitioner Fisheries Commissioner requested the Philippine Navy to apprehend vessels Tony Lex VI and Tony Lex III, also respectively called Srta. Winnie and Srta. Agnes, for alleged violations of some provisions of the Fisheries Act and the rules and regulations promulgated thereunder. On August 5 or 6, 1965, the two fishing boats were actually seized for illegal fishing with dynamite. Fish caught with dynamite and sticks of dynamite were then found aboard the two vessels. On August 18, 1965, the Fisheries Commissioner requested the Palawan Provincial Fiscal to file criminal charges against the crew members of the fishing vessels. On September 30, 1965, there were filed in the court of First Instance of Palawan a couple of informations, one against the crew members of Tony Lex III, and another against the crew members of Tony Lex VI both for violations of Act No. 4003, as amended by Commonwealth Acts Nos. 462, 659 and 1088, i.e., for illegal fishing with the use of dynamite. On the same day, the Fiscal filed an ex parte motion to hold the boats in custody as instruments and therefore evidence of the crime (p. 54, rec.), and cabled the Fisheries Commissioner to detain the vessels (p. 56, rec.). On October 2 and 4, likewise, the Court of First Instance of Palawan ordered the Philippine Navy to take the boats in custody. On October 2, 1965, respondent company filed a complaint with application for preliminary mandatory injunction, docketed as Civil Case No. 62799 with the Court of First Instance of Manila against herein petitioners. Among others, it was alleged that at the time of the seizure of the fishing boats in issue, the same were engaged in legitimate fishing operations off the coast of Palawan; that by virtue of the offer of compromise dated September 13, 1965 by respondent company to the Secretary of Agriculture and Natural Resources, the numerous violations of the Fishery Laws, if any, by the crew members of the vessels were settled. On October 9, 1965, petitioners, represented by the Solicitor General, opposed the above-mentioned complaint, alleging among others, that: (1) the issuance of the writ would disrupt the status quo of the parties and would render nugatory any decision of the respondent court favorable to the defendant; (2) that the vessels, being instruments of a crime in criminal cases Nos. 3416 and 3417 filed with the Court of First Instance of Palawan, the release of the vessels sans the corresponding order from the above-mentioned court would deprive the same of its authority to dispose of the vessels in the criminal cases and the Provincial Fiscal would not be able to utilize said vessels as evidence in the prosecution of said cases; (3) that as petitioners herein were in possession of one of the vessels in point, they cannot now be deprived of the legal custody thereof by reason of the dismissal of Civil Case No. 56701; (4) that petitioner Fisheries Commissioner has the power to seize and detain the vessels pursuant to Section 5 of Republic Act No. 3215 in relation to Sections 903 and 2210 of the Revised Tariff and Customs Code; (5) that respondents herein have not exhausted administrative remedies before coming to court; (6) that the compromise agreement approved by the Secretary of Agriculture and Natural Resources and indorsed to the Fisheries Commissioner is never a bar to the prosecution of the crime

perpetrated by the crew members of the vessels belonging to respondent company. And again, on October 15, 1965, herein petitioners filed their memorandum praying for the denial of the application for preliminary mandatory injunction. On the same day, October 15, 1965, herein petitioners filed an urgent motion to submit additional documentary evidence. On October 18, 1965, herein petitioners, as defendants in said Civil Case No. 62799, filed their answer to the complaint with affirmative defenses, reiterating the grounds in their opposition to the issuance of a writ of preliminary mandatory injunction and adding that herein private respondent admitted committing the last violation when it offered in its letter dated September 21, 1965 to the Acting Commissioner of Fisheries, to compromise said last violation (Exh. 12, pp. 60-61, rec.). On said day, October 18, 1965, the respondent Judge issued the challenged order granting the issuance of the writ of preliminary mandatory injunction and issued the preliminary writ upon the filing by private respondent of a bond of P5,000.00 for the release of the two vessels(pp. 95-102, rec.). On October 19, 1965, herein petitioners filed a motion for reconsideration of the order issuing the preliminary writ on October 18, 1965 on the ground, among others, that on October 18, 1965 the Philippine Navy received from the Palawan Court of First Instance two orders dated October 2 and 4, 1965 requiring the Philippine Navy to hold the fishing boats in custody and directing that the said vessels should not be released until further orders from the Court, and that the bond of P5,000.00 is grossly insufficient to cover the Government's losses in case the two vessels, which are worth P495,000.00, are placed beyond the reach of the Government, thus frustrating their forfeiture as instruments of the crime (pp. 103-109, rec.).1wph1.t On November 23, 1965, respondent Judge denied the said motion for reconsideration (p. 110, rec.). WE rule that the respondent Judge of the Manila Court of First Instance acted without jurisdiction and with grave abuse of discretion when he issued on October 18, 1965 the order directing the issuance of a writ of preliminary mandatory injunction and when he refused to reconsider the same. I When the respondent Judge issued the challenged order on October 18, 1965 and the writ of preliminary mandatory injunction pursuant thereto, the fishing vessels were already under the jurisdiction of the Court of First Instance of Palawan by virtue of its orders of October 2 and 4, 1965, upon motion of the Provincial Fiscal (pp. 54, 55, rec.), directing the Philippine Navy to detain (pp. 108, 109, rec.) said vessels, which are subject to forfeiture as instruments of the crime, to be utilized as evidence in Criminal Cases Nos. 3416 and 3417 for illegal fishing pending in said court (pp. 54-55, rec.). The said vessels were seized while engaging in prohibited fishing within the territorial waters of Palawan (pp. 45, 48,-53, rec.) and hence within the jurisdiction of the Court of First Instance of Palawan, in obedience to the rule that "the place where a criminal offense was committed not only determines the venue of the action but is an essential element of jurisdiction"(Lopez vs. Paras, L-25795, Oct. 29, 1966, 18 SCRA 616, 619). The jurisdiction over the vessels acquired by the Palawan Court of First Instance cannot be interfered with by another Court of First Instance. The orders of October 2 and 4, 1965 by the Palawan Court of First Instance expressly direct the Philippine Navy "to hold in custody" the two vessels and that "same should not be released without prior order or authority from this Court" (pp. 108, 109, rec.). Only the Palawan court can order the release of the two vessels. Not even the Secretary of Agriculture and Natural Resources nor the Fisheries Commissioner can direct that the fishing boats be turned over to private respondent without risking contempt of court. The grave abuse of discretion committed by the respondent Judge was heightened by the fact that he did not reconsider his order of October 18, 1965 after he was informed by petitioners in their motion for reconsideration filed on October 19, 1965 that the Palawan Court of First Instance had already issued the two orders dated October 2 and 4, 1965 directing the Philippine Navy to hold in custody the fishing boats until further orders. It is basic that one court cannot interfere with the judgments, orders or decrees of another court of concurrent or coordinate jurisdiction having equal power to grant the relief sought by injunction; because if

coordinate courts were allowed to interfere with each other's judgments, decrees or injunctions, the same would obviously lead to confusion and might seriously hinder the administration of justice (Ongsinco, etc. vs. Tan, et al., 97 Phil. 330; PNB vs. Javellana, 92 Phil. 525; Montesa vs. Manila Cordage Company, 92 Phil. 25; Hubahib vs. Insular Drug Company, 64 Phil. 119; Hacbang, et al. vs. The Leyte Auto Bus Company, et al., G.R. No. L-17907, May 30, 1963, 8 SCRA, 103, 107-109; NPC vs. Hon. Jesus de Vera, G.R. No. L-15763, Dec. 22, 1961, 3 SCRA, 646, 648; Cabigao vs. del Rosario, 44 Phil. 182; Araneta & Uy vs. Commonwealth Insurance Company, 55 OG 431; Moran, Comments on the Rules of Court, Vol. III, 1970 ed., p. 64). As early as October 2 and 4, 1965, the two boats were already in custodia legis under the sole control of the Palawan Court of First Instance. The Manila Court of First Instance cannot interfere with and change that possession (Hacbang vs. Leyte Bus Co., Inc., supra; NPC vs. Hon. Jesus de Vera, supra). It is immaterial that the vessels were then in the Philippine Navy basin in Manila; for the same in no way impugns the jurisdiction already vested in the Palawan court, which has custody thereof through the Philippine Navy. This is analogous to the situation in Colmenares versus Villar (L-27124, May 29, 1970, 33 SCRA 186, 188-9), wherein We ruled "where the illegal possession of firearms was committed in the town where the Court sits, the fact that the firearms were confiscated from the accused in another town does not affect the jurisdiction of the Court" (pp. 186, 189). It is likewise of no moment that the herein respondents were not notified by the herein petitioners of the seizure of the questioned vessels by the Philippine Navy, because such previous notice is not required by law. II The dismissal on December 10, 1964 of the first Civil Case No. 56701 by the Court of First Instance of Manila had the necessary effect of automatically dissolving the writ of preliminary mandatory injunction issued therein on April 28, 1964, directing the return of fishing vessel Tony Lex VI (pp. 156-157, rec.). Such a preliminary writ, like any other interlocutory order, cannot survive the main case of which it was but an incident; because "an ancillary writ of preliminary injunction loses its force and effect after the dismissal of the main petition" (National Sugar Workers' Union, etc., vs. La Carlota Sugar Central, et al., L23569, May 25, 1972, 45 SCRA 104, 109; Lazaro vs. Mariano, 59 Phil. 6Z7, 631; Saavedra vs. Ibaez, 56 Phil. 33, 37; Hi Caiji vs. Phil. Sugar Estate and Development Company, 50 Phil. 592, 594).1wph1.t Moreover, the writ of preliminary injunction issued on April 28, 1964 in Civil Case No. 56701 was directed against the detention of the vessel Tony Lex VI for violations committed prior to August 5, 1965, and therefore cannot and does not extend to the seizure and detention of said vessel for violations on August 5 or 6, 1965, which violations were not and could not possibly be the subject-matter of said Civil Case No. 56701 which was filed on April 3, 1964 (p. 12, rec.). III Herein petitioners can validly direct and/or effect the seizure of the vessels of private respondent for illegal fishing by the use of dynamite and without the requisite licenses. Section 4 of Republic Act No. 3512 approved on March 20, 1963 empowers the Fisheries Commissioner to carry out the provisions of the Fisheries Act, as amended, and all rules and regulations promulgated thereunder, to make searches and seizures personally or through his duly authorized representatives in accordance with the Rules of Court, of "explosives such as ... dynamites and the like ...;

aside from the confiscation and forfeiture of all explosives, boats, tackles, apparel, furniture, and other apparatus used in fishing in violation of said Section 12 of this Act." Section 78 of the same Fisheries Law provides that "in case of a second offense, the vessel, together with its tackle, apparel, furniture and stores shall be forfeited to the Government." The second paragraph of Section 12 also provides that "the possession and/or finding, of dynamite, blasting caps and other explosives in any fishing boat shall constitute a presumption that the said dynamite and/or blasting caps and explosives are being used for fishing purposes in violation of this Section, and that the possession or discovery in any fishing boat or fish caught or killed by the use of dynamite or other explosives, under expert testimony, shall constitute a presumption that the owner, if present in the fishing boat, or the fishing crew have been fishing with dynamite or other explosives." (Emphasis supplied). Under Section 78 of the Fisheries Act, as amended, any person, association or corporation fishing in deep sea fishery without the corresponding license prescribed in Sections 17 to 22 Article V of the Fisheries Act or any other order or regulation deriving force from its provisions, "shall be punished for each offense by a fine of not more than P5,000.00, or imprisonment, for not more than one year, or both, in the discretion of the Court; Provided, That in case of an association or corporation, the President or manager shall be directly responsible for the acts of his employees or laborers if it is proven that the latter acted with his knowledge; otherwise the responsibility shall extend only as far as fine is concerned: Provided, further, That in the absence of a known owner of the vessel, the master, patron or person in charge of such vessel shall be responsible for any violation of this Act: and Provided, finally, That in case of a second offense, the vessel together with its tackle, apparel, furniture and stores shall be forfeited to the Government" (Emphasis supplied). Under Section 13 of Executive Order No. 389 of December 23, 1950, reorganizing the Armed Forces of the Philippines, the Philippine Navy has the function, among others, "to assist the proper governmental agencies in the enforcement of laws and regulations pertaining to ... fishing ..." (46 OG 5905, 5911). Section 2210 of the Tariff and Customs Code, as amended by PD No. 34 of October 27, 1972, authorized any official or person exercising police authority under the provisions of the Code, to search and seize any vessel or air craft as well as any trunk, package, bag or envelope on board and to search any person on board for any breach or violation of the customs and tariff laws. When the Philippine Navy, upon request of the Fisheries Commissioner, apprehended on August 5 or 6, 1965 the fishing boats Tony Lex III and Tony Lex VI, otherwise known respectively as Srta. Agnes and Srta. Winnie, these vessels were found to be without the necessary license in violation of Section 903 of the Tariff and Customs Code and therefore subject to seizure under Section 2210 of the same Code, and illegally fishing with explosives and without fishing license required by Sections 17 and 18 of the Fisheries Law (pp. 46-47, rec.).1wph1.t The operation of the fishing boat Tony Lex III was suspended pursuant to the order dated January 28, 1964 issued by the Commissioner of Fisheries pending the final determination of the case against it for illegal fishing with explosives on January 21, 1964 (p. 34, rec.) and remained suspended until its apprehension on August 5 or 6, 1965 (p. 46, rec.). For illegal fishing with explosives on March 23, 1963, the renewal of the fishing boat license of Tony Lex VI was suspended for one year from the time said boat was moored at Pier 14 at North Harbor, Manila, without prejudice to the institution of a criminal case against its owner and/or operator, pursuant to the order dated May 19, 1964 issued by the Commissioner of Fisheries (pp. 35-36, rec.), the motion for reconsideration of which order was denied by the Commissioner of Fisheries in an order dated August 17, 1964 (pp. 41-42, rec.). For illegal fishing with dynamite on March 28, 1963, the operation of Tony Lex VI was suspended by the Commissioner of Fisheries in an order dated April 1, 1963 (p. 62, rec.). For illegal fishing again with explosives on April 25, 1963, the fishing boat Tony Lex VI together with its tackle, apparel, furniture and all other apparatus used in fishing was ordered confiscated and forfeited in favor of the Government and a fine in the amount of P5,000.00 was imposed on its owners-operators, without prejudice to the filing of the necessary criminal action, pursuant to the order of June 2, 1964 of the Commissioner of Fisheries(pp. 37-38, rec.).

including fishery products, fishing equipment, tackle and other things that are subject to seizure under existing fishery laws"; and "to
effectively implement the enforcement of existing fishery laws on illegal fishing."

Paragraph 5 of Section 4 of the same Republic Act 3512 likewise transferred to and vested in the Philippine Fisheries Commission "all the powers, functions and duties heretofore exercised by the Bureau of Customs, Philippine Navy and Philippine Constabulary over fishing vessels and fishery matters ..." Section 12 of the Fisheries Act, otherwise known as Republic Act No. 4003, as amended, prohibits fishing with dynamites or other explosives which is penalized by Section 76 thereof "by a fine of not less than P1,500.00 nor more than P5,000.00, and by imprisonment for not less than one (1) year and six (6) months nor more than five (5) years,

Again, for comitting the same violation on June 19, 1963, a fine in the amount of P5,000.00 was imposed on the owners-operators of fishing boat Tony Lex VI pursuant to the order of June 4, 1964 issued by the Commissioner of Fisheries (pp. 39-40, rec.).. It appears, therefore, that since January 28, 1964, the fishing boat Tony Lex III was suspended from operating and was ordered moored at Pier 14, North Harbor, Manila (pp. 34, 46-47, rec.); and that the fishing vessel Tony Lex VI was suspended for one year from May 24, 1964 and was actually ordered forfeited to the Government pursuant to the order of June 2, 1964 for repeated violations of Section 12 of the Fisheries Act (pp. 37- 38. rec.).1wph1.t As a matter of fact, when apprehended on August 5 or 6, 1965, both vessels were found to be without any license or permit for coastwise trade or for fishing and unlawfully fishing with explosives, for which reason their owners and crew were accordingly indicted by the Provincial Fiscal of Palawan for illegal fishing with dynamite and without the requisite license (pp. 48-53, rec.). As heretofore intimated, the two fishing boats were apprehended on numerous occasions for fishing with dynamite from March 28, 1963 to March 11, 1964, which violations private respondent, as owneroperator, sought to compromise by offering to pay a fine of P21,000.00 for all said prior violations. Such previous violations of Sections 12, 17 and 18 of the Fisheries Act committed by the two fishing boats, Tony Lex III and Tony Lex VI, from March 28, 1963 until August 5 or 6, 1965, rendered the said vessels subject to forfeiture under Sections 76 and 78 of the Fisheries Act, as amended. Search and seizure without search warrant of vessels and air crafts for violations of the customs laws have been the traditional exception to the constitutional requirement of a search warrant, because the vessel can be quickly moved out of the locality or jurisdiction in which the search warrant must be sought before such warrant could be secured; hence it is not practicable to require a search warrant before such search or seizure can be constitutionally effected (Papa vs. Mago, L27360, Feb. 28, 1968, 22 SCRA 857, 871-74; Magoncia vs. Palacio, 80 Phil. 770, 774; Caroll vs. U.S. 267, pp. 132, 149, 158; Justice Fernando, The Bill of Rights, 1972 ed., p. 225; Gonzales, Philippine Constitutional Law, 1966 ed., p. 300). The same exception should apply to seizures of fishing vessels breaching our fishery laws. They are usually equipped with powerful motors that enable them to elude pursuing ships of the Philippine Navy or Coast Guard. Another exception to the constitutional requirement of a search warrant for a valid search and seizure, is a search or seizure as an incident to a lawful arrest (Alvero vs. Dizon, 76 Phil. 637; Justice Fernando, The Bill of Rights, 1972 ed., p. 224). Under our Rules of Court, a police officer or a private individual may, without a warrant, arrest a person (a) who has committed, is actually committing or is about to commit an offense in his presence; (b) who is reasonably believed to have committed an offense which has been actually committed; or (c) who is a prisoner who has escaped from confinement while serving a final judgment or from temporary detention during the pendency of his case or while being transferred from one confinement to another (Sec. 6, Rule 113, Revised Rules of Court). In the case at bar, the members of the crew of the two vessels were caught in flagrante illegally fishing with dynamite and without the requisite license. Thus their apprehension without a warrant of arrest while committing a crime is lawful. Consequently, the seizure of the vessel, its equipment and dynamites therein was equally valid as an incident to a lawful arrest. The alleged compromise approved by the Secretary of Agriculture and Natural Resources on September 13, 1965 (pp. 63-64, 158-159, rec.) cannot be invoked by the respondents because the said compromise referred to about thirty violations of the fisheries law committed by the private respondent from March 28, 1963 to March 11, 1964. The violations by the two vessels of private respondent by reason of which these vessels were apprehended and detained by the Philippine Navy upon request of the Commissioner of Fisheries, were committed on August 5 or 6, 1965. Moreover, the power to compromise would exist only before a criminal prosecution is instituted; otherwise the Department Secretary or any of his sub-alterns can render criminal prosecutions for violations of the fisheries law a mere mockery. It is not in the public interest nor is it good policy to sustain the viewpoint that the Department Secretary can compromise criminal cases involving public, not private, offenses after the indictment had been instituted in court. The fishing vessels together with all their equipment and the dynamites found therein are

not only evidence of the crime of illegal fishing but also subject to forfeiture in favor of the Government as instruments of the crime (Art. 45, Revised Penal Code, Sec. 78, Act No. 4003, as amended). Section 80(j) of Act No. 4003, as amended, precludes such a compromise the moment the Fisheries Commissioner decides to prosecute the criminal action in accordance with Sections 76 and 78 of the other penal provisions of the fisheries law. Furthermore, any compromise shall be upon the recommendation of the Fisheries Commission (Section 80[i], Act No. 4003), which did not recommend such a compromise for the violation on August 5 or 6, 1965 of Section 12 in relation to Sections 76 and 78 of Act No. 4003, as amended. On the contrary, the Fisheries Commissioner requested the Provincial Fiscal to institute the criminal cases (pp. 43-45, rec.) and the Provincial Fiscal filed the corresponding informations docketed as Criminal Cases Nos. 3416 and 3417 on September 30, 1965 against the owners and the members of the crew of the vessels (pp. 48-53, rec.). It should be noted that in the first indorsement dated September 13, 1965 of the Secretary of Agriculture and Natural Resources approving the compromise fine of P21,000.00 for the various violations committed previous to August 5 or 6, 1965 (pp. 34-42, 47, 58-64, 149155, 158-159, rec.), the Department Secretary "believes that the offer made by the company was an implied admission of violations of said provisions of the Fisheries Law and regulations, ..." (pp. 63, 158, rec.). The said approval was granted after the private respondent filed a motion for reconsideration of the indorsement dated March 5, 1965 of the Secretary of Agriculture and Natural Resources disapproving the offer by private respondent to pay the fine by way of compromise. There can be no dispute that the term fishing boat (employed in the second paragraph of Section 12 of the Fisheries Act applies to the vessels Tony Lex III and Tony Lex VI. Even private respondent refers to said fishing boats as fishing vessels "engaged in fishing operations" or "in commercial fishing" in paragraph IV of its complaint in Civil Case No. 62799 (p. 18, rec.), as well as in its various communications to the Fisheries Commissioner (pp. 60-61, 65, 82, rec.).1wph1.t The two fishing vessels Tony Lex III and Tony Lex VI likewise fall under the term vessel used in Sections 17, 76 and 78, as well as the term boats utilized in the second paragraph of Section 76 of the Fisheries Act. They can also fall under the term fishing equipment employed in Section 4 of Republic Act No. 3512; because a fishing equipment is never complete and cannot be effectively used in off-shore or deepsea fishing without the fishing boat or fishing vessel itself. And these two vessels of private respondent certainly come under the term fishing vessels employed in paragraph 5 of Section 4 of the same Republic Act 3512 creating the Fisheries Commission. Hence, no useful purpose can be served in trying to distinguish between boat and vessel with reference to Tony Lex III and Tony Lex VI. As a matter of fact, the accepted definition of vessel includes "every description of water craft, large or small, used or capable of being used as a means of transportation on water" (Cope versus Vallete, etc., 199 U.S. 625; U.S. vs. Holmes, 104 Fed. 884; Charles Barnes Co. vs. One Dredge Boat, 169 Fed. 895; and Yu Con vs. Ipil, 41 Phil. 780). The word boat in its ordinary sense, means any water craft (Monongahela River Construction, etc. vs. Hardsaw, 77 NE 363, 365). The fishing boats Tony Lex III and Tony Lex VI are likewise vessels within the meaning of the term vessel used in Sections 903 and 2210 of the Tariff and Customs Code. WHEREFORE, THE PETITION IS HEREBY GRANTED AND THE ORDER OF RESPONDENT JUDGE DATED OCTOBER 18, 1965, THE WRIT OF PRELIMINARY MANDATORY INJUNCTION ISSUED THEREUNDER AND THE ORDER DATED NOVEMBER 23, 1965, ARE HEREBY SET ASIDE AS NULL AND VOID, WITH COSTS AGAINST PRIVATE RESPONDENT.

Castro (Chairman,), Esguerra, Muoz Palma and Martin, JJ., concur. Teehankee, J., took no part.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 82585 November 14, 1988

MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOLI, and GODOFREDO L. MANZANAS,petitioners, vs. THE HON. RAMON P. MAKASIAR, Presiding Judge of the Regional Trial Court of Manila, Branch 35, UNDERSECRETARY SILVESTRE BELLO III, of the Department of Justice, LUIS C. VICTOR, THE CITY FISCAL OF MANILA and PRESIDENT CORAZON C. AQUINO, respondents. G.R. No. 82827 November 14, 1988 LUIS D. BELTRAN, petitioner, vs. THE HON. RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, at Manila, THE HON. LUIS VICTOR, CITY FISCAL OF MANILA, PEOPLE OF THE PHILIPPINES, SUPERINTENDENT OF THE WESTERN POLICE DISTRICT, and THE MEMBERS OF THE PROCESS SERVING UNIT AT THE REGIONAL TRIAL COURT OF MANILA, respondents. G.R. No. 83979 November 14, 1988. LUIS D. BELTRAN, petitioner, vs. EXECUTIVE SECRETARY CATALINO MACARAIG, SECRETARY OF JUSTICE SEDFREY ORDOEZ, UNDERSECRETARY OF JUSTICE SILVESTRE BELLO III, THE CITY FISCAL OF MANILA JESUS F. GUERRERO, and JUDGE RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, at Manila, respondents.

Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination nder oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. The addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the 1973 Constitution to issue warrants to "other responsible officers as may be authorized by law," has apparently convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause for the issuance of warrants of arrest. This is not an accurate interpretation. What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12, setting down guidelines for the issuance of warrants of arrest. The procedure therein provided is reiterated and clarified in this resolution. It has not been shown that respondent judge has deviated from the prescribed procedure. Thus, with regard to the issuance of the warrants of arrest, a finding of grave abuse of discretion amounting to lack or excess of jurisdiction cannot be sustained. Anent the third issue, petitioner Beltran argues that "the reasons which necessitate presidential immunity from suit impose a correlative disability to file suit." He contends that if criminal proceedings ensue by virtue of the President's filing of her complaint-affidavit, she may subsequently have to be a witness for the prosecution, bringing her under the trial court's jurisdiction. This, continues Beltran, would in an indirect way defeat her privilege of immunity from suit, as by testifying on the witness stand, she would be exposing herself to possible contempt of court or perjury. The rationale for the grant to the President of the privilege of immunity from suit is to assure the exercise of Presidential duties and functions free from any hindrance or distraction, considering that being the Chief Executive of the Government is a job that, aside from requiring all of the office holder's time, also demands undivided attention. But this privilege of immunity from suit, pertains to the President by virtue of the office and may be invoked only by the holder of the office; not by any other person in the President's behalf. Thus, an accused in a criminal case in which the President is complainant cannot raise the presidential privilege as a defense to prevent the case from proceeding against such accused. Moreover, there is nothing in our laws that would prevent the President from waiving the privilege. Thus, if so minded the President may shed the protection afforded by the privilege and submit to the court's jurisdiction. The choice of whether to exercise the privilege or to waive it is solely the President's prerogative. It is a decision that cannot be assumed and imposed by any other person. As regards the contention of petitioner Beltran that he could not be held liable for libel because of the privileged character or the publication, the Court reiterates that it is not a trier of facts and that such a defense is best left to the trial court to appreciate after receiving the evidence of the parties.

Angara, Abello, Concepcion, Regala and Cruz for petitioners in G.R. No. 82585. Perfecto V. Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for petitioner in G.R. Nos. 82827 and 83979.
RESOLUTION

PER CURIAM: In these consolidated cases, three principal issues were raised: (1) whether or not petitioners were denied due process when informations for libel were filed against them although the finding of the existence of a prima faciecase was still under review by the Secretary of Justice and, subsequently, by the President; (2) whether or not the constitutional rights of Beltran were violated when respondent RTC judge issued a warrant for his arrest without personally examining the complainant and the witnesses, if any, to determine probable cause; and (3) whether or not the President of the Philippines, under the Constitution, may initiate criminal proceedings against the petitioners through the filing of a complaint-affidavit. Subsequent events have rendered the first issue moot and academic. On March 30, 1988, the Secretary of Justice denied petitioners' motion for reconsideration and upheld the resolution of the Undersecretary of Justice sustaining the City Fiscal's finding of a prima facie case against petitioners. A second motion for reconsideration filed by petitioner Beltran was denied by the Secretary of Justice on April 7, 1988. On appeal, the President, through the Executive Secretary, affirmed the resolution of the Secretary of Justice on May 2, 1988. The motion for reconsideration was denied by the Executive Secretary on May 16, 1988. With these developments, petitioners' contention that they have been denied the administrative remedies available under the law has lost factual support. It may also be added that with respect to petitioner Beltran, the allegation of denial of due process of law in the preliminary investigation is negated by the fact that instead of submitting his counter- affidavits, he filed a "Motion to Declare Proceedings Closed," in effect waiving his right to refute the complaint by filing counteraffidavits. Due process of law does not require that the respondent in a criminal case actually file his counter-affidavits before the preliminary investigation is deemed completed. All that is required is that the respondent be given the opportunity to submit counter-affidavits if he is so minded. The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional provision on the issuance of warrants of arrest. The pertinent provision reads:

As to petitioner Beltran's claim that to allow the libel case to proceed would produce a "chilling effect" on press freedom, the Court finds no basis at this stage to rule on the point. The petitions fail to establish that public respondents, through their separate acts, gravely abused their discretion as to amount to lack of jurisdiction. Hence, the writs of certiorari and prohibition prayed for cannot issue. WHEREFORE, finding no grave abuse of discretion amounting to excess or lack of jurisdiction on the part of the public respondents, the Court Resolved to DISMISS the petitions in G. R. Nos. 82585, 82827 and 83979. The Order to maintain the status quo contained in the Resolution of the Court en banc dated April 7, 1988 and reiterated in the Resolution dated April 26, 1988 is LIFTED.

criminal cases, a change of venue was ordered by this Court from Branch 45 of the Regional Trial Court of Masbate to Branch 56 of the Regional Trial Court of Makati. On October 12, 1990, Judge Fernandez dismissed Civil Case No. 3878, in an order holding in part as follows: The question to be resolved is whether Replevin is proper to recover the possession of said motorcycle. It is admitted that the motorcycle in question, now in the possession of the Clerk of Court of Masbate, is to be used as evidence in Criminal Case Nos. 5811-5814, now pending trial before Branch 56 of the Regional Trial Court of Makati, Metro Manila. This Court opined that it has no jurisdiction to release evidence impounded or surrendered to the PC-CIS Task Force Espinosa. Property seized in enforcing criminal laws is in the custody of the law and cannot be replevied until such custody is ended. (77 C.J.S. 28.) Granting as claimed by plaintiff that said motorcycle was illegally seized, he can raise the issue when presented during the trial. The proper Court to order its release, the motorcycle in question, is the Presiding Judge of Branch 56 of the Regional Trial Court of Makati, Metro Manila. WHEREFORE, this case is hereby ordered DISMISSED for lack of jurisdiction. Reconsideration having been denied, the petitioner now asks this Court to reverse the said order. His contention is that the motorcycle was invalidly seized and that therefore he has a right to its return. The proper remedy for this purpose is his complaint for recovery and the issuance of a writ of replevin as authorized by the Rules of Court. In refusing to grant him relief and dismissing the case instead on the ground of lack of jurisdiction, the respondent court committed reversible error that he prays this Court will correct. In his comment, the private respondent admits the absence of a search warrant when the motorcycle was seized but stresses that the crime perpetrated is a heinous offense. Espinosa was a man of consequence. The motorcycle in question is an extremely mobile vehicle and can be easily dismantled or hidden, and the unique situation existing at that time required him to place it in the custody of the PC-CIS Task Force Espinosa without first securing a search warrant. In doing so, he merely complied with the orders of his superior to preserve the vehicle for use as evidence in the criminal cases. We share Captain Roxas's concern for the apprehension of the killers but cannot agree with his methods. While recognizing the need for the punishment of crime, we must remind him that in our system of criminal justice, the end does not justify the means. For all his strong conviction about the guilt of the petitioner, the private respondent must still abide by the Constitution and observe the requirements of the Bill of Rights. Article III, Section 2, provides: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. This guaranty is one of the greatest of individual liberties and was already recognized even during the days of the absolute monarchies, when the king could do no wrong. On this right, Cooley wrote: "Awe

Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino Medialdea and Regalado, JJ., concur.
Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 96356 June 27, 1991

NONILLON A. BAGALIHOG, petitioner, vs. HON. JUDGE GIL P. FERNANDEZ, Presiding Judge of Br. 45, RTC of Masbate; and MAJOR JULITO ROXAS, respondents.

Jolly T. Fernandez for petitioner. Antonio Llacer for private respondent.

CRUZ, J.:p We are asked once again to rule on the validity of a search and seizure as tested by the requirements of the Bill of Rights and to balance the demands of an orderly society with the imperatives of individual liberty. On March 17, 1989, Rep. Moises Espinosa was shot to death shortly after disembarking at the Masbate Airport. Witnesses said one of the gunmen fled on a motorcycle. On the same day, the petitioner's house, which was near the airport, was searched with his consent to see if the killers had sought refuge there. The search proved fruitless. Two days later, Capt. Julito Roxas and his men from the Philippine Constabulary seized the petitioner's motorcycle and took it to the PC headquarters in Masbate. They had no search warrant. The motorcycle was impounded on the suspicion that it was one of the vehicles used by the killers. After investigation, the petitioner and several others were charged with multiple murder and frustrated murder for the killing of Espinosa and three of his bodyguards and the wounding of another person. On June 21, 1989, the petitioner filed a complaint against Capt. Roxas for the recovery of the motorcycle with an application for a writ of replevin, plus damages in the total amount of P55,000.00 1 This was docketed as Civil Case No. 3878 in Branch 48 of the Regional Trial Court of Masbate. On November 7, 1989, the petitioner filed an urgent manifestation for the deposit of the motorcycle with the clerk of court of the Regional Trial Court of Masbate, on the ground that PC soldiers were using the vehicle without authority. The motion was granted on November 10, 1989, by Judge Ricardo Butalid. Judge Butalid later inhibited himself and Civil Case No. 3878 was transferred to Branch 45, presided by Judge Gil Fernandez. In the

surrounded and majesty clothed the King, but the humblest subject might shut the door of his cottage against him and defend from intrusion that privacy which was as sacred as the kingly prerogatives."
2

The provision protects not only those who appear to be innocent but also those who appear to be guilty but are nevertheless to be presumed innocent until the contrary is proved. The mere fact that in the private respondent's view the crime involved is "heinous" and the victim was "a man of consequence" did not authorize disregard of the constitutional guaranty. Neither did "superior orders" condone the omission for they could not in any case be superior to the Constitution. We do not find that the importance of the motorcycle in the prosecution of the criminal cases excused its seizure without a warrant. The authorities had enough time to comply with the required procedure but they did not do so, preferring the unconstitutional shortcut. The crime was committed on March 17, 1989, and the motorcycle was seized only on March 19, 1989, or two days later. During that period, the private respondent had all the opportunity to apply for a search warrant and establish probable cause in accordance with the Bill of Rights and the Rules of Court. He did not. The following observation in Alih v. Castro 3 is an appropriate reminder: The respondents cannot even plead the urgency of the raid because it was in fact not urgent. They knew where the petitioners were. They had every opportunity to get a search warrant before making the raid. If they were worried that the weapons inside the compound would be spirited away, they could have surrounded the premises in the meantime, as a preventive measure. There was absolutely no reason at all why they should disregard the orderly processes required by the Constitution and instead insist on arbitrarily forcing their way into the petitioner's premises with all the menace of a military invasion. xxx xxx xxx When the respondents could have easily obtained a search warrant from any of the TEN civil courts then open and functioning in Zamboanga City, they instead simply barged into the beleaguered premises on the verbal order of their superior officers. One cannot just force his way into any man's house on the illegal orders of a superior, however lofty his rank. Indeed, even the humblest hovel is protected from official intrusion because of the ancient rule, revered in all free regimes, that a man's house is his castle. The mere mobility of the motorcycle did not make the search warrant redundant for it is not denied that the vehicle remained with the petitioner until it was forcibly taken from him. The fear that it would be dismantled or hidden was mere speculation that was not borne out by the facts. The extraordinary events cited in People v. Court of First Instance of Rizal 4 are not present in the case now before us. The necessity for the immediate seizure of the motorcycle without the prior obtention of a warrant has not been established. The private respondent himself emphasizes that the petitioner had promised in the morning of March 19, 1989, to present the motorcycle in case it was needed during the investigation of the killings. 5 There was no reason to fear that it would be concealed by the petitioner, who presumably was under police surveillance at the time as one of the suspected killers. He could not have had that much opportunity to hide the vehicle even if he wanted to. The private respondent maintains that by the petitioner's promise, he effectively waived the right to a search warrant and so can no longer complain that the motorcycle had been invalidly seized. There was no such waiver. The petitioner merely agreed to cooperate with the investigators and to produce the vehicle when needed, but he did not agree to have it impounded. The record shows that he expressed reservations when this was suggested and said he needed the motorcycle for his official duties as a member of the Sangguniang Panlalawigan and in his private business. 6 At any rate, it has been shown that he was unwilling to surrender it at the time it was taken without warrant, and that made the taking unlawful. In Roan v. Gonzales, 7 the Court said:

It is true that are certain instances when a search when a search may be taken validly made without warrant and articles may be taken validly as a result of that search. For example, a warrantless search may be made incidental to a lawful arrest, as when the person being arrested is frisked for weapons he may otherwise be able to use against the arresting officer. Motor cars may be inspected at borders to prevent smuggling of aliens and contraband and even in the interior upon a showing of probable cause. Vessels and aircraft are also traditionally removed from the operation of the rule because of their mobility and their relative ease in fleeing the state's jurisdiction. The individual may knowingly agree to be searched or waive objections to an illegal search. And it has also been held that prohibited articles may be taken without warrant if they are open to eye and hand and the peace officer comes upon them inadvertently. The case at bar does not come under any of the above specified exceptions. The warrantless seizure of the motorcycle was unquestionably violative of "the right to be let alone" by the authorities as guaranteed by the Constitution. The vehicle cannot even be detained on the ground that it is a prohibited article the mere possession of which is unlawful. In dismissing Civil Case No. 3878, the respondent judge said he had no jurisdiction over the motorcycle because it was in custodia legis and only the judge trying the criminal cases against the petitioner and his co-accused could order its release. He cited the general doctrine that: Property seized in enforcing criminal laws is in the custody of the law and cannot be replevied, until such custody is ended. 8 It is true that property held as evidence in a criminal case cannot be replevied. But the rule applies only where the property is lawfully held, that is, seized in accordance with the rule against warrantless searches and seizures or its accepted exceptions. Property subject of litigation is not by that fact alone in custodia legis. 9 As the Court said in Tamisin v. Odejar 10 "A thing is in custodia legis when it is shown that it has been and is subjected to the official custody of a judicial executive officer in pursuance of his execution of a legal writ." Only when property is lawfully taken by virtue of legal process is it considered in the custody of the law, and not otherwise. 11 The circumstance that Judge Fernandez ordered the motorcycle to be deposited with the clerk of court on motion of the petitioner did not place the vehicle in custodia legis. The respondent judge had no authority over it because it had not been lawfully seized nor had it been voluntarily surrendered to the court by the petitioner. The private respondent observed in his comment that "it is only when the exhibits are offered in evidence and admitted by the court that they are submitted to the custody of the Court, and, before that, "they are usually in the possession of the prosecution." Even he agrees therefore that the motorcycle is not in custodia legis. At that, the vehicle in the case at bar is not admissible as an exhibit even if offered as such because it is "the fruit of the poisonous tree." Under Article III, Sec. 3(2) "any evidence obtained in violation" of the rule against unreasonable searches and seizure "shall be inadmissible for any purpose in any proceeding." Our finding is that the action to recover the motorcycle in the Regional Trial Court of Masbate will not constitute interference with the processes of the Regional Trial Court of Makati and that, consequently, the complaint should not have been dismissed by the respondent judge. The Judiciary is as anxious as the rest of the government that crime be prevented and, if committed, redressed. There is no question that the person who violates the law deserves to be punished to the full extent that the attendant circumstances will allow. But the prosecution of the suspected criminal cannot be done with high-handedness or prejudgment, in disregard of the very laws we are supposed to uphold. Zeal in the pursuit of criminals cannot ennoble the use of arbitrary methods that the Constitution itself abhors. WHEREFORE, the order of the respondent judge dated October 12, 1990, is SET ASIDE and Civil Case No. 3878 is REINSTATED for further proceedings. No costs.

SO ORDERED.

In a case filed by the same petitioner organization, Union of Lawyers

Narvasa, Grio-Aquino and Medialdea, JJ., concur. Gancayco, J., is on leave.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 83988 September 29, 1989 RICARDO C. VALMONTE AND UNION OF LAWYERS AND ADVOCATES FOR PEOPLE'S RIGHTS (ULAP),petitioners, vs. GEN. RENATO DE VILLA AND NATIONAL CAPITAL REGION DISTRICT COMMAND, respondents.

and Advocates for People's Right (ULAP) vs. Integrated National Police, 3 it was held that individual petitioners who do not allege that
any of their rights were violated are not qualified to bring the action, as real parties in interest.

The constitutional right against unreasonable searches and seizures is a personal right invocable only by those whose rights have been infringed, 4 or threatened to be infringed. What constitutes a reasonable or unreasonable search and seizure in any particular case is purely a judicial question, determinable from a consideration of the circumstances involved. 5 Petitioner Valmonte's general allegation to the effect that he had been stopped and searched without a search warrant by the military manning the checkpoints, without more, i.e., without stating the details of the incidents which amount to a violation of his right against unlawful search and seizure, is not sufficient to enable the Court to determine whether there was a violation of Valmonte's right against unlawful search and seizure. Not all searches and seizures are prohibited. Those which are reasonable are not forbidden. A reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts of each case. 6 Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds, 7 or simply looks into a vehicle, 8 or flashes a light therein, 9 these do not constitute unreasonable search. The setting up of the questioned checkpoints in Valenzuela (and probably in other areas) may be considered as a security measure to enable the NCRDC to pursue its mission of establishing effective territorial defense and maintaining peace and order for the benefit of the public. Checkpoints may also be regarded as measures to thwart plots to destabilize the government, in the interest of public security. In this connection, the Court may take judicial notice of the shift to urban centers and their suburbs of the insurgency movement, so clearly reflected in the increased killings in cities of police and military men by NPA "sparrow units," not to mention the abundance of unlicensed firearms and the alarming rise in lawlessness and violence in such urban centers, not all of which are reported in media, most likely brought about by deteriorating economic conditions which all sum up to what one can rightly consider, at the very least, as abnormal times. Between the inherent right of the state to protect its existence and promote public welfare and an individual's right against a warrantless search which is howeverreasonably conducted, the former should prevail. True, the manning of checkpoints by the military is susceptible of abuse by the men in uniform, in the same manner that all governmental power is susceptible of abuse. But, at the cost of occasional inconvenience, discomfort and even irritation to the citizen, the checkpoints during these abnormal times, when conducted within reasonable limits, are part of the price we pay for an orderly society and a peaceful community. Finally, on 17 July 1988, military and police checkpoints in Metro Manila were temporarily lifted and a review and refinement of the rules in the conduct of the police and military manning the checkpoints was ordered by the National Capital Regional Command Chief and the Metropolitan Police Director. 10 WHEREFORE, the petition is DISMISSED. SO ORDERED.

Ricardo C. Valmonte for himself and his co-petitioners.

PADILLA, J.: This is a petition for prohibition with preliminary injunction and/or temporary restraining order, seeking the declaration of checkpoints in Valenzuela, Metro Manila or elsewhere, as unconstitutional and the dismantling and banning of the same or, in the alternative, to direct the respondents to formulate guidelines in the implementation of checkpoints, for the protection of the people. Petitioner Ricardo C. Valmonte sues in his capacity as citizen of the Republic, taxpayer, member of the Integrated Bar of the Philippines (IBP), and resident of Valenzuela, Metro Manila; while petitioner Union of Lawyers and Advocates for People's Rights (ULAP) sues in its capacity as an association whose members are all members of the IBP. The factual background of the case is as follows: On 20 January 1987, the National Capital Region District Command (NCRDC) was activated pursuant to Letter of Instruction 02/87 of the Philippine General Headquarters, AFP, with the mission of conducting security operations within its area of responsibility and peripheral areas, for the purpose of establishing an effective territorial defense, maintaining peace and order, and providing an atmosphere conducive to the social, economic and political development of the National Capital Region. 1 As part of its duty to maintain peace and order, the NCRDC installed checkpoints in various parts of Valenzuela, Metro Manila. Petitioners aver that, because of the installation of said checkpoints, the residents of Valenzuela are worried of being harassed and of their safety being placed at the arbitrary, capricious and whimsical disposition of the military manning the checkpoints, considering that their cars and vehicles are being subjected to regular searches and check-ups, especially at night or at dawn, without the benefit of a search warrant and/or court order. Their alleged fear for their safety increased when, at dawn of 9 July 1988, Benjamin Parpon, a supply officer of the Municipality of Valenzuela, Bulacan, was gunned down allegedly in cold blood by the members of the NCRDC manning the checkpoint along McArthur Highway at Malinta, Valenzuela, for ignoring and/or refusing to submit himself to the checkpoint and for continuing to speed off inspire of warning shots fired in the air. Petitioner Valmonte also claims that, on several occasions, he had gone thru these checkpoints where he was stopped and his car subjected to search/check-up without a court order or search warrant. Petitioners further contend that the said checkpoints give the respondents a blanket authority to make searches and/or seizures without search warrant or court order in violation of the Constitution; 2 and, instances have occurred where a citizen, while not killed, had been harassed. Petitioners' concern for their safety and apprehension at being harassed by the military manning the checkpoints are not sufficient grounds to declare the checkpoints as per se illegal. No proof has been presented before the Court to show that, in the course of their routine checks, the military indeed committed specific violations of petitioners' right against unlawful search and seizure or other rights.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Bidin, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-19550 June 19, 1967

On March 22, 1962, this Court issued the writ of preliminary injunction prayed for in the petition. However, by resolution dated June 29, 1962, the writ was partially lifted or dissolved, insofar as the papers, documents and things seized from the offices of the corporations above mentioned are concerned; but, the injunction was maintained as regards the papers, documents and things found and seized in the residences of petitioners herein.7 Thus, the documents, papers, and things seized under the alleged authority of the warrants in question may be split into two (2) major groups, namely: (a) those found and seized in the offices of the aforementioned corporations, and (b) those found and seized in the residences of petitioners herein. As regards the first group, we hold that petitioners herein have no cause of action to assail the legality of the contested warrants and of the seizures made in pursuance thereof, for the simple reason that said corporations have their respective personalities, separate and distinct from the personality of herein petitioners, regardless of the amount of shares of stock or of the interest of each of them in said corporations, and whatever the offices they hold therein may be.8 Indeed, it is well settled that the legality of a seizure can be contested only by the party whose rights have been impaired thereby,9 and that the objection to an unlawful search and seizure is purely personal and cannot be availed of by third parties. 10 Consequently, petitioners herein may not validly object to the use in evidence against them of the documents, papers and things seized from the offices and premises of the corporations adverted to above, since the right to object to the admission of said papers in evidence belongs exclusively to the corporations, to whom the seized effects belong, and may not be invoked by the corporate officers in proceedings against them in their individual capacity. 11 Indeed, it has been held: . . . that the Government's action in gaining possession of papers belonging to the corporation did not relate to nor did it affect the personal defendants. If these papers were unlawfully seized and thereby the constitutional rights of or any one were invaded, they were the rights of the corporation and not the rights of the other defendants. Next, it is clear that a question of the lawfulness of a seizure can be raised only by one whose rights have been invaded. Certainly, such a seizure, if unlawful, could not affect the constitutional rights of defendants whose property had not

HARRY S. STONEHILL, ROBERT P. BROOKS, JOHN J. BROOKS and KARL BECK, petitioners, vs. HON. JOSE W. DIOKNO, in his capacity as SECRETARY OF JUSTICE; JOSE LUKBAN, in his capacity as Acting Director, National Bureau of Investigation; SPECIAL PROSECUTORS PEDRO D. CENZON, EFREN I. PLANA and MANUEL VILLAREAL, JR. and ASST. FISCAL MANASES G. REYES; JUDGE AMADO ROAN, Municipal Court of Manila; JUDGE ROMAN CANSINO, Municipal Court of Manila; JUDGE HERMOGENES CALUAG, Court of First Instance of Rizal-Quezon City Branch, and JUDGE DAMIAN JIMENEZ, Municipal Court of Quezon City, respondents.

Paredes, Poblador, Cruz and Nazareno and Meer, Meer and Meer and Juan T. David for petitioners. Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Pacifico P. de Castro, Assistant Solicitor General Frine C. Zaballero, Solicitor Camilo D. Quiason and Solicitor C. Padua for respondents.
CONCEPCION, C.J.: Upon application of the officers of the government named on the margin1 hereinafter referred to as Respondents-Prosecutors several judges2 hereinafter referred to as Respondents-Judges issued, on different dates,3 a total of 42 search warrants against petitioners herein4 and/or the corporations of which they were officers,5 directed to the any peace officer, to search the persons above-named and/or the premises of their offices, warehouses and/or residences, and to seize and take possession of the following personal property to wit: Books of accounts, financial records, vouchers, correspondence, receipts, ledgers, journals, portfolios, credit journals, typewriters, and other documents and/or papers showing all business transactions including disbursements receipts, balance sheets and profit and loss statements and Bobbins (cigarette wrappers). as "the subject of the offense; stolen or embezzled and proceeds or fruits of the offense," or "used or intended to be used as the means of committing the offense," which is described in the applications adverted to above as "violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue (Code) and the Revised Penal Code." Alleging that the aforementioned search warrants are null and void, as contravening the Constitution and the Rules of Court because, inter alia: (1) they do not describe with particularity the documents, books and things to be seized; (2) cash money, not mentioned in the warrants, were actually seized; (3) the warrants were issued to fish evidence against the aforementioned petitioners in deportation cases filed against them; (4) the searches and seizures were made in an illegal manner; and (5) the documents, papers and cash money seized were not delivered to the courts that issued the warrants, to be disposed of in accordance with law on March 20, 1962, said petitioners filed with the Supreme Court this original action for certiorari, prohibition, mandamus and injunction, and prayed that, pending final disposition of the present case, a writ of preliminary injunction be issued restraining Respondents-Prosecutors, their agents and /or representatives from using the effects seized as aforementioned or any copies thereof, in the deportation cases already adverted to, and that, in due course, thereafter, decision be rendered quashing the contested search warrants and declaring the same null and void, and commanding the respondents, their agents or representatives to return to petitioners herein, in accordance with Section 3, Rule 67, of the Rules of Court, the documents, papers, things and cash moneys seized or confiscated under the search warrants in question. In their answer, respondents-prosecutors alleged, 6 (1) that the contested search warrants are valid and have been issued in accordance with law; (2) that the defects of said warrants, if any, were cured by petitioners' consent; and (3) that, in any event, the effects seized are admissible in evidence against herein petitioners, regardless of the alleged illegality of the aforementioned searches and seizures.

been seized or the privacy of whose homes had not been disturbed; nor could they claim for themselves the benefits

of the Fourth Amendment, when its violation, if any, was with reference to the rights of another. Remus vs. United States (C.C.A.)291 F. 501, 511. It follows, therefore, that the question of the admissibility of the evidence based on an alleged unlawful search and seizure does not extend to the personal defendants but embraces only the corporation whose property was taken. . . . (A Guckenheimer & Bros. Co. vs. United States, [1925] 3 F. 2d. 786, 789, Emphasis supplied.) With respect to the documents, papers and things seized in the residences of petitioners herein, the aforementioned resolution of June 29, 1962, lifted the writ of preliminary injunction previously issued by this Court, 12 thereby, in effect, restraining herein RespondentsProsecutors from using them in evidence against petitioners herein. In connection with said documents, papers and things, two (2) important questions need be settled, namely: (1) whether the search warrants in question, and the searches and seizures made under the authority thereof, are valid or not, and (2) if the answer to the preceding question is in the negative, whether said documents, papers and things may be used in evidence against petitioners herein.1wph1.t Petitioners maintain that the aforementioned search warrants are in the nature of general warrants and that accordingly, the seizures effected upon the authority there of are null and void. In this connection, the Constitution 13 provides: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized. Two points must be stressed in connection with this constitutional mandate, namely: (1) that no warrant shall issue but upon probable

cause, to be determined by the judge in the manner set forth in said provision; and (2) that the warrant shall particularly describe the things to be seized. None of these requirements has been complied with in the contested warrants. Indeed, the same were issued upon applications stating that the natural and juridical person therein named had committed a "violation of Central Ban Laws, Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal Code." In other words, no specific offense had been alleged in said applications. The averments thereof with respect to the offense committed were abstract. As a consequence, it was impossible for the judges who issued the warrants to have found the existence of probable cause, for the same presupposes the introduction of competent proof that the party against whom it is sought has performed particular acts, or committed specific omissions, violating a given provision of our criminal laws. As a matter of fact, the applications involved in this case do not allege any specific acts performed by herein petitioners. It would be the legal heresy, of the highest order, to convict anybody of a "violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal Code," as alleged in the aforementioned applications without reference to any determinate provision of said laws or To uphold the validity of the warrants in question would be to wipe out completely one of the most fundamental rights guaranteed in our Constitution, for it would place the sanctity of the domicile and the privacy of communication and correspondence at the mercy of the whims caprice or passion of peace officers. This is precisely the evil sought to be remedied by the constitutional provision above quoted to outlaw the so-called general warrants. It is not difficult to imagine what would happen, in times of keen political strife, when the party in power feels that the minority is likely to wrest it, even though by legal means. Such is the seriousness of the irregularities committed in connection with the disputed search warrants, that this Court deemed it fit to amend Section 3 of Rule 122 of the former Rules of Court 14 by providing in its counterpart, under the Revised Rules of Court 15 that "a search warrant shall not issue but upon probable cause in connection with one specific offense." Not satisfied with this qualification, the Court added thereto a paragraph, directing that "no search warrant shall issue for more than one specific offense." The grave violation of the Constitution made in the application for the contested search warrants was compounded by the description therein made of the effects to be searched for and seized, to wit: Books of accounts, financial records, vouchers, journals, correspondence, receipts, ledgers, portfolios, credit journals, typewriters, and other documents and/or papers showing all business transactions including disbursement receipts, balance sheets and related profit and loss statements. Thus, the warrants authorized the search for and seizure of records pertaining to all business transactions of petitioners herein, regardless of whether the transactions were legal or illegal. The warrants sanctioned the seizure of all records of the petitioners and the aforementioned corporations, whatever their nature, thus openly contravening the explicit command of our Bill of Rights that the things to be seized be particularly described as well as tending to defeat its major objective: the elimination of general warrants. Relying upon Moncado vs. People's Court (80 Phil. 1), RespondentsProsecutors maintain that, even if the searches and seizures under consideration were unconstitutional, the documents, papers and things thus seized are admissible in evidence against petitioners herein. Upon mature deliberation, however, we are unanimously of the opinion that the position taken in the Moncado case must be abandoned. Said position was in line with the American common law rule, that the criminal should not be allowed to go free merely "because the constable has blundered," 16 upon the theory that the constitutional prohibition against unreasonable searches and seizures is protected by means other than the exclusion of evidence unlawfully obtained, 17 such as the common-law action for damages against the searching officer, against the party who procured the issuance of the search warrant and against those assisting in the execution of an illegal search, their criminal punishment, resistance, without liability to an unlawful seizure, and such other legal remedies as may be provided by other laws. However, most common law jurisdictions have already given up this approach and eventually adopted the exclusionary rule, realizing that this is the only practical means of enforcing the constitutional injunction against unreasonable searches and seizures. In the language of Judge Learned Hand:

As we understand it, the reason for the exclusion of evidence competent as such, which has been unlawfully acquired, is that exclusion is the only practical way of enforcing the constitutional privilege. In earlier times the action of trespass against the offending official may have been protection enough; but that is true no longer. Only in case the prosecution which itself controls the seizing officials, knows that it cannot profit by their wrong will that wrong be repressed.18 In fact, over thirty (30) years before, the Federal Supreme Court had already declared: If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the 4th Amendment, declaring his rights to be secure against such searches and seizures, is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. The efforts of the

courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.19
This view was, not only reiterated, but, also, broadened in subsequent decisions on the same Federal Court. 20 After reviewing previous decisions thereon, said Court held, in Mapp vs. Ohio (supra.): . . . Today we once again examine the Wolf's constitutional documentation of the right of privacy free from unreasonable state intrusion, and after its dozen years on our books, are led by it to close the only courtroom door remaining open to evidence secured by official lawlessness in flagrant abuse of that basic right, reserved to all persons as a specific guarantee against that very same unlawful conduct. We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a State. Since the Fourth Amendment's right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion as it used against the Federal Government. Were it otherwise, then just as without the Weeks rule the assurance against unreasonable federal searches and seizures would be "a form of words," valueless and underserving of mention in a perpetual charter of inestimable human liberties, so too, without that rule the

freedom from state invasions of privacy would be so ephemeral and so neatly severed from its conceptual nexus with the freedom from all brutish means of coercing evidence as not to permit this Court's high regard as a freedom "implicit in the concept of ordered liberty." At the

time that the Court held in Wolf that the amendment was applicable to the States through the Due Process Clause, the cases of this Court as we have seen, had steadfastly held that as to federal officers the Fourth Amendment included the exclusion of the evidence seized in violation of its provisions. Even Wolf "stoutly adhered" to that proposition. The right to when conceded operatively enforceable against the States, was not susceptible of destruction by avulsion of the sanction upon which its protection and enjoyment had always been deemed dependent under the Boyd, Weeks and Silverthorne Cases. Therefore, in extending the substantive protections of due process to all constitutionally unreasonable searches state or federal it was logically and constitutionally necessarily that the exclusion doctrine an essential part of the right to privacy be also insisted upon as an essential ingredient of the right newly recognized by the Wolf Case. In short, the admission of the new

constitutional Right by Wolf could not tolerate denial of its most important constitutional privilege, namely, the exclusion of the evidence which an accused had been forced to give by reason of the unlawful seizure. To hold otherwise is to grant the right but in reality to withhold its privilege and enjoyment. Only last year the Court itself recognized that the purpose of the exclusionary rule to "is to deter to compel respect for the constitutional guaranty in the only effectively available way by removing the incentive to disregard it" . . . .
The ignoble shortcut to conviction left open to the State tends to destroy the entire system of constitutional restraints on which the liberties of the people rest. Having once recognized that the right to privacy embodied in the Fourth

Amendment is enforceable against the States, and that the right to be secure against rude invasions of privacy by state officers is, therefore constitutional in origin, we can no longer permit that right to remain an empty promise. Because it is enforceable in the same manner and to like effect as other basic rights secured by its Due Process Clause, we can no longer permit it to be revocable at the

whim of any police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment. Our decision, founded on reason and truth, gives to the individual no more than that which the Constitution guarantees him to the police officer no less than that to which honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of justice. (emphasis ours.)
Indeed, the non-exclusionary rule is contrary, not only to the letter, but also, to the spirit of the constitutional injunction against unreasonable searches and seizures. To be sure, if the applicant for a search warrant has competent evidence to establish probable cause of the commission of a given crime by the party against whom the warrant is intended, then there is no reason why the applicant should not comply with the requirements of the fundamental law. Upon the other hand, if he has no such competent evidence, then it is not possible for the Judge to find that there is probable cause, and, hence, no justification for the issuance of the warrant. The only possible explanation (not justification) for its issuance is the necessity of fishing evidence of the commission of a crime. But, then, this fishing expedition is indicative of the absence of evidence to establish a probable cause. Moreover, the theory that the criminal prosecution of those who secure an illegal search warrant and/or make unreasonable searches or seizures would suffice to protect the constitutional guarantee under consideration, overlooks the fact that violations thereof are, in general, committed By agents of the party in power, for, certainly, those belonging to the minority could not possibly abuse a power they do not have. Regardless of the handicap under which the minority usually but, understandably finds itself in prosecuting agents of the majority, one must not lose sight of the fact that the psychological and moral effect of the possibility 21 of securing their conviction, is watered down by the pardoning power of the party for whose benefit the illegality had been committed. In their Motion for Reconsideration and Amendment of the Resolution of this Court dated June 29, 1962, petitioners allege that Rooms Nos. 81 and 91 of Carmen Apartments, House No. 2008, Dewey Boulevard, House No. 1436, Colorado Street, and Room No. 304 of the Army-Navy Club, should be included among the premises considered in said Resolution as residences of herein petitioners, Harry S. Stonehill, Robert P. Brook, John J. Brooks and Karl Beck, respectively, and that, furthermore, the records, papers and other effects seized in the offices of the corporations above referred to include personal belongings of said petitioners and other effects under their exclusive possession and control, for the exclusion of which they have a standing under the latest rulings of the federal courts of federal courts of the United States. 22 We note, however, that petitioners' theory, regarding their alleged possession of and control over the aforementioned records, papers and effects, and the alleged "personal" nature thereof, has Been Advanced, not in their petition or amended petition herein, but in the Motion for Reconsideration and Amendment of the Resolution of June 29, 1962. In other words, said theory would appear to be readjustment of that followed in said petitions, to suit the approach intimated in the Resolution sought to be reconsidered and amended. Then, too, some of the affidavits or copies of alleged affidavits attached to said motion for reconsideration, or submitted in support thereof, contain either inconsistent allegations, or allegations inconsistent with the theory now advanced by petitioners herein. Upon the other hand, we are not satisfied that the allegations of said petitions said motion for reconsideration, and the contents of the aforementioned affidavits and other papers submitted in support of said motion, have sufficiently established the facts or conditions contemplated in the cases relied upon by the petitioners; to warrant application of the views therein expressed, should we agree thereto. At any rate, we do not deem it necessary to express our opinion thereon, it being best to leave the matter open for determination in appropriate cases in the future. We hold, therefore, that the doctrine adopted in the Moncado case must be, as it is hereby, abandoned; that the warrants for the search of three (3) residences of herein petitioners, as specified in the Resolution of June 29, 1962, are null and void; that the searches and seizures therein made are illegal; that the writ of preliminary injunction

heretofore issued, in connection with the documents, papers and other effects thus seized in said residences of herein petitioners is hereby made permanent; that the writs prayed for are granted, insofar as the documents, papers and other effects so seized in the aforementioned residences are concerned; that the aforementioned motion for Reconsideration and Amendment should be, as it is hereby, denied; and that the petition herein is dismissed and the writs prayed for denied, as regards the documents, papers and other effects seized in the twenty-nine (29) places, offices and other premises enumerated in the same Resolution, without special pronouncement as to costs. It is so ordered.

Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.
Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. 119220 September 20, 1996 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NILO SOLAYAO, accused-appellant.

ROMERO, J.: Accused-appellant Nilo Solayao was charged before the Regional Trial Court of Naval, Biliran, Branch 16, with the crime of illegal possession of firearm and ammunition 1 defined and penalized under Presidential Decree No. 1866. The lone prosecution witness, SPO3 Jose Nio, narrated that at about 9:00 o'clock in the evening of July 9, 1992, with CAFGU members Teofilo Llorad, Jr. and Cecilio Cenining, he went to Barangay Caulangohan, Caibiran, Biliran. They were to conduct an intelligence patrol as required of them by their intelligence officer to verify reports on the presence of armed persons roaming around the barangays of Caibiran. 2 From Barangay Caulangohan, the team of Police Officer Nio proceeded to Barangay Onion where they met the group of accused-appellant Nilo Solayao numbering five. The former became suspicious when they observed that the latter were drunk and that accused-appellant himself was wearing a camouflage uniform or a jungle suit. Accused-appellant's companions, upon seeing the government agents, fled. 3 Police Officer Nio told accused-appellant not to run away and introduced himself as "PC," after which he seized the dried coconut leaves which the latter was carrying and found wrapped in it a 49-inch long homemade firearm locally know as "latong." When he asked accused-appellant who issued him a license to carry said firearm or whether he was connected with the military or any intelligence group, the latter answered that he had no permission to possess the same. Thereupon, SPO3 Nio confiscated the firearm and turned him over to the custody of the policemen of Caibiran who subsequently investigated him and charged him with illegal possession of firearm. 4 Accused-appellant, in his defense, did not contest the confiscation of the shotgun but averred that this was only given to him by one of his companions, Hermogenes Cenining, when it was still wrapped in coconut leaves. He claimed that he was not aware that there was a shotgun concealed inside the coconut leaves since they were using the coconut leaves as a torch. He further claimed that this was the third torch handed to him after the others had been used up. 5 Accused-appellant's claim was corroborated by one Pedro Balano that he indeed received a torch from Hermogenes Cenining which turned out to be a shotgun wrapped in coconut leaves. 6

On August 25, 1994, the trial court found accused-appellant guilty of illegal possession of firearm under Section 1 of Presidential Decree No. 1866 and imposed upon him the penalty of imprisonment ranging from reclusion temporal maximum to reclusion perpetua. The trial court, having found no mitigating but one aggravating circumstance of nighttime, sentenced accused-appellant to suffer the prison term of reclusion perpetua with the accessory penalties provided by law. 7 It found that accused-appellant did not contest the fact that SPO3 Nio confiscated the firearm from him and that he had no permit or license to possess the same. It hardly found credible accused-appellant's submission that he was in possession of the firearm only by accident and that upon reaching Barangay Onion, he followed four persons, namely, Hermogenes Cenining, Antonio Sevillano, Willie Regir and Jovenito Jaro when he earlier claimed that he did not know his companions. 8 Accused-appellant comes to this Court on appeal and assigns the following errors: I. The trial court erred in admitting in evidence the homemade firearm. II. The trial court erred in appreciating the aggravating circumstance of nighttime in the imposition of the maximum penalty against the accused-appellant. 9 This court, in the case of People v. Lualhati 10 ruled that in crimes involving illegal possession of firearm, the prosecution has the burden of proving the elements thereof, viz: (a) the existence of the subject firearm and (b) the fact that the accused who owned or possessed it does not have the corresponding license or permit to possess the same. In assigning the first error, accused-appellant argued that the trial court erred in admitting the subject firearm in evidence as it was the product of an unlawful warrantless search. He maintained that the search made on his person violated his constitutional right to be secure in his person and effects against unreasonable searches and seizures. Not only was the search made without a warrant but it did not fall under any of the circumstances enumerated under Section 5, Rule 113 of the 1985 Rules on Criminal Procedure which provides, inter alia: A peace officer or a private person may, without a warrant, arrest a person when in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. Hence, the search being unlawful, the homemade firearm confiscated from him is inadmissible in evidence for being "the fruit of the poisonous tree." 11 As such, the prosecution's case must necessarily fail and the accused-appellant acquitted. Accused-appellant's arguments follow the line of reasoning in People v. Cuizon, et al. 12 where this Court declared: ". . . emphasis is to be laid on the fact that the law requires that the search be incident to a lawful arrest, in order that the search itself may likewise be considered legal. Therefore, it is beyond cavil that a lawful arrest must precede the search of a person and his belongings. Were a search first undertaken, then an arrest effected based on evidence produced by the search, both such search and arrest would be unlawful, for being contrary to law." Under the circumstances obtaining in this case, however, accused-appellant's arguments are hardy tenable. He and his companions' drunken actuations aroused the suspicion of SPO3 Nio's group, as well as the fact that he himself was attired in a camouflage uniform or a jungle suit 13 and that upon espying the peace officers, his companions fled. It should be noted that the peace officers were precisely on an intelligence mission to verify reports that armed persons were roaming around the barangays of Caibiran. 14 The circumstances in this case are similar to those obtaining in Posadas v. Court of Appeals 15 where this Court held that "at the time the peace officers identified themselves and apprehended the petitioner as he attempted to flee, they did

not know that he had committed, or was actually committing the offense of illegal possession of firearm and ammunitions. They just suspended that he was hiding something in the buri bag. They did not know what its contents were. The said circumstances did not justify an arrest without a warrant." This Court, nevertheless, ruled that the search and seizure in the Posadas case brought about by the suspicious conduct of Posadas himself can be likened to a "stop and frisk" situation. There was probable cause to conduct a search even before an arrest could be made. In the present case, after SPO3 Nio told accused-appellant not to run away, the former identified himself as a government agents. 16 The peace officers did not know that he had committed, or was actually committing, the offense of illegal possession of firearm. Tasked with verifying the report that there were armed men roaming in the barangays surrounding Caibiran, their attention was understandably drawn to the group that had aroused their suspicion. They could not have known that the object wrapped in coconut leaves which accused-appellant was carrying hid a firearm. As with Posadas, the case at bar constitutes an instance where a search and seizure may be effected without first making an arrest. There was justifiable cause to "stop and frisk" accused-appellant when his companions filed upon seeing the government agents. Under the circumstances, the government agents could not possibly have procured a search warrant first. Thus, there was no violation of the constitutional guarantee against unreasonable searches and seizures. Nor was there error on the part of the trial court when it admitted the homemade firearm as evidence. As to the question of whether or not the prosecution was able to prove the second element, that is, the absence of a license or permit to possess the subject firearm, this Court agrees with the Office of the Solicitor General which pointed out that the prosecution failed to prove that accusedappellant lacked the necessary permit or license to possess the subject firearm. 17 Undoubtedly, it is the constitutional presumption of innocence that lays such burden upon the prosecution. The absence of such license and legal authority constitutes an essential ingredient of the offense of illegal possession of firearm, and every ingredient or essential element of an offense must be shown by the prosecution by proof beyond reasonable doubt. 18 In People v. Tiozon,
19

this Court said:

It is true that People vs. Lubo, 101 Phil. 179 and People vs. Ramos, 8 SCRA 758 could be invoked to support the view that it is incumbent upon a person charged with illegal possession of a firearm to prove the issuance to him of a license to possess the firearm, but we are of the considered opinion that under the provisions of Section 2, Rule 131 of the Rules of Court which provide that in criminal cases the burden of proof as to the offense charged lies on the prosecution and that a negative fact alleged by the prosecution must be proven if "it is an essential ingredient of the offense charged," the burden of proof was with the prosecution in this case to prove that the firearm used by appellant in committing the offense charged was not properly licensed. It cannot be denied that the lack or absence of a license is an essential ingredient of the offense of illegal possession of a firearm. The information filed against appellant in Criminal Case No. 3558 of the lower court (now G.R. No. 27681) specifically alleged that he had no "license or permit to possess" the .45 caliber pistol mentioned therein. Thus it seems clear that it was the prosecution's duty not merely to allege that negative fact but to prove it. This view is supported by similar adjudicated cases. In U.S. vs. Tria, 17 Phil. 303, the accused was charged with "having criminally inscribed himself as a voter

knowing that he had none of the qualifications required to be a voter. It was there held that the negative fact of lack of qualification to be a voter was an essential element of the crime charged and should be proved by the prosecution. In another case (People vs. Quebral. 68 Phil. 564) where the accused was charged with illegal practice of medicine because he had diagnosed, treated and prescribed for certain diseases suffered by certain patients from whom he received monetary compensation, without having previously obtained the proper certificate of registration from the Board of Medical Examiners, as provided in Section 770 of the Administrative Code, this Court held that if the subject of the negative averment like, for instance, the act of voting without the qualifications provided by law is an essential ingredient of the offense charged, the prosecution has the burden of proving the same, although in view of the difficulty of proving a negative allegation, the prosecution, under such circumstance, need only establish a prima facie case from the best evidence obtainable. In the case before Us, both appellant and the Solicitor General agree that there was not even a prima facie case upon which to hold appellant guilty of the illegal possession of a firearm. Former Chief Justice Moral upholds this view as follows: The mere fact that the adverse party has the control of the better means of proof of the fact alleged, should not relieve the party making the averment of the burden of proving it. This is so, because a party who alleges a fact must be assumed to have acquired some knowledge thereof, otherwise he could not have alleged it. Familiar instance of this is the case of a person prosecuted for doing an act or carrying on a business, such as, the sale of liquor without a license. How could the prosecution aver the want of a license if it had acquired no knowledge of that fact? Accordingly, although proof of the existence or non-existence of such license can, with more facility, be adduced by the defendant, it is nevertheless, encumber upon the party alleging the want of the license to prove the allegation. Naturally, as the subject matter of the averment is one which lies peculiarly within the control or knowledge of the accused prima facie evidence thereof on the part of the prosecution shall suffice to cast the onus upon him." (6 Moran, Comments on the Rules of Court, 1963 edition, p. 8). Finally, the precedents cited above have been crystallized as the present governing case law on this question. As this Court summed up the doctrine in People v. Macagaling: 20 We cannot see how the rule can be otherwise since it is the inescapable duty of the prosecution to prove all the ingredients of the offense as alleged against the accused in an information, which allegations must perforce include any negative element provided by the law to integrate that offense. We have reiterated quite recently the fundamental mandate that since the prosecution must allege all the elements of the offense charged, then it must prove by the requisite quantum of evidence all the elements it has thus alleged. In the case at bar, the prosecution was only able to prove by testimonial evidence that accused-appellant admitted before Police Officer Nio at the time that he was accosted that he did not have any authority or license to carry the subject firearm when he was asked if he had one. 21 In other words, the prosecution relied on accused-appellant's admission to prove the second element. Is this admission sufficient to prove beyond reasonable doubt the second element of illegal possession of firearm which is that accused-appellant does not have the corresponding license? Corollary to the above question is whether an admission by the accused-appellant can take the place of any evidentiary means establishing beyond reasonable doubt the fact averred in the negative in the pleading and which forms an essential ingredient of the crime charged.

This Court answers both questions in the negative. By its very nature, an "admission is the mere acknowledgment of a fact or of circumstance from which guilt may be inferred, tending to incriminate the speaker, but not sufficient of itself to establish his guilt." 22 In other words, it is a "statement by defendant of fact or facts pertinent to issues pending, in connection with proof of other facts or circumstances, to prove guilt, but which is, of itself, insufficient to authorize conviction." 23 From the above principles, this Court can infer that an admission in criminal cases is insufficient to prove beyond reasonable doubt the commission of the crime charged. Moreover, said admission is extra-judicial in nature. As such, it does not fall under Section 4 of Rule 129 of the Revised Rules of Court which states: An admission, verbal or written, made by a party in the course of the trial or other proceedings in the same case does not require proof. Not being a judicial admission, said statement by accusedappellant does not prove beyond reasonable doubt the second element of illegal possession of firearm. It does not even establish a prima facie case. It merely bolsters the case for the prosecution but does not stand as proof of the fact of absence or lack of a license. This Court agrees with the argument of the Solicitor General that "while the prosecution was able to establish the fact that the subject firearm was seized by the police from the possession of appellant, without the latter being able to present any license or permit to possess the same, such fact alone is not conclusive proof that he was not lawfully authorized to carry such firearm. In other words, such fact does not relieve the prosecution from its duty to establish the lack of a license or permit to carry the firearm by clear and convincing evidence, like a certification from the government agency concerned." 24 Putting it differently, "when a negative is averred in a pleading, or a plaintiff's case depends upon the establishment of a negative, and the means of proving the fact are equally within the control of each party, then the burden of proof is upon the party averring the negative." 25 In this case, a certification from the Firearms and Explosives Unit of the Philippine National Police that accused-appellant was not a licensee of a firearm of any kind or caliber would have sufficed for the prosecution to prove beyond reasonable doubt the second element of the crime of illegal possession of firearm. In view of the foregoing, this Court sees no need to discuss the second assigned error. WHEREFORE, the assailed judgment of the court a quo is REVERSED and SET ASIDE. Accused-appellant Nilo Solayao is hereby ACQUITTED for insufficiency of evidence and ordered immediately released unless there are other legal grounds for his continued detention, with cost de oficio. SO ORDERED.

Regalado, Puno and Torres, Jr., JJ., concur. Mendoza, J., is on leave.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 107383 February 20, 1996

CECILIA ZULUETA, petitioner, vs. COURT OF APPEALS and ALFREDO MARTIN, respondents. DECISION MENDOZA, J.: This is a petition to review the decision of the Court of Appeals, affirming the decision of the Regional Trial Court of Manila (Branch X) which ordered petitioner to return documents and papers taken by her from private respondent's clinic without the latter's knowledge and consent. The facts are as follows: Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26, 1982, petitioner entered the clinic of her husband, a doctor of medicine, and in the presence of her mother, a driver and private respondent's secretary, forcibly opened the drawers and cabinet in her husband's clinic and took 157 documents consisting of private correspondence between Dr. Martin and his alleged paramours, greetings cards, cancelled checks, diaries, Dr. Martin's passport, and photographs. The documents and papers were seized for use in evidence in a case for legal separation and for disqualification from the practice of medicine which petitioner had filed against her husband. Dr. Martin brought this action below for recovery of the documents and papers and for damages against petitioner. The case was filed with the Regional Trial Court of Manila, Branch X, which, after trial, rendered judgment for private respondent, Dr. Alfredo Martin, declaring him "the capital/exclusive owner of the properties described in paragraph 3 of plaintiff's Complaint or those further described in the Motion to Return and Suppress" and ordering Cecilia Zulueta and any person acting in her behalf to a immediately return the properties to Dr. Martin and to pay him P5,000.00, as nominal damages; P5,000.00, as moral damages and attorney's fees; and to pay the costs of the suit. The writ of preliminary injunction earlier issued was made final and petitioner Cecilia Zulueta and her attorneys and representatives were enjoined from "using or submitting/admitting as evidence" the documents and papers in question. On appeal, the Court of Appeals affirmed the decision of the Regional Trial Court. Hence this petition. There is no question that the documents and papers in question belong to private respondent, Dr. Alfredo Martin, and that they were taken by his wife, the herein petitioner, without his knowledge and consent. For that reason, the trial court declared the documents and papers to be properties of private respondent, ordered petitioner to return them to private respondent and enjoined her from using them in evidence. In appealing from the decision of the Court of Appeals affirming the trial court's decision, petitioner's only ground is that in Alfredo Martin v. Alfonso Felix, Jr.,1 this Court ruled that the documents and papers (marked as Annexes A-1 to J-7 of respondent's comment in that case) were admissible in evidence and, therefore, their use by petitioner's attorney, Alfonso Felix did not constitute malpractice or gross misconduct, For this reason it is contended that the Court of Appeals erred in affirming the decision of the trial court instead of dismissing private respondent's complaint. Petitioner's contention has no merit. The case against Atty. Felix, Jr. was for disbarment. Among other things, private respondent, Dr. Alfredo Martin, as complainant in that case, charged that in using the documents in evidence, Atty. Felix, Jr. committed malpractice or gross misconduct because of the injunctive order of the trial court. In dismissing the complaint against Atty. Felix, Jr., this Court took note of the following defense of Atty. Felix; Jr. which it found to be "impressed with merit:"2 On the alleged malpractice or gross misconduct of respondent [Alfonso Felix, Jr.], he maintains that:

4. When respondent refiled Cecilia's case for legal separation before the Pasig Regional Trial Court, there was admittedly an order of the Manila Regional Trial Court prohibiting Cecilia from using the documents Annex "A-1 to J-7." On September 6, 1983, however having appealed the said order to this Court on a petition for certiorari, this Court issued a restraining order on aforesaid date which order temporarily set aside the order of the trial court. Hence, during the enforceability of this Court's order, respondent's request for petitioner to admit the genuineness and authenticity of the subject annexes cannot be looked upon as malpractice. Notably, petitioner Dr. Martin finally admitted the truth and authenticity of the questioned annexes, At that point in time, would it have been malpractice for respondent to use petitioner's admission as evidence against him in the legal separation case pending in the Regional Trial Court of Makati? Respondent submits it is not malpractice. Significantly, petitioner's admission was done not thru his counsel but by Dr. Martin himself under oath, Such verified admission constitutes an affidavit, and, therefore, receivable in evidence against him. Petitioner became bound by his admission. For Cecilia to avail herself of her husband's admission and use the same in her action for legal separation cannot be treated as malpractice.

Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to no more than a declaration that his use of the documents and papers for the purpose of securing Dr. Martin's admission as to their genuiness and authenticity did not constitute a violation of the injunctive order of the trial court. By no means does the decision in that case establish the admissibility of the documents and papers in question. It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the charge of violating the writ of preliminary injunction issued by the trial court, it was only because, at the time he used the documents and papers, enforcement of the order of the trial court was temporarily restrained by this Court. The TRO issued by this Court was eventually lifted as the petition for certiorari filed by petitioner against the trial court's order was dismissed and, therefore, the prohibition against the further use of the documents and papers became effective again.

Indeed the documents and papers in question are inadmissible in evidence. The constitutional injunction declaring "the privacy of communication and correspondence [to be] inviolable"3 is no less applicable simply because it is the wife (who thinks herself aggrieved by her husband's infidelity) who is the party against whom the constitutional provision is to be enforced. The only exception to the prohibition in the Constitution is if there is a "lawful order [from a] court or when public safety or order requires otherwise, as prescribed by law."4 Any violation of this provision renders the evidence obtained inadmissible "for any purpose in any proceeding." 5 The intimacies between husband and wife do not justify any one of them in breaking the drawers and cabinets of the other and in ransacking them for any telltale evidence of marital infidelity. A person, by contracting marriage, does not shed his/her integrity or his right to privacy as an individual and the constitutional protection is ever available to him or to her. The law insures absolute freedom of communication between the spouses by making it privileged. Neither husband nor wife may testify for or against the other without the consent of the affected spouse while the marriage subsists.6 Neither may be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage, save for specified exceptions.7 But one thing is freedom of communication; quite another is a compulsion for each one to share what one knows with the other. And this has nothing to do with the duty of fidelity that each owes to the other. WHEREFORE, the petition for review is DENIED for lack of merit. SO ORDERED.

Regalado, Romero and Puno, JJ., concur.

....

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-69809 October 16, 1986 EDGARDO A. GAANAN, petitioner, vs. INTERMEDIATE APPELLATE COURT and PEOPLE OF THE PHILIPPINES, respondents.

(f) Allow Manuel Montebon to continue teaching at the Don Bosco Technical School; (g) Not to divulge the truth about the settlement of the Direct Assault Case to the mass media; (h) P2,000.00 attorney s fees for Atty. Pintor. (tsn, August 26, 1981, pp. 47-48). Twenty minutes later, complainant called up again to ask Laconico if he was agreeable to the conditions. Laconico answered 'Yes'. Complainant then told Laconico to wait for instructions on where to deliver the money. (tsn, March 10, 1983, pp. 2-12). Complainant called up again and instructed Laconico to give the money to his wife at the office of the then Department of Public Highways. Laconico who earlier alerted his friend Colonel Zulueta of the Criminal Investigation Service of the Philippine Constabulary, insisted that complainant himself should receive the money. (tsn, March 10, 1982, pp. 26-33). When he received the money at the Igloo Restaurant, complainant was arrested by agents of the Philippine Constabulary. Appellant executed on the following day an affidavit stating that he heard complainant demand P8,000.00 for the withdrawal of the case for direct assault. Laconico attached the affidavit of appellant to the complainant for robbery/extortion which he filed against complainant. Since appellant listened to the telephone conversation without complainant's consent, complainant charged appellant and Laconico with violation of the Anti-Wiretapping Act. After trial on the merits, the lower court, in a decision dated November 22, 1982, found both Gaanan and Laconico guilty of violating Section 1 of Republic Act No. 4200. The two were each sentenced to one (1) year imprisonment with costs. Not satisfied with the decision, the petitioner appealed to the appellate court. On August 16, 1984, the Intermediate Appellate Court affirmed the decision of the trial court, holding that the communication between the complainant and accused Laconico was private in nature and, therefore, covered by Rep. Act No. 4200; that the petitioner overheard such communication without the knowledge and consent of the complainant; and that the extension telephone which was used by the petitioner to overhear the telephone conversation between complainant and Laconico is covered in the term "device' as provided in Rep. Act No. 4200. In this petition for certiorari, the petitioner assails the decision of the appellate court and raises the following issues; (a) whether or not the telephone conversation between the complainant and accused Laconico was private in nature; (b) whether or not an extension telephone is covered by the term "device or arrangement" under Rep. Act No. 4200; (c) whether or not the petitioner had authority to listen or overhear said telephone conversation and (d) whether or not Rep. Act No. 4200 is ambiguous and, therefore, should be construed in favor of the petitioner. Section 1 of Rep. Act No. 4200 provides:

GUTIERREZ, JR., J.: This petition for certiorari asks for an interpretation of Republic Act (RA) No. 4200, otherwise known as the Anti-Wiretapping Act, on the issue of whether or not an extension telephone is among the prohibited devices in Section 1 of the Act, such that its use to overhear a private conversation would constitute unlawful interception of communications between the two parties using a telephone line. The facts presented by the People and narrated in the respondent court's decision are not disputed by the petitioner. In the morning of October 22, 1975, complainant Atty. Tito Pintor and his client Manuel Montebon were in the living room of complainant's residence discussing the terms for the withdrawal of the complaint for direct assault which they filed with the Office of the City Fiscal of Cebu against Leonardo Laconico. After they had decided on the proposed conditions, complainant made a telephone call to Laconico (tsn, August 26, 1981, pp. 3-5). That same morning, Laconico telephoned appellant, who is a lawyer, to come to his office and advise him on the settlement of the direct assault case because his regular lawyer, Atty. Leon Gonzaga, went on a business trip. According to the request, appellant went to the office of Laconico where he was briefed about the problem. (Exhibit 'D', tsn, April 22, 1982, pp. 4-5). When complainant called up, Laconico requested appellant to secretly listen to the telephone conversation through a telephone extension so as to hear personally the proposed conditions for the settlement. Appellant heard complainant enumerate the following conditions for withdrawal of the complaint for direct assault. (a) the P5,000.00 was no longer acceptable, and that the figure had been increased to P8,000.00. A breakdown of the P8,000.00 had been made together with other demands, to wit: (a) P5,000.00 no longer for the teacher Manuel Montebon, but for Atty. Pintor himself in persuading his client to withdraw the case for Direct Assault against Atty. Laconico before the Cebu City Fiscal's Office; (b) Public apology to be made by Atty. Laconico before the students of Don Bosco Technical High School; (c) Pl,000.00 to be given to the Don Bosco Faculty club; (d) transfer of son of Atty. Laconico to another school or another section of Don Bosco Technical High School; (e) Affidavit of desistance by Atty. Laconico on the Maltreatment case earlier filed against Manuel Montebon at the Cebu City Fiscal's Office, whereas Montebon's affidavit of desistance on the Direct Assault Case against Atty. Laconico to be filed later;

Section 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape-recorder, or however otherwise described: It shall be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceeding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the

manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, that the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in Section 3 hereof, shall not be covered by this prohibition. We rule for the petitioner. We are confronted in this case with the interpretation of a penal statute and not a rule of evidence. The issue is not the admissibility of evidence secured over an extension line of a telephone by a third party. The issue is whether or not the person called over the telephone and his lawyer listening to the conversation on an extension line should both face prison sentences simply because the extension was used to enable them to both listen to an alleged attempt at extortion. There is no question that the telephone conversation between complainant Atty. Pintor and accused Atty. Laconico was "private" in the sense that the words uttered were made between one person and another as distinguished from words between a speaker and a public. It is also undisputed that only one of the parties gave the petitioner the authority to listen to and overhear the caller's message with the use of an extension telephone line. Obviously, complainant Pintor, a member of the Philippine bar, would not have discussed the alleged demand for an P8,000.00 consideration in order to have his client withdraw a direct assault charge against Atty. Laconico filed with the Cebu City Fiscal's Office if he knew that another lawyer was also listening. We have to consider, however, that affirmance of the criminal conviction would, in effect, mean that a caller by merely using a telephone line can force the listener to secrecy no matter how obscene, criminal, or annoying the call may be. It would be the word of the caller against the listener's. Because of technical problems caused by the sensitive nature of electronic equipment and the extra heavy loads which telephone cables are made to carry in certain areas, telephone users often encounter what are called "crossed lines". An unwary citizzen who happens to pick up his telephone and who overhears the details of a crime might hesitate to inform police authorities if he knows that he could be accused under Rep. Act 4200 of using his own telephone to secretly overhear the private communications of the would be criminals. Surely the law was never intended for such mischievous results. The main issue in the resolution of this petition, however, revolves around the meaning of the phrase "any other device or arrangement." Is an extension of a telephone unit such a device or arrangement as would subject the user to imprisonment ranging from six months to six years with the accessory penalty of perpetual absolute disqualification for a public officer or deportation for an alien? Private secretaries with extension lines to their bosses' telephones are sometimes asked to use answering or recording devices to record business conversations between a boss and another businessman. Would transcribing a recorded message for the use of the boss be a proscribed offense? or for that matter, would a "party line" be a device or arrangement under the law? The petitioner contends that telephones or extension telephones are not included in the enumeration of "commonly known" listening or recording devices, nor do they belong to the same class of enumerated electronic devices contemplated by law. He maintains that in 1964, when Senate Bill No. 9 (later Rep. Act No. 4200) was being considered in the Senate, telephones and extension telephones were already widely used instruments, probably the most popularly known communication device. Whether or not listening over a telephone party line would be punishable was discussed on the floor of the Senate. Yet, when the bill was finalized into a statute, no mention was made of telephones in the enumeration of devices "commonly known as a dictaphone or dictagraph, detectaphone or walkie talkie or tape recorder or however otherwise described." The omission was not a mere oversight. Telephone party lines were intentionally deleted from the provisions of the Act. The respondent People argue that an extension telephone is embraced and covered by the term "device" within the context of the aforementioned law because it is not a part or portion of a complete set of a telephone apparatus. It is a separate device and distinct set of a movable apparatus consisting of a wire and a set of telephone

receiver not forming part of a main telephone set which can be detached or removed and can be transferred away from one place to another and to be plugged or attached to a main telephone line to get the desired communication corning from the other party or end. The law refers to a "tap" of a wire or cable or the use of a "device or arrangement" for the purpose of secretly overhearing, intercepting, or recording the communication. There must be either a physical interruption through a wiretap or the deliberate installation of a device or arrangement in order to overhear, intercept, or record the spoken words. An extension telephone cannot be placed in the same category as a dictaphone, dictagraph or the other devices enumerated in Section 1 of RA No. 4200 as the use thereof cannot be considered as "tapping" the wire or cable of a telephone line. The telephone extension in this case was not installed for that purpose. It just happened to be there for ordinary office use. It is a rule in statutory construction that in order to determine the true intent of the legislature, the particular clauses and phrases of the statute should not be taken as detached and isolated expressions, but the whole and every part thereof must be considered in fixing the meaning of any of its parts. (see Commissioner of Customs v. Esso Estandard Eastern, Inc., 66 SCRA 113,120). In the case of Empire Insurance Com any v. Rufino (90 SCRA 437, 443-444), we ruled: Likewise, Article 1372 of the Civil Code stipulates that 'however general the terms of a contract may be, they shall not be understood to comprehend things that are distinct and cases that are different from those upon which the parties intended to agree.' Similarly, Article 1374 of the same Code provides that 'the various stipulations of a contract shall be interpreted together, attributing to the doubtful ones that sense which may result from all of them taken jointly. xxx xxx xxx Consequently, the phrase 'all liabilities or obligations of the decedent' used in paragraph 5(c) and 7(d) should be then restricted only to those listed in the Inventory and should not be construed as to comprehend all other obligations of the decedent. The rule that 'particularization followed by a general expression will ordinarily be restricted to the former' is based on the fact in human experience that usually the minds of parties are addressed specially to the particularization, and that the generalities, though broad enough to comprehend other fields if they stood alone, are used in contemplation of that upon which the minds of the parties are centered. (Hoffman v. Eastern Wisconsin R., etc., Co., 134 Wis. 603, 607, 115 NW 383, cited in Francisco, Revised Rules of Court (Evidence), 1973 ed, pp. 180-181). Hence, the phrase "device or arrangement" in Section 1 of RA No. 4200, although not exclusive to that enumerated therein, should be construed to comprehend instruments of the same or similar nature, that is, instruments the use of which would be tantamount to tapping the main line of a telephone. It refers to instruments whose installation or presence cannot be presumed by the party or parties being overheard because, by their very nature, they are not of common usage and their purpose is precisely for tapping, intercepting or recording a telephone conversation. An extension telephone is an instrument which is very common especially now when the extended unit does not have to be connected by wire to the main telephone but can be moved from place ' to place within a radius of a kilometer or more. A person should safely presume that the party he is calling at the other end of the line probably has an extension telephone and he runs the risk of a third party listening as in the case of a party line or a telephone unit which shares its line with another. As was held in the case of Rathbun v. United States (355, U.S. 107, 2 L Ed 2d 137-138): Common experience tells us that a call to a particular telephone number may cause the bell to ring in more than one ordinarily used instrument. Each party to a telephone conversation takes the risk that the other party may have an extension

telephone and may allow another to overhear the conversation. When such takes place there has been no violation of any privacy of which the parties may complain. Consequently, one element of 605, interception, has not occurred. In the same case, the Court further ruled that the conduct of the party would differ in no way if instead of repeating the message he held out his hand-set so that another could hear out of it and that there is no distinction between that sort of action and permitting an outsider to use an extension telephone for the same purpose. Furthermore, it is a general rule that penal statutes must be construed strictly in favor of the accused. Thus, in case of doubt as in the case at bar, on whether or not an extension telephone is included in the phrase "device or arrangement", the penal statute must be construed as not including an extension telephone. In the case of People v. Purisima, 86 SCRA 542, 562, we explained the rationale behind the rule: American jurisprudence sets down the reason for this rule to be the tenderness of the law of the rights of individuals; the object is to establish a certain rule by conformity to which mankind would be safe, and the discretion of the court limited. (United States v. Harris, 177 US 305, 44 L Ed 780, 20 S Ct 609; Braffith v. Virgin Islands (CA3) 26 F2d 646; Caudill v. State, 224 Ind 531, 69 NE2d; Jennings v. Commonwealth, 109 VA 821,63 SE 1080, all cited in 73 Am Jur 2d 452). The purpose is not to enable a guilty person to escape punishment through a technicality but to provide a precise definition of forbidden acts." (State v. Zazzaro, 20 A 2d 737, quoted in Martin's Handbook on Statutory Construction, Rev. Ed. pp. 183-184). In the same case of Purisima, we also ruled that on the construction or interpretation of a legislative measure, the primary rule is to search for and determine the intent and spirit of the law. A perusal of the Senate Congressional Records will show that not only did our lawmakers not contemplate the inclusion of an extension telephone as a prohibited device or arrangement" but of greater importance, they were more concerned with penalizing the act of recording than the act of merely listening to a telephone conversation. xxx xxx xxx Senator Taada. Another possible objection to that is entrapment which is certainly objectionable. It is made possible by special amendment which Your Honor may introduce. Senator Diokno.Your Honor, I would feel that entrapment would be less possible with the amendment than without it, because with the amendment the evidence of entrapment would only consist of government testimony as against the testimony of the defendant. With this amendment, they would have the right, and the government officials and the person in fact would have the right to tape record their conversation. Senator Taada. In case of entrapment, it would be the government. Senator Diokno. In the same way, under this provision, neither party could record and, therefore, the court would be limited to saying: "Okay, who is more credible, the police officers or the defendant?" In these cases,

as experienced lawyers, we know that the Court go with the peace offices. (Congressional Record, Vol. 111, No. 33, p. 628, March 12, 1964). xxx xxx xxx Senator Diokno. The point I have in mind is that under these conditions, with an agent outside listening in, he could falsify the testimony and there is no way of checking it. But if you allow him to record or make a recording in any form of what is happening, then the chances of falsifying the evidence is not very much. Senator Taada. Your Honor, this bill is not intended to prevent the presentation of false testimony. If we could devise a way by which we could prevent the presentation of false testimony, it would be wonderful. But what this bill intends to prohibit is the use of tape record and other electronic devices to intercept private conversations which later on will be used in court. (Congressional Record, Vol. III, No. 33, March 12, 1964, p. 629). It can be readily seen that our lawmakers intended to discourage, through punishment, persons such as government authorities or representatives of organized groups from installing devices in order to gather evidence for use in court or to intimidate, blackmail or gain some unwarranted advantage over the telephone users. Consequently, the mere act of listening, in order to be punishable must strictly be with the use of the enumerated devices in RA No. 4200 or others of similar nature. We are of the view that an extension telephone is not among such devices or arrangements. WHEREFORE, the petition is GRANTED. The decision of the then Intermediate Appellate Court dated August 16, 1984 is ANNULLED and SET ASIDE. The petitioner is hereby ACQUITTED of the crime of violation of Rep. Act No. 4200, otherwise known as the AntiWiretapping Act. SO ORDERED.

Feria (Chairman), Fernan, Alampay and Paras, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-69377 July 20, 1987

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALEXANDER ALBOFERA and ROMEO LAWI-AN, accusedappellants. MELENCIO-HERRERA, J.: Mandatory review of the Decision of the Regional Trial Court, Branch XVIII, Digos, Davao del Sur, in Criminal Case No. 184.* which convicted accused Alexander Albofera and Romeo Lawi-an of Murder,

inflicted on them the capital punishment, and ordered them to indemnify the heirs of the victim in the amount of P35,000.00, "by way of moral as well as actual damages." There is no direct evidence linking both accused to the crime charged, their alleged participation therein having been found by the Trial Court to have been proved by circumstantial evidence adduced by the prosecution as follows: Sometime in June or July 1980, at about 4:30 o'clock in the afternoon. Rodrigo Esma was tending his onion farm located in Upper Bagong Silang, Managa, Bansalan, Davao del Sur, near the place of the accused Romeo Lawi-an, a long time acquaintance, when accused Alexander Albofera, whom Esma also knew for years and likewise a resident of the same place, called him and informed him they would ran after somebody. Esma acceded (tsn, October 20, 1982, pp. 38-42). Together, Albofera and Esma proceeded at once to the house of accused Lawi-an. There Lawi-an told Albofera that the forester was around making a list of people engaged in "caingin" (tsn, October 20, 1982, p. 43). Whereupon, Albofera asked Esma to join him in going after the forester. The two were able to overtake the forester, a certain Teodoro Carancio, at the lower portion of the road (tsn, October 20, 1982, p. 44). Albofera at once put his arm on the shoulder of Carancio and asked him to go with them to the upper portion because they will do something there. Carancio was taken to the house of accused Lawi-an where several persons were already gathered, among whom were accused Lawi-an, a certain alias Jun, Boy Lawi-an, and Joel Maldan. Once inside and seated, Albofera began questioning Carancio about his purpose in the place. Carancio replied that he was there to inspect the "caingin" as a forester Albofera resented this, telling Carancio that his acts hurt the poor people who were making a plain and simple living. Carancio answered that he was only complying with the orders of the government. Albofera then asked Carancio should he be set free not to come back anymore. Carancio, however, replied that he would still come back and bring his nephew who is an army man. Thereupon, Albofera intimated to Carancio that he is a member of the NPA and that the NPA's were against the forestry personnel. Thereafter, the persons gathered decided to kin Carancio. Right then and there, Albofera tied Carancio's hands at the back. Carancio pleaded for mercy. Unheeding, Albofera, Romeo Lawi-an, alias Jun, Boy Lawi-an, and Joel Maldan decided to bring, and they indeed brought, Carancio to the forest some 200 meters away from Lawi-an's house. Esma did not join the group but remained in the house of Lawi-an (tsn, October 20, 1982, pp. 44-51). Not long after, the group returned to Lawi-an's house, but without Carancio. Albofera's hands, as wen as alias Jun's hands were bloodied. After washing their hands, Albofera announced that they had already finished the killing. He also warned everyone, particularly Esma, against revealing or saying anything to any person or the military, otherwise he (Albofera) would hold him accountable. After that, E smaller went home (tsn, October 20, 1982, pp. 52-54). Meanwhile, at about the same time Efren Sisneros and his wife were weeding their farm in Barangay Buenavista, Bansalan, which is adjacent to Bagong Silang, Managa, also in Bansalan, when the son of accused Lawi-an, who is his compadre, arrived and informed him that his father (the accused) wanted him (Sisneros) in his house. So, Sisneros went with Lawi-an's son (tsn, September 16, 1982, pp. 3-7, 11). On reaching the front yard of the Lawi-ans, Sisneros saw the ac cused Lawi-an at the window. A lot of people were likewise in the house, and he recognized Boy Lawi-an and a certain Jun Menez among others. Sisneros called for accused Lawi-an. The latter went down and they talked downstairs. Accused Lawi-an explained that he had Sisneros fetched, because the people inside the house were discussing on what to do with somebody a Bureau of Forestry employee-later on Identified as Teodoro Carancio who was also inside the house at the time, and that they were inclined to kill that person who, according to Lawi-an, was a hindrance to the farmers, because he (the forester) had caused Lawi-an's uncle and brother-in-law to be put in jail and fined for cutting trees in the forest. Shocked, Sisneros could only say "do not do that because killing a person is great sin toward God." Thereafter, accused Lawian went upstairs. Sisneros who was left downstairs went home (tsn, September 16, 1982, pp. 11-16, 21). The following day, at about 9:00 o'clock in the morning, Sisneros was at his farm when accused Lawi-an and Jun

Menez passed by and called him. When Sisneros got near the two, accused Lawi-an told him that the forester was already killed and warned him not to reveal this matter to anybody otherwise he would be killed (tsn, September 16, 1982, pp. 16-20.) The threat to his life caused Sisneros to be cautious in not reporting at once the matter to the authorities. However, in June 1981, Sisneros finally reported the killing of that forester to his brother Margarito, a CHDF member in Bansalan. Margarito then accompanied him to the municipal hall to see the Chief of Police, P/Sgt. Arnulfo Gohol. Sisneros related the killing to Sgt. Gohol. That forester must have already been reported missing, for Sgt. Gohol told Sisneros that the slain forester was Teodoro Carancio. Sisneros asked that his Identity be kept secret in the meantime pending the arrest of Albofera and Lawi-an. Sgt. Gohol acceded (tsn. September 16, 1982, pp. 19-20, 21-22). The police authorities arrested accused Albofera on July 2, 1981. ... xxx xxx xxx

Accused Romeo Lawi-an was subsequently arrested on July 4, 1981 (pp. 12, 15, Record). Also in July, 1981, the two accused, shortly after their arrest, led the police authorities to the place in Bagong Silang where they buried the slain forester, specifically in a hilly portion near the forest where the trees were not quite big besides a coffee plantation (tsn, January 6, 1983, pp, 8487). And on the very spot pointed to by the two accused, the authorities dug and recovered the cadaver, together with the clothings, namely: a maroon sweater, a semi-green trousers and fatigue briefs worn by the victim, still intact. After placing these in a sack, the group left at about 6:00 o'clock p.m. and returned to the municipal building at around 10:00 p.m. (tsn, January 6, 1983, pp. 87-89, 94101). xxx xxx xxx1

On July 2, 1981, Albofera executed an extra-judicial confession before the Municipal Circuit Judge. He stated therein that he was forced to join the NPA movement for fear of his life; that said group had ordered the "arrest" of the victim, Carancio, a Forest Guard in the National Park, because he was "a very strict employee of the government who arrested several kaingeros already in the National Park and Romeo Lawi-an being one of his victims before, got mad of his actuations prompting the latter to report said person to the NPA for possible punishments;" and that the group "sentenced him (the victim) to die by stabbing." Albofera further declared: Q. 21- Was said Carancio killed by the group? A. Yes, sir, Carancio was stabbed to death by alias John, Romeo Lawi-an, alias "Dolly" Fred, Albert and myself in succession. Q. 22- Do you mean to say that you have participated in stabbing Carancio to death? A. I was the last to thrust said bolo but I know that said victim was already dead when I did it. Accused for their part, maintain: That in or about the middle of 1980, both the accusedappellants ALEXANDER ALBOFERA and ROMEO LAWI-AN, who were farmer-residents at that time of Sitio Balutakay, Barangay Mansaga, a remote settlement in the Municipality of Bansalan, Davao del Sur, were fetched from their farm houses by four (4) persons, known to be NPA elements operating in their locality and Identified with their aliases "Fred", "Dolly", "John", and "Albert". Both accused together with Efren Sisneros and Rodrigo Esma were brought by the said four (4) NPA's to a secluded forested area in order to witness the execution of a man, whom the prosecution later claimed to be one Teodoro Carancio, an employee of the Bureau of Forest Development. Thereafter, both the accused, Efren Sisneros and Rodrigo Esma were ordered by these armed NPA to bury the remains of the victim.

Afterwards, they were warned, with threat to their lives, not to reveal or report to the government authorities. 2 In the course of the trial, the prosecution presented a letter written in the Visayan dialect by accused Alexander Albofera, while under detention, to witness Rodrigo Esma several days before the latter testified on October 20, 1982, which was translated into English by the Trial Court interpreter and reads as follows: 10-5-82 Dear Odeng, Ding first of all how are you are in good health. As to me if you will also ask me I am here suffering from hardship, so that Ding, help me that I can get out in this difficult condition because your affidavit is the one that has weight. Ding, you go with Mining to my lawyer so that I can study your reason because I will ride if what is your affidavit. If you will not appear before the lawyer it will mean that you will pushed us. Ding, you know about this incident and that I do not want this to happen but you were the one persisting in fact I asked you and you acceded so that that happened. But now you are going to put us down will you not pity the uncle of your wife and furthermore you were not threatened by me we have agreed about this thing now you will free yourself. Ding you must bear in mind that you are a part of this if that will happen to me I will include you so that we will be together in jail anyway your affidavit is there that you are one of those who apprehended the forestry and Noy Roming will testify that no one threatened us and also according to him that he will declare that the two of us apprehended so that the three of us win be convicted. Ding why is it that we are not going to understand one another so that we will not be hard-up we have still a way that will be taught by my lawyer in which we have nothing to fear each one of us. Anyway you can still be a witness of the other side my lawyer wants to know only your reason so that he can study this in order that I ran prepare and ride on it so that you will not be included and I can also get out from this case because if you will not make any arrangement our reasons will contradict with each other even though we have exculpated you we will instead be together here if how many years will be my sentence yours will also be the same because I will include you anyway you were present in the incident nobody force us nobody can witness that you were force by me because that is not the truth. And Ding, I have not squeal because it's difficult the other side no jail its's better for the government because we will just be imprisoned you are the one who win know how to understand we win help one another in order that no hazard of both of us anyway you will not be imprisoned of this you will only help me in order that I can get out here. This is our agreement, is it not. I hope you will remember our being together before we are very close but now because we have a misunderstanding but our complainant you do not even know him will they look back at you after this. Your mercy (Sgd.) Alex Albofera.
3

II That the Regional Trial Court of Davao del Sur gravely erredin failing to consider at all the prosecution's evidence on record, which reasonably raises doubt upon the conclusiveness of the bases as to the supposed victim's (1) Identity; (2) his alleged fact of death as stated in the certificate of death [Exh. D]; (3) the place of death and, the approximate or credible date of death; and-consequently, in not finding that on the basis of the above-factual hiatus, the evidence has failed to establish the guilt of both accused beyond that quantum of reasonable doubt as zealously mandated by the constitution. III That the Court a quo erred in holding that evidence adduced against accused-appellants conceded to be merely circumstantial in character and confirmed as such in the appealed decision, has attained such degree of proof and weight of moral persuasion as to leave no vestige of reasonable doubt on the guilt of both accused. IV That the Court a quo erred in appreciating as competent evidence the letter written by accused Alexander Albofera to Rodrigo Esma (Exh. B), the admissibility thereof being specifically excluded under Sec. 4, Art. IV of the 1973 Constitution. V That the Regional Trial Court of Davao del Sur gravely erred in admitting and considering as competent evidence the illegally extracted extra-judicial confession of accused Alexander Albofera (Exh. C) in violation of, and contrary to Sec. 20, Art. IV of the Philippine Constitution of 1973 and the Supreme Court's judicial precedents in point. VI That the Trial Court gravely erred (1) in sustaining the prosecution's theory that both accused-appellants were responsible and culpable for the killing of the alleged victim; (2) in according credence to the testimonies of prosecution's witnesses Efren Sisneros and Rodrigo K. Esma; (3) in failing to sustain the defense theory; and (4) in convicting and sentencing both accused-appellants. VII Furthermore, the lower court gravely incurred the following patent reversible errors: (1) in finding aggravating and qualifying circumstances in the alleged commission of murder, and (2) in not absolving the two accusedappellants, and awarding damages. 4 Succintly stated, the essential issues posed are: 1) Whether or not "serious illegalities and jurisdictional infirmities," in fact, attended the proceedings below and "constitutional and human rights of the accused brazenly trampled upon." 2) Whether or not the extrjudicial confession of accused Alexander Albofera, and his letter to Rodrigo Esma are admissible in evidence; 3) Whether or not the Identity of the victim and the fact of his death were duly proved; 4) Whether or not the circumstantial evidence adduced is sufficient to warrant conviction; and 5) Whether or not qualifying and aggravating circumstances were duly proved.

Rodrigo Esma's Affidavit referred to in the letter taken on July 21, 1981, mentioned accused "Albofera and "alias Jun" "as having killid the victim. After trial, the lower Court found the circumstantial evidence sufficient to warrant conviction beyond reasonable doubt of both accused for the crime charged, and sentenced them to death in its Decision of October 5, 1984, now before us. The accused raise the following errors: I That the Regional Trial Court of Davao del Sur gravely erred in finding both accused guilty of murder, as charged in the information, and ordaining a sentence of death, instead of dismissing the charge anchor absolving them as the entire proceedings on the case in the Municipal Court of Bansalan up to rendition of judgment in the CFI of Davao del Sur are void ab initio and a nullity for being tainted with serious illegalities and jurisdictional infirmities as from the inception of appellant's illegal arrest, tortures, and detention without bait their fundamental constitutional and human rights were blatantly violated, brazenly trampled upon and utterly reduced to naught.

On Irregularities alleged:

The charge of illegalities and infirmities is absolutely without basis. There was nothing illegal in the accused's detention without bail. They were charged with and held for the crime of murder, a capital offense and, therefore, were not entitled to bail where the evidence of guilt was strong. That was for the Trial Court to evaluate. The preliminary investigation was far from being "hasty and farcical." If the second stage thereof was not held it was because the accused had waived the same and prayed for the transmittal of the case to the then Court of First Instance for trial on the merits; it was not because they were deprived of the right. Much less has due process been denied the accused. They were duly informed of the charge against them and they were given fun opportunity to interpose and prove their defense.

More, the extra-judicial confession was extracted without the assistance of counsel contrary to the rulings of this Court in Morales, Jr. vs. Enrile, No. L-61016, April 26, 1983, 121 SCRA 538, affirmed in People vs. Galit, No. L-51770, March 20, 1985, 135 SCRA 465, People vs. Burgos, L-68955, September 4, 1986, 144 SCRA 1, that "no custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf." While Albofera seemingly waived his right to counsel, which he is allowed to do, aside from the fact that we are not convinced that the waiver was voluntary, knowing and intelligent, the waiver was not valid because it was made without the assistance of counsel.6 That principle is now enshrined in the 1987 Constitution, which explicitly requires that the waiver be in writing and in the presence of counsel.7 For failure to meet such exacting standards, the extrajudicial confession of accused Albofera must be stricken out and held inadmissible in evidence against him.8

On the Admissibility of the Extra-Judicial Confession of Accused A Alexander Albofera:

The preliminary questions addressed to said accused when his Sworn Statement was taken read: P R E L I M I N A R Y: Mr. Albofera, I am reminding you that you are now under investigation in connection with the commission of an offense, but before I will proceed in it, I would like to inform you that under the Constitution of the Philippines it is so provided that you have the right to remain silent, the right to counsel of your own choice to be present with you while being investigated, the right to self-incrimination and the right to due process, do you understand this: Answer Yes sir, I do. I would like to inform you further, that the manner in which this investigation will be conducted in English, but however, the contents of the same will be interpreted to you in dialect you fully understand and speak, and if you choose to answer one of the question or questions propounded to you, your answer will be reduced into writing and the same will be used in evidence against you or to your favor in any court of justice in the country, do you understand what I am explaining to you? Answer Yes. sir, I understand it because you explained it to me clearly. Do you need then the assistance of counsel to assist you while investigated? Answer I think I do not need any yet this time because I know what I am going to declare here it being the truth of the matter, sir. Since you do not (have) any lawyer yet, are you willing to proceed with this investigation and submit yourself freely into it? Answer I wish that this investigation will be continued because lawyer is not necessary yet. Are you willing to swear and sign this statement of yours freely to justify that your submission into the said investigation is free and voluntary? Answer Yes sir, I will sign it if only to prove that all what I have stated are true and to the best of my knowledge and ability. (Sgd.) Alex Albofera (Exhibits "C", "C-1"). Judicial precedents5 have laid down the rule that the foregoing form of questioning, does not satisfy the Constitutional requirement that an accused be apprised of his constitutional rights to remain silent and to counsel. It is, at best, ceremonial and perfunctory, with the answers being mere formalisms put into the mouth of the affiant. What is contemplated is the transmission of meaningful information, comprehended by the person under investigation, not a mere recitation of the Constitutional mandates.

On the admissibility of Albofera's Letter.

Accused Albofera contends that his letter to prosecution witness, Rodrigo Esma (Exhibit "B"), is inadmissible in evidence against him under the exclusionary provisions of Section 4, Article IV of the 1973 Constitution (substantially reproduced in Section 3, Article III of the 1987 Constitution), which provides: Sec. 4 (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the Court, or when public safety and order require otherwise. 2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. The submission is untenable. The foregoing provision implements another Constitutional provision on the security of a citizen against unreasonable search and seizure. The production of that letter by the prosecution was not the result of an unlawful search and seizure nor was it through unwarranted intrusion or invasion into Albofera's privacy. Albofera admitted having sent the letter and it was its recipient, Rodrigo Esma himself, who produced and Identified the same in the course of his testimony in Court. Besides, there is nothing really self-incriminatory in the letter. Albofera mainly pleaded that Esma change his declaration in his Affidavit and testify in his (Albofera's) favor. Furthermore, nothing Albofera stated in his letter is being taken against him in arriving at a determination of his culpability.

On the Identity of the Victim and the Fact of Death:

Accused argue that corpus delicti had not been established as the body of the victim, Teodoro Carancio, was not Identified, nor the fact, place and approximate date of his death established. The term corpus delicti stands for the substance of the crime, the fact that a crime has actually been committed.9 The evidence adduced in this case sufficiently proved the commission of the crime. In fact, the accused themselves pointed to the grave where the body of a person, allegedly slain in their presence, had been dumped and which, when dug, produced human remains, which turned out to be those of the victim. The skeletal remains of the victim were Identified by his brother, Benjamin Carancio, through the victim's front teeth whose "base seemed rusty" and which bore resemblance to his own, as well as through the victim's clothes, fatigue briefs, maroon sweater and trousers, which Benjamin recognized.10 Prosecution witness Esma also Identified the victim from a photograph which was presented to him.11

On the Circumstantial Evidence:

Circumstantial evidence is admissible in the absence of an eyewitness to the commission of a crime, and it is sufficient for conviction if: (1) there is more than one circumstance; (2) the facts from which the inferences are derived are proven; and (3) the combination of all the circumstances is such as to produce conviction beyond reasonable doubt.12 The circumstances testified to by prosecution witnesses meet the foregoing criteria. Even disregarding Albofera's extra-judicial

confession, the combination of circumstances sufficiently point to his guilt. The presence of both accused at the scene of the incident is admitted by them. They also admit that they witnessed the execution of the victim, although they claim that they were merely compelled to do so. The foregoing version, however, is negated by Rodrigo Esma's testimony from which it is clear that it was Albofera, his long-time friend, who had fetched witness Esma and informed the latter that they would run after somebody. Together, they proceeded to the house of accused Lawi-an who informed Albofera that the victim was around making a list of "kaingeros." Albofera asked Esma to join him in going after the forester. Overtaking the latter, Albofera took him to Lawi-an's house where a group had already congregated and a discussion followed as to the victim's fate. Albofera resented the victim's determination to do his duty and the latter's statement that he was bringing an army man to help him. Sufficient motive was provided to do away with the victim. Albofera tied the victim's hands and, with Lawi-an and three others, took the victim to the forest. When the group returned not long after, the victim was no longer with them. Witness Esma noticed Albofera's and "alias Jun's" hands bloodied. After they had washed their hands, Albofera announced to everyone present at Lawi-an's house that the victim had been done away with and warned everyone not to reveal the incident to anyone including the military. Apparent from the foregoing narrated circumstances is the fact that it was Albofera who was "calling the shots;" that it was he who was the leader of the group and not "alias Jun" as he would want this Court to believe. Esma's testimony is worthy of credence. He was a friend of long standing of Albofera.lawphi1 There was no reason for him to attribute to Albofera the commission of such a serious crime as Murder, if such not the truth. Accused Lawi-an must be held equally culpable. That he was part of the criminal design from its initial stages until its culmination is revealed through the circumstances brought out by prosecution witness, Sisneros who testified that while he was weeding his farm, Lawi-an, his "compadre," sent his son to fetch him (Sisneros). With the son, they proceeded to Lawi-an's house where Sisneros saw many people. Lawi-an went down the house and explained to Sisneros that they were discussing what to do with the victim, and that they were inclined to kill him. Sisneros advised against it and went home. The following morning, Lawi-an passed by Sisneros farm and informed the latter that the victim had already been killed with the warning to Sisneros not to reveal the incident to anyone. Prosecution witness, Esma, further buttressed the fact of Lawi-an's participation in the criminal plot when he testified that it was Lawi-an who informed Albofera that the victim was around making a list of "kaingeros;" that it was on the strength of that information that Albofera coaxed Esma into joining him to search for the victim; that Lawi-an was with Albofera and three others who, starting from Lawian's house, took the victim to the forest and then returned thereafter without the victim, obviously because the latter had been done away with. While the degree of actual participation by Lawi-an in committing the offense is not described with accuracy, Lawi-an's conduct before and after the commission of the crime shows that he acted in concert with his co-accused Albofera. He indubitably cooperated with the latter and three other persons in bringing about the death of the victim goaded by resentment against the latter for his strict enforcement of forestry laws, which led to the incarceration of Lawi-an's uncle and brother-inlaw and the imposition of fines against them. The circumstances proven sufficiently establish a community of purpose-a conspiracy among the perpetrators such that the crime committed in furtherance thereof must be held to be the act of all regardless of the extent and character of an accused's active participation.13

ample time to reflect and allow their conscience to overcome their resolution to kill.14 The accused likewise took advantage of superior strength although this cannot be appreciated separately as it is deemed absorbed in treachery.15 The killing of the victim because of his strictness and the resentment against him as a forester constitutes the aggravating circumstance of disregard of the respect due the offended party on account of his rank,16 and not because the victim was engaged in the discharge of his duties under Article 14 (5) of the Revised Penal Code as found by the Trial Court. With the attendance of the qualifying circumstance of treachery and two (2) generic aggravating circumstances with no mitigating circumstance to offset them, the crime committed is Murder and the death penalty imposed by the Trial Court is proper. However, with the abolition of the death penalty under Section 19(l), Article III of the 1987 Constitution, and as mandated therein the death penalty imposed by the Trial Court should be reduced to reclusion perpetua. WHEREFORE, the judgment of conviction is hereby affirmed with modification that the accused Alexander Albofera and Romeo Lawi-an are hereby sentenced to suffer the penalty of reclusion perpetua, to indemnify the heirs of the victim, Teodoro Carancio, in the amount of P30,000.00, and each to pay one-half (1/2) of the costs. SO ORDERED.

Teehankee, C.J., Yap, Fernando, Narvasa, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 90878 January 29, 1990 PABLITO V. SANIDAD, petitioner, vs. THE COMMISSION ON ELECTIONS, respondent.

MEDIALDEA, J.: This is a petition for certiorari assailing the constitutionality of Section 19 of Comelec Resolution No. 2167 on the ground that it violates the constitutional guarantees of the freedom of expression and of the press. On October 23, 1989, Republic Act No. 6766, entitled "AN ACT PROVIDING FOR AN ORGANIC ACT FOR THE CORDILLERA AUTONOMOUS REGION" was enacted into law. Pursuant to said law, the City of Baguio and the Cordilleras which consist of the provinces of Benguet, Mountain Province, Ifugao, Abra and Kalinga-Apayao, all comprising the Cordillera Autonomous Region, shall take part in a plebiscite for the ratification of said Organic Act originally scheduled last December 27, 1989 which was, however, reset to January 30, 1990 by virtue of Comelec Resolution No. 2226 dated December 27, 1989. The Commission on Elections, by virtue of the power vested by the 1987 Constitution, the Omnibus Election Code (BP 881), said R.A. 6766 and other pertinent election laws, promulgated Resolution No. 2167, to govern the conduct of the plebiscite on the said Organic Act for the Cordillera Autonomous Region. In a petition dated November 20, 1989, herein petitioner Pablito V. Sanidad, who claims to be a newspaper columnist of the "OVERVIEW" for the BAGUIO MIDLAND COURIER, a weekly newspaper circulated in the City of Baguio and the Cordilleras, assailed the constitutionality of Section 19 of Comelec Resolution No. 2167, which provides: Section 19. Prohibition on columnists, commentators or announcers. During the

On the Attendance of Qualifying and Aggravating Circumstances:

No reversible error was committed by the Trial Court in appreciating the presence of qualifying and aggravating circumstances. The killing of the victim was committed treacherously, his hands having been tied behind his back so that he was totally helpless and defenseless, and in no position to resist nor fight back. The accused employed means which tended directly to insure the execution of the crime without risk to themselves arising from the defense which the victim might have made. Evident premeditation was likewise present as both accused and their co-conspirators had deliberately planned to commit the crime and had persistently and continuously followed it notwithstanding that they had

plebiscite campaign period, on the day before and on the plebiscite day, no mass media columnist, commentator, announcer or personality shall use his column or radio or television time to campaign for or against the plebiscite issues. It is alleged by petitioner that said provision is void and unconstitutional because it violates the constitutional guarantees of the freedom of expression and of the press enshrined in the Constitution. Unlike a regular news reporter or news correspondent who merely reports the news, petitioner maintains that as a columnist, his column obviously and necessarily contains and reflects his opinions, views and beliefs on any issue or subject about which he writes. Petitioner believes that said provision of COMELEC Resolution No. 2167 constitutes a prior restraint on his constitutionally-guaranteed freedom of the press and further imposes subsequent punishment for those who may violate it because it contains a penal provision, as follows: Article XIII, Section 122, Election Offenses and Banned Acts or Activities. Except to the extent that the same may not be applicable plebiscite. the banned acts/activities and offenses defined in and penalized by the Omnibus Election Code ('Sections 261, 262, 263 and Article' XXII, B.P. Blg. 881) and the pertinent provisions of R.A. No. 6646 shall be aplicable to the plebiscite governed by this Resolution. Petitioner likewise maintains that if media practitioners were to express their views, beliefs and opinions on the issue submitted to a plebiscite, it would in fact help in the government drive and desire to disseminate information, and hear, as well as ventilate, all sides of the issue. On November 28, 1989, We issued a temporary restraining order enjoining respondent Commission on Elections from enforcing and implementing Section 19 of Resolution No. 2167. We also required the respondent to comment on the petition. On January 9, 1990, respondent Commission on Elections, through the Office of the Solicitor General filed its Comment. Respondent Comelec maintains that the questioned provision of Comelec Resolution No. 2167 is not violative of the constitutional guarantees of the freedom of expression and of the press. Rather it is a valid implementation of the power of the Comelec to supervise and regulate media during election or plebiscite periods as enunciated in Article IX-C, Section 4 of the 1987 Constitution of the Republic of the Philippines. It is stated further by respondent that Resolution 2167 does not absolutely bar petitioner from expressing his views and/or from campaigning for or against the Organic Act. He may still express his views or campaign for or against the act through the Comelec space and airtime. This is provided under Sections 90 and 92 of BP 881: Section 90. Comelec Space. Commission shall procure space in at least one newspaper of general circulation in every province or city: Provided, however, That in the absence of said newspaper, publication shall be done in any other magazine or periodical in said province or city, which shall be known as "Comelec Space" wherein candidates can announce their candidacy. Said space shall be allocated, free of charge equally and impartially within the area in which the newspaper is circulated. Section 92. Comelec Time. The Commission shall procure radio and television time to be known as "Comelec Time" which shall be allocated equally and impartially among the candidates within the area of coverage of all radio and television stations. For this purpose, the franchise of all radio broadcasting and television stations are hereby amended so as to provide radio or television time, free of charge, during the period of the campaign. Respondent Comelec has relied much on Article IX-C of the 1987 Constitution and Section 11 of R.A. 6646 as the basis for the promulgation of the questioned Section 19 of Comelec Resolution 2167.

Article IX-C of the 1987 Constitution provides: The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency or instrumentality thereof, including any governmentowned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful and credible elections. Similarly, Section 11 of Republic Act No. 6646 (The Electoral Reform Law of 1987) likewise provides:

Prohibited forms of election Propaganda. In

addition to the forms of election propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful: ... (b) for any newspaper, radio, broadcasting or television station, or other mass media, or any person making use of the mass media to sell or to give free of charge print space or air time for campaign or other political purposes except to the Commission as provided under Sections 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist, commentator, announcer, or personality who is a candidate for any elective office shall take a leave of absence from his work as such during the campaign period. (Emphasis ours) However, it is clear from Art. IX-C of the 1987 Constitution that what was granted to the Comelec was the power to supervise and regulate the use and enjoyment of franchises, permits or other grants issued for the operation of transportation or other public utilities, media of communication or information to the end that equal opportunity, time and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates are ensured. The evil sought to be prevented by this provision is the possibility that a franchise holder may favor or give any undue advantage to a candidate in terms of advertising space or radio or television time. This is also the reason why a "columnist, commentator, announcer or personality, who is a candidate for any elective office is required to take a leave of absence from his work during the campaign period (2nd par. Section 11(b) R.A. 6646). It cannot be gainsaid that a columnist or commentator who is also a candidate would be more exposed to the voters to the prejudice of other candidates unless required to take a leave of absence. However, neither Article IX-C of the Constitution nor Section 11 (b), 2nd par. of R.A. 6646 can be construed to mean that the Comelec has also been granted the right to supervise and regulate the exercise by media practitioners themselves of their right to expression during plebiscite periods. Media practitioners exercising their freedom of expression during plebiscite periods are neither the franchise holders nor the candidates. In fact, there are no candidates involved in a plebiscite. Therefore, Section 19 of Comelec Resolution No. 2167 has no statutory basis. In the case of Badoy, Jr. v. Comelec, L-32546, Oct. 16, 1970, where the constitutionality of the prohibition of certain forms of election propaganda was assailed, We ruled therein that the prohibition is a valid exercise of the police power of the state "to prevent the perversion and prostitution of the electoral apparatus and of the denial of equal protection of the laws." The evil sought to be prevented in an election which led to Our ruling in that case does not obtain in a plebiscite. In a plebiscite, votes are taken in an area on some special political matter unlike in an election where votes are cast in favor of specific persons for some office. In other words, the electorate is asked to vote for or against issues, not candidates in a plebiscite. Anent respondent Comelec's argument that Section 19 of Comelec Resolution 2167 does not absolutely bar petitioner-columnist from expressing his views and/or from campaigning for or against the organic act because he may do so through the Comelec space and/or Comelec radio/television time, the same is not meritorious. While the

limitation does not absolutely bar petitioner's freedom of expression, it is still a restriction on his choice of the forum where he may express his view. No reason was advanced by respondent to justify such abridgement. We hold that this form of regulation is tantamount to a restriction of petitioner's freedom of expression for no justifiable reason. Plebiscite issues are matters of public concern and importance. The people's right to be informed and to be able to freely and intelligently make a decision would be better served by access to an unabridged discussion of the issues, including the forum. The people affected by the issues presented in a plebiscite should not be unduly burdened by restrictions on the forum where the right to expression may be exercised. Comelec spaces and Comelec radio time may provide a forum for expression but they do not guarantee full dissemination of information to the public concerned because they are limited to either specific portions in newspapers or to specific radio or television times. ACCORDINGLY, the instant petition is GRANTED. Section 19 of Comelec Resolution No. 2167 is declared null and void and unconstitutional. The restraining order herein issued is hereby made permanent. SO ORDERED.

xxx xxx xxx (f) To draw, paint, inscribe, post, display or publicly exhibit any election propaganda in any

place, whether public or private, mobile or stationary, except in the COMELEC common

posted areas and/or billboards, at the campaign headquarters of the candidate or political party, organization or coalition, or at the candidate's own residential house or one of his residential houses, if he has more than one:Provided, that such posters or election propaganda shall not exceed two (2) feet by three (3) feet in size. (Emphasis supplied) xxx xxx xxx The statutory provisions sought to be enforced by COMELEC are Section 82 of the Omnibus Election Code on lawful election propaganda which provides:

Lawful election propaganda. Lawful election

propaganda shall include:

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino and Regalado, JJ., concur.

(a) Pamphlets, leaflets, cards, decals, stickers or other written or printed materials of a size not more than eight and one-half inches in width and fourteen inches in length; (b) Handwritten or printed letters urging voters to vote for or against any particular candidate;

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 103956 March 31, 1992 BLO UMPAR ADIONG, petitioner, vs. COMMISSION ON ELECTIONS, respondent.

(c) Cloth, paper or cardboard posters, whether framed or posted, with an area not exceeding two feet by three feet, except that, at the site and on the occasion of a public meeting or rally, or in announcing the holding of said meeting or rally, streamers not exceeding three feet by eight feet in size, shall be allowed: Provided, That said streamers may not be displayed except one week before the date of the meeting or rally and that it shall be removed within seventy-two hours after said meeting or rally; or (d) All other forms of election propaganda not prohibited by this Code as the Commission may authorize after due notice to all interested parties and hearing where all the interested parties were given an equal opportunity to be heard: Provided, That the Commission's authorization shall be published in two newspapers of general circulation throughout the nation for at least twice within one week after the authorization has been granted. (Section 37, 1978 EC) and Section 11(a) of Republic Act No. 6646 which provides:

GUTIERREZ, JR., J.: The specific issue in this petition is whether or not the Commission on Elections (COMELEC) may prohibit the posting of decals and stickers on "mobile" places, public or private, and limit their location or publication to the authorized posting areas that it fixes. On January 13, 1992, the COMELEC promulgated Resolution No. 2347 pursuant to its powers granted by the Constitution, the Omnibus Election Code, Republic Acts Nos. 6646 and 7166 and other election laws. Section 15(a) of the resolution provides: Sec. 15. Lawful Election Propaganda. The following are lawful election propaganda: (a) Pamphlets, leaflets, cards, decals, stickers, handwritten or printed letters, or other written or printed materials not more than eight and one-half (8-1/2) inches in width and fourteen (14) inches in length. Provided, That decals and stickers may be posted only in any of the authorized posting areasprovided in paragraph (f) of Section 21 hereof. Section 21 (f) of the same resolution provides: Sec. 21(f). Prohibited forms of election propaganda. It is unlawful:

Prohibited Forms of Election Propaganda. In

addition to the forms of election propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful: (a) to draw, paint, inscribe, write, post, display or publicly exhibit any election propaganda in any place, whether private,

or public, except in the common poster areas and/or billboards provided in the

immediately preceding section, at the candidate's own residence, or at the campaign headquarters of the candidate or political party: Provided, That such posters or election propaganda shall in no case exceed two (2) feet by three (3) feet in area: Provided, Further, That at the site of and on the occasion of a public meeting or rally, streamers, not more than two (2) and not exceeding three (3) feet by eight (8) feet each may be displayed five (5) days before the date of the meeting or rally, and shall be removed within twenty-four (24) hours after said meeting or rally; . . . (Emphasis supplied) Petitioner Blo Umpar Adiong, a senatorial candidate in the May 11, 1992 elections now assails the COMELEC's Resolution insofar as it prohibits the posting of decals and stickers in "mobile" places like cars and other moving vehicles. According to him such prohibition is violative of Section 82 of the Omnibus Election Code and Section 11(a)

of Republic Act No. 6646. In addition, the petitioner believes that with the ban on radio, television and print political advertisements, he, being a neophyte in the field of politics stands to suffer grave and irreparable injury with this prohibition. The posting of decals and stickers on cars and other moving vehicles would be his last medium to inform the electorate that he is a senatorial candidate in the May 11, 1992 elections. Finally, the petitioner states that as of February 22, 1992 (the date of the petition) he has not received any notice from any of the Election Registrars in the entire country as to the location of the supposed "Comelec Poster Areas." The petition is impressed with merit. The COMELEC's prohibition on posting of decals and stickers on "mobile" places whether public or private except in designated areas provided for by the COMELEC itself is null and void on constitutional grounds. First the prohibition unduly infringes on the citizen's fundamental right of free speech enshrined in the Constitution (Sec. 4, Article III). There is no public interest substantial enough to warrant the kind of restriction involved in this case. There are various concepts surrounding the freedom of speech clause which we have adopted as part and parcel of our own Bill of Rights provision on this basic freedom. All of the protections expressed in the Bill of Rights are important but we have accorded to free speech the status of a preferred freedom. (Thomas v. Collins, 323 US 516, 89 L. Ed. 430 [1945]; Mutuc v. Commission on Elections, 36 SCRA 228 [1970]) This qualitative significance of freedom of expression arises from the fact that it is the matrix, the indispensable condition of nearly every other freedom. (Palko v. Connecticut, 302 U.S. 319 [1937]; Salonga v. Pao, 134 SCRA 438 [1985]) It is difficult to imagine how the other provisions of the Bill of Rights and the right to free elections may be guaranteed if the freedom to speak and to convince or persuade is denied and taken away. We have adopted the principle that debate on public issues should be uninhibited, robust, and wide open and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials. (New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 686 [1964]; cited in the concurring opinion of then Chief Justice Enrique Fernando in Babst v. National Intelligence Board, 132 SCRA 316 [1984]) Too many restrictions will deny to people the robust, uninhibited, and wide open debate, the generating of interest essential if our elections will truly be free, clean and honest. We have also ruled that the preferred freedom of expression calls all the more for the utmost respect when what may be curtailed is the dissemination of information to make more meaningful the equally vital right of suffrage. (Mutuc v. Commission on Elections, supra) The determination of the limits of the Government's power to regulate the exercise by a citizen of his basic freedoms in order to promote fundamental public interests or policy objectives is always a difficult and delicate task. The so-called balancing of interests individual freedom on one hand and substantial public interests on the other is made even more difficult in election campaign cases because the Constitution also gives specific authority to the Commission on Elections to supervise the conduct of free, honest, and orderly elections. We recognize the fact that under the Constitution, the COMELEC during the election period is granted regulatory powers vis-a-vis the conduct and manner of elections, to wit: Sec. 4. The Commission may, during the election period supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable equal rates therefore, for public information campaigns and forms among candidates in connection with the object of holding free, orderly, honest, peaceful and credible elections. (Article IX(c) section 4)

The variety of opinions expressed by the members of this Court in the recent case of National Press Club v. Commission on Elections (G.R. No. 102653, March 5, 1991) and its companion cases underscores how difficult it is to draw a dividing line between permissible regulation of election campaign activities and indefensible repression committed in the name of free and honest elections. In the National Press Club, case, the Court had occasion to reiterate the preferred status of freedom of expression even as it validated COMELEC regulation of campaigns through political advertisements. The gray area is rather wide and we have to go on a case to case basis. There is another problem involved. Considering that the period of legitimate campaign activity is fairly limited and, in the opinion of some, too short, it becomes obvious that unduly restrictive regulations may prove unfair to affected parties and the electorate. For persons who have to resort to judicial action to strike down requirements which they deem inequitable or oppressive, a court case may prove to be a hollow remedy. The judicial process, by its very nature, requires time for rebuttal, analysis and reflection. We cannot act instantly on knee-jerk impulse. By the time we revoke an unallowably restrictive regulation or ruling, time which is of the essence to a candidate may have lapsed and irredeemable opportunities may have been lost. When faced with border line situations where freedom to speak by a candidate or party and freedom to know on the part of the electorate are invoked against actions intended for maintaining clean and free elections, the police, local officials and COMELEC, should lean in favor of freedom. For in the ultimate analysis, the freedom of the citizen and the State's power to regulate are not antagonistic. There can be no free and honest elections if in the efforts to maintain them, the freedom to speak and the right to know are unduly curtailed. There were a variety of opinions expressed in the National Press Club v. Commission on Elections (supra) case but all of us were unanimous that regulation of election activity has its limits. We examine the limits of regulation and not the limits of free speech. The carefully worded opinion of the Court, through Mr. Justice Feliciano, shows that regulation of election campaign activity may not pass the test of validity if it is too general in its terms or not limited in time and scope in its application, if it restricts one's expression of belief in a candidate or one's opinion of his or her qualifications, if it cuts off the flow of media reporting, and if the regulatory measure bears no clear and reasonable nexus with the constitutionally sanctioned objective. Even as the Court sustained the regulation of political advertisements, with some rather strong dissents, inNational Press Club, we find the regulation in the present case of a different category. The promotion of a substantial Government interest is not clearly shown. A government regulation is sufficiently justified if it is within the constitutional power of the Government, if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. (Id., at 377, 20 L Ed 2d 672, 88 S Ct 1673. (City Council v. Taxpayers For Vincent, 466 US 789, 80 L Ed 2d 772, 104 S Ct 2118 [1984]) The posting of decals and stickers in mobile places like cars and other moving vehicles does not endanger any substantial government interest. There is no clear public interest threatened by such activity so as to justify the curtailment of the cherished citizen's right of free speech and expression. Under the clear and present danger rule not only must the danger be patently clear and pressingly present but the evil sought to be avoided must be so substantive as to justify a clamp over one's mouth or a writing instrument to be stilled: The case confronts us again with the duty our system places on the Court to say where the individual's freedom ends and the State's power begins. Choice on that border, now as always delicate, is perhaps more so where the usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedom secured by the first Amendment . . . That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions and it is the

character of the right, not of the limitation, which determines what standard governs the choice . . .

For these reasons any attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely, but by clear and present danger. The rational connection between the remedy provided and the evil to be
curbed, which in other context might support legislation against attack on due process grounds, will not suffice. These rights rest on firmer foundation. Accordingly, whatever occasion would restrain orderly discussion and persuasion, at appropriate time and place, must have clear support in public danger, actual or impending. Only the greatest abuses, endangering permanent interests, give occasion for permissible limitation. (Thomas V. Collins, 323 US 516 [1945]). (Emphasis supplied)

The resolution prohibits the posting of decals and stickers not more than eight and one-half (8-1/2) inches in width and fourteen (14) inches in length in any place, including mobile places whether public or private except in areas designated by the COMELEC. Verily, the restriction as to where the decals and stickers should be posted is so broad that it encompasses even the citizen's private property, which in this case is a privately-owned vehicle. In consequence of this prohibition, another cardinal rule prescribed by the Constitution would be violated. Section 1, Article III of the Bill of Rights provides that no person shall be deprived of his property without due process of law: Property is more than the mere thing which a person owns, it includes the right to acquire, use, and dispose of it; and the Constitution, in the 14th Amendment, protects these essential attributes. Property is more than the mere thing which a person owns. It is elementary that it includes the right to acquire, use, and dispose of it. The Constitution protects these essential attributes of property. Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of the free use, enjoyment, and disposal of a person's acquisitions without control or diminution save by the law of the land. 1 Cooley's Bl. Com. 127. (Buchanan v. Warley 245 US 60 [1917]) As earlier stated, we have to consider the fact that in the posting of decals and stickers on cars and other moving vehicles, the candidate needs the consent of the owner of the vehicle. In such a case, the prohibition would not only deprive the owner who consents to such posting of the decals and stickers the use of his property but more important, in the process, it would deprive the citizen of his right to free speech and information: Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved. The danger of distribution can so easily be controlled by traditional legal methods leaving to each householder the full right to decide whether he will receive strangers as visitors, that stringent prohibition can serve no purpose but that forbidden by the constitution, the naked restriction of the dissemination of ideas." (Martin v. City of Struthers, Ohio, 319 U.S. 141; 87 L. ed. 1313 [1943]) The right to property may be subject to a greater degree of regulation but when this right is joined by a "liberty" interest, the burden of justification on the part of the Government must be exceptionally convincing and irrefutable. The burden is not met in this case. Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or display of election propaganda in any place, whether public or private, except in the common poster areas sanctioned by COMELEC. This means that a private person cannot post his own crudely prepared personal poster on his own front door or on a post in his yard. While the COMELEC will certainly never require the absurd, there are no limits to what overzealous and partisan police officers, armed with a copy of the statute or regulation, may do. The provisions allowing regulation are so loosely worded that they include the posting of decals or stickers in the privacy of one's living room or bedroom. This is delegation running riot. As stated by Justice Cardozo in his concurrence in Panama Refining Co. v. Ryan (293 U.S. 388; 79 L. Ed. 446 [1935), "The delegated power is unconfined and vagrant . . . This is delegation running riot. No such plentitude of power is susceptible of transfer." Third the constitutional objective to give a rich candidate and a poor candidate equal opportunity to inform the electorate as regards their candidacies, mandated by Article II, Section 26 and Article XIII, section 1 in relation to Article IX (c) Section 4 of the Constitution, is not impaired by posting decals and stickers on cars and other private vehicles. Compared to the paramount interest of the State in guaranteeing freedom of expression, any financial considerations behind the regulation are of marginal significance. Under section 26 Article II of the Constitution, "The State shall guarantee equal access to opportunities for public service, . . . while under section 1, Article XIII thereof "The Congress shall give highest

Significantly, the freedom of expression curtailed by the questioned prohibition is not so much that of the candidate or the political party. The regulation strikes at the freedom of an individual to express his preference and, by displaying it on his car, to convince others to agree with him. A sticker may be furnished by a candidate but once the car owner agrees to have it placed on his private vehicle, the expression becomes a statement by the owner, primarily his own and not of anybody else. If, in the National Press Club case, the Court was careful to rule out restrictions on reporting by newspapers or radio and television stations and commentators or columnists as long as these are not correctly paid-for advertisements or purchased opinions with less reason can we sanction the prohibition against a sincere manifestation of support and a proclamation of belief by an individual person who pastes a sticker or decal on his private property. Second the questioned prohibition premised on the statute and as couched in the resolution is void for overbreadth. A statute is considered void for overbreadth when "it offends the constitutional principle that a governmental purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." (Zwickler v. Koota, 19 L ed 2d 444 [1967]). In a series of decisions this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose. In Lovell v. Griffin, 303 US 444, 82 L ed 949, 58 S Ct 666, the Court invalidated an ordinance prohibiting all distribution of literature at any time or place in Griffin, Georgia, without a license, pointing out that so broad an interference was unnecessary to accomplish legitimate municipal aims. In Schneider v. Irvington, 308 US 147, 84 L ed 155, 60 S Ct. 146, the Court dealt with ordinances of four different municipalities which either banned or imposed prior restraints upon the distribution of handbills. In holding the ordinances invalid, the court noted that where legislative abridgment of fundamental personal rights and liberties is asserted, "the courts should be astute to examine the effect of the challenged legislation. Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions," 308 US, at 161. In Cantwell v Connecticut, 310 US 296, 84 L ed 1213, 60 S Ct. 900, 128 ALR 1352, the Court said that "[c]onduct remains subject to regulation for the protection of society," but pointed out that in each case "the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom." (310 US at 304) (Shelton v. Tucker, 364 US 479 [1960]

priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, andpolitical inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good." (Emphasis supplied) It is to be reiterated that the posting of decals and stickers on cars, calesas, tricycles, pedicabs and other moving vehicles needs the consent of the owner of the vehicle. Hence, the preference of the citizen becomes crucial in this kind of election propaganda not the financial resources of the candidate. Whether the candidate is rich and, therefore, can afford to doleout more decals and stickers or poor and without the means to spread out the same number of decals and stickers is not as important as the right of the owner to freely express his choice and exercise his right of free speech. The owner can even prepare his own decals or stickers for posting on his personal property. To strike down this right and enjoin it is impermissible encroachment of his liberties. In sum, the prohibition on posting of decals and stickers on "mobile" places whether public or private except in the authorized areas designated by the COMELEC becomes censorship which cannot be justified by the Constitution: . . . The concept of the Constitution as the fundamental law, setting forth the criterion for the validity of any public act whether proceeding from the highest official or the lowest functionary, is a postulate of our system of government. That is to manifest fealty to the rule of law, with priority accorded to that which occupies the topmost rung in the legal hierarchy. The three departments of government in the discharge of the functions with which it is entrusted have no choice but to yield obedience to its commands. Whatever limits it imposes must be observed. Congress in the enactment of statutes must ever be on guard lest the restrictions on its authority, either substantive or formal, be transcended. The Presidency in the execution of the laws cannot ignore or disregard what it ordains. In its task of applying the law to the facts as found in deciding cases, the judiciary is called upon to maintain inviolate what is decreed by the fundamental law. Even its power of judicial review to pass upon the validity of the acts of the coordinate branches in the course of adjudication is a logical. corollary of this basic principle that the Constitution is paramount. It overrides any governmental measure that fails to live up to its mandates. Thereby there is a recognition of its being the supreme law. (Mutuc v. Commission on Elections, supra) The unusual circumstances of this year's national and local elections call for a more liberal interpretation of the freedom to speak and the right to know. It is not alone the widest possible dissemination of information on platforms and programs which concern us. Nor are we limiting ourselves to protecting the unfettered interchange of ideas to bring about political change. (Cf. New York Times v. Sullivan, supra) The big number of candidates and elective positions involved has resulted in the peculiar situation where almost all voters cannot name half or even two-thirds of the candidates running for Senator. The public does not know who are aspiring to be elected to public office. There are many candidates whose names alone evoke qualifications, platforms, programs and ideologies which the voter may accept or reject. When a person attaches a sticker with such a candidate's name on his car bumper, he is expressing more than the name; he is espousing ideas. Our review of the validity of the challenged regulation includes its effects in today's particular circumstances. We are constrained to rule against the COMELEC prohibition. WHEREFORE, the petition is hereby GRANTED. The portion of Section 15 (a) of Resolution No. 2347 of the Commission on Elections providing that "decals and stickers may be posted only in any of the authorized posting areas provided in paragraph (f) of Section 21 hereof" is DECLARED NULL and VOID. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 119673 July 26, 1996 IGLESIA NI CRISTO, (INC.), petitioner, vs. THE HONORABLE COURT OF APPEALS, BOARD OF REVIEW FOR MOVING PICTURES AND TELEVISION and HONORABLE HENRIETTA S. MENDOZA, respondents.

PUNO, J.:p This is a petition for review of the Decision dated March 24, 1995 of the respondent Court of Appeals affirming the action of the respondent Board of Review for Moving Pictures and Television which x-rated the TV Program "Ang Iglesia ni Cristo." Petitioner Iglesia ni Cristo, a duly organized religious organization, has a television program entitled "Ang Iglesia ni Cristo" aired on Channel 2 every Saturday and on Channel 13 every Sunday. The program presents and propagates petitioner's religious beliefs, doctrines and practices often times in comparative studies with other religions. Sometime in the months of September, October and November 1992 petitioner submitted to the respondent Board of Review for Moving Pictures and Television the VTR tapes of its TV program Series Nos. 116, 119, 121 and 128. The Board classified the series as "X" or not for public viewing on the ground that they "offend and constitute an attack against other religions which is expressly prohibited by law." Petitioner pursued two (2) courses of action against the respondent Board. On November 28, 1992, it appealed to the Office of the President the classification of its TV Series No. 128. It succeeded in its appeal for on December 18, 1992, the Office of the President reversed the decision of the respondent Board. Forthwith, the Board allowed Series No. 128 to be publicly telecast. On December 14, 1992, petitioner also filed against the respondent Board Civil Case No. Q-92-14280, with the RTC, NCR Quezon City. 1 Petitioner alleged that the respondent Board acted without jurisdiction or with grave abuse of discretion in requiring petitioner to submit the VTR tapes of its TV program and in x-rating them. It cited its TV Program Series Nos. 115, 119, 121 and 128. In their Answer, respondent Board invoked its power under PD No. 1986 in relation to Article 201 of the Revised Penal Code. On January 4, 1993, the trial court held a hearing on petitioner's prayer for a writ of preliminary injunction. The parties orally argued and then marked their documentary evidence. Petitioner submitted the following as its exhibits, viz.: (1) Exhibit "A," respondent Board's Voting Slip for Television showing its September 9, 1992 action on petitioner's Series No. 115 as follows: 2 REMARKS: There are some inconsistencies in the particular program as it is very surprising for this program to show series of Catholic ceremonies and also some religious sects and using it in their discussion about the bible. There are remarks which are direct criticism which affect other religions. Need more opinions for this particular program. Please subject to more opinions. (2) Exhibit "A-1," respondent Board's Voting Slip for Television showing its September 11, 1992 subsequent action on petitioner's Series No. 115 as follows: 3 REMARKS:

Narvasa, C.J., Melencio-Herrera, Paras, Padilla, Bidin, Grio-Aquino, Medialdea, Regalado, Davide, Jr., Romero and Nocon, J.J., concur. Feliciano and Bellosillo, JJ., are on leave.

This program is criticizing different religions, based on their own interpretation of the Bible. We suggest that the program should delve on explaining their own faith and beliefs and avoid attacks on other faith. (3) Exhibit "B," respondent Board's Voting Slip for Television showing its October 9, 1992 action on petitioner's Series No. 119, as follows: 4 REMARKS: The Iglesia ni Cristo insists on the literal translation of the bible and says that our (Catholic) veneration of the Virgin Mary is not to be condoned because nowhere it is found in the bible that we should do so. This is intolerance and robs off all sects of freedom of choice, worship and decision. (4) Exhibit "C," respondent Board's Voting Slip for Television showing its October 20, 1992 action on petitioner's Series No. 121 as follows: 5 REMARKS: I refuse to approve the telecast of this episode for reasons of the attacks, they do on, specifically, the Catholic religion. I refuse to admit that they can tell, dictate any other religion that they are right and the rest are wrong, which they clearly present in this episode. (5) Exhibit "D," respondent Board's Voting Slip for Television showing its November 20, 1992 action on petitioner's Series No. 128 as follows: 6 REMARKS: The episode presented criticizes the religious beliefs of the Catholic and Protestant's beliefs. We suggest a second review. (6) Exhibits "E," "E-1," petitioner's block time contract with ABS-CBN Broadcasting Corporation dated September 1, 1992. 7 (7) Exhibit "F," petitioner's Airtime Contract with Island Broadcasting Corporation. 8 (8) Exhibit "G," letter dated December 18, 1992 of former Executive Secretary Edelmiro A. Amante, Sr., addressed for Henrietta S. Mendez reversing the decision of the respondent Board which xrated the showing of petitioner's Series No. 129. The letter reads in part: xxx xxx xxx The television episode in question is protected by the constitutional guarantee of free speech and expression under Article III, section 4 of the 1987 Constitution. We have viewed a tape of the television episode in question, as well as studied the passages found by MTRCB to be objectionable and we find no indication that the episode poses any clear and present danger sufficient to limit the said constitutional guarantee.

(9) Exhibits "H," "H-1," letter dated November 26, 1992 of Teofilo C. Ramos, Sr., addressed to President Fidel V. Ramos appealing the action of the respondent Board x-rating petitioner's Series No. 128. On its part, respondent Board submitted the following exhibits, viz.: (1) Exhibit "1," Permit Certificate for Television Exhibition No. 15181 dated December 18, 1992 allowing the showing of Series No. 128 under parental guidance. (2) Exhibit "2," which is Exhibit "G" of petitioner. (3) Exhibit "3," letter dated October 12, 1992 of Henrietta S. Mendez, addressed to the Christian Era Broadcasting Service which reads in part: xxx xxx xxx In the matter of your television show "Ang Iglesia ni Cristo" Series No. 119, please be informed that the Board was constrained to deny your show a permit to exhibit. The material involved constitute an attack against another religion which is expressly prohibited by law. Please be

guided in the submission of future shows.

After evaluating the evidence of the parties, the trial court issued a writ of preliminary injunction on petitioner's bond o P10,000.00. The trial court set the pre-trial of the case and the parties submitted their pre-trial briefs. 9 The pre-trial briefs show that the parties' evidence is basically the evidence they submitted in the hearing of the issue of preliminary injunction. The trial of the case was set and reset several times as the parties tried to reach an amicable accord. Their efforts failed and the records show that after submission of memoranda, the trial court rendered a Judgment,10 on December 15, 1993, the dispositive portion of which reads: xxx xxx xxx WHEREFORE, judgment is hereby rendered ordering respondent Board of Review for Moving Pictures and Television (BRMPT) to grant petitioner Iglesia ni Cristo the necessary permit for all the series of "Ang Iglesia ni Cristo" program. Petitioner Iglesia ni Cristo, however, is directed to refrain from offending and attacking other existing religions in showing "Ang Iglesia ni Cristo" program. SO ORDERED. Petitioner moved for reconsideration 11 praying: (a) for the deletion of the second paragraph of the dispositive portion of the Decision, and (b) for the Board to be perpetually enjoined from requiring petitioner to submit for review the tapes of its program. The respondent Board opposed the motion. 12 On March 7, 1993, the trial court granted petitioner's Motion for Reconsideration. It ordered: 13 xxx xxx xxx WHEREFORE, the Motion for Reconsideration is granted. The second portion of the Court's Order dated December 15, 1993, directing petitioner to refrain from offending and attacking other existing religions in showing "Ang Iglesia ni Cristo" program is hereby deleted and set aside. Respondents are further prohibited from requiring petitioner Iglesia ni Cristo to submit for review VTR tapes of its religious program "Ang Iglesia ni Cristo."

Respondent Board appealed to the Court of Appeals after its motion for reconsideration was denied. 14 On March 5, 1995, the respondent Court of Appeals 15 reversed the trial court. It ruled that: (1) the respondent board has jurisdiction and power to review the TV program "Ang Iglesia ni Cristo," and (2) the respondent Board did not act with grave abuse of discretion when it denied permit for the exhibition on TV of the three series of "Ang Iglesia ni Cristo" on the ground that the materials constitute an attack against another religion. It also found the series "indecent, contrary to law and contrary to good customs. In this petition for review on certiorari under Rule 45, petitioner raises the following issues: I WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE "ANG IGLESIA NI CRISTO" PROGRAM IS NOT CONSTITUTIONALLY PROTECTED AS A FORM OF RELIGIOUS EXERCISE AND EXPRESSION. II WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING THAT BEING AN EXERCISE OF RELIGIOUS FREEDOM, THE "ANG IGLESIA NI CRISTO" PROGRAM IS SUBJECT TO THE POLICE POWER OF THE STATE ONLY IN THE EXTREME CASE THAT IT POSES A CLEAR AND PRESENT DANGER. III WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE MTRCB IS VESTED WITH THE POWER TO CENSOR RELIGIOUS PROGRAMS. IV WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE "ANG IGLESIA NI CRISTO," A PURELY RELIGIOUS PROGRAM IS INDECENT AND CONTRARY TO LAW AND GOOD CUSTOMS. The basic issues can be reduced into two: (1) first, whether the respondent Board has the power to review petitioner's TV program "Ang Iglesia ni Cristo," and (2) second, assuming it has the power, whether it gravely abused its discretion when it prohibited the airing of petitioner's religious program, series Nos. 115, 119 and 121, for the reason that they constitute an attack against other religions and that they are indecent, contrary to law and good customs. The first issue can be resolved by examining the powers of the Board under PD No. 1986. Its section 3 pertinently provides: Sec. 3 Powers and Functions. -- The BOARD shall have the following functions, powers and duties: xxx xxx xxx b) To screen, review and examine all motion pictures as herein defined, television programs, including publicity materials such as advertisements, trailers and stills, whether such motion pictures and publicity materials be for theatrical or non-theatrical distribution for television broadcast or for general viewing, imported or produced in the Philippines and in the latter case, whether they be for local viewing or for export. c) To approve, delete objectionable portion from and/or prohibit the importation, exportation, production, copying, distribution, sale, lease, exhibition and/or television broadcast of the motion pictures, television programs and publicity materials, subject of the preceding paragraph, which, in the judgment of the BOARD applying

contemporary Filipino cultural values as standard, are objectionable for being immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines and its people, or with a dangerous tendency to encourage the commission of violence or of a wrong or crime, such as but not limited to: i) Those which tend to incite subversion, insurrection, rebellion or sedition against the State, or otherwise threaten the economic and/or political stability of the State; ii) Those which tend to undermine the faith and confidence of the people, their government and/or duly constituted authorities; iii) Those which glorify criminals or condone crimes; iv) Those which serve no other purpose but to satisfy the market for violence or pornography; v) Those which tend to abet the traffic in and use of prohibited drugs; vi) Those which are libelous or defamatory to the good name and reputation of any person, whether living or dead; vii) Those which may constitute contempt of court or of any quasi-judicial tribunal, or pertain to matters which are subjudice in nature (emphasis ours). The law gives the Board the power to screen, review and examine all "television programs." By the clear terms of the law, the Board has the power to "approve, delete . . . and/or prohibit the . . . exhibition and/or television broadcast of . . . television programs . . ." The law also directs the Board to apply "contemporary Filipino cultural values as standard" to determine those which are objectionable for being "immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines and its people, or with a dangerous tendency to encourage the commission of violence or of a wrong or crime." Petitioner contends that the term "television program" should not include religious programs like its program "Ang Iglesia ni Cristo." A contrary interpretation, it is urged, will contravene section 5, Article III of the Constitution which guarantees that "no law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed." We reject petitioner's submission which need not set us adrift in a constitutional voyage towards an uncharted sea. Freedom of religion has been accorded a preferred status by the framers of our fundamental laws, past and present. We have affirmed this preferred status well aware that it is "designed to protect the broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with the common good." 16 We have also laboriously defined in our jurisprudence the intersecting umbras and penumbras of the right to religious profession and worship. To quote the summation of Mr. Justice Isagani Cruz, our well-known constitutionalist: 17

Religious Profession and Worship

The right to religious profession and worship has a two-fold aspect, viz., freedom to believe and

freedom to act on one's beliefs. The first is absolute as long as the belief is confined within the realm of thought. The second is subject to

regulation where the belief is translated into external acts that affect the public welfare.
(1) Freedom to Believe

stultifying strife considering our warring religious beliefs and the fanaticism with which some of us cling and claw to these beliefs. Even now, we have yet to settle the near century old strife in Mindanao, the roots of which have been nourished by the mistrust and misunderstanding between our Christian and Muslim brothers and sisters. The bewildering rise of weird religious cults espousing violence as an article of faith also proves the wisdom of our rule rejecting a strict let alone policy on the exercise of religion. For sure, we shall

The individual is free to believe (or disbelieve) as he pleases concerning the hereafter. He may indulge his own theories about life and death; worship any god he chooses, or none at all; embrace or reject any religion; acknowledge the divinity of God or of any being that appeals to his reverence; recognize or deny the immortality of his soul -- in fact, cherish any religious conviction as he and he alone sees fit. However absurd his beliefs may be to others, even if they be hostile and heretical to the majority, he has full freedom to believe as he pleases. He may not be required to prove his beliefs. He may not be punished for his inability to do so. Religion, after all, is a matter of faith. "Men may believe what they cannot prove." Every one has a right to his beliefs and he may not be called to account because he cannot prove what he believes. (2) Freedom to Act on One's Beliefs

continue to subject any act pinching the space for the free exercise of religion to a heightened scrutiny but we shall not leave its rational exercise to the irrationality of man. For when religion divides and its exercise destroys, the State should not stand still.

But where the individual externalizes his beliefs in acts or omissions that affect the public, his freedom to do so becomes subject to the authority of the State. As great as this liberty may be,
religious freedom, like all the other rights guaranteed in the Constitution, can be enjoyed only with a proper regard for the rights of others. It is error to think that the mere invocation

of religious freedom will stalemate the State and render it impotent in protecting the general welfare. The inherent police power can be

It is also petitioner's submission that the respondent appellate court gravely erred when it affirmed the ruling of the respondent Board xrating its TV Program Series Nos. 115, 119, 121 and 128. The records show that the respondent Board disallowed the program series for "attacking" other religions. Thus, Exhibits "A," "A-1," (respondent Board's Voting Slip for Television) reveal that its reviewing members xrated Series 115 for ". . . criticizing different religions, based on their own interpretation of the Bible." They suggested that the program should only explain petitioner's ". . . own faith and beliefs and avoid attacks on other faiths." Exhibit "B" shows that Series No. 119 was xrated because "the Iglesia ni Cristo insists on the literal translation of the bible and says that our Catholic veneration of the Virgin Mary is not to be condoned because nowhere it is found in the bible that we should do so. This is intolerance . . ." Exhibit "C" shows that Series No. 121 was x-rated ". . . for reasons of the attacks, they do on, specifically, the Catholic religion. . . . (T)hey can not tell, dictate any other religion that they are right and the rest are wrong . . ." Exhibit "D" also shows that Series No. 128 was not favorably recommended because it ". . . outrages Catholic and Protestant's beliefs." On second review, it was x-rated because of its "unbalanced interpretations of some parts of the bible." 18 In sum, the respondent Board x-rated petitioner's TV program series Nos. 115, 119, 121 and 128 because of petitioner's controversial biblical interpretations and its "attacks" against contrary religious beliefs. The respondent appellate court agreed and even held that the said "attacks" are indecent, contrary to law and good customs. We reverse the ruling of the appellate court.

exercised to prevent religious practices inimical to society. And this is true even if such practices are pursued out of sincere religious conviction and not merely for the purpose of evading the reasonable requirements or prohibitions of the law. Justice Frankfurter put it succinctly: "The constitutional provision on religious freedom terminated disabilities, it did not create new privileges. It gave religious liberty, not civil immunity. Its essence is freedom from conformity

First. Deeply ensconced in our fundamental law is its hostility against

all prior restraints on speech, including religious speech. Hence, any act that restrains speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows. 19 It is the burden of the respondent Board to overthrow this presumption. If it fails to discharge this burden, its act of censorship will be struck down. It failed in the case at bar.

Second. The evidence shows that the respondent Board x-rated

to religious dogma, not freedom from conformity to law because of religious dogma.

Accordingly, while one has lull freedom to believe in Satan, he may not offer the object of his piety a human sacrifice, as this would be murder. Those who literally interpret the Biblical command to "go forth and multiply" are nevertheless not allowed to contract plural marriages in violation of the laws against bigamy. A person cannot refuse to pay taxes on the ground that it would be against his religious tenets to recognize any authority except that of God alone. An atheist cannot express in his disbelief in act of derision that wound the feelings of the faithful. The police power can validly asserted against the Indian practice of the suttee, born of deep religious conviction, that calls on the widow to immolate herself at the funeral pile of her husband. We thus reject petitioner's postulate that its religious program is per se beyond review by the respondent Board. Its public broadcast on TV of its religious program brings it out of the bosom of internal belief. Television is a medium that reaches even the eyes and ears of children. The Court iterates the rule that the exercise of religious freedom can be regulated by the State when it will bring about the clear and present danger of some substantive evil which the State is duty bound to prevent, i.e., serious detriment to the more overriding interest of public health, public morals, or public welfare. A laissez faire policy on the exercise of religion can be seductive to the liberal mind but history counsels the Court against its blind adoption as religion is and continues to be a volatile area of concern in our country today. Across the sea and in our shore, the bloodiest and bitterest wars fought by men were caused by irreconcilable religious differences. Our country is still not safe from the recurrence of this

petitioners TV series for "attacking" either religions, especially the Catholic church. An examination of the evidence, especially Exhibits "A," "A-1," "B," "C," and "D" will show that the so-called "attacks" are mere criticisms of some of the deeply held dogmas and tenets of other religions. The videotapes were not viewed by the respondent court as they were not presented as evidence. Yet they were considered by the respondent court as indecent, contrary to law and good customs, hence, can be prohibited from public viewing under section 3(c) of PD 1986. This ruling clearly suppresses petitioner's freedom of speech and interferes with its right to free exercise of religion. It misappreciates the essence of freedom to differ as delineated in the benchmark case of Cantwell v. Connecticut, so viz.: 20 xxx xxx xxx In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields, the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are prominent in church or state or even to false statements. But the people of this nation have ordained in the light of history that inspite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of democracy. The respondent Board may disagree with the criticisms of other religions by petitioner but that gives it no excuse to interdict such criticisms, however, unclean they may be. Under our constitutional scheme, it is not the task of the State to favor any religion by protecting it against an attack by another religion. Religious dogmas and beliefs are often

at war and to preserve peace among their followers, especially the fanatics, the establishment clause of freedom of religion prohibits the State from leaning towards any religion. Vis-a-vis religious differences, the State enjoys no banquet of options. Neutrality alone is its fixed and immovable stance. In fine, respondent board cannot squelch the speech of petitioner Iglesia ni Cristo simply because it attacks other religions, even if said religion happens to be the most numerous church in our country. In a State where there ought to be no difference between the appearance and the reality of freedom of religion, the remedy against bad theology is better theology. The bedrock of freedom of religion is freedom of thought and it is best served by encouraging the marketplace of dueling ideas. When the luxury of time permits, the marketplace of ideas demands that speech should be met by more speech for it is the spark of opposite speech, the heat of colliding ideas that can fan the embers of truth.

animmediate and grave danger to the security and welfare of the community that infringement of religious freedom may be justified, and only to the smallest extent necessary to avoid the danger." The records show that the decision of the respondent Board, affirmed by the respondent appellate court, is completely bereft of findings of facts to justify the conclusion that the subject video tapes constitute impermissible attacks against another religion. There is no showing whatsoever of the type of harm the tapes will bring about especially the gravity and imminence of the threatened harm. Prior restraint on

speech, including religious speech, cannot be justified by hypothetical fears but only by the showing of a substantive and imminent evil which has taken the life of a reality already on ground.
It is suggested that we re-examine the application of clear and present danger rule to the case at bar. In the United States, it is true that the clear and present danger test has undergone permutations. It was Mr. Justice Holmes who formulated the test in Schenck v. US, 24 as follows: ". . . the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." Admittedly, the test was originally designed to determine the latitude which should be given to speech that espouses anti-government action. Bannered by Justices Holmes and Brandeis, the test attained its full flowering in the decade of the forties, when its umbrella was used to protect speech other than subversive speech. 25 Thus, for instance, the test was applied to annul a total ban on labor picketing. 26 The use of the test took a downswing in the 1950's when the US Supreme Court decided Dennis v. United States involving communist conspiracy. 27 In Dennis, the components of the test were altered as the High Court adopted Judge Learned Hand's formulation that ". . . in each case [courts] must ask whether the gravity of the 'evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger." The imminence requirement of the test was thus diminished and to that extent, the protection of the rule was weakened. In 1969, however, the strength of the test was reinstated in Brandenburg v. Ohio, 28 when the High Court restored in the test the imminence requirement, and even added an intent requirement which according to a noted commentator ensured that only speech directed at inciting lawlessness could be punished. 29 Presently in the United States, the clear and present danger test is not applied to protectlow value speeches such as obscene speech, commercial speech and defamation. Be that as it may, the test is still applied to four types of speech: speech that advocates dangerous ideas, speech that provokes a hostile audience reaction, out of court contempt and release of information that endangers a fair trial. 30 Hence, even following the drift of American jurisprudence, there is reason to apply the clear and present danger test to the case at bar which concerns speech that attacks other religions and could readily provoke hostile audience reaction. It cannot be doubted that religious truths disturb and disturb tenribly. It is also opined that it is inappropriate to apply the clear and present danger test to the case at bar because the issue involves the content of speech and not the time, place or manner of speech. Allegedly, unless the speech is first allowed, its impact cannot be measured, and the causal connection between the speech and the evil apprehended cannot be established. The contention overlooks the fact that the case at bar involves videotapes that are pre-taped and hence, their speech content is known and not an X quantity. Given the specific content of the speech, it is not unreasonable to assume that the respondent Board, with its expertise, can determine whether its sulphur will bring about the substantive evil feared by the law. Finally, it is also opined by Mr. Justice Kapunan that ". . . the determination of the question as to whether or not such vilification, exaggeration or fabrication falls within or lies outside the boundaries of protected speech or expression is a judicial function which cannot be arrogated by an administrative body such as a Board of Censors." He submits that a "system of prior restraint may only be validly administered by judges and not left to administrative agencies. "The same submission is made by Mr. Justice Mendoza. This thoughtful thesis is an attempt to transplant another American rule in our jurisdiction. Its seedbed was laid down by Mr. Justice Brennan in his concurring opinion in the 1962 case of Manual Enterprise v. Day 31 By 1965, the US Supreme Court in Freedman v. Maryland 32 was ready to hold that "the teaching of cases is that, becauseonly a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression only a procedure requiring a judicial determination suffices to impose a valid final restraint." 33 While the thesis has a lot to commend itself, we are not ready to hold that it is unconstitutional for Congress to grant an administrative

Third. The respondents cannot also rely on the ground "attacks against
another religion" in x-rating the religious program of petitioner. Even a sideglance at section 3 of PD No. 1986 will reveal that it is not among the grounds to justify an order prohibiting the broadcast of petitioner's television program. The ground "attack against another religion" was merely added by the respondent Board in its Rules. 21 This rule is void for it runs smack against the hoary doctrine that administrative rules and regulations cannot expand the letter and spirit of the law they seek to enforce.

It is opined that the respondent board can still utilize" attack against any religion" as a ground allegedly ". . . because section 3 (c) of PD No. 1986 prohibits the showing of motion pictures, television programs and publicity materials which are contrary to law and Article 201 (2) (b) (3) of the Revised Penal Code punishes anyone who exhibits "shows which offend any race or religion." We respectfully disagree for it is plain that the word "attack" is not synonymous with the word "offend." Moreover, Article 201 (2) (b) (3) of the Revised Penal Code should be invoked to justify the subsequent punishment of a show which offends any religion. It cannot be utilized to justifyprior censorship of speech. It must be emphasized that E.O. 876, the law prior to PD 1986, included "attack against any religion" as a ground for censorship. The ground was not, however, carried over by PD 1986. Its deletion is a decree to disuse it. There can be no other intent. Indeed, even the Executive Department espouses this view. Thus, in an Opinion dated November 28, 1985 then Minister of Justice, now President of the Senate, Neptali Gonzales explained: xxx xxx xxx However, the question whether the BRMPT (now MTRCB) may preview and censor the subject television program of INC should be viewed in the light of the provision of Section 3, paragraph (c) of PD 1986, which is substantially the same as the provision of Section 3, paragraph (c) of E.O. No. 876-A, which prescribes the standards of censorship, to wit: "immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines or its people or with dangerous tendency to encourage the commission of violence, or of a wrong" as determined by the Board, "applying contemporary Filipino cultural values as standard." As stated, the intention of the Board to subject the INC's television program to "previewing and censorship is prompted by the fact that its religious program makes mention of beliefs and practices of other religion." On the face of the law itself, there can

conceivably be no basis for censorship of said program by the Board as much as the alleged reason cited by the Board does not appear to he within the contemplation of the standards of censorship set by law. (Emphasis supplied).

Fourth. In x-rating the TV program of the petitioner, the respondents failed to apply the clear and present danger rule. In American Bible Society v. City of Manila, 22 this Court held: "The constitutional

guaranty of free exercise and enjoyment of religious profession and worship carries with it the right to disseminate religious information. Any restraint of such right can be justified like other restraints on freedom of expression on the ground that there is aclear and present danger of any substantive evil which the State has the right to prevent." In Victoriano vs. Elizalde Rope Workers Union, 23 we further ruled that ". . . it is only where it is unavoidably necessary to prevent

body quasi-judicial power to preview and classify TV programs and enforce its decisionsubject to review by our courts. As far back as 1921, we upheld this set-up in Sotto vs. Ruiz, 34 viz.: The use of the mails by private persons is in the nature of a privilege which can be regulated in order to avoid its abuse. Persons posses no absolute right to put into the mail anything they please, regardless of its character. On the other hand, the exclusion of newspaper and other publications from the mails, in the exercise of executive power, is extremely delicate in nature and can only be justified where the statute is unequivocably applicable to the supposed objectionable publication. In excluding any publication for the mails, the object should be not to interfere with the freedom of the press or with any other fundamental right of the people. This is the more true with reference to articles supposedly libelous than to other particulars of the law, since whether an article is or is not libelous, is fundamentally a legal question. In order for there

vs. CHAIRMAN MARIA KALAW KATIGBAK, GENERAL WILFREDO C. ESTRADA (Ret.), and THE BOARD OF REVIEW FOR MOTION PICTURES AND TELEVISION (BRMPT), respondents.

Irene R. Cortes, Perfecto V. Fernandez, Haydee Yorac and Joker P. Arroyo for petitioners. The Solicitor General for respondents.

FERNANDO, C.J.: In this case of first impression, a certiorari proceeding filed on January 10, 1985, there is a persuasive ring to the invocation of the constitutional right to freedom of expression 1 of an artistand for that matter a man of letters tooas the basis for a ruling on the scope of the power of respondent Board of Review for Motion Pictures and Television and how it should be exercised. The dispute between the parties has been narrowed down. The motion picture in question, Kapit sa Patalim was classified "For Adults Only." There is the further issue then, also one of first impression, as to the proper test of what constitutes obscenity in view of the objections raised. Thus the relevance of this constitutional command: "Arts and letters shall be under the patronage of the State. 2 The principal petitioner is Jose Antonio U. Gonzalez, 3 President of the Malaya Films, a movie production outfit duly registered as a single proprietorship with the Bureau of Domestic Trade. The respondent is the Board of Review for Motion Pictures and Television, with Maria Kalaw Katigbak as its Chairman and Brig. Gen. Wilfredo C. Estrada as its Vice-Chairman, also named respondents. In a resolution of a sub-committee of respondent Board of October 23, 1984, a permit to exhibit the film Kapit sa Patalim under the classification "For Adults Only," with certain changes and deletions enumerated was granted. A motion for reconsideration was filed by petitioners stating that the classification of the film "For Adults Only" was without basis. 4 Then on November 12, 1984, respondent Board released its decision: "Acting on the applicant's Motion for Reconsideration dated 29 October 1984, the Board, after a review of the resolution of the sub-committee and an examination of the film, Resolves to affirm in toto the ruling of the sub-committee. Considering, however, certain vital deficiencies in the application, the Board further Resolves to direct the Chairman of the Board to Withheld the issuance of the Permit to exhibit until these deficiencies are supplied. 5 Hence this petition. This Court, in a resolution of January 12, 1985, required respondent to answer. In such pleading submitted on January 21, 1985, as one of its special and affirmative defenses, it was alleged that the petition is moot as "respondent Board has revoked its questioned resolution, replacing it with one immediately granting petitioner company a permit to exhibit the film Kapit without any deletion or cut [thus an] adjudication of the questions presented above would be academic on the case." 6 Further: "The modified resolution of the Board, of course, classifies Kapit as for-adults-only, but the petition does not raise any issue as to the validity of this classification. All that petitioners assail as arbitrary on the part of the Board's action are the deletions ordered in the film. 7 The prayer was for the dismissal of the petition. An amended petition was then filed on January 25, 1985. The main objection was the classification of the film as "For Adults Only." For petitioners, such classification "is without legal and factual basis and is exercised as impermissible restraint of artistic expression. The film is an integral whole and all its portions, including those to which the Board now offers belated objection, are essential for the integrity of the film. Viewed as a whole, there is no basis even for the vague speculations advanced by the Board as basis for its classification. 8 There was an answer to the amended petition filed on February 18, 1985. It was therein asserted that the issue presented as to the previous deletions ordered by the Board as well as the statutory provisions for review of films and as to the requirement to submit the master negative have been all rendered moot. It was also submitted that the standard of the law for classifying films afford a practical and determinative yardstick for the exercise of judgment. For respondents, the question of the sufficiency of the standards remains the only question at issue. It would be unduly restrictive under the circumstances to limit the issue to one of the sufficiency of standards to guide respondent Board in the exercise of its power. Even if such were the case, there is justification for an inquiry into the controlling standard to warrant the

to be due process of law, the action of the Director of Posts must be subject to revision by the courts in case he had abused his discretion or exceeded his authority. (Ex parte Jackson [1878],
96 U.S., 727;

Public Cleaning House vs. Coyne [1903], 194 U.S., 497; Post Publishing Co. vs. Murray [1916]. 23 Fed., 773)

As has been said, the performance of the duty of determining whether a publication contains printed matter of a libelous character rests with the Director of Posts and involves the exercise of his judgment and discretion. Every intendment of the
law is in favor of the correctness of his action. The rule is (and we go only to those cases coming from the United States Supreme Court and pertaining to the United States PostmasterGeneral), that the courts will not interfere with the decision of the Director of Posts unless clearly of opinion that it was wrong. (Bates & Guilid Co. vs. Payne [1904], 194 U.S., 106; Smith vs. Hitchcock [1912], 226 U.S., 63; Masses Pub. Co. vs. Patten [1917], 246 Fed., 24. But see David vs. Brown [1900], 103 Fed., 909, announcing a somewhat different doctrine and relied upon by the AttorneyGeneral). To be sure, legal scholars in the United States are still debating the proposition whether or not courts aloneare competent to decide whether speech is constitutionally protected. 35 The issue involves highly arguable policy considerations and can be better addressed by our legislators. IN VIEW WHEREOF, the Decision of the respondent Court of Appeals dated March 24, 1995 is affirmed insofar as it sustained the jurisdiction of the respondent MTRCB to review petitioner's TV program entitled "Ang Iglesia ni Cristo," and is reversed and set aside insofar as it sustained the action of the respondent MTRCB x-rating petitioner's TV Program Series Nos. 115, 119, and 121. No costs. SO ORDERED.

Regalado, Davide, Jr., Romero and Francisco, JJ., concur. Narvasa, C.J., concurs in the result.
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-69500 July 22, 1985 JOSE ANTONIO U. GONZALEZ in behalf of MALAYA FILMS, LINO BROCKA, JOSE F. LACABA, and DULCE Q. SAGUISAG, petitioners,

classification of "For Adults Only." This is especially so, when obscenity is the basis for any alleged invasion of the right to the freedom of artistic and literary expression embraced in the free speech and free press guarantees of the Constitution. 1. Motion pictures are important both as a medium for the communication of Ideas and the expression of the artistic impulse. Their effects on the perception by our people of issues and public officials or public figures as well as the prevailing cultural traits is considerable. Nor as pointed out in Burstyn v. Wilson 9 is the "importance of motion pictures as an organ of public opinion lessened by the fact that they are designed to entertain as well as to inform. 10 There is no clear dividing line between what involves knowledge and what affords pleasure. If such a distinction were sustained, there is a diminution of the basic right to free expression. Our recent decision in Reyes v. Bagatsing 11 cautions against such a move. Press freedom, as stated in the opinion of the Court, "may be Identified with the liberty to discuss publicly and truthfully any matter of public concern without censorship or punishment. 12 This is not to say that such freedom, as is the freedom of speech, absolute. It can be limited if "there be a 'clear and present danger of a substantive evil that [the State] has a right to prevent. 13 2. Censorship or previous restraint certainly is not all there is to free speech or free press. If it were so, then such basic rights are emasculated. It is however, except in exceptional circumstances a sine qua non for the meaningful exercise of such right. This is not to deny that equally basic is the other important aspect of freedom from liability. Nonetheless, for the purposes of this litigation, the emphasis should rightly be on freedom from censorship. It is, beyond question, a well-settled principle in our jurisdiction. As early as 1909, in the case of United States v. Sedano, 14 a prosecution for libel, the Supreme Court of the Philippines already made clear that freedom of the press consists in the right to print what one chooses without any previous license. There is reaffirmation of such a view in Mutuc v. Commission on Elections, 15 where an order of respondent Commission on Elections giving due course to the certificate of candidacy of petitioner but prohibiting him from using jingles in his mobile units equipped with sound systems and loud speakers was considered an abridgment of the right of the freedom of expression amounting as it does to censorship. It is the opinion of this Court, therefore, that to avoid an unconstitutional taint on its creation, the power of respondent Board is limited to the classification of films. It can, to safeguard other constitutional objections, determine what motion pictures are for general patronage and what may require either parental guidance or be limited to adults only. That is to abide by the principle that freedom of expression is the rule and restrictions the exemption. The power to exercise prior restraint is not to be presumed, rather the presumption is against its validity. 16 3. The test, to repeat, to determine whether freedom of excession may be limited is the clear and present danger of an evil of a substantive character that the State has a right to prevent. Such danger must not only be clear but also present. There should be no doubt that what is feared may be traced to the expression complained of. The causal connection must be evident. Also, there must be reasonable apprehension about its imminence. The time element cannot be ignored. Nor does it suffice if such danger be only probable. There is the require of its being well-nigh inevitable. The basic postulate, wherefore, as noted earlier, is that where the movies, theatrical productions radio scripts, television programs, and other such media of expression are concerned included as they are in freedom of expression censorship, especially so if an entire production is banned, is allowable only under the clearest proof of a clear and present danger of a substantive evil to public public morals, public health or any other legitimate public interest. 17 There is merit to the observation of Justice Douglas that "every writer, actor, or producer, no matter what medium of expression he may use, should be freed from the censor. 18 4. The law, however, frowns on obscenity and rightly so. As categorically stated by Justice Brennan in Roth v. United States 19 speaking of the free speech and press guarantee of the United States Constitution: "All Ideas having even the slightest redeeming social importance unorthodox Ideas, controversial Ideas, even Ideas hateful to the prevailing climate of opinion have the full protection of the guaranties, unless excludable because they encroach upon the limited area of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. 20 Such a view commends itself for approval. 5. There is, however, some difficulty in determining what is obscene. There is persuasiveness to the approach followed in Roth: "The early leading standard of obscenity allowed material to be judged merely by the effect of an isolated excerpt upon particularly susceptible persons. Regina v. Hicklin [1868] LR 3 QB 360. Some American courts adopted this standard but later decisions have rejected it and

substituted this test: whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. The Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press. On the other hand, the substituted standard provides safeguards adequate to withstand the charge of constitutional infirmity. 21 6. The above excerpt which imposes on the judiciary the duty to be ever on guard against any impermissible infringement on the freedom of artistic expression calls to mind the landmark ponencia of Justice Malcolm in United States v. Bustos, 22 decided in 1918. While recognizing the principle that libel is beyond the pale of constitutional protection, it left no doubt that in determining what constitutes such an offense, a court should ever be mindful that no violation of the right to freedom of expression is allowable. It is a matter of pride for the Philippines that it was not until 1984 in New York Timer v. Sullivan, 23 thirty-years later, that the United States Supreme Court enunciated a similar doctrine. 7. It is quite understandable then why in the Roth opinion, Justice Brennan took pains to emphasize that "sex and obscenity are not synonymous. 24 Further: "Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, e.g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern. 25 8. In the applicable law, Executive Order No. 876, reference was made to respondent Board "applying contemporary Filipino cultural values as standard, 26 words which can be construed in an analogous manner. Moreover, as far as the question of sex and obscenity are concerned, it cannot be stressed strongly that the arts and letters "shall be under the patronage of the State. 27 That is a constitutional mandate. It will be less than true to its function if any government office or agency would invade the sphere of autonomy that an artist enjoys. There is no orthodoxy in what passes for beauty or for reality. It is for the artist to determine what for him is a true representation. It is not to be forgotten that art and belleslettres deal primarily with imagination, not so much with ideas in a strict sense. What is seen or perceived by an artist is entitled to respect, unless there is a showing that the product of his talent rightfully may be considered obscene. As so wen put by Justice Frankfurter in a concurring opinion, "the widest scope of freedom is to be given to the adventurous and imaginative exercise of the human spirit" 28 in this sensitive area of a man's personality. On the question of obscenity, therefore, and in the light of the facts of this case, such standard set forth in Executive Order No. 878 is to be construed in such a fashion to avoid any taint of unconstitutionality. To repeat, what was stated in a recent decision 29 citing the language of Justice Malcolm in Yu Cong Eng v. Trinidad, 30 it is "an elementary, a fundamental, and a universal role of construction, applied when considering constitutional questions, that when a law is susceptible of two constructions' one of which will maintain and the other destroy it, the courts will always adopt the former. 31 As thus construed, there can be no valid objection to the sufficiency of the controlling standard and its conformity to what the Constitution ordains. 9. This being a certiorari petition, the question before the Court is whether or not there was a grave abuse of discretion. That there was an abuse of discretion by respondent Board is evident in the light of the difficulty and travail undergone by petitioners before Kapit sa Patalim was classified as "For Adults Only," without any deletion or cut. Moreover its perception of what constitutes obscenity appears to be unduly restrictive. This Court concludes then that there was an abuse of discretion. Nonetheless, there are not enough votes to maintain that such an abuse can be considered grave. Accordingly, certiorari does not lie. This conclusion finds support in this explanation of respondents in its Answer to the amended petition: "The adult classification given the film serves as a warning to theater operators and viewers that some contents of Kapit are not fit for the young. Some of the scenes in the picture were taken in a theater-club and a good portion of the film shots concentrated on some women erotically dancing naked, or at least nearly naked, on the theater stage. Another scene on that stage depicted the women kissing and caressing as lesbians. And toward the end of the picture, there exists scenes of excessive violence attending the battle between a group of robbers and the police. The vulnerable and imitative in the young audience will misunderstand these scenes." 32 Further: "Respondents further stated in its answer that petitioner company has an option to have the film reclassified to ForGeneral-Patronage if it would agree to remove the obscene scenes and pare down the violence in the film." 33 Petitioners, however, refused

the "For Adults Only" classification and instead, as noted at the outset, filed this suit for certiorari. 10. All that remains to be said is that the ruling is to be limited to the concept of obscenity applicable to motion pictures. It is the consensus of this Court that where television is concerned: a less liberal approach calls for observance. This is so because unlike motion pictures where the patrons have to pay their way, television reaches every home where there is a set. Children then will likely will be among the avid viewers of the programs therein shown. As was observed by Circuit Court of Appeals Judge Jerome Frank, it is hardly the concern of the law to deal with the sexual fantasies of the adult population. 34 it cannot be denied though that the State as parens patriae is called upon to manifest an attitude of caring for the welfare of the young. WHEREFORE, this Court, in the light of the principles of law enunciated in the opinion, dismisses this petition for certiorari solely on the ground that there are not enough votes for a ruling that there was a grave abuse of discretion in the classification of Kapit sa Patalim as "ForAdults-Only."

Viewed in modern times and the current revolution in information and communication technology, libel principles formulated at one time or another have waxed and waned through the years in the constant ebb and flow of judicial review. At the very least, these principles have lost much of their flavor, drowned and swamped as they have been by the ceaseless cacophony and din of thought and discourse emanating from just about every source and direction, aided no less by an increasingly powerful and irrepressible mass media. Public discourse, laments Knight, has been devalued by its utter commonality; and we agree, for its logical effect is to benumb thought and sensibility on what may be considered as criminal illegitimate encroachments on the right of persons to enjoy a good, honorable and reputable name. This may explain the imperceptible demise of criminal prosecutions for libel and the trend to rely instead on indemnity suits to repair any damage on one's reputation. In this petition for review, we are asked to reverse the Court of Appeals in "Francisco Wenceslao v. Arturo Borjal and Maximo Soliven," CA-G.R. No. 40496, holding on 25 March 1996 that petitioners Arturo Borjal and Maximo Soliven are solidarily liable for damages for writing and publishing certain articles claimed to be derogatory and offensive to private respondent Francisco Wenceslao. Petitioners Arturo Borjal and Maximo Soliven are among the incorporators of Philippines Today, Inc. (PTI), now PhilSTAR Daily, Inc., owner of The Philippine Star, a daily newspaper. At the time the complaint was filed, petitioner Borjal was its President while Soliven was (and still is) Publisher and Chairman of its Editorial Board. Among the regular writers of The Philippine Star is Borjal who runs the column Jaywalker. Private respondent Francisco Wenceslao, on the other hand, is a civil engineer, businessman, business consultant and journalist by profession. In 1988 he served as a technical adviser of Congressman Fabian Sison, then Chairman of the House of Representatives SubCommittee on Industrial Policy.

Teehankee, Makasiar, Concepcion, Jr., Melencio-Herrera, Plana, Escolin, Relova, Gutierrez, Jr., Cuevas and Alampay, JJ., concur. Aquino, J., concurs in the result. De la Fuente, J., took no part. Abad Santos, J., is on leave.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

G.R. No. 126466 January 14, 1999 ARTURO BORJAL a.k.a. ART BORJAL and MAXIMO SOLIVEN, petitioners, vs. COURT OF APPEALS and FRANCISCO WENCESLAO, respondents.

During the congressional hearings on the transport crisis sometime in September 1988 undertaken by the House Sub-Committee on Industrial Policy, those who attended agreed to organize the First National Conference on Land Transportation (FNCLT) to be participated in by the private sector in the transport industry and government agencies concerned in order to find ways and means to solve the transportation crisis. More importantly, the objective of the FNCLT was to draft an omnibus bill that would embody a long-term land transportation policy for presentation to Congress. The conference which, according to private respondent, was estimated to cost around P1,815,000.00 would be funded through solicitations from various sponsors such as government agencies, private organizations, transport firms, and individual delegates or participants. 2 On 28 February 1989, at the organizational meeting of the FNCLT, private respondent Francisco Wenceslao was elected Executive Director. As such, he wrote numerous solicitation letters to the business community for the support of the conference. Between May and July 1989 a series of articles written by petitioner Borjal was published on different dates in his column Jaywalker. The articles dealt with the alleged anomalous activities of an "organizer of a conference" without naming or identifying private respondent. Neither did it refer to the FNCLT as the conference therein mentioned. Quoted hereunder are excerpts from the articles of petitioner together with the dates they were published. 3

BELLOSILLO, J.: PERPETUALLY HAGRIDDEN as the public is about losing one of the most basic yet oft hotly contested freedoms of man, the issue of the right of free expression be stirs and presents itself time and again, in cyclic occurrence, to inveigle, nay, challenge the courts to re-survey its ever shifting terrain, explore and furrow its heretofore uncharted moors and valleys and finally redefine the metes and bounds of its controversial domain. This, prominently, is one such case. Perhaps, never in jurisprudential history has any freedom of man undergone radical doctrinal metamorphoses than his right to freely and openly express his views. Blackstone's pontifical comment that "where blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels are punished by English law ... the liberty of the press, properly understood, is by no means infringed or violated," found kindred expression in the landmark opinion of England's Star Chamber in the Libelis Famosis case in 1603. 1 That case established two major propositions in the prosecution of defamatory remarks: first, that libel against a public person is a greater offense than one directed against an ordinary man, and second, that it is immaterial that the libel be true. Until republicanism caught fire in early America, the view from the top on libel was no less dismal. Even the venerable Justice Holmes appeared to waffle as he swayed from the concept of criminal libel liability under the clear and present danger rule, to the other end of the spectrum in defense of the constitutionally protected status of unpopular opinion in free society.

31 May 1989
Another self-proclaimed "hero" of the EDSA Revolution goes around organizing "seminars and conferences" for a huge fee. This is a simple ploy coated in jazzy letterheads and slick prose. The "hero" has the gall to solicit fees from anybody with bucks to spare. Recently, in his usual straightforward style, Transportation Secretary Rainerio "Ray" Reyes, asked that his name, be stricken off from the letterheads the "hero" has been using to implement one of his pet "seminars." Reyes said: "I would like to reiterate my request that you delete my name." Note that Ray Reyes is an honest man who would confront anybody eyeball to eyeball without blinking.

9 June 1989

Another questionable portion of the so-called conference is its unauthorized use of the names of President Aquino and Secretary Ray Reyes. The conference program being circulated claims that President Aquino and Reyes will be main speakers in the conference. Yet, the word is that Cory and Reyes have not accepted the invitation to appear in this confab. Ray Reyes even says that the conference should be unmasked as a moneymaking gimmick.

that he realized that the "consultant" was acting with a burst of energy "in aid of extortion." The "consultant" was fired. xxx xxx xxx There seems to be no end to what a man could do to pursue his dubious ways. He has tried to operate under a guise of a well-meaning, reformist. He has intellectual pretensions and sometimes he succeeds in getting his thoughts in the inside pages of some newspapers, with the aid of some naive newspaper people. He has been turning out a lot of funny-looking advice on investments, export growth, and the like. xxx xxx xxx A cabinet secretary has one big wish. He is hoping for a broad power to ban crooks and influencepeddlers from entering the premises of his department. But the Cabinet man might not get his wish. There is one "organizer" who, even if physically banned, call still concoct ways of doing his thing. Without a tinge of remorse, the "organizer" could fill up his letterheads with, names of Cabinet members, congressmen, and reputable people from the private sector to shore up his shady reputation and cover up his notoriety.

19 June 1989
. . . some 3,000 fund solicitation letters were sent by the organizer to every Tom, Dick and Harry and to almost all government agencies. And the letterheads carried the names of Reyes and Periquet. Agrarian Reform Secretary on leave Philip Juico received one, but he decided to find out front Reyes himself what the project was all about. Ray Reyes, in effect, advised Juico to put the fund solicitation letter in the waste basket. Now, if the 3,000 persons and agencies approached by the organizer shelled out 1,000 each, that's easily P3 million to a project that seems so unsophisticated. But note that one garment company gave P100,000, after which the Garments Regulatory Board headed by Trade and Industry Undersecretary Gloria Macapagal-Arroyo was approached by the organizer to expedite the garment license application of the P100,000 donor.

3 July 1989 21 June 1989

A "conference organizer" associated with shady deals seems to have a lot of trash tucked inside his closet. The Jaywalker continues to receive information about the man's dubious deals. His notoriety, in according to reliable sources, has reached the Premier Guest House where his name is spoken like dung. xxx xxx xxx The first information says that the "organizer" tried to mulct half a million pesos from a garment producer and exporter who was being investigated for violation of the rules of the Garments, Textile, Embroidery and Apparel Board. The "organizer" told the garment exporter that the case could be fixed for a sum of P500,000.00. The organizer got the shock of his life when the exporter told him: "If I have that amount. I will hire the best lawyers, not you." The organizer left in a huff, his thick face very pale. xxx xxx xxx Friends in government and the private sector have promised the Jaywalker more "dope" on the "organizer." It seems that he was not only indiscreet; he even failed to cover his tracks. You will be hearing more of the "organizer's" exploits from this corner soon. A supposed conference on transportation was a big failure. The attendance was very poor and the few who participated in, the affair were mostly leaders of jeepney drivers' groups. None of the government officials involved in regulating public transportation was there. The big names in the industry also did not participate. With such a poor attendance, one wonders why the conference organizers went ahead with the affair and tried so hard to convince 3,000 companies and individuals to contribute to the affair. xxx xxx xxx The conference was doomed from the start. It was bound to fail. The personalities who count in the field of transpiration refused to attend the affair or withdrew their support after finding out the background of the organizer of the conference. How could a conference on transportation succeed without the participation of the big names in the industry and government policy-makers? Private respondent reacted to the articles. He sent a letter to The Philippine Star insisting that he was the "organizer" alluded to in petitioner Borjal's columns. 4 In a subsequent letter to The Philippine Star, private respondent refuted the matters contained in petitioner Borjal's columns and openly challenged him in this manner To test if Borjal has the guts to back up his holier than thou attitude, I am prepared to relinquish this position in case it is found that I have misappropriated even one peso of FNCLT money. On the other hand, if I can prove that Borjal has used his column as a "hammer" to get clients for his PR Firm, AA Borjal Associates, he should resign from the STAR and never again write a column. Is it a deal? 5 Thereafter, private respondent filed a complaint with the National Press Club (NPC) against petitioner Borjal for unethical conduct. He accused petitioner Borjal of using his column as a form of leverage to obtain contracts for his public relations firm, AA Borjal Associates. 6 In turn, petitioner Borjal published a rejoinder to the challenge of private respondent not only to protect his name and honor but also to refute the claim that he was using his column for character assassination. 7 Apparently not satisfied with his complaint with the NPC, private respondent filed a criminal case for libel against petitioners Borjal and Soliven, among others. However, in a Resolution dated 7 August 1990, the Assistant Prosecutor handling the case dismissed the complaint for

22 June 1989
The scheming "organizer" we have been writing about seems to have been spreading his wings too far. A congressional source has informed the Jaywalker that the schemer once worked for a congressman from the North as some sort of a consultant on economic affairs. The first thing the "organizer" did was to initiate hearings and roundthe-table discussions with people from the business, export and his favorite the garments sector. xxx xxx xxx The "organizer's" principal gamely went along, thinking that his "consultant" had nothing but the good of these sectors in mind. It was only later

insufficiency of evidence. The dismissal was sustained by the Department of Justice and later by the Office of the President. On 31 October 1990 private respondent instituted against petitioners a civil action for damages based on libel subject of the instant case. 8 In their answer, petitioners interposed compulsory counterclaims for actual, moral and exemplary damages, plus attorney's fees and costs. After due consideration, the trial court decided in favor of private respondent Wenceslao and ordered petitioners Borjal and Soliven to indemnify private respondent P1,000,000.00 for actual and compensatory damages, in addition to P200,000.00 for moral damages, P100,000.00 for exemplary damages, P200,000.00 for attorney's fees, and to pay the costs of suit. The Court of Appeals affirmed the decision of the court a quo but reduced the amount of the monetary award to P110,000.00 actual damages, P200,000.00 moral damages and P75,000.00 attorney's fees plus costs. In a 20-page Decision promulgated 25 March 1996, the appellate court ruled inter alia that private respondent was sufficiently identifiable, although not named, in the questioned articles; that private respondent was in fact defamed by petitioner Borjal by describing him variously as a "self-proclaimed hero," "a conference organizer associated with shady deals who has a lot of trash tucked inside his closet," "thick face," and "a person with dubious ways;" that petitioner's claim of privilege communication was unavailing since the privileged character of the articles was lost by their publication in a newspaper of general circulation; that petitioner could have performed his officer as a newspaperman without necessarily transgressing the rights of Wenceslao by calling the attention of the government offices concerned to examine the authority by which Wenceslao acted, warning the public against contributing to a conference that, according to his perception, lacked the univocal indorsement of the responsible government officials, or simply informing the public of the letters Wenceslao wrote and the favors he requested or demanded; and, that when he imputed dishonesty, falsehood and misrepresentation, shamelessness and intellectual pretentions to Wenceslao, petitioner Borjal crossed the thin but clear line that separated fair comment from actionable defamation. Private respondent manifested his desire to appeal that portion of the appellate court's decision which reduced the amount of damages awarded him by filing with this Court a Petition for Extension of Time to File Petition and a Motion for Suspension of Time to File Petition. 9 However, in a Resolution dated 27 May 1996, the Second Division denied both motions: the first, for being premature, and the second, for being a wrong remedy. On 20 November 1996 when the First Division consolidated and transferred the present case to the Second Division, there was no longer any case thereat with which to consolidate this case since G.R. No. 124396 had already been disposed of by the Second Division almost six (6) months earlier. On their part, petitioners filed a motion for reconsideration but the Court of Appeals denied the motion in its Resolution of 12 September 1996. Hence the instant petition for review. The petitioners contend that the Court of Appeals erred: (a) in ruling that private respondent Wenceslao was sufficiently identified by petitioner Borjal in the questioned articles; (b) in refusing to accord serious consideration to the findings of the Department of Justice and the Office of the President that private respondent Wenceslao was not sufficiently identified in the questioned articles, this notwithstanding that the degree of proof required in a preliminary investigation is merely prima facieevidence which is significantly less than the preponderance of evidence required in civil cases; (c) in ruling that the subject articles do not constitute qualifiedly privileged communication; (d) in refusing to apply the "public official doctrine" laid down in New York Times v. Sullivan; (e) in ruling that the questioned articles lost their privileged character because of their publication in a newspaper of general circulation; (f) in ruling that private respondent has a valid cause of action for libel against petitioners although he failed to prove actual malice on their part, and that the prosecutors of the City of Manila, the Department of Justice, and eventually, the Office of the President, had already resolved that there was no sufficient evidence to prove the existence of libel; and, (g) assuming arguendo that Borjal should be held liable, in adjudging petitioner Soliven solidarily liable with him. Thus, petitioners pray for the reversal of the appellate court's ruling, the dismissal of the complaint against them for lack of merit, and the award of damages on their counterclaim. The petition is impressed with merit. In order to maintain a libel suit, it is essential that the victim be identifiable although it is not necessary that he be named. It is also not sufficient that the offended party recognized himself as the person attacked or defamed, but it must be shown that at least a third person could identify him as the object of

the libelous publication. 10 Regrettably, these requisites have not been complied with in the case at bar. In ruling for private respondent, the Court of Appeals found that Borjal's column writings sufficiently identified Wenceslao as the "conference organizer." It cited the First National Conference on Land Transportation, the letterheads used listing different telephone numbers, the donation of P100,000.00 from Juliano Lim and the reference to the '"organizer of the conference" the very same appellation employed in all the column items as having sufficiently established the identity of private respondent Wenceslao for those who knew about the FNCLT who were present at its inception, and who had pledged their assistance to it. We hold otherwise. These conclusions are at variance with the evidence at hand. The questioned articles written by Borjal do not identify private respondent Wenceslao as the organizer of the conference. The first of theJaywalker articles which appeared in the 31 May 1989 issue of The Philippine Star yielded nothing to indicate that private respondent was the person referred to therein. Surely, as observed by petitioners, there were millions of "heroes" of the EDSA Revolution and anyone of them could be "self-proclaimed" or an "organizer of seminars and conferences." As a matter of fact, in his 9 June 1989 column petitioner Borjal wrote about the "so-called First National Conference on Land Transportation whose principal organizers are not specified" (emphasis supplied). 11Neither did the FNCLT letterheads 12 disclose the identity of the conference organizer since these contained only an enumeration of names where private respondent Francisco Wenceslao was described as Executive Director and Spokesman and not as a conference organizer. 13 The printout 14 and tentative program 15 of the conference were devoid of any indication of Wenceslao as organizer. The printout which contained an article entitled "Who Organized the NCLT?" did not even mention private respondent's name, while the tentative program only denominated private respondent as "Vice Chairman and Executive Director," and not as organizer. No less than private respondent himself admitted that the FNCLT had several organizers and that he was only a part of the organization, thus I would like to clarify for the record that I was only a part of the organization. I was invited then because I was the head of the technical panel of the House of Representatives Sub-Committee on Industrial Policy that took care of congressional hearings. 16 Significantly, private respondent himself entertained doubt that he was the person spoken of in Borjal's columns. The former even called up columnist Borjal to inquire if he (Wenceslao) was the one referred to in the subject articles. 17 His letter to the editor published in the 4 June 1989 issue of The Philippine Star even showed private respondent Wenceslao's uncertainty Although he used a subterfuge, I was almost certain that Art Borjal referred to the First National Conference on Land Transportation (June 29-30) and me in the second paragraph of his May 31 column . . . 18 Identification is grossly inadequate when even the alleged offended party is himself unsure that he was the object of the verbal attack. It is well to note that the revelation of the identity of the person alluded to came not from petitioner Borjal but from private respondent himself; when he supplied the information through his 4 June 1989 letter to the editor. Had private respondent not revealed that he was the "organizer" of the FNCLT referred to in the Borjal articles, the public would have remained in blissful ignorance of his identity. It is therefore clear that on the element of identifiability alone the case falls. The above disquisitions notwithstanding, and on the assumption arguendo that private respondent has been sufficiently identified as the subject of Borjal's disputed comments, we now proceed to resolve the other issues and pass upon the pertinent findings of the courts a quo. The third, fourth, fifth and sixth assigned errors all revolve around the primary question of whether the disputed articles constitute privileged communications as to exempt the author from liability. The trial court ruled that petitioner Borjal cannot hide behind the proposition that his articles are privileged in character under the provisions of Art. 354 of The Revised Penal Code which state

Art. 354. Requirement for publicity. Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases: 1) A private communication made by any person to another in the performance of any legal, moral or social duty; and, 2) A fair and true report, made in good faith, without any comments or remarks, of any judicial or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions. Respondent court explained that the writings in question did not fall under any of the exceptions described in the above-quoted article since these were neither "private communications" nor "fair and true report . . . without any comments or remarks." But this is incorrect. A privileged communication may be either absolutely privileged or qualifiedly privileged. Absolutely privileged communications are those which are not actionable even if the author has acted in bad faith. An example is found in Sec. 11, Art.VI, of the 1987 Constitution which exempts a member of Congress from liability for any speech or debate in the Congress or in any Committee thereof. Upon the other hand, qualifiedly privileged communications containing defamatory imputations are not actionable unless found to have been made without good intention justifiable motive. To this genre belong "private communications" and "fair and true report without any comments or remarks." Indisputably, petitioner Borjal's questioned writings are not within the exceptions of Art. 354 of The Revised Penal Code for, as correctly observed by the appellate court, they are neither private communications nor fair and true report without any comments or remarks. However this does not necessarily mean that they are not privileged. To be sure, the enumeration under Art. 354 is not an exclusive list of qualifiedly privileged communications since fair commentaries on matters of public interest are likewise privileged. The rule on privileged communications had its genesis not in the nation's penal code but in the Bill of Rights of the Constitution guaranteeing freedom of speech and of the press. 19 As early as 1918, in United States v. Caete, 20 this Court ruled that publications which are privileged for reasons of public policy are protected by the constitutional guaranty of freedom of speech. This constitutional right cannot be abolished by the mere failure of the legislature to give it express recognition in the statute punishing libels. The concept of privileged communications is implicit in the freedom of the press. As held in Elizalde v. Gutierrez 21and reiterated in Santos v. Court of Appeals 22 To be more specific, no culpability could be imputed to petitioners for the alleged offending publication without doing violence to the concept of privileged communications implicit in the freedom of the press. As was so well put by Justice Malcolm in Bustos: "Public policy, the welfare of society, and the orderly administration of government have demanded protection of public opinion. The inevitable and incontestable result has been the development and adoption of the doctrine of privilege." The doctrine formulated in these two (2) cases resonates the rule that privileged communications must, sui generis, be protective of public opinion. This closely adheres to the democratic theory of free speech as essential to collective self-determination and eschews the strictly libertarian view that it is protective solely of self-expression which, in the words of Yale Sterling Professor Owen Fiss, 23 makes its appeal to the individualistic ethos that so dominates our popular and political culture. It is therefore clear that the restrictive interpretation vested by the Court of Appeals on the penal provision exempting from liability only private communications and fair and true report without comments or remarks defeats, rather than promotes, the objective of the rule on privileged communications, sadly contriving as it does, to suppress the healthy effloresence of public debate and opinion as shining linchpins of truly democratic societies. To reiterate, fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or

slander. The doctrine of fair comment means that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts. 21 There is no denying that the questioned articles dealt with matters of public interest. In his testimony, private respondent spelled out the objectives of the conference thus . . . The principal conference objective is to come up with a draft of an Omnibus Bill that will embody a long term land transportation policy for presentation to Congress in its next regular session in July. Since last January, the National Conference on Land Transportation (NCLT), the conference secretariat, has been enlisting support from all sectors to ensure the success of the project. 25 Private respondent likewise testified that the FNCLT was raising funds through solicitation from the public Q: Now, in this first letter, you have attached a budget and it says here that in this seminar of the First National Conference on Land Transportation, you will need around One million eight hundred fifteen thousand pesos, is that right? A: That was the budget estimate, sir. Q: How do you intend as executive officer, to raise this fund of your seminar? A: Well, from sponsors such as government agencies and private sectors or organizations as well as individual transport firms and from individual delegates/participants. 26 The declared objective of the conference, the composition of its members and participants, and the manner by which it was intended to be funded no doubt lend to its activities as being genuinely imbued with public interest. An organization such as the FNCLT aiming to reinvent and reshape the transportation laws of the country and seeking to source its funds for the project from the public at large cannot dissociate itself from the public character of its mission. As such, it cannot but invite close scrutiny by the media obliged to inform the public of the legitimacy of the purpose of the activity and of the qualifications and integrity of the personalities behind it. This in effect is the strong message in New York Times v. Sullivan 27 which the appellate court failed to consider or, for that matter, to heed. It insisted that private respondent was not, properly speaking, a "public official" nor a "public figure," which is why the defamatory imputations against him had nothing to do with his task of organizing the FNCLT.

New York Times v. Sullivan was decided by the U. S. Supreme Court in

the 1960s at the height of the bloody rioting in the American South over racial segregation. The then City Commissioner L. B. Sullivan of Montgomery, Alabama, sued New York Times for publishing a paid political advertisement espousing racial equality and describing police atrocities committed against students inside a college campus. As commissioner having charge over police actions Sullivan felt that he was sufficiently identified in the ad as the perpetrator of the outrage; consequently, he sued New York Times on the basis of what he believed were libelous utterances against him.

The U. S. Supreme Court speaking through Mr. Justice William J. Brennan Jr. ruled against Sullivan holding that honest criticisms on the conduct of public officials and public figures are insulated from libel judgments. The guarantees of freedom of speech and press prohibit a public official or public figure from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice, i.e., with knowledge that it was false or with reckless disregard of whether it was false or not. The raison d' tre for the New York Times doctrine was that to require critics of official conduct to guarantee the truth of all their factual assertions on pain of libel judgments would lead to self-censorship, since would be critics would be deterred from, voicing out their criticisms even if such were believed to be true, or were in fact true, because of doubt whether it could be proved or because of fear of the expense of having to prove it. 28 In the present case, we deem private respondent a public figure within the purview of the New York Times ruling. At any rate, we have also defined "public figure" in Ayers Production Pty., Ltd. v. Capulong 29 as . . . . a person who, by his accomplishments, fame, mode of living, or by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs and his character, has become a "public personage." He is, in other words, a celebrity. Obviously to be included in this category are those who have achieved some degree of reputation by appearing before the public, as in the case of an actor, a professional baseball player, a pugilist, or any other entertainer. The list is, however, broader than this. It includes public officers, famous inventors and explorers, war heroes and even ordinary soldiers, infant prodigy, and no less a personage than the Great Exalted Ruler of the lodge. It includes, in short, anyone who has arrived at a position where the public attention is focused upon him as a person. The FNCLT was air undertaking infused with public interest. It was promoted as a joint project of the government and the private sector, and organized by top government officials and prominent businessmen. For this reason, it attracted media mileage and drew public attention not only to the conference itself but to the personalities behind as well. As its Executive Director and spokesman, private respondent consequently assumed the status of a public figure. But even assuming ex-gratia argumenti that private respondent, despite the position he occupied in the FNCLT, would not qualify as a public figure, it does not necessarily follow that he could not validly be the subject of a public comment even if he was not a public official or at least a public figure, for he could be, as long as he was involved in a public issue. If a matter is a subject of public or general interest, it cannot suddenly became less so merely because a private individual is involved or because in some sense the individual did not voluntarily choose to become involved. The public's primary interest is in the event; the public focus is on the conduct of the participant and the content, effect and significance of the conduct, not the participant's prior anonymity or notoriety. 30 There is no denying that the questioned articles dealt with matters of public interest. A reading of the imputations of petitioner Borjal against respondent Wenceslao shows that all these necessarily bore upon the latter's official conduct and his moral and mental fitness as Executive Director of the FNCLT. The nature and functions of his position which included solicitation of funds, dissemination of information about the FNCLT in order to generate interest in the conference, and the management and coordination of the various activities of the conference demanded from him utmost honesty, integrity and competence. These are matters about which the public has the right to be informed, taking into account the very public character of the conference itself. Concededly, petitioner Borjal may have gone overboard in the language employed describing the "organizer of the conference." One is tempted to wonder if it was by some mischievous gambit that he would also dare test the limits of the "wild blue yonder" of free speech in this jurisdiction. But no matter how intemperate or deprecatory the utterances appear to be, the privilege is not to be defeated nor rendered inutile for, as succinctly expressed by Mr. Justice Brennan in New York Times v. Sullivan, "[D]ebate on public issues should be uninhibited, robust and wide open, and that it may well include

vehement, caustic and sometimes unpleasantly sharp attacks on the government and public officials. 31 The Court of Appeals concluded that since malice is always presumed in the publication of defamatory matters in the absence of proof to the contrary, the question of privilege is immaterial. We reject this postulate. While, generally, malice can be presumed from defamatory words, the privileged character of a communication destroys the presumption of malice. 32 The onus of proving actual malice then lies on plaintiff, private respondent Wenceslao herein. He must bring home to the defendant, petitioner Borjal herein, the existence of malice as the true motive of his conduct. 33 Malice connotes ill will or spite and speaks not in response to duty but merely to injure the reputation of the person defamed, and implies an intention to do ulterior and unjustifiable harm. 34 Malice is bad faith or bad motive. 35 It is the essence of the crime of libel. 36 In the milieu obtaining, can it be reasonably inferred that in writing and publishing the articles in question petitioner Borjal acted with malice? Primarily, private respondent failed to substantiate by preponderant evidence that petitioner was animated by a desire to inflict unjustifiable harm on his reputation, or that the articles were written and published without good motives or justifiable ends. On the other hand, we find petitioner Borjal to have acted in good faith. Moved by a sense of civic duty and prodded by his responsibility as a newspaperman, he proceeded to expose and denounce what he perceived to be a public deception. Surely, we cannot begrudge him for that. Every citizen has the right to enjoy a good name and reputation, but we do not consider that petitioner Borjal has violated that right in this case nor abused his press freedom. Furthermore, to be considered malicious, the libelous statements must be shown to have been written or published with the knowledge that they are false or in reckless disregard of whether they are false or not. 37 "Reckless disregard of what is false or not" means that the defendant entertains serious doubt as to the truth of the publication, 38 or that he possesses a high degree of awareness of their probable falsity. 39 The articles subject of the instant case can hardly be said to have been written with knowledge that these are false or in reckless disregard of what is false or not. This is not to say however that the very serious allegations of petitioner Borjal assumed by private respondent to be directed against him are true. But we nevertheless find these at least to have been based on reasonable grounds formed after the columnist conducted several personal interviews and after considering the varied documentary evidence provided him by his sources. Thus, the following are supported by documentary evidence: (a) that private respondent requested Gloria Macapagal-Arroyo, then head of the Garments and Textile Export Board (GTEB), to expedite the processing and release of the import approval and certificate of availability of a garment firm in exchange for the monetary contribution of Juliano Lim, which necessitated a reply from the office of Gloria Macapagal-Arroyo explaining the procedure of the GTEB in processing applications and clarifying that all applicants were treated equally; 40 (b) that Antonio Periquet was designated Chairman of the Executive Committee of the FNCLT notwithstanding that he had previously declined the offer; 41 and, (c) that despite the fact that then President Aquino and her Secretary of Transportation Rainerio Reyes declined the invitation to be guest speakers in the conference, their names were still included in the, printout of the FNCLT. 42 Added to these are the admissions of private respondent that: (a) he assisted Juliano Lim in his application for a quota allocation with the GTEB in exchange for monetary contributions to the FNCLT; 43 (b) he included the name of then Secretary of Transportation Rainerio Reyes in the promotional materials of the conference notwithstanding the latter's refusal to lend his name to and participate in the FNCLT; 44 and, (c) he used different letterheads and telephone numbers. 45 Even assuming that the contents of the articles are false, mere error, inaccuracy or even falsity alone does not prove actual malice. Errors or misstatements are inevitable in any scheme of truly free expression and debate. Consistent with good faith and reasonable care, the press should not be held to account, to a point of suppression, for honest mistakes or imperfections in the choice of language. There must be some room for misstatement of fact as well as for misjudgment. Only by giving them much leeway and tolerance can they courageously and effectively function as critical agencies in our democracy. 46 In Bulletin Publishing Corp. v. Noel47 we held -

A newspaper especially one national in reach and coverage, should be free to report on events and developments in which the public has a legitimate interest with minimum fear of being hauled to court by one group or another on criminal or civil charges for libel, so long as the newspaper respects and keeps within the standards of morality and civility prevailing within the general community. To avoid the self-censorship that would necessarily accompany strict liability for erroneous statements, rules governing liability for injury to reputation are required to allow an adequate margin of error by protecting some inaccuracies. It is for the same reason that the New York Times doctrine requires that liability for defamation of a public official or public figure may not be imposed in the absence of proof of "actual malice" on the part of the person making the libelous statement. At any rate, it may be salutary for private respondent to ponder upon the advice of Mr. Justice Malcolm expressed in U.S. v. Bustos, 48 that "the interest of society and the maintenance of good government demand a full 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 incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound may be assuaged by the balm of a clear conscience. A public official must not be too thin-skinned with reference to comments upon his official acts." The foregoing disposition renders the second and seventh assigned errors moot and academic, hence, we find no necessity to pass upon them. We must however take this opportunity to likewise remind media practitioners of the high ethical standards attached to and demanded by their noble profession. The danger of an unbridled irrational exercise of the right of free speech and press, that is, in utter contempt of the rights of others and in willful disregard of the cumbrous responsibilities inherent in it, is the eventual self-destruction of the right and the regression of human society into a veritable Hobbesian state of nature where life is short, nasty and brutish. Therefore, to recognize that there can be no absolute "unrestraint" in speech is to truly comprehend the quintessence of freedom in the marketplace of social thought and action, genuine freedom being that which is limned by the freedom of others. If there is freedom of the press, ought there not also be freedom from the press? It is in this sense that self-regulation as distinguished from self-censorship becomes the ideal mean for, as Mr. Justice Frankfurter has warned, "[W]ithout . . . a lively sense of responsibility, a free press may readily become a powerful instrument of injustice." 49 Lest we be misconstrued, this is not to diminish nor constrict that space in which expression freely flourishes and operates. For we have always strongly maintained, as we do now, that freedom of expression is man's birthright -constitutionally protected and guaranteed, and that it has become the singular role of the press to act as its "defensor fidei" in a democratic society such as ours. But it is also worth keeping in mind that the press is the servant, not the master, of the citizenry, and its freedom does not carry with it an restricted hunting license to prey on the ordinary citizen. 50 On petitioners' counterclaim for damages, we find the evidence too meager to sustain any award. Indeed, private respondent cannot be said to have instituted the present suit in abuse of the legal processes and with hostility to the press; or that he acted maliciously, wantonly, oppressively, fraudulently and for the sole purpose of harassing petitioners, thereby entitling the latter to damages. On the contrary, private respondent acted within his rights to protect his honor from what he perceived to be malicious imputations against him. Proof and motive that the institution of the action was prompted by a sinister design to vex and humiliate a person must be clearly and preponderantly established to entitle the victim to damages. The law could not have meant to impose a penalty on the right to litigate, nor should counsel's fees be awarded every time a party wins a suit. 51 For, concluding with the wisdom in Warren v. Pulitzer Publishing Co. 52 Every man has a right to discuss matters of public interest. A clergyman with his flock, an admiral with his fleet, a general with his army, a judge with his jury; we are, all of us, the subject of public discussion. The view of our court has been

thus stated: "It is only in despotisms that one must speaksub rosa, or in whispers, with bated breath, around the corner, or in the dark on a subject touching the common welfare. It is the brightest jewel in the crown of the law to speak and maintain the golden mean between defamation, on one hand, and a healthy and robust right of free public discussion, on the other. WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals of 25 March 1996 and its Resolution of 12 September 1996 denying reconsideration are, REVERSED and SET ASIDE, and the complaint for damages against petitioners is DISMISSED. Petitioners' counterclaim for damages is likewise DISMISSED for lack of merit. No costs.1wphi1.nt SO ORDERED.

Puno, Mendoza, Martinez and Buena, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC

A.M. No. 93-2-037 SC April 6, 1995 IN RE Emil (Emiliano) P. JURADO Ex Rel.: Philippine Long Distance Telephone Company (PLDT), per its First VicePresident, Mr. Vicente R. Samson, appellant,

NARVASA, C.J.: Liability for published statements demonstrably false or misleading, and derogatory of the courts and individual judges, is what is involved in the proceeding at bar than which, upon its facts, there is perhaps no more appropriate setting for an inquiry into the limits of press freedom as it relates to public comment about the courts and their workings within a constitutional order. 1. Basic Postulates To resolve the issue raised by those facts, application of fairly elementary and self-evident postulates is all that is needed, these being: 1) that the utterance or publication by a person of falsehood or half-truths, or of slanted or distorted versions of facts or accusations which he made no bona fide effort previously to verify, and which he does not or disdains to prove cannot be justified as a legitimate exercise of the freedom of speech and of the press guaranteed by the Constitution, and cannot be deemed an activity shielded from sanction by that constitutional guaranty; 2) that such utterance or publication is also violative of "The Philippine Journalist's Code of Ethics" which inter alia commands the journalist to "scrupulously report and interpret the news, taking

care not to suppress essential facts nor to distort the truth by improper omission or emphasis," and makes it his duty "to air the other side and to correct substantive errors promptly;" 1

3) that such an utterance or publication, when it is offensive to the dignity and reputation of a Court or of the judge presiding over it or degrades or tends to place the courts in disrepute and disgrace or otherwise to debase the administration of justice, constitutes contempt of court and is punishable as such after due proceedings; and 4) that prescinding from the obvious proposition that any aggrieved party may file a complaint to

declare the utterer or writer in contempt, the initiation of appropriate contempt proceedings against the latter by the court is not only its prerogative but indeed its duty, imposed by the overmastering need to preserve and protect its authority and the integrity, independence and dignity of the nation's judicial system. 2. Antecedents This proceeding treats of Emiliano P. Jurado, a journalist who writes in a newspaper of general circulation, the "Manila Standard." He describes himself as a columnist, who "incidentally happens to be a lawyer," remarking that while he values his membership in the law profession, "such membership is neither a critical nor indispensable adjunct in the exercise of his occupation as a newspaperman." 2 His column in the "Manila Standard" is entitled "Opinion." Jurado had been writing about alleged improperties and irregularities in the judiciary over several months (from about October, 1992 to March, 1993). Other journalists had also been making reports or comments on the same subject. At the same time, anonymous communications were being extensively circulated, by hand and through the mail, about alleged venality and corruption in the courts. And all these were being repeatedly and insistently adverted to by certain sectors of society. In light of these abnormal developments, the Chief Justice took an extraordinary step. He issued Administrative Order No. 11-93 dated January 25, 1993, "Creating an Ad Hoc Committee to Investigate Reports of Corruption in the Judiciary," 3 reading as follows: WHEREAS, the Court's attention has been drawn to the many and persistent rumors and unverified reports respecting corruption in the judiciary, said rumors and reports not only having been mentioned by media and in anonymous communications, but having also been adverted to by certain government officials and civic leaders. NOW, THEREFORE, by authority of the Court, an Ad Hoc committee is hereby constituted composed of Chief Justice Andres R. Narvasa, as Chairman, and former Justices of the Court, Hon. Lorenzo Relova and Hon. Ameurfina A. MelencioHerrera, as Members, which shall seek to ascertain the truth respecting said reports and statements, and to this end, forthwith interview at closed-door sessions or otherwise, such persons as may appear to it to have some knowledge of the matter and who may be appealed to to share that knowledge with the Court, and otherwise gather such evidence as may be available. The Committee is hereby authorized to use such facilities and personnel of the court as may be necessary or convenient in the fulfillment of its assigned mission, and shall submit its report to the Court within thirty (30) days. Material to the present inquiry are Jurado's published statements from late 1992 to the middle of February, 1993. 1. In his column of October 21, 1992, he wrote of "(j)udges in a number of regional trial courts in Metro Manila (who) have become so notorious in their dealings with litigants and lawyers that they are now called the "Magnificent Seven."" He stated that "(i)t has come to a point where lawyers and litigants try their darndest to stay away from these judges. The answer, of course, is obvious." 2. In his February 3, 1993 column, he adverted to another group, also named "Magnificent Seven," which, he said, should be distinguished from the first. He wrote: "When lawyers speak of the "Magnificent Seven" one has to make sure which group they are referring to. Makati's "Magnificent Seven" are a bunch of Makati regional trial court judges who fix drug-related cases. The "Magnificent Seven" in the Supreme Court consists of a group of justices who vote as one." 4

3. Aside from the "Magnificent Seven," he also wrote about a group which he dubbed the "Dirty Dozen." In his column of October 21, 1992 he said that there are " . . . 12 judges who have acquired such reputation for graft and corruption that they are collectively known as the "dirty dozen". These judges, I am told, are not satisfied with accepting bribes; they actually sell their decisions to the litigants and "solicit" their bids for what is clearly an auction for the judge's decision." According to him, the most corrupt judges now are Makati's "Dirty Dozen" judges, supplanting some of those from Pasay, Pasig and Quezon City; corruption in lower Courts had been admitted by an Executive Judge in a Metro Manila Regional Trial Court (column of November 9, 1992); and because the "Dirty Dozen" had given Makati the reputation of having the most corrupt RTC in the country, multi-nationals and financing institutions explicitly stipulate in their agreements that litigation in connection with these contracts may be held anywhere in Metro Manila except in Makati; and lawyers confirm that Makati Judges, including some persons in the sheriffs office, are the most corrupt, where before, Pasay and Quezon City had that dubious distinction (column of December 1, 1992). 4. In his November 9, 1992 column, he wrote about "a former appellate justice (who) "holds office" at a restaurant near the Court of Appeals building. He is known as the contact man of five CA divisions. Lawyers say that this former jurist really delivers." In his column of January 29, 1993, he adverted to the same unnamed former Justice as being "known for fixing cases for five CA divisions (that is what he tells lawyers and litigants) for a fee. And if the price is right, the lawyer of the litigant paying can even write his own decision using a CA justice as ponente. This ex-justice holds court at the mezzanine of a restaurant owned by the wife of a former Marcos cabinet member and which has become a meeting place for judges, CA justices, practicing lawyers, prosecutors and even Supreme Court justices. The former CA justice also has his own Chinese contact. After I exposed this last year, the habitues became scarce. But they are back again, and the ex-justice is still-doing brisk business." 5. In his column of March 24, 1993, he made the claim that one can "get a temporary restraining order from a regional trial court in Metro-Manila by paying the judge anywhere between P30,000.00 and P50,000.00." Other columns of Jurado refer to: a) a police from the South Capital Command . . . (to the effect) that 8 Makati judges where paid for decisions favoring drug-traffickers and other bigtime criminals, naming the judges and giving detailed accounts of the bribery (January 30, 1993); b) a bank, later identified by him as the Equitable Banking Corporation (Ermita Branch), which had "hosted a lunch at its penthouse mainly for some justices, judges, prosecutors and law practitioners" (January 12, 1993);5 c) the lady secretary of an RTC Judge in Makati who allegedly makes sure, for a fee of P10,000.00 or more, depending on how much money is at stake, that a case is raffled off to a Judge who will be "extremely sympathetic," and can arrange to have the Court issue attachments or injunctions for a service fee of 1% over and above the regular premium of the attachment or injunction bond; a Chinese-Filipino businessman who paid this "miracle worker" P300,000.00 on top of the regular premium on the attachment/injunction bond (October 27, 1992);

d) Executive Judge de la Rosa, who "has unilaterally decided to discard the rule that cases seeking provisional remedies should be raffled off to the judges," thus violating the rule that no case may be assigned in multi-sala courts without a raffle (January 28, 1993); e) the Secretary of the Judicial and Bar Council (JBC), who had supposedly gotten that body to nominate him to the Court of Appeals; and a son and a nephew of JBC members, who were also nominated to the Court of Appeals, contrary to ethics and delicadeza (January l6, 1993; and January 29, 1993); f) what he denominates "a major determinant of promotion," i.e., having a relative in the JBC or the Supreme Court, or having a powerful politician as sponsor, citing specifically, the following nominees to the Court of Appeals Conrado Vasquez, Jr., son and namesake of the Ombudsman and brother of the head of the Presidential Management Staff; Rosalio de la Rosa, "nephew of Justice Relova and cousin of Chief Justice Narvasa;" and the fact that nomination of some worthy individuals was blocked because they "incurred the ire of the powers that be," e.g., Judge Maximiano Asuncion, Quezon City RTC, and Raul Victorino, closely identified with former Senate President Salonga (January 25, 1993). 3. Events Directly Giving Rise

sworn statement in confutation of "the item in the column of Mr. Emil P. Jurado of the Manila Standard on a vacation trip supposedly taken by six Justices with their families last year," and requesting that the Court "take such action as may be appropriate." In his affidavit, Samson made the following averments: 9 xxx xxx xxx While the name of the public utility which supposedly financed the alleged vacation of the Justices in Hongkong has not been disclosed in the Jurado column, the publication thereof, taken in relation to the spate of recent newspaper reports alleging that the decision of the Supreme Court, penned by Mr. Justice Hugo E. Gutierrez, Jr., in the pending case involving the PLDT and Eastern Telecommunications Phils., Inc. was supposedly ghost written by a lawyer of PLDT, gives rise to the innuendo or unfair inference that Emil Jurado is alluding to PLDT in the said column; and, this in fact was the impression or perception of those who talked to me and the other officers of the PLDT after having read the Jurado column; 4. In as much as the PLDT case against Eastern Telecommunications Philippines is still sub-judice, since the motions for reconsideration filed by the losing litigants therein, Eastern Telecommunications Philippines, Inc. and NTC are still pending before the Court, we have tried to refrain from making any public comments on these matters, lest any statement we make be interpreted to be an attempt on our part to unduly influence the final decision of the Supreme Court in the above described case. However in the interest of truth and justice, PLDT is compelled to emphatically and categorically declare that it is not the public utility firm referred to in the Jurado column and that specifically, it has never paid for

to the Proceeding at Bar

What may be called the seed of the proceeding at bar was sown by the decision promulgated by this Court on August 27, 1992, in the socalled "controversial case" of "Philippine Long Distance Telephone Company v. Eastern Telephone Philippines, Inc. (ETPI)," G.R. No, 94374. In that decision the Court was sharply divided; the vote was 9 to 4, in favor of the petitioner PLDT. Mr. Justice Hugo E. Gutierrez, Jr., wrote the opinion for the majority. 6 A motion for reconsideration of the decision was filed in respondent's behalf on September 16, 1992, which has recently been resolved. In connection with this case, G.R. No. 94374, the "Philippine Daily Inquirer" and one or two other newspapers published, on January 28, 1993, a report of the purported affidavit of a Mr. David Miles Yerkes, an alleged expert in linguistics. This gentleman, it appears, had been commissioned by one of the parties in the case, Eastern Telephone Philippines, Inc. (ETPI), to examine and analyze the decision of Justice Gutierrez in relation to a few of his prior ponencias and the writings of one of the lawyers of PLDT, Mr. Eliseo Alampay, to ascertain if the decision had been written, in whole or in part, by the latter. Yerkes proffered the conclusion that the Gutierrez decision "looks, reads and sounds like the writing of the PLDT's counsel," 7 As might be expected, the Yerkes "revelations" spawned more public discussion and comment about the judiciary and the Supreme Court itself, much of it unfavorable. There were calls for impeachment of the justices, for resignation of judges. There were insistent and more widespread reiterations of denunciations of incompetence and corruption in the judiciary. Another derogatory epithet for judges was coined and quickly gained currency: "Hoodlums in Robes." It was at about this time and under these circumstances particularly the furor caused by the Yerkes opinion that the PLDT decision was authored by a PLDT lawyer that Jurado wrote in his column on February 8, 1993, an item entitled, "Who will judge the Justices?" referring among other things to" . . . (a) report that six justices, their spouses, children and grandchildren (a total of 36 persons) spent a vacation in Hong Kong some time last year and that luxurious hotel accommodations and all their other expenses were paid by a pubic utility firm . . . and that the trip . . . was arranged by the travel agency patronized by this public utility firm." 8 This was the event that directly gave rise to the proceeding at bar. a. Letter and Affidavit of PLDT For shortly afterwards, on February 10, 1993, Mr. Vicente R. Samson, First Vice President of the PLDT (Philippine Long Distance Telephone Company), addressed a letter to the Chief Justice, submitting his

any such trip, hotel or other accommodations for any justice of the Supreme Court or his family during their vacation, if any, in Hongkong last year. It is not even aware that any of the justices or their families have made the trip referred to in the Jurado column;

5. I further state that neither Atty. Emil P. Jurado nor anyone in his behalf has ever spoken to me or any other responsible officer of PLDT about the matter quoted in par. 2 hereof; 6. PLDT further emphatically and categorically

denies that it had ever talked to or made arrangements with any travel agency or any person or entity in connection with any such alleged trip of the Justices and their families to Hongkong, much less paid anything therefor to such agencies, fully or in part, in the year 1992 as referred to in Par. 2 hereinabove;
7. The travel agencies which PLDT patronizes or retains for the trips, hotels or other accommodations of its officers and employees are:

b. Affidavit of Atty. William Veto The Samson affidavit was followed by another submitted to the Court by Atty. William Veto, the "in-house counsel of Equitable Banking Corporation since 1958," subscribed and sworn to on February 10, 1993, in relation to another article of Jurado. 10 Veto deposed that on Tuesday, January 5, 1993 he had "hosted a lunch party at the Officers' Lounge, 7th Floor of the Equitable Banking Corporation Building, Ermita Branch . . . upon prior permission . . . obtained;" that the "expenses for said party were exclusively from my personal funds and the food was prepared in my house by my wife and served by my house help . . . and four (4) waiters . . . hired from the nearby Barrio Fiesta Restaurant;" that among the invited guests "were members of the Supreme Court and Court of Appeals who . . . were my friends of forty years since our days in law school;" and that the party was held in the lounge of the bank instead of in "my residence" "unlike in

former years . . . because my birthday happened to fall on a working day and my friends from the Equitable Banking Corporation . . . suggested that I hold it there (at the lounge) for their convenience because my residence is far from down town." However, this birthday luncheon of Atty. Veto was reported in Jurado's column (in the Manila Standard issues of January 12 and 28, 1993) as having been "hosted (by the Equitable Bank) at its penthouse mainly for some justices, judges, prosecutors and law practitioners. . . ." And upon this premise, Jurado indulged in the following pontification: "When those in the judiciary fraternize this way, what chances before the courts do other lawyers, who are not "batang club," have against others who belong to the fraternity? In the case of prosecutors and fiscals, what chances do opposing counsels have against those in the fraternity?" (column of January 12, 1993) c. Information from Ad Hoc Committee At about this time, too, the Court received information from the Ad Hoc Committee (created by Administrative Order No. 11-93) to the following effect: 1) that by letter dated February 1, 1993, the Chairman of the Ad Hoc Committee extended an invitation to Atty. Emiliano Jurado to appear before it "at 2 o'clock in the afternoon of February 4, 1993 . . . (to) give the committee information that will assist it in its task," i.e., to definitely and accurately determine the facts as regards the published rumors and reports of corruption in the judiciary; 2) that despite receipt of this letter by a responsible individual at the business address of Jurado, the latter failed to appear at the time and place indicated; that instead, in his column in the issue of Manila Standard of February 4, 1993, Jurado stated that he was told he was being summoned by theAd Hoc Committee, but "(t)here is really no need to summon me. The committee

The Ad Hoc Committee has scheduled hearings on the 11th and 12th of February, 1993. Mr. Justice Hilario G. Davide, Jr. will preside as Chairman at these hearings since I will be unable to do so in view of earlier commitments. We reiterate our invitation that you come before the Committee, and you may opt to appear either on the 11th or 12th of February, 1993, at 2 o'clock in the afternoon." 4) that notwithstanding receipt of this second letter by a certain Mr. Gerry Gil of the Manila Standard, Jurado still failed to appear. 4. Statement of the Case:

Resolutions and Pleadings

a. Resolution of the February 16, 1993 After considering all these circumstances, the Court by Resolution dated February 16, 1993, ordered: 1) that the matter dealt with in the letter and affidavit of the PLDT herein mentioned be duly DOCKETED, and hereafter considered and acted upon as an official Court proceeding for the determination of whether or not the allegations made by Atty. Emil Jurado herein specified are true; 2) that the Clerk of Court SEND COPIES of the PLDT letter and affidavit, and of the affidavit of Atty. William Veto to Atty. Emil Jurado, c/o the Manila Standard, Railroad & 21 Streets, Port Area, Manila; and copies of the same PLDT letter and affidavit, to Philway Travel Corporation, M-7 Prince Tower Cond., Tordesillas St., Salcedo Village, Makati, Metro Manila; and Citi-World Travel Mart Corp., Suite 3-4 Ramada Midtown Arcade, M. Adriatico Street, Ermita, Manila; 3) that within five (5) days from their receipt of notice of this resolution and of copies of the PLDT letter and affidavit, the Philway Travel Corporations and the Citi-World Travel Mart Corporation each FILE A SWORN STATEMENT affirming or denying the contents of the PLDT affidavit; and 4) that within fifteen (15) days from his receipt of notice of this resolution and of copies of said PLDT letter and affidavit and of the affidavit of Atty. Veto, Atty. Emil Jurado FILE A COMMENT on said affidavits as well as the allegations made by him in his columns, herein specified, in which he shall make known to the Court the factual or evidentiary bases of said allegations. b. Jurado's Comment dated March 1, 1993. As directed, Jurado filed his comment, dated March 1, 1993. He explained that he had not "snubbed" the invitation of the Ad Hoc Committee, it being in fact his desire to cooperate in any investigation on corruption in the judiciary as this was what "his columns have always wanted to provoke." What had happened, according to him, was that the first invitation of the Ad Hoc Committee was routed to his desk at the Manila Standard office on the day of the hearing itself, when it was already impossible to cancel previous professional and business appointments; and the second invitation, "if it was ever received" by his office, was never routed to him; and he had yet to see it." 11 If the impression had been created that he had indeed "snubbed" the Ad Hoc Committee, he "sincerely apologizes." He averred that his columns are self-explanatory and reflect his beliefs, and there was no need to elaborate further on what he had written. He expressed his firm belief that justice can be administered only by a judicial system that is itself just and incorruptible, and the hope that this Court would view his response in this light. He also made the following specific observations:

can go by the many things I have written in my column about corruption in the judiciary. Many of these column items have been borne out by subsequent events."

3) that another letter was sent by the Chairman to Jurado, dated February 5, 1993, reiterating the Committee's invitation, viz.: It is regretted that you failed to respond to the invitation of the Ad Hoc Committee to appear at its session of February 4, 1992. All indications are that you are the person with the most knowledge about corruption in the judiciary and hence, appear to be best positioned to assist the Ad HocCommittee in its function of obtaining evidence, or leads, on the matter. You have, I believe, expressed more than once the laudable desire that the judiciary rid itself of the incompetents and the misfits in its ranks, and we believe you will want to help the Court do precisely that, by furnishing the Committee with competent evidence, testimonial or otherwise. Clearly, the purging process cannot be accomplished without proof, testimonial or otherwise, as you must no doubt realize, being yourself a lawyer. We would like you to know that the Ad Hoc Committee created by Administrative Order No. 11-93 is simply a fact-finding body. Its function is evidence-gathering. Although possessed of the authority to maintain and enforce order in its proceedings, and to compel obedience to its processes, it is not an adjudicative body in the sense that it will pronounce persons guilty or innocent, or impose sanctions, on the basis of such proofs as may be presented to it. That function is reserved to the Supreme Court itself, in which it is lodged by the Constitution and the laws. Thus, at the conclusion of its evidencegathering mission, the Ad Hoc Committee will submit its report and recommendations to the Court which will then take such action as it deems appropriate.

1. The affidavit of Antonio Samson of the PLDT dated February 9, 1993 was an assertion of the affiant's belief and opinion and he (Jurado) would not comment on it except to say that while Mr. Samson is entitled to his beliefs and opinions, these "bind only him and the PLDT." 2. Atty. William Veto's affidavit substantially corroborated what he had written in vital details; hence, further substantiation would be surplusage. In fact, the Supreme Court had confirmed the story in its press statement quoted by him (Jurado) in his January 30, 1993 column. His column about the Veto party constitutes fair comment on the public conduct of public officers. 3. The column about Executive Judge Rosalio de la Rosa merely summarized the position of Judge Teresita Dy-Liaco Flores on the actuations of Judge de la Rosa and called the attention of the Court thereto, Judge Flores' complaint, a copy of which had been sent to the Court Administrator, being on meriting its attention. 4. The "factual and evidentiary basis" of his column of January 30, 1993 was the police report on seven (7) Makati judges authored by Chief Inspector Laciste Jr., of the Narcotics Branch of the RPIU, South CAPCOM, PNP, addressed to VicePresident Joseph E. Estrada, a copy of which he had received in the news room of the Manila Standard. The existence of the report had been affirmed by a reporter of the Manila Standard, Jun Burgos, when he appeared at the hearing of the Ad HocCommittee on January 11, 1993. 5. His observations in his columns of January 6 and 29, 1993 regarding the nominations of relatives in the Judicial and Bar Council echo the public perception, and constitute fair comment on a matter of great public interest and concern. 6. His columns with respect to the "RTC's Magnificent Seven" (October 20, 1992); the "RTCMakati's Dirty Dozen" (October 2, 1992, November 9, 1992, and December 1, 1992); the "Magnificent Seven" in the Supreme Court (February 3,1993); 12 the lady secretary of an RTC Judge (October 27, 1992); and the former Court of Appeals Justice "fixing" cases (January 29, 1993) were all based on information given to him in strict confidence by sources he takes to be highly reliable and credible; and he could not elaborate on the factual and evidentiary basis of the information without endangering his sources. By necessity and custom and usage, he relies as a journalist not only on first-hand knowledge but also on information from sources he has found by experience to be trustworthy. He cannot compromise these sources. He invokes Republic Act No. 53, as amended by R.A. No. 1477, exempting the publisher, editor or reporter of any publication from revealing the source of published news or information obtained in confidence, and points out that none of the matters subject of his columns has any bearing on the security of the state. c. Resolution of March 2, 1993

By Resolution dated March 2, 1993, the Court directed that Jurado be given copies of these two (2) affidavits and that he submit comment thereon, if desired, within ten (10) days from receipt thereof. d. Jurado's Supplemental Comment

with Request for Clarification

In response, Jurado filed a pleading entitled "Supplemental Comment with Request for Clarification" dated March 15, 1993. In this pleading he alleged that the sworn statements of Mr. Ermin Garcia, Jr. and Mrs. Marissa de la Paz are affirmations of matters of their own personal knowledge; that he (Jurado) had no specific knowledge of "the contents of these, let alone their veracity;" and that the affidavits "bind no one except the affiants and possibly the PLDT." He also sought clarification on two points as to the capacity in which he is being cited in these administrative proceedings whether "as full time journalist or as a member of the bar," and why he is being singled out, from all his other colleagues in media who had also written about wrongdoings in the judiciary, and required to comment in a specific administrative matter before the Court sitting En Banc so that he might "qualify his comment and/or assert his right and privileges . . . . e. Resolution of March 18, 1993 Through another Resolution, dated March 18, 1993, the Court directed the Clerk of Court to inform Jurado that the Resolutions of February 16 and March 2, 1993 had been addressed to him (according to his own depiction) in his capacity as "a full-time journalist" "who coincidentally happens to be a member of the bar at the same time," and granted him fifteen (15) days from notice" to qualify his comment and/or assert his rights and privileges . . . in an appropriate manifestation or pleading." f. Jurado's Manifestation

dated March 31, 1993

Again in response, Jurado filed a "Manifestation" under date of March 31, 1993. He moved for the termination of the proceeding on the following posited premises: 1. The court has no administrative supervision over him as a member of the press or over his work as a journalist. 2. The present administrative matter is not a citation for (a) direct contempt as there is no pending case or proceeding out of which a direct contempt charge against him may arise, or (b) indirect contempt as no formal charge for the same has been laid before the court in accordance with Section 3 (Rule 71) of the Rules of Court. 3. His comments would be more relevant and helpful to the Court if taken together with the other evidence and reports of other journalists gathered before the Ad Hoc Committee. He perceives no reason why his comments should be singled out and taken up in a separate administrative proceeding. It is against this background of the material facts and occurrences that the Court will determine Jurado's liability, if any, for the above mentioned statements published by him, as well as "such action as may be appropriate" in the premises, as the PLDT asks. 5. Norms for Proper Exercise of

Press Freedom

a. Constitutional Law Norms Subsequent to the Resolution of February 16, 1993 and before the filing of Jurado's comment above mentioned, the Court received the affidavits of the executive officials of the two travel agencies mentioned in the affidavit of PLDT Executive Vice-President Vicente R. Samson in relation to the Jurado column of February 8, 1993: that of Mr. Ermin Garcia, Jr., President of the Citi-World Travel Mart Corporation, dated February 22, 1993, and that of Mrs. Marissa de la Paz, General Manager of Philway Travel Corporation, dated February 19, 1993. Both denied ever having made any travel arrangements for any of the Justices of the Supreme Court or their families to Hongkong, clearly and categorically belying the Jurado article. In Zaldivar v. Gonzalez (166 SCRA 316 [1988]), the Court underscored the importance both of the constitutional guarantee of free speech and the reality that there are fundamental and equally important public interests which need on occasion to be balanced against and accommodated with one and the other. There, the Court stressed the importance of the public interest in the maintenance of the integrity and orderly functioning of the administration of justice. The Court said: 13 The principal defense of respondent Gonzalez is that he was merely exercising his constitutional right of free speech. He also invokes the related

doctrines of qualified privileged communications and fair criticism in the public interest. Respondent Gonzalez is entitled to the constitutional guarantee of free speech. No one seeks to deny him that right, least of all this Court. What respondent seems unaware of is that freedom of speech and of expression, like all constitutional freedoms, is not absolute and that freedom of expression needs on occasion to be adjusted to and accommodated with the requirements of equally important public interests. One of these fundamental public interests is the maintenance of the integrity and orderly functioning of the administration of justice. There is no antinomy between free expression and the integrity of the system of administering justice. For the protection and maintenance of freedom of expression itself can be secured only within the context of a functioning and orderly system of dispensing justice, within the context, in other words, of viable independent institutions for delivery of justice which are accepted by the general community. As Mr. Justice Frankfurter put it: . . . A free press is not to be preferred to an independent judiciary, nor an independent judiciary to a free press. Neither has primacy over the other; both are indispensable to a free society. The freedom of the press in itself presupposes an independent judiciary through which that freedom may, if necessary, be vindicated. And one of the potent means for assuring judges their independence is a free press. (Concurring in Pennekamp v. Florida, 328 U.S. 331 at 354356 [1946]). Mr. Justice. Malcolm of this Court expressed the same thought in the following terms: The Organic Act wisely guarantees freedom of speech

b. Civil Law Norms The Civil Code, in its Article 19 lays down the norm for the proper exercise of any right, constitutional or otherwise,viz.: Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. The provision is reflective of the universally accepted precept of "abuse of rights," "one of the most dominant principles which must be deemed always implied in any system of law." 14 It parallels too "the supreme norms of justice which the law develops" and which are expressed in three familiar Latin maxims: honeste vivere, alterum non laedere and jus suum quique tribuere (to live honorably, not to injure others, and to render to every man his due). 15 Freedom of expression, the right of speech and of the press is, to be sure, among the most zealously protected rights in the Constitution. But every person exercising it is, as the Civil Code stresses, obliged "to act with justice, give everyone his due, and observe honesty and good faith." The constitutional right of freedom of expression may not be availed of to broadcast lies or half-truths this would not be "to observe honesty and good faith;" it may not be used to insult others; destroy their name or reputation or bring them into disrepute. this would not be "to act with justice" or "give everyone his due." c. Philippine Journalist's

Code of Ethics

Also relevant to the determination of the propriety of Jurado's acts subject of the inquiry at bar are the norms laid down in "The Philippine Journalist's Code of Ethics." The Code was published in the issue of February 11, 1993 of the Manila Standard, for which Jurado writes, as part of the paper's "Anniversary Supplement." The first paragraph of the Code, 16 and its corresponding annotations, read as follows: 1. I shall scrupulously report and interpret the news, taking care not to suppress essential facts nor to distort the truth by improper omission or emphasis. I recognize the duty to air the other side and the duty to correct substantive errors promptly. 1. Scrupulous news gathering

and press. This constitutional right must be protected in its fullest extent. The Court has heretofore given evidence of its tolerant regard for charges under the Libel Law which come dangerously close to its violation. We shall continue in
this chosen path. The liberty of the citizens must be preserved in all of its completeness. But license or

and beat coverage is required. Relying exclusively on the telephone or on what fellow reporters say happened at one's beat is irresponsible.
2. The ethical journalist does

not bend the facts to suit his biases or to please benefactors. He gathers all the facts, forms a hypothesis, verifies it and arrives at an honest interpretation of what happened.
3. The duty to air the other

abuse of liberty of the press and of the citizens should not be confused with liberty in its true sense. As important as is the maintenance of an unmuzzled press and the free exercise of the rights of the citizens is the maintenance of the independence of the Judiciary. Respect for the

Judiciary cannot be had if persons are privileged to scorn a resolution of the court adopted for good purposes, and if such persons are to be permitted by subterranean means to diffuse inaccurate accounts of confidential proceedings to the embarrassment of the parties and the court. (In Re Severino Lozano and Anastacio Quevedo, 54 Phil. 801 at 807 [1930]).

side means that the journalist must contact the person or persons against whom accusations are lodged. A court proceeding provides for this balance by presenting the prosecution and then the defense. A news story or editorial column that fails to present the other side is like a court that does not hear the side of the defense.
4. Correcting substantive

errors is the mark of mature newspapers like the New York Times, the International Herald Tribune, and some of Manila's papers.
d. Right to Private Honor

and Reputation

In the present proceeding, there is also involved an acknowledged and important interest of individual persons: the right to private reputation. Judges, by becoming such, are commonly and rightly regarded as voluntarily subjecting themselves to norms of conduct which embody more stringent standards of honesty, integrity, and competence than are commonly required from private persons. 17 Nevertheless, persons who seek or accept from appointment to the Judiciary cannot reasonably be regarded as having thereby forfeited any right whatsoever to private honor and reputation. For so to rule will be simply, in the generality of cases, to discourage all save those who feel no need to maintain their self-respect as a human being in society, from becoming judges, with obviously grievous consequences for the quality of our judges and the quality of the justice that they will dispense. Thus, the protection of the right of individual persons to private reputations is also a matter of public interest and must be reckoned with as a factor in identifying and laying down the norms concerning the exercise of press freedom and free speech. Clearly, the public interest involved in freedom of speech and the individual interest of judges (and for that matter, all other public officials) in the maintenance of private honor and reputation need to be accommodated one to the other. And the point of adjustment or accommodation between these two legitimate interest is precisely found in the norm which requires those who, invoking freedom of speech, publish statements which are clearly defamatory to identifiable judges or other public officials to exercise bona fide care in ascertaining the truth of the statements they publish. The norm does not require that a journalist guarantee the truth of what he says or publishes. But the norm does prohibit the reckless disregard of private reputation by publishing or circulating defamatory statements without any bona fide effort to ascertain the truth thereof. That this norm represents the generally accepted point of balance or adjustment between the two interests involved is clear from a consideration of both the pertinent civil law norms and the Code of Ethics adopted by the journalism profession in the Philippines. 17a 6. Analysis of Jurado Columns a. Re "Public Utility Firm" Now, Jurado's allegation in his column of February 8, 1993 "that six justices, their spouses, children and grandchildren (a total of 36 persons) spent a vacation in Hong Kong some time last year and that luxurious hotel accommodations and all their other expenses

of those who talked to me and the other officers of the PLDT after having read the Jurado column. The record shows that he made no effort whatsoever to impugn, modify, clarify or explain Samson's positive assertion that: . . . (the PLDT) has never paid for any such trip,

hotel or other accommodations for any justice of the Supreme Court or his family during their vacation, if any, in Hongkong last year. It is not even aware that any of the justices or their families have made the trip referred to in the Jurado column;
. . . neither Atty. Emil P. Jurado nor any one in his behalf has ever spoken to me or any other responsible officer of PLDT about the matter. . .; . . . PLDT . . . (never) talked to or made

arrangements with any travel agency or any person or entity in connection with any such alleged trip of the Justices and their families to Hongkong, much less paid anything therefor to such agencies, fully or in part, in the year 1992 as referred to in Par. 2 hereinabove;
What appears from the record is that without first having made an effort to talk to any one from the PLDT or the Supreme Court to ascertain the veracity of his serious accusation, Jurado went ahead and published it. His explanation for having aired the accusation consists simply of a declaration that Samson's affidavit, as well as the affidavits of the heads of the two travel agencies regularly patronized by it, were just assertions of the affiants' belief and opinion; and that he (Jurado) would not comment on them except to say that while they are entitled to their beliefs and opinions, these were binding on them only. This is upon its face evasion of duty of the most cavalier kind; sophistry of the most arrant sort. What is made plain is that Jurado is in truth unable to challenge any of the averments in the affidavits of PLDT and its travel agencies, or otherwise substantiate his accusation, and that his is a mere resort to semantics to justify the unjustifiable. What is made plain is that his accusation is false, and possesses not even the saving grace of honest error. If relying on second-hand sources of information is, as the Journalists' Code states, irresponsible, supra, then indulging in pure speculation or gossip is even more so; and a failure to "present the other side" is equally reprehensible, being what in law amounts to a denial of due process. b. Re Equitable Bank Party Jurado is also shown by the record to have so slanted his report of the birthday luncheon given by Atty. William Veto (the "in-house counsel of Equitable Banking Corporation since 1958") as to project a completely false depiction of it. His description of that affair (in the Manila Standard issues of January 12 and 28, 1993) as having been hosted by the Equitable Bank "at its penthouse mainly for some putting the rhetorical question about how such fraternization affects the chances in court of lawyers outside that charmed circle.

were paid by a public utility firm and that the trip reportedly was arranged by the travel agency patronized by this public utility firm," supra is in the context of the facts under which it was made

easily and quickly perceived as a transparent accusation that the PLDT had bribed or "rewarded" six (6) justices for their votes in its favor in the case of "Philippine Long Distance Telephone Company v. Eastern Telephone Philippines, Inc. (ETPI)," G.R. No. 94374, 18 by not only paying all their expenses i.e.,hotel accommodations and all other expenses for the trip but also by having one of its own travel agencies arrange for such a trip. As already stated, that allegation was condemned as a lie, an outright fabrication, by the PLDT itself, through one of its responsible officers, Mr. Vicente Samson, as well as by the heads of the two (2) travel agencies "patronized by it," Ermin Garcia, Jr. and Marissa de la Paz, supra. That categorical denial logically and justly placed on Jurado the burden of proving the truth of his grave accusation, or showing that it had been made through some honest mistake or error committed despite good faith efforts to arrive at the truth, or if unable to do either of these things, to offer to atone for the harm caused. But the record discloses that Jurado did none of these things. He exerted no effort whatever to contest or qualify in any manner whatever the emphatic declaration of PLDT Vice-President Samson that While the name of the public utility which supposedly financed the alleged vacation of the Justices in Hongkong has not been disclosed in the Jurado column, the publication thereof, taken in relation to the spate of recent newspaper reports alleging that the decision of the Supreme Court, penned by Mr. Justice Hugo E. Gutierrez, Jr., in the pending case involving the PLDT and Eastern Telecommunications Phils., Inc. was supposedly ghost written by a lawyer of PLDT, gives rise to the innuendo or unfair inference that Emil Jurado is alluding to PLDT in the said column; and, this in fact was the impression or perception

justices, judges, prosecutors and law practitioners . . . , carries the sanctimonious postscript already quoted,

When confronted with Veto's affidavit to the effect that the party was given by him at his (Veto's) own expense, the food having been prepared by his wife in his house, and served by his house help and waiters privately hired by him; that he had invited many persons including friends of long standing, among them justices of the Supreme Court and the Court of Appeals; and that the party had been held in the Officers' Lounge of Equitable Bank, instead of his home, as in years past, to suit the convenience of his guests because his birthday fell on a working day, Jurado could not, or would not deign to, contradict any of those statements. He merely stated that Veto's affidavit substantially corroborated what he had written in vital details, which is obviously far from correct. Most importantly, the record does not show that before he published that story, Jurado ever got in touch with Veto or anyone in Equitable Bank, Ermita Branch, to determine the accuracy of what he would later report. If he did, he would quickly have learned that his sources, whoever or whatever they were, were not to be relied upon. If he did not, he was gravely at fault at the very least for disregarding the

Journalist's Code of Ethics in failing to exertbona fide efforts to verify the accuracy of his information. In either case, his publication of the slanted, therefore misleading and false, report of the affair is censurable. His proffered explanation that the justices having confirmed their presence at the luncheon, thus corroborating what he had written in vital details and making further substantiation unnecessary, and that his report constituted fair comment on the public conduct of public officers, obviously does not at all explain why a party given by Atty. Vetowas reported by him as one tendered by Equitable Bank. The only conclusion that may rationally be drawn from these circumstances is that Jurado, unable to advance any plausible reason for the conspicuous divergence between what in fact transpired and what he reported, again resorts to semantics and sophistry to attempt an explanation of the unexplainable. Paraphrasing the Code of Ethics, he failed to scrupulously report and interpret the news; on the contrary, his failure or refusal to verify such essential facts as who really hosted and tendered the luncheon and spent for it, and his playing up of the Bank's supposed role as such host have resulted in an improper suppression of those facts and a gross distortion of the truth about them. c. Re Other Items Jurado disregarded the truth again, and in the process vilified the Supreme Court, in the item in his column of February 3, 1993 already adverted to, 19 and more fully quoted as follows: When lawyers speak of the "Magnificent Seven" one has to make sure which group they are referring to. Makati's "Magnificent Seven" are a bunch of Makati regional trial court judges who fix drug related cases. The "Magnificent Seven" in the

price, could guarantee that a party's lawyer could write his own decision for and in the name of the ponente; and of his column of March 24, 1993 to the effect that anywhere from P30,000 to P50,000 could buy a temporary restraining order from a regional trial court in Manila. The litany of falsehoods, and charges made without bona fide effort at verification or substantiation, continues: (a) Jurado's column of January 30, 1993 about eight (8) Makati judges who were "handsomely paid" for decisions favoring drug-traffickers and other big-time criminals was based on nothing more than raw intelligence contained is confidential police report. It does not appear that any part of that report has been reliably confirmed. (b) He has refused to offer any substantiation, either before the Ad Hoc Committee or in this proceeding, for his report of October 27, 1992 concerning an unnamed lady secretary of a Makati RTC Judge who, besides earning at least P10,000 for making sure a case is raffled off to a "sympathetic" judge, can also arrange the issuance of attachments and injunctions for a fee of one (1%) percent over and above usual premium for the attachment or injunction bond, a fee that in one instance amounted to P300,000. (c) His report (columns of January 16 and 29, 1993) that the Judicial and Bar Council acted contrary to ethics and delicadeza in nominating to the Court of Appeals a son and a nephew of its members is completely untrue. The most cursory review of the records of the Council will show that since its organization in 1987, there has not been a single instance of any son or nephew of a member of the Council being nominated to the Court of Appeals during said member's incumbency; and in this connection, he mistakenly and carelessly identified RTC Judge Rosalio de la Rosa as the nephew of Justice (and then Member of the Judicial and Bar Council) Lorenzo Relova when the truth, which he subsequently learned and admitted, was that the person referred to was Judge Joselito de la Rosa, the son-in-law, not the nephew, of Justice Relova. Had he bothered to make any further verification, he would have learned that at all sessions of the Council where the nomination of Judge Joselito de la Rosa was considered, Justice Relova not only declined to take part in the deliberations, but actually left the conference room; and he would also have learned that Judge Rosalio de la Rosa had never been nominated indeed, to this date, he has not been nominated to the Court of Appeals. (d) He has recklessly slandered the Judicial and Bar Council by charging that it has improperly made nominations to the Court of Appeals on considerations other than of merit or fitness, through the manipulations of the Council's Secretary, Atty. Daniel Martinez; or because the nominee happens to be a relative of a member of the Council (e.g., Judge Joselito de la Rosa, initially identified as Judge Rosalio de la Rosa) or of the Supreme Court (he could name none so situated); or has powerful political sponsor (referring to RTC Judge Conrado Vasquez, Jr., son and namesake of the Ombudsman). Acceptance of the truth of these statements is precluded, not only by the familiar and established presumption of regularity in the performance of official functions, but also, and even more conclusively by the records of the Judicial and Bar Council itself, which attest to the qualifications of Atty. Daniel Martinez, Clerk of Court of the Supreme Court, Judge Joselito de la Rosa, and Judge Conrado Vasquez, Jr., for membership in the Appellate Tribunal; (e) Equally false is Jurado's report (column of January 25, 1993) that nomination to the Court of Appeals of some worthy individuals like Quezon City RTC Judge Maximiano Asuncion, and Atty.

Supreme Court consists of a group of justices who vote as one."

About the last (italicized) statement there is, as in other accusations of Jurado, not a shred of proof; and the volumes of the Supreme Court Reports Annotated (SCRA) in which are reported the decisions of the Supreme Court En Banc for the year 1992 (January to December) and for January 1993, divulge not a single non-unanimous decision or resolution where seven (7) justices voted "as one," nor any group of decisions or resolutions where the recorded votes would even suggest the existence of such a cabal.

This is yet another accusation which Jurado is unable to substantiate otherwise than, as also already pointed out, by invoking unnamed and confidential sources which he claims he considers highly credible and reliable and which would be imperiled by elaborating on the information furnished by them. He would justify reliance on those sources on grounds of necessity, custom and usage and claim the protection of Republic Act No. 53, as amended by Republic Act No. 1477 from forced, revelation of confidential news sources except when demanded by the security of the state. 20 Surely it cannot be postulated that the law protects a journalist who deliberately, prints lies or distorts the truth; or that a newsman may escape liability who publishes derogatory or defamatory allegations against a person or entity, but recognizes no obligation bona fide to establish beforehand the factual basis of such imputations and refuses to submit proof thereof when challenged to do so. It outrages all notions of fair play and due process, and reduces to uselessness all the injunctions of the Journalists' Code of Ethics to allow a newsman, with all the potential of his profession to influence popular belief and shape public opinion, to make shameful and offensive charges destructive of personal or institutional honor and repute, and when called upon to justify the same, cavalierly beg off by claiming that to do so would compromise his sources and demanding acceptance of his word for the reliability of those sources. Jurado's other writings already detailed here are of the same sort. While it might be tedious to recount what has already been stated about the nature and content of those writings, it is necessary to do so briefly in order not only to stress the gravity he makes, but also to demonstrate that his response to the call for their substantiation has been one of unvarying intransigence: an advertance to confidential sources with whose reliability he professes satisfaction and whom fuller disclosure would supposedly compromise. There can be no doubt of the serious and degrading character not only to the Court of Appeals, but also to the judiciary in general of his columns of November 9, 1992 and January 29, 1993 concerning an unnamed former justice of the Court of Appeals who had allegedly turned "fixer" for five of the Court's divisions and who, for the right

Raul Victorino (who was closely identified with former Senate President Salonga) had been blocked because they had "incurred the ire of the powers that be," the truth, which could very easily have been verified, being that a pending administrative case against Judge Asuncion had stood in the way of his nomination, and since Mr. Victorino had been sponsored or recommended by then Senate President Salonga himself, the fact that he was not nominated can hardly be attributed to the hostility or opposition of persons in positions of power or influence. (f) Jurado was similarly unfair, untruthful and unfoundedly judgmental in his reporting about Executive Judge Rosalio de la Rosa of the Manila Regional Trial Court as: (1) having been nominated to the Court of Appeals by the Judicial and Bar Council chiefly, if not only, by reason of being the nephew of Justice Relova and the cousin of Chief Justice Narvasa, the truth, as already pointed out, being that Judge Rosalio de la Rosa had never been thus nominated to the Court of Appeals, the nominee having been Judge Joselito de la Rosa, the son-in-law (not nephew) of Justice Relova; and (2) having discarded the rule that cases seeking provisional remedies should be raffled off to the judges (column of January 28, 1993) and adopted a system of farming out applications for temporary restraining orders, etc., among all the branches of the court; here again, Jurado is shown to have written without thinking, and made statements without verifying the accuracy of his information or seeking the views of the subject of his pejorative statements; the merest inquiry would have revealed to him that while Circular No. 7 dated September 23, 1974 requires that no case may be assigned in multi-sala courts without raffle (for purposes of disposition on the merits), Administrative Order No. 6, dated June 30, 1975 (Sec. 15, Par. IV), 21 empowers Executive Judges to act on all applications for provisional remedies (attachments, injunctions, or temporary restraining orders, receiverships, etc.), or on interlocutory matters before raffle, in order to "balance the workload among courts and judges, (Sec. l, par. 2, id.), and exercise such other powers and prerogatives as may in his judgment be necessary or incidental to the performance of his functions as a Court Administrator" (Sec. 7, par. 1, id.) these provisions being broad enough, not only to authorize unilateral action by the Executive Judge himself on provisional remedies and interlocutory matters even prior to raffle of the main case, but also to delegate the

authority to act thereon to other judges. Jurado does not explain why: (1) he made no effort to verify the state of the rules on the matter; (2) he precipitately assumed that the views of Judge Teresita DyLiaco Flores, whose complaint on the subject he claims he merely summarized, were necessarily correct and the acts of Judge de la Rosa necessarily wrong or improper; and (3) he did not try to get Judge de la Rosa's side at all. Common to all these utterances of Jurado is the failure to undertake even the most cursory verification of their objective truth; the abdication of the journalist's duty to report and interpret the news with scrupulous fairness; and the breach of the law's injunction that a person act with justice, give everyone his due and observe honesty and good faith both in the exercise of his rights and in the performance of his duties. 7. Jurado's Proffered Excuses

and Defenses

The principle of press freedom is invoked by Jurado in justification of these published writings. That invocation is obviously unavailing in light of the basic postulates and the established axioms or norms for the proper exercise of press freedom earlier set forth in this opinion. 22 Jurado next puts in issue this Court's power to cite him for contempt. The issue is quickly disposed of by adverting to the familiar principle reiterated inter alia in Zaldivar v. Gonzales: 23 . . . (T)he Supreme Court has inherent power to punish for contempt, to control in the furtherance of justice the conduct of ministerial officers of the Court including lawyers and all other persons connected in any manner with a case before the Court (In re Kelly, 35 Phil. 944 [1916]; In re Severino Lozano and Anastacio Quevedo, 54 Phil. 801 (1930]; In re Vicente Pelaez, 44 Phil. 567 [1923]; and In re Vicente Sotto, 82 Phil. 595 [1949]). The power to punish for contempt is "necessary for its own protection against improper interference with the due administration of justice," "(i)t is not dependent upon the complaint of any of the parties litigant" (Halili v. Court of Industrial Relations, 136 SCRA 112 [1985]; Andres v. Cabrera, 127 SCRA 802 [1984]; Montalban v. Canonoy, 38 SCRA 1 [1971]; Commissioner of Immigration v. Cloribel, 20 SCRA 1241 [1967]; Herras Teehankee v. Director of Prisons, 76 Phil. 630 [1946]). Contempt is punishable, even if committed without relation to a pending case. Philippine jurisprudence parallels a respectable array of English decisions holding contumacious scurrilous attacks against the courts calculated to bring them into disrepute, even when made after the trial stage or after the end of the proceedings. The original doctrine laid down in People vs. Alarcon 24 that there is no contempt if there is no pending case has been abandoned in subsequent rulings of this Court which have since adopted the Moran dissent therein, 25 viz.: Contempt, by reason of publications relating to court and to court proceedings, are of two kinds. A publication which tends to impede, obstruct, embarrass or influence the courts in administering justice in a pending suit or proceeding, constitutes criminal contempt which is summarily punishable by courts. This is the rule announced in the cases relied upon by the majority. A publication which tends to degrade the courts and to destroy public confidence in them or that which tends to bring them in any way into disrepute, constitutes likewise criminal contempt, and is equally punishable by courts. In the language of the majority, what is sought, in the first kind of

contempt, to be shielded against the influence of newspaper comments, is the all-important duty of the courts to administer justice in the decision of a pending case. In the second kind of contempt, the punitive hand of justice is extended to vindicate the courts from any act or conduct calculated to bring them into disfavor or to destroy public confidence in them. In the first, there is no contempt where there is no action pending, as there is no decision which might in any be influenced by the newspaper publication. In the second, the contempt exists, with or without a pending case, as what is sought to be protected is the court itself and its dignity. (12 Am. Jur. pp. 416-417.) Courts would lose their utility if public confidence in them is destroyed. The foregoing disposes of Jurado's other contention that the present administrative matter is not a citation for direct contempt, there being no pending case or proceeding out of which a charge of direct contempt against him may arise; this, even without regard to the fact that the statements made by him about sojourn in Hongkong of six Justices of the Supreme Court were clearly in relation to a case involving two (2) public utility companies, then pending in this Court. 26 His theory that there is no formal charge against him is specious. His published statements about that alleged trip are branded as false in no uncertain terms by the sworn statement and letter of Vice-President Vicente R. Samson of the Philippine Long Distance Telephone Company which: (a) "emphatically and categorically" deny that PLDT had made any arrangements with any travel agency, or with the two travel agencies it patronized or retained, or paid anything, on account of such alleged trip; (b) positively affirm (i) that PLDT was "not even aware that any of the justices or their families . . . (had) made the trip referred to in the Jurado column," and (ii) that neither Atty. Emil P. Jurado nor anyone in his behalf has ever spoken to . . . (said Mr. Samson) or any other responsible officer of PLDT about the matter . . .; and (c) beseech the Court to "take such action (on the matter) as may be appropriate. As already stated, the Court, in its Resolution of February 16, 1993: (a) ordered the subject of Samson's letter and affidavit docketed as an official Court proceeding to determine the truth of Jurado's allegations about it; and (b) directed also that Jurado be furnished copies of Atty. William Veto's affidavit on the luncheon party hosted by him (which Jurado reported as one given by Equitable Bank) and that Jurado file comment on said affidavits as well as allegations in specified columns of his. Jurado was also furnished copies of the affidavits later submitted by the two travel agencies mentioned in Samson's statement, and was required to comment thereon.

imposing upon him the alternatives of substantiating those reports or assuming responsibility for their publication. Jurado would have the Court clarify in what capacity whether a journalist, or as a member of the bar he has been cited in these proceeding. Thereby he resurrects the issue he once raised in a similar earlier proceeding: that he is being called to account as a lawyer for his statements as a journalist. 27 This is not the case at all. Upon the doctrines and principles already inquired into and cited, he is open to sanctions as journalist who has misused and abused press freedom to put the judiciary in clear and present to the danger of disrepute and of public obdium and opprobrium, detriment and prejudice of the administration of justice. That he is at the same time a member of the bar has nothing to do with the setting in of those sanctions, although it may aggravate liability. At any rate, what was said about the matter in that earlier case is equally cogent here: Respondent expresses perplexity at being called to account for the publications in question in his capacity as a member of the bar, not as a journalist. The distinction is meaningless, since as the matter stands, he has failed to justify his actuations in either capacity, and there is no question of the Court's authority to call him to task either as a newsman or as a lawyer. What respondent proposes is that in considering his actions, the Court judge them only as those of a member of the press and disregard the fact that he is also a lawyer. But his actions cannot be put into such neat compartments. In the natural order of things, a person's acts are determined by, and reflect, the sum total of his knowledge, training and experience. In the case of respondent in particular the Court will take judicial notice of the frequent appearance in his regular columns of comments and observations utilizing legal language and argument, bearing witness to the fact that in pursuing his craft as a journalist he calls upon his knowledge as a lawyer to help inform and influence his readers and enhance his credibility. Even absent this circumstance, respondent cannot honestly assert that in exercising his profession as journalist he does not somehow, consciously or unconsciously, draw upon his legal knowledge and training. It is thus not realistic, nor perhaps even possible, to come to fair, informed and intelligent judgment of respondent's actuations by divorcing from consideration the fact that he is a lawyer as well as a newspaperman, even supposing, which is not the case that he may thereby be found without accountability in this matter. To repeat, respondent cannot claim absolution even were the Court to lend ear to his plea that his actions be judged solely as those of a newspaperman unburdened by the duties and responsibilities peculiar to the law profession of which he is also a member. 8. The Dissents

It was thus made clear to him that he was being called to account for his published statements about the matters referred to, and that action would be taken thereon against him as "may be appropriate." That that was in fact how he understood it is evident from his submitted defenses, denying or negativing liability for contempt, direct indirect. Indeed, as journalist of no little experience and a lawyer to boot, he cannot credibly claim an inability to understand the nature and import of the present proceedings. Jurado would also claim that the Court has no administrative supervision over him as a member of the press or over his work as a journalist, and asks why he is being singled out, and, by being required to submit to a separate administrative proceeding, treated differently than his other colleagues in media who were only asked to explain their reports and comments about wrongdoing in the judiciary to the Ad Hoc Committee. The answer is that upon all that has so far been said, the Court may hold anyone to answer for utterances offensive to its dignity, honor or reputation which tend to put it in disrepute, obstruct the administration of justice, or interfere with the disposition of its business or the performance of its functions in an orderly manner. Jurado has not been singled out. What has happened is that there have been brought before the Court, formally and in due course, sworn statements branding his reports as lies and thus

The eloquent, well-crafted dissents of Messrs. Justices Puno and Melo that would invoke freedom of the press to purge Jurado's conduct of any taint of contempt must now be briefly addressed. a. Apparent Misapprehension

of Antecedents and Issue

Regrettably, there appears to be some misapprehension not only about the antecedents directly leading to the proceedings at bar but also the basic issues involved. The dissents appear to be of the view, for instance, that it was chiefly Jurado's failure to appear before the Ad HocCommittee in response to two (2) letters of invitation issued to him, that compelled the Court to order the matter to be docketed on February 16, 1993 and to require respondent Jurado to file his Comment. This is not the case at all. As is made clear in Sub-Heads 3 and 4 of this opinion, supra, the direct cause of these proceedings was not Jurado's refusal to appear and give evidence before the Ad Hoc Committee. The direct cause was the letters of PLDT and Atty. William Veto, supported by affidavits, denouncing certain of his stories as false, 28 with the formerpraying that the Court take such action as may be appropriate. And it was

precisely "the matter dealt with in the letter and affidavit of the PLDT" that this Court ordered to "be duly DOCKETED, and hereafter considered and acted upon as an official Court proceeding;" this, by Resolution dated February 16, 1993; the Court also requiring, in the same Resolution, "that the Clerk of Court SEND COPIES of the PLDT letter and affidavit, and of the affidavit of Atty. William Veto to Atty. Emil Jurado . . .," and that Jurado should comment thereon "as well as (on) the allegations made by him in his columns, herein specified" because of explicit claims, and indications of the falsity or, inaccuracy thereof. There thus also appears to be some misapprehension of the basic issues, at least two of which are framed in this wise: (1) the right of newsmen to refuse subpoenas, summons, or "invitations" to appear in administrative investigations," and (2) their right "not to reveal confidential sources of information under R.A. No. 53, as amended" which are not really involved here in respect of which it is theorized that the majority opinion will have an inhibiting effect on newsmen's confidential sources of information, and thereby abridges the freedom of the press. (1) No Summons or Subpoena

be compelled by the courts to disclose them, as provided by R.A. 53, unless the security of the State demands such revelation. But it does hold that he cannot invoke such right as a shield against liability for printing stories that are untrue and derogatory of the courts, or others. The ruling, in other words, is that when called to account for publications denounced as inaccurate and misleading, the journalist has the option (a) to demonstrate their truthfulness or accuracy even if in the process he disclose his sources, or (b) to refuse, on the ground that to do so would require such disclosure. In the latter event, however, he must be ready to accept the consequences of publishing untruthful or misleading stories the truth and accuracy of which he is unwilling or made no bona fide effort to prove; for R.A. 53, as amended, is quite unequivocal that the right of refusal to disclose sources is "without prejudice to . . . liability under civil and criminal laws." R.A. 53 thus confers no immunity from prosecution for libel or for other sanction under law. It does not declare that the publication of any news report or information which was "related in confidence" to the journalist is not actionable; such circumstance (of confidentiality) does not purge, the publication of its character as defamatory, if indeed it be such, and actionable on that ground. All it does is give the journalist the right to refuse (or not to be compelled) to reveal the source of any news report published by him which was revealed to him in confidence. A journalist cannot say, e.g.: a person of whose veracity I have no doubt told me in confidence that Justices X and Y received a bribe of P1M each for their votes in such and such a case, or that a certain Judge maintains a mistress, and when called to account for such statements, absolve himself by claiming immunity under R.A. 53, or invoking press freedom. d. A Word about "Group Libel" There is hardly need to belabor the familiar doctrine about group libel and how it has become the familiar resort of unscrupulous newsmen who can malign any number of anonymous members of a common profession, calling or persuasion, thereby putting an entire institution like the judiciary in this case in peril of public contumely and mistrust without serious risk of being sued for defamation. The preceding discussions have revealed Jurado's predilection for, if not his normal practice of, refusing to specifically identify or render identifiable the persons he maligns. Thus, he speaks of the "Magnificent Seven," by merely referring to undisclosed regional trial court judges in Makati; the "Magnificent Seven" in the Supreme Court, as some undesignated justices who supposedly vote as one; the "Dirty Dozen," as unidentified trial judges in Makati and three other cities. He adverts to an anonymous group of justices and judges for whom a bank allegedly hosted a party; and six unnamed justices of this Court who reportedly spent a prepaid vacation in Hong Kong with their families. This resort to generalities and ambiguities is an old and familiar but reprehensible expedient of newsmongers to avoid criminal sanctions since the American doctrine of group libel is of restricted application in this jurisdiction. For want of a definitely identified or satisfactorily identifiable victim, there is generally no actionable libel, but such a craven publication inevitably succeeds in putting all the members of the judiciary thus all together referred to under a cloud of suspicion. A veteran journalist and lawyer of long standing that he is, Jurado could not have been unaware of the foregoing realities and consequences. e. Substantiation of News Report

Ever Issued to Jurado

The fact is that no summons or subpoena was ever issued to Jurado by the Ad Hoc Committee; nor was the issuance of any such or similar processes, or any punitive measures for disobedience thereto, intended or even contemplated. Like most witnesses who gave evidence before the Committee, Jurado was merely invited to appear before it to give information in aid of its assigned task of ascertaining the truth concerning persistent rumors and reports about corruption in the judiciary. When he declined to accept the invitations, the Ad Hoc Committee took no action save to inform the Court thereof; and the Court itself also took no action. There is thus absolutely no occasion to ascribe to that investigation and the invitation to appear thereat a "chilling effect" on the by and large "hard-boiled" and selfassured members of the media fraternity. If at all, the patience and forbearance of the Court, despite the indifference of some of its invitees and projected witnesses, appear to have generated an attitude on their part bordering on defiant insolence. (2) No Blanket Excuse Under RA 53

From Responding to Subpoena

Even assuming that the facts were as presented in the separate opinion, i.e., that subpoenae had in fact been issued to and served on Jurado, his unexplained failure to obey the same would prima facie constitute constructive contempt under Section 3, Rule 71 of the Rules of Court. It should be obvious that a journalist may not refuse to appear at all as required by a subpoena on the bare plea that under R.A. No 53, he may not be compelled to disclose the source of his information. For until he knows what questions will be put to him as witness for which his presence has been compelled the relevance of R.A. No. 53 cannot be ascertained. His duty is clear. He must obey the subpoena. He must appear at the appointed place, date and hour, ready to answer questions, and he may invoke the protection of the statute only at the appropriate time. b. The Actual Issue The issue therefore had nothing to do with any failure of Jurado's to obey a subpoena, none ever having been issued to him, and the Ad Hoc Committee having foreborne to take any action at all as regards his failure to accept its invitations. The issue, as set out in the opening sentence of this opinion, essentially concerns "(l)iability for published

Not Inconsistent with RA 53

statements demonstrably false or misleading, and derogatory of the courts and individual judges."

It is argued that compelling a journalist to substantiate the news report or information confidentially revealed to him would necessarily negate or dilute his right to refuse disclosure of its source. The argument will not stand scrutiny. A journalist's "source" either exists or is fictitious. If the latter, plainly, the journalist is entitled to no protection or immunity whatsoever. If the "source" actually exists, the information furnished is either capable of independent substantiation, or it is not. If the first, the journalist's duty is clear: ascertain, if not obtain, the evidence by which the information may be verified before publishing the same; and if thereafter called to account therefor, present such evidence and in the process afford the party adversely affected thereby opportunity to dispute the information or show it to be false. If the information is not verifiable, and it is derogatory of any third party, then it ought not to be published for obvious reasons. It would be unfair to the subject of the report, who would be without means of refuting the imputations against him. And it would afford an unscrupulous journalist a ready device by which to smear third parties

Jurado is not being called to account for declining to identify the sources of his news stories, or for refusing to appear and give testimony before the Ad Hoc Committee. He is not being compelled to guarantee the truth of what he publishes, but to exercise honest and reasonable efforts to determine the truth of defamatory statements before publishing them. He is being meted the punishment appropriate to the publication of stories shown to be false and defamatory of the judiciary stories that he made no effort whatsoever to verify and which, after being denounced as lies, he has refused, or is unable, to substantiate. c. RA 53 Confers No Immunity from Liability

for False or Defamatory Publications

This opinion neither negates nor seeks to enervate the proposition that a newsman has a right to keep his sources confidential; that he cannot

without the obligation to substantiate his imputations by merely claiming that the information had been given to him "in confidence". It is suggested that there is another face to the privileged character of a journalist's source of information than merely the protection of the journalist, and that it is intended to protect also the source itself. What clearly is implied is that journalist may not reveal his source without the latter's clearance or consent. This totally overlooks the fact that the object of a derogatory publication has at least an equal right to know the source thereof and, if indeed traduced, to the opportunity of obtaining just satisfaction from the traducer. 9. Need for Guidelines Advertences to lofty principle, however eloquent and enlightening, hardly address the mundane, but immediate and very pertinent, question of whether a journalist may put in print unverified information derogatory of the courts and judges and yet remain immune from liability for contempt for refusing, when called upon, to demonstrate their truth on the ground of press freedom or by simply claiming that he need not do so since (or if) it would compel him to disclose the identity of his source or sources. The question, too, is whether or not we are prepared to say that a journalist's obligation to protect his sources of information transcends, and is greater than, his duty to the truth; and that, accordingly, he has no obligation whatsoever to verify, or exercise bona fide efforts to verify, the information he is given or obtain the side of the party adversely affected before he publishes the same. True, the pre-eminent role of a free press in keeping freedom alive and democracy in full bloom cannot be overemphasized. But it is debatable if that role is well and truly filled by a press let loose to print what it will, without reasonable restraints designed to assure the truth and accuracy of what is published. The value of information to a free society is in direct proportion to the truth it contains. That value reduces to little or nothing when it is no longer possible for the public to distinguish between truth and falsehood in news reports, and the courts are denied the mechanisms by which to make reasonably sure that only the truth reaches print. a. No Constitutional Protection for Deliberately

. . . Defendant's civil duty was to help the Government clean house and weed out dishonest, unfit or disloyal officers and employees thereof, where there is reasonable ground to believe that they fall under this category. He had no legal right, much less duty, to gossip, or foster the circulation of rumors, or jump at conclusions and more so if they are gratuitous or groundless. Otherwise, the freedom of speech, which is guaranteed with a view to strengthening our democratic institutions and promoting the general welfare, would be a convenient excuse to engage in the vituperation of individuals, for the attainment of private, selfish and vindictive ends, thereby hampering the operation of the Government with. administrative investigations of charges preferred without any color or appearance of truth and with no other probable effect than the harassment of the officer or employee concerned, to the detriment of public service and public order. b. No "Chilling Effect" The fear expressed, and earlier adverted to, that the principles here affirmed would have a "chilling effect" on media professionals, seems largely unfounded and should be inconsequential to the greater number of journalists in this country who, by and large, out of considerations of truth, accuracy, and fair play, have commendably refrained from ventilating what would otherwise be "sensational" or "high-visibility" stories. In merely seeking to infuse and perpetuate the same attitude and sense of responsibility in all journalists, i.e., that there is a need to check out the truth and correctness of information before publishing it, or that, on the other hand, recklessness and crass sensationalism should be eschewed, this decision, surely, cannot have such "chilling effect," and no apprehension that it would deter the determination of truth or the public exposure of wrong can reasonably be entertained. The people's right to discover the truth is not advanced by unbridled license in reportage that would find favor only with extremist liberalism. If it has done nothing else, this case has made clear the compelling necessity of the guidelines and parameters elsewhere herein laid down. They are eminently reasonable, and no responsible journalist should have cause to complain of difficulty in their observance. 10. Afterword It seems fitting to close this opinion, with the words of Chief Justice Moran, whose pronouncements have already been earlier quoted, 32 and are as germane today as when they were first written more than fifty (50) years ago.33 It may be said that respect to courts cannot be compelled and that public confidence should be a tribute to judicial worth, virtue and intelligence. But compelling respect to courts is one thing and denying the courts the power to vindicate themselves when outraged is another. I know of no principle of law that authorizes with impunity a discontended citizen to unleash, by newspaper publications, the avalanche of his wrath and venom upon courts and judges. If he believes that a judge is corrupt and that justice has somewhere been perverted, law and order require that he follow the processes provided by the Constitution and the statutes by instituting the corresponding proceedings for impeachment or otherwise. . . . xxx xxx xxx It might be suggested that judges who are unjustly attacked have a remedy in an action for libel. This suggestion has, however, no rational basis in principle. In the first place, the outrage is not directed to the judge as a private individual but to the judge as such or to the court as an organ of the administration of justice. In the second place, public interests will gravely suffer where the judge, as such, will, from time to time, be pulled down and disrobed of his judicial authority to face his assailant on equal grounds and prosecute cases in his behalf as a private individual. The same reasons of public policy which exempt a judge from civil liability in the

False or Recklessly Inaccurate Reports

It is worth stressing that false reports about a public official or other person are not shielded from sanction by the cardinal right to free speech enshrined in the Constitution. Even the most liberal view of free speech has never countenanced the publication of falsehoods, specially the persistent and unmitigated dissemination of patent lies. The U.S. Supreme Court, 29 while asserting that "(u)nder the First Amendment there is no such thing as a false idea," and that "(h)owever pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas" (citing a passage from the first Inaugural Address of Thomas Jefferson), nonetheless made the firm pronouncement that "there is no constitutional value in false statements of fact," and "the erroneous statement of fact is not worthy of constitutional protection (although) . . . nevertheless inevitable in free debate." "Neither the intentional lie nor the careless error," it said, "materially advances society's interest in "unhibited, robust, and wideopen" debate on public issues. New York Times Co. v. Sullivan, 376 US, at 270, 11 L Ed 2d 686, 95 ALR2d 1412. They belong to that category of utterances which "are no essential part of any exposition of ideas, and are of such slight social value as a step to the truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Chaplinsky v, new Hampshire, 315 US 568, 572, 86 L Ed 1031, 62 S Ct 766 (1942). "The use of calculated falsehood," it was observed in another case, 30 "would put a different cast on the constitutional question. Although honest utterances, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a public official, should enjoy a like immunity. . . . (T)he knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection." Similarly, in a 1969 case concerning a patently false accusation made against a public employee avowedly in fulfillment of a "legal, moral, or social duty," 31 this Court, through the late Chief Justice Roberto Concepcion, ruled that the guaranty of free speech cannot be considered as according protection to the disclosure of lies, gossip or rumor, viz.:

exercise of his judicial functions, most fundamental of which is the policy to confine his time exclusively to the discharge of his public duties, applies here with equal, if not superior, force (Hamilton v. Williams, 26 Ala. 529; Busteed v. Parson, 54 Ala. 403; Ex parte McLeod, 120 Fed. 130; Coons v. State, 191 Ind. 580; 134 N. E. 194). ... Jurado's actuations, in the context in which they were done, demonstrate gross irresponsibility, and indifference to factual accuracy and the injury that he might cause to the name and reputation of those of whom he wrote. They constitute contempt of court, directly tending as they do to degrade or abase the administration of justice and the judges engaged in that function. By doing them, he has placed himself beyond the circle of reputable, decent and responsible journalists who live by their Code or the "Golden Rule" and who strive at all times to maintain the prestige and nobility of their calling. Clearly unrepentant, exhibiting no remorse for the acts and conduct detailed here, Jurado has maintained a defiant stance. "This is a fight I will not run from," he wrote in his column of March 21, 1993; and again, "I will not run away from a good fight," in his column of March 23, 1993. Such an attitude discourages leniency, and leaves no choice save the application of sanctions appropriate to the offense. WHEREFORE, the Court declares Atty. Emil (Emiliano) P. Jurado guilty of contempt of court and in accordance with Section 6, Rule 71 of the Rules of Court, hereby sentences him to pay a fine of one thousand pesos (P1,000,00). IT IS SO ORDERED.

foreign participants of such conference. There was likewise an assurance in the petition that in the exercise of the constitutional rights to free speech and assembly, all the necessary steps would be taken by it "to ensure a peaceful march and rally." 4 The filing of this suit for mandamus with alternative prayer for writ of preliminary mandatory injunction on October 20, 1983 was due to the fact that as of that date, petitioner had not been informed of any action taken on his request on behalf of the organization to hold a rally. On October 25, 1983, the answer of respondent Mayor was filed on his behalf by Assistant Solicitor General Eduardo G. Montenegro. 5 It turned out that on October 19, such permit was denied. Petitioner was unaware of such a fact as the denial was sent by ordinary mail. The reason for refusing a permit was due to police intelligence reports which strongly militate against the advisability of issuing such permit at this time and at the place applied for." 6 To be more specific, reference was made to persistent intelligence reports affirm[ing] the plans of subversive/criminal elements to infiltrate and/or disrupt any assembly or congregations where a large number of people is expected to attend." 7 Respondent Mayor suggested, however, in accordance with the recommendation of the police authorities, that "a permit may be issued for the rally if it is to be held at the Rizal Coliseum or any other enclosed area where the safety of the participants themselves and the general public may be ensured." 8 The oral argument was heard on October 25, 1983, the very same day the answer was filed. The Court then deliberated on the matter. That same afternoon, a minute resolution was issued by the Court granting the mandatory injunction prayed for on the ground that there was no showing of the existence of a clear and present danger of a substantive evil that could justify the denial of a permit. On this point, the Court was unanimous, but there was a dissent by Justice Aquino on the ground that the holding of a rally in front of the US Embassy would be violative of Ordinance No. 7295 of the City of Manila. The last sentence of such minute resolution reads: "This resolution is without prejudice to a more extended opinion." 9 Hence this detailed exposition of the Court's stand on the matter. 1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free speech and peaceful assembly, arising from the denial of a permit. The Constitution is quite explicit: "No law shall be passed abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances." 10 Free speech, like free press, may be Identified with the liberty to discuss publicly and truthfully any matter of public concern without censorship or punishment. 11 There is to be then no previous restraint on the communication of views or subsequent liability whether in libel suits, 12prosecution for sedition, 13 or action for damages, 14 or contempt proceedings 15 unless there be a clear and present danger of a substantive evil that [the State] has a right to prevent." 16 Freedom of assembly connotes the right people to meet peaceably for consultation and discussion of matters Of public concern. 17 It is entitled to be accorded the utmost deference and respect. It is hot to be limited, much less denied, except on a showing, as 's the case with freedom of expression, of a clear and present danger of a substantive evil that the state has a right to prevent. 18 Even prior to the 1935 Constitution, Justice Maicolm had occasion to stress that it is a necessary consequence of our republican institutions and complements the right of free speech. 19 To paraphrase opinion of Justice Rutledge speaking for the majority of the American Supreme Court Thomas v. Collins, 20 it was not by accident or coincidence that the right to freedom of speech and of the press were toupled in a single guarantee with the and to petition the rights of the people peaceably to assemble and to petition the government for redress of grievances. All these rights, while not Identical, are inseparable. the every case, therefo re there is a limitation placed on the exercise of this right, the judiciary is called upon to examine the effects of the challenged governmental actuation. The sole justification for a limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a serious evil to public safety, public morals, public health, or any other legitimate public interest. 21 2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better expressed than in this excerpt from an opinion of Justice Frankfurter: "It must never be forgotten, however, that the Bill of Rights was the child of the Enlightenment. Back of the guaranty of free speech lay faith in the power of an appeal to reason by all the peaceful means for gaining access to the mind. It was in order to avert force and explosions due to restrictions upon rational modes of communication that the guaranty of free speech was given a generous scope. But utterance in a context of violence can lose its significance as an appeal to reason and become part of an instrument of force. Such utterance was not meant to be sheltered by the Constitution." 22 What was rightfully stressed is the abandonment of reason, the utterance, whether verbal or printed, being in a context of

Feliciano, Bidin, Regalado Davide, Jr., Romero, Bellosillo, Quiason, Mendoza and Francisco, JJ., concur. Vitug and Kapunan, JJ., took no part.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-65366 November 9, 1983 JOSE B.L. REYES, in behalf of the ANTI-BASES COALITION (ABC), petitioner, vs. RAMON BAGATSING, as Mayor of the City of Manila, respondent.

Lorenzo M. Taada Jose W. Diokno and Haydee B. Yorac for petitioner. The Solicitor General for respondent.

FERNANDO, C.J.:+.wph!1 This Court, in this case of first impression, at least as to some aspects, is called upon to delineate the boundaries of the protected area of the cognate rights to free speech and peaceable assembly, 1 against an alleged intrusion by respondent Mayor Ramon Bagatsing. Petitioner, retired Justice JB L. Reyes, on behalf of the Anti-Bases Coalition sought a permit from the City of Manila to hold a peaceful march and rally on October 26, 1983 from 2:00 to 5:00 in the afternoon, starting from the Luneta, a public park, to the gates of the United States Embassy, hardly two blocks away. Once there, and in an open space of public property, a short program would be held. 2 During the course of the oral argument, 3 it was stated that after the delivery of two brief speeches, a petition based on the resolution adopted on the last day by the International Conference for General Disbarmament, World Peace and the Removal of All Foreign Military Bases held in Manila, would be presented to a representative of the Embassy or any of its personnel who may be there so that it may be delivered to the United States Ambassador. The march would be attended by the local and

violence. It must always be remembered that this right likewise provides for a safety valve, allowing parties the opportunity to give vent to their-views, even if contrary to the prevailing climate of opinion. For if the peaceful means of communication cannot be availed of, resort to non-peaceful means may be the only alternative. Nor is this the sole reason for the expression of dissent. It means more than just the right to be heard of the person who feels aggrieved or who is dissatisfied with things as they are. Its value may lie in the fact that there may be something worth hearing from the dissenter. That is to ensure a true ferment of Ideas. There are, of course, well-defined limits. What is guaranteed is peaceable assembly. One may not advocate disorder in the name of protest, much less preach rebellion under the cloak of dissent. The Constitution frowns on disorder or tumult attending a rally or assembly. resort to force is ruled out and outbreaks of violence to be avoided. The utmost calm though is not required. As pointed out in an early Philippine case, penned in 1907 to be precise, United States v. Apurado: 23 "It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater the grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible followers." 24 It bears repeating that for the constitutional right to be invoked, riotous conduct, injury to property, and acts of vandalism must be avoided, To give free rein to one's destructive urges is to call for condemnation. It is to make a mockery of the high estate occupied by intellectual liberty in our scheme of values. 3. There can be no legal objection, absent the existence of a clear and present danger of a substantive evil, on the choice of Luneta as the place where the peace rally would start. The Philippines is committed to the view expressed in the plurality opinion, of 1939 vintage, of Justice Roberts in Hague v. CIO: 25 Whenever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied. 26 The above excerpt was quoted with approval in Primicias v. Fugoso. 27 Primicias made explicit what was implicit in Municipality of Cavite v. Rojas," 28 a 1915 decision, where this Court categorically affirmed that plazas or parks and streets are outside the commerce of man and thus nullified a contract that leased Plaza Soledad of plaintiffmunicipality. Reference was made to such plaza "being a promenade for public use," 29 which certainly is not the only purpose that it could serve. To repeat, there can be no valid reason why a permit should not be granted for the or oposed march and rally starting from a public dark that is the Luneta. 4. Neither can there be any valid objection to the use of the streets, to the gates of the US Embassy, hardly two block-away at the Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt on the matter. In holding that the then Mayor Fugoso of the City of Manila should grant a permit for a public meeting at Plaza Miranda in Quiapo, this Court categorically declared: "Our conclusion finds support in the decision in the case of Willis Cox vs. State of New Hampshire, 312 U.S., 569. In that case, the statute of New Hampshire P. L. chap. 145, section 2, providing that 'no parade or procession upon any ground abutting thereon, shall 'De permitted unless a special license therefor shall first be explained from the selectmen of the town or from licensing committee,' was construed by the Supreme Court of New Hampshire as not conferring upon the licensing board unfettered discretion to refuse to grant the license, and held valid. And the Supreme Court of the United States, in its decision (1941) penned by Chief Justice Hughes affirming the judgment of the State Supreme Court, held that 'a statute requiring persons using the public streets for a parade or procession to procure a special license therefor from the local authorities is not an unconstitutional abridgment of the rights of assembly or of freedom of speech and press, where, as the statute is construed by the state courts, the licensing authorities are strictly limited, in the issuance of licenses, to a consideration of the time, place, and manner of the parade or procession, with a view to conserving the public convenience and of affording an opportunity to provide proper policing, and are not invested with arbitrary discretion to issue or refuse license, ... " 30 Nor should the point made by Chief Justice Hughes in a subsequent portion of the opinion be ignored, "Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestricted abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways

has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need. Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection." 31 5. There is a novel aspect to this case, If the rally were confined to Luneta, no question, as noted, would have arisen. So, too, if the march would end at another park. As previously mentioned though, there would be a short program upon reaching the public space between the two gates of the United States Embassy at Roxas Boulevard. That would be followed by the handing over of a petition based on the resolution adopted at the closing session of the AntiBases Coalition. The Philippines is a signatory of the Vienna Convention on Diplomatic Relations adopted in 1961. It was concurred in by the then Philippine Senate on May 3, 1965 and the instrument of ratification was signed by the President on October 11, 1965, and was thereafter deposited with the Secretary General of the United Nations on November 15. As of that date then, it was binding on the Philippines. The second paragraph of the Article 22 reads: "2. The receiving State is under a special duty to take appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. " 32 The Constitution "adopts the generally accepted principles of international law as part of the law of the land. ..." 33 To the extent that the Vienna Convention is a restatement of the generally accepted principles of international law, it should be a part of the law of the land. 34 That being the case, if there were a clear and present danger of any intrusion or damage, or disturbance of the peace of the mission, or impairment of its dignity, there would be a justification for the denial of the permit insofar as the terminal point would be the Embassy. Moreover, respondent Mayor relied on Ordinance No. 7295 of the City of Manila prohibiting the holding or staging of rallies or demonstrations within a radius of five hundred (500) feet from any foreign mission or chancery and for other purposes. Unless the ordinance is nullified, or declared ultra vires, its invocation as a defense is understandable but not decisive, in view of the primacy accorded the constitutional rights of free speech and peaceable assembly. Even if shown then to be applicable, that question the confronts this Court. 6. There is merit to the observation that except as to the novel aspects of a litigation, the judgment must be confined within the limits of previous decisions. The law declared on past occasions is, on the whole, a safe guide, So it has been here. Hence, as noted, on the afternoon of the hearing, October 25, 1983, this Court issued the minute resolution granting the mandatory injunction allowing the proposed march and rally scheduled for the next day. That conclusion was inevitable ill the absence of a clear and present danger of a substantive, evil to a legitimate public interest. There was no justification then to deny the exercise of the constitutional rights of tree speech and peaceable assembly. These rights are assured by our Constitution and the Universal Declaration of Human Rights. 35 The participants to such assembly, composed primarily of those in attendance at the International Conference for General Disbarmament, World Peace and the Removal of All Foreign Military Bases would start from the Luneta. proceeding through Roxas Boulevard to the gates of the United States Embassy located at the same street. To repeat, it is settled law that as to public places, especially so as to parks and streets, there is freedom of access. Nor is their use dependent on who is the applicant for the permit, whether an individual or a group. If it were, then the freedom of access becomes discriminatory access, giving rise to an equal protection question. The principle under American doctrines was given utterance by Chief Justice Hughes in these words: "The question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under which the meeting is held but as to its purpose; not as to The relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects." 36There could be danger to public peace and safety if such a gathering were marked by turbulence. That would deprive it of its peaceful character. Even then, only the guilty parties should be held accountable. It is true that the licensing official, here respondent Mayor, is not devoid of discretion in determining whether or not a permit would be granted. It is not, however, unfettered discretion. While prudence requires that there be a realistic appraisal not of what may possibly occur but of what may probably occur, given all the relevant circumstances, still the assumption especially so where the assembly is scheduled for a specific public place is that the permit must be for the assembly being held there. The exercise of such a right, in the language of Justice Roberts, speaking for the American Supreme Court, is not to be "abridged on the plea that it may be exercised in some other place."37 7. In fairness to respondent Mayor, he acted on the belief that Navarro v. Villegas 38 and Pagkakaisa ng Manggagawang Pilipino (PMP.) v.

Bagatsing, 39 called for application. While the General rule is that a

permit should recognize the right of the applicants to hold their assembly at a public place of their choice, another place may be designated by the licensing authority if it be shown that there is a clear and present danger of a substantive evil if no such change were made. In the Navarro and the Pagkakaisa decisions, this Court was persuaded that the clear and present danger test was satisfied. The present situation is quite different. Hence the decision reached by the Court. The mere assertion that subversives may infiltrate the ranks of the demonstrators does not suffice. Not that it should be overlooked. There was in this case, however, the assurance of General Narciso Cabrera, Superintendent, Western Police District, Metropolitan Police Force, that the police force is in a position to cope with such emergency should it arise That is to comply with its duty to extend protection to the participants of such peaceable assembly. Also from him came the commendable admission that there were the least five previous demonstrations at the Bayview hotel Area and Plaza Ferguson in front of the United States Embassy where no untoward event occurred. It was made clear by petitioner, through counsel, that no act offensive to the dignity of the United States Mission in the Philippines would take place and that, as mentioned at the outset of this opinion, "all the necessary steps would be taken by it 'to ensure a peaceful march and rally.' " 40Assistant Solicitor General Montenegro expressed the view that the presence of policemen may in itself be a provocation. It is a sufficient answer that they should stay at a discreet distance, but ever ready and alert to cope with any contingency. There is no need to repeat what was pointed out by Chief Justice Hughes in Cox that precisely, it is the duty of the city authorities to provide the proper police protection to those exercising their right to peaceable assembly and freedom of expression. 8. By way of a summary The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public place where and the time when it will take place. If it were a private place, only the consent of the owner or the one entitled to its legal possession is required. Such application should be filed well ahead in time to enable the public official concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another public place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached. If he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, then, can have recourse to the proper judicial authority. Free speech and peaceable assembly, along with the other intellectual freedoms, are highly ranked in our scheme of constitutional values. It cannot be too strongly stressed that on the judiciary, even more so than on the other departments rests the grave and delicate responsibility of assuring respect for and deference to such preferred rights. No verbal formula, no sanctifying phrase can, of course, dispense with what has been so felicitiously termed by Justice Holmes "as the sovereign prerogative of judgment." Nonetheless, the presumption must be to incline the weight of the scales of justice on the side of such rights, enjoying as they do precedence and primacy. Clearly then, to the extent that there may be inconsistencies between this resolution and that of Navarro v. Villegas, that case is pro tanto modified. So it was made clear in the original resolution of October 25, 1983. 9. Respondent Mayor posed the issue of the applicability of Ordinance No. 7295 of the City of Manila prohibiting the holding or staging of rallies or demonstrations within a radius of five hundred (500) feet from any foreign mission or chancery and for other purposes. It is to be admitted that it finds support In the previously quoted Article 22 of the Vienna Convention on Diplomatic Relations. There was no showing, however, that the distance between the chancery and the embassy gate is less than 500 feet. Even if it could be shown that such a condition is satisfied. it does not follow that respondent Mayor could legally act the way he did. The validity of his denial of the permit sought could still be challenged. It could be argued that a case of unconstitutional application of such ordinance to the exercise of the right of peaceable assembly presents itself. As in this case there was no proof that the distance is less than 500 feet, the need to pass on that issue was obviated, Should it come, then the qualification and observation of Justices Makasiar and Plana certainly cannot be summarily brushed aside. The high estate accorded the rights to free speech and peaceable assembly demands nothing less. 10. Ordinarily, the remedy in cases of this character is to set aside the denial or the modification of the permit sought and order the respondent official, to grant it. Nonetheless, as there was urgency in this case, the proposed march and rally being scheduled for the next day after the hearing, this Court. in the exercise of its conceded authority, granted the mandatory injunction in the resolution of October 25, 1983. It may be noted that the peaceful character of the peace march and rally on October 26 was not marred by any untoward incident. So it has been in other assemblies held elsewhere. It is quite

reassuring such that both on the part of the national government and the citizens, reason and moderation have prevailed. That is as it should be. WHEREFORE, the mandatory injunction prayed for is granted. No costs.

Concepcion, Jr., Guerrero, Melencio-Herrera, Escolin, Relova and Gutierrez, , Jr.,JJ., concur. De Castro, J, is on leave.
Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 106440 January 29, 1996

ALEJANDRO MANOSCA, ASUNCION MANOSCA and LEONICA MANOSCA, petitioners, vs. HON. COURT OF APPEALS, HON. BENJAMIN V. PELAYO, Presiding Judge, RTC-Pasig, Metro Manila, Branch 168, HON. GRADUACION A. REYES CLARAVAL, Presiding Judge, RTCPasig, Metro Manila, Branch 71, and REPUBLIC OF THE PHILIPPINES, respondents. DECISION VITUG, J.: In this appeal, via a petition for review on certiorari, from the decision1 of the Court of Appeals, dated 15 January 1992, in CA-G.R. SP No. 24969 (entitled "Alejandro Manosca, et al. v. Hon. Benjamin V. Pelayo, et al."), this Court is asked to resolve whether or not the "public use" requirement of Eminent Domain is extant in the attempted expropriation by the Republic of a 492-square-meter parcel of land so declared by the National Historical Institute ("NHI") as a national historical landmark. The facts of the case are not in dispute. Petitioners inherited a piece of land located at P. Burgos Street, Calzada, Taguig. Metro Manila, with an area of about four hundred ninety-two (492) square meters. When the parcel was ascertained by the NHI to have been the birthsite of Felix Y. Manalo, the founder of Iglesia Ni Cristo, it passed Resolution No. 1, Series of 1986, pursuant to Section 42 of Presidential Decree No. 260, declaring the land to be a national historical landmark. The resolution was, on 06 January 1986, approved by the Minister of Education, Culture and Sports. Later, the opinion of the Secretary of Justice was asked on the legality of the measure. In his Opinion No. 133, Series of 1987, the Secretary of Justice replied in the affirmative; he explained: According to your guidelines, national landmarks are places or objects that are associated with an event, achievement, characteristic, or modification that makes a turning point or stage in Philippine history. Thus, the birthsite of the founder of the Iglesia ni Cristo, the late Felix Y. Manalo, who, admittedly, had made contributions to Philippine history and culture has been declared as a national landmark. It has been held that places invested with unusual historical interest is a public use for which the power of eminent domain may be authorized . . . . In view thereof, it is believed that the National Historical Institute as an agency of the Government charged with the maintenance and care of national shrines, monuments and landmarks and the development of historical sites that may be declared as national shrines, monuments and/or landmarks, may initiate the institution of condemnation proceedings for the purpose of acquiring the lot in question in accordance with the procedure provided for in Rule 67 of the Revised Rules of Court. The proceedings should be instituted by the Office of the Solicitor General in behalf of the Republic. Accordingly, on 29 May 1989, the Republic, through the Office of the Solicitor-General, instituted a complaint for expropriation3 before the

Regional Trial Court of Pasig for and in behalf of the NHI alleging, inter alia, that: Pursuant to Section 4 of Presidential Decree No. 260, the National Historical Institute issued Resolution No. 1, Series of 1986, which was approved on January, 1986 by the then Minister of Education, Culture and Sports, declaring the above described parcel of land which is the birthsite of Felix Y. Manalo, founder of the "Iglesia ni Cristo," as a National Historical Landrnark. The plaintiff perforce needs the land as such national historical landmark which is a public purpose. At the same time, respondent Republic filed an urgent motion for the issuance of an order to permit it to take immediate possession of the property. The motion was opposed by petitioners. After a hearing, the trial court issued, on 03 August 1989,4 an order fixing the provisional market (P54,120.00) and assessed (P16,236.00) values of the property and authorizing the Republic to take over the property once the required sum would have been deposited with the Municipal Treasurer of Taguig, Metro Manila. Petitioners moved to dismiss the complaint on the main thesis that the intended expropriation was not for a public purpose and, incidentally, that the act would constitute an application of public funds, directly or indirectly, for the use, benefit, or support of Iglesia ni Cristo, a religious entity, contrary to the provision of Section 29(2), Article VI, of the 1987 Constitution.5 Petitioners sought, in the meanwhile, a suspension in the implementation of the 03rd August 1989 order of the trial court. On 15 February 1990, following the filing by respondent Republic of its reply to petitioners' motion seeking the dismissal of the case, the trial court issued its denial of said motion to dismiss.6 Five (5) days later, or on 20 February 1990,7 another order was issued by the trial court, declaring moot and academic the motion for reconsideration and/or suspension of the order of 03 August 1989 with the rejection of petitioners' motion to dismiss. Petitioners' motion for the reconsideration of the 20th February 1990 order was likewise denied by the trial court in its 16th April 1991 order.8 Petitioners then lodged a petition for certiorari and prohibition with the Court of Appeals. In its now disputed 15th January 1992 decision, the appellate court dismissed the petition on the ground that the remedy of appeal in the ordinary course of law was an adequate remedy and that the petition itself, in any case, had failed to show any grave abuse of discretion or lack of jurisdictional competence on the part of the trial court. A motion for the reconsideration of the decision was denied in the 23rd July 1992 resolution of the appellate court. We begin, in this present recourse of petitioners, with a few known postulates. Eminent domain, also often referred to as expropriation and, with less frequency, as condemnation, is, like police power and taxation, an inherent power of sovereignty. It need not be clothed with any constitutional gear to exist; instead, provisions in our Constitution on the subject are meant more to regulate, rather than to grant, the exercise of the power. Eminent domain is generally so described as "the highest and most exact idea of property remaining in the government" that may be acquired for some public purpose through a method in the nature of a forced purchase by the State.9 It is a right to take or reassert dominion over property within the state for public use or to meet a public exigency. It is said to be an essential part of governance even in its most primitive form and thus inseparable from sovereignty. 10 The only direct constitutional qualification is that "private property shall not be taken for public use without just compensation." 11 This proscription is intended to provide a safeguard against possible abuse and so to protect as well the individual against whose property the power is sought to be enforced. Petitioners assert that the expropriation has failed to meet the guidelines set by this Court in the case of Guido v.Rural Progress Administration, 12 to wit: (a) the size of the land expropriated; (b) the large number of people benefited; and, (c) the extent of social and economic reform.13 Petitioners suggest that we confine the concept of expropriation only to the following public uses, 14 i.e., the . . . taking of property for military posts, roads, streets, sidewalks, bridges, ferries, levees, wharves, piers, public buildings including schoolhouses, parks, playgrounds, plazas, market places, artesian wells, water supply and sewerage systems, cemeteries, crematories, and railroads. This view of petitioners is much too limitative and restrictive.

The court, in Guido, merely passed upon the issue of the extent of the President's power under Commonwealth Act No. 539 to, specifically, acquire private lands for subdivision into smaller home lots or farms for resale to bona fide tenants or occupants. It was in this particular context of the statute that the Court had made the pronouncement. The guidelines in Guido were not meant to be preclusive in nature and, most certainly, the power of eminent domain should not now be understood as being confined only to the expropriation of vast tracts of land and landed estates. 15 The term "public use," not having been otherwise defined by the constitution, must be considered in its general concept of meeting a public need or a public exigency. 16 Black summarizes the characterization given by various courts to the term; thus: Public Use. Eminent domain. The constitutional and statutory basis for taking property by eminent domain. For condemnation purposes, "public use" is one which confers same benefit or advantage to the public; it is not confined to actual use by public. It is measured in terms of right of public to use proposed facilities for which condemnation is sought and, as long as public has right of use, whether exercised by one or many members of public, a "public advantage" or "public benefit" accrues sufficient to constitute a public use. Montana Power Co. vs. Bokma, Mont. 457 P. 2d 769, 772, 773. Public use, in constitutional provisions restricting the exercise of the right to take private property in virtue of eminent domain, means a use concerning the whole community as distinguished from particular individuals. But each and every member of society need not be equally interested in such use, or be personally and directly affected by it; if the object is to satisfy a great public want or exigency, that is sufficient. Rindge Co. vs. Los Angeles County, 262 U.S. 700, 43 S.Ct. 689, 692, 67 L.Ed. 1186. The term may be said to mean public usefulness, utility, or advantage, or what is productive of general benefit. It may be limited to the inhabitants of a small or restricted locality, but must be in common, and not for a particular individual. The use must be a needful one for the public, which cannot be surrendered without obvious general loss and inconvenience. A "public use" for which land may be taken defies absolute definition for it changes with varying conditions of society, new appliances in the sciences, changing conceptions of scope and functions of government, and other differing circumstances brought about by an increase in population and new modes of communication and transportation. Katz v. Brandon, 156 Conn., 521, 245 A.2d 579,586. 17 The validity of the exercise of the power of eminent domain for traditional purposes is beyond question; it is not at all to be said, however, that public use should thereby be restricted to such traditional uses. The idea that "public use" is strictly limited to clear cases of "use by the public" has long been discarded. This Court in Heirs of Juancho Ardona v. Reyes,18 quoting from Berman v. Parker (348 U.S. 25; 99 L. ed. 27), held: We do not sit to determine whether a particular housing project is or is not desirable. The concept of the public welfare is broad and inclusive. See DayBrite Lighting, Inc. v. Missouri, 342 US 421, 424, 96 L. Ed. 469, 472, 72 S Ct 405. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, wellbalanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is no for us to reappraise them. If those who govern the District of Columbia decide that the Nation's Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way. Once the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear. For the power of eminent domain is merely the means to the end. See Luxton v. North River Bridge Co. 153 US 525, 529, 530, 38 L. ed. 808, 810, 14 S Ct 891; United States v. Gettysburg Electric R. Co. 160 US 668, 679, 40 L. ed. 576, 580, 16 S Ct 427. It has been explained as early as Sea v. Manila Railroad Co.,
19

that:

. . . A historical research discloses the meaning of the term "public use" to be one of constant growth. As society advances, its demands upon the individual increase and each demand is a new use to which the resources of the individual may be devoted. . . . for "whatever is beneficially employed for the community is a public use. Chief Justice Enrique M. Fernando states: The taking to be valid must be for public use. There was a time when it was felt that a literal meaning should be attached to such a requirement. Whatever project is undertaken must be for the public to enjoy, as in the case of streets or parks. Otherwise, expropriation is not allowable. It is not so any more. As long as the purpose of the taking is public, then the power of eminent domain comes into play. As just noted, the constitution in at least two cases, to remove any doubt, determines what is public use. One is the expropriation of lands to be subdivided into small lots for resale at cost to individuals. The other is the transfer, through the exercise of this power, of utilities and other private enterprise to the government. It is accurate to state then that at present whatever may be beneficially employed for the general welfare satisfies the requirement of public use. 20 Chief Justice Fernando, writing the ponencia in J.M. Tuason & Co. vs. Land Tenure Administration, 21 has viewed the Constitution a dynamic instrument and one that "is not to be construed narrowly or pedantically" so as to enable it "to meet adequately whatever problems the future has in store." Fr. Joaquin Bernas, a noted constitutionalist himself, has aptly observed that what, in fact, has ultimately emerged is a concept of public use which is just as broad as "public welfare." 22 Petitioners ask: But "(w)hat is the so-called unusual interest that the expropriation of (Felix Manalo's) birthplace become so vital as to be a public use appropriate for the exercise of the power of eminent domain" when only members of the Iglesia ni Cristo would benefit? This attempt to give some religious perspective to the case deserves little consideration, for what should be significant is the principal objective of, not the casual consequences that might follow from, the exercise of the power. The purpose in setting up the marker is essentially to recognize the distinctive contribution of the late Felix Manalo to the culture of the Philippines, rather than to commemorate his founding and leadership of the Iglesia ni Cristo. The practical reality that greater benefit may be derived by members of the Iglesia ni Cristo than by most others could well be true but such a peculiar advantage still remains to be merely incidental and secondary in nature. Indeed, that only a few would actually benefit from the expropriation of property does not necessarily diminish the essence and character of public use. 23 Petitioners contend that they have been denied due process in the fixing of the provisional value of their property. Petitioners need merely to be reminded that what the law prohibits is the lack of opportunity to be heard;24contrary to petitioners' argument, the records of this case are replete with pleadings 25 that could have dealt, directly or indirectly, with the provisional value of the property. Petitioners, finally, would fault respondent appellate court in sustaining the trial court's order which considered inapplicable the case of Noble v. City of Manila. 26 Both courts held correctly. The Republic was not a party to the alleged contract of exchange between the Iglesia ni Cristo and petitioners which (the contracting parties) alone, not the Republic, could properly be bound. All considered, the Court finds the assailed decision to be in accord with law and jurisprudence. WHEREFORE, the petition is DENIED. No costs. SO ORDERED.

G.R. No. 95770 December 29, 1995 ROEL EBRALINAG, EMILY EBRALINAG, represented by their parents, MR. & MRS. LEONARDO EBRALINAG, JUSTINIANA TANTOG, represented by her father, AMOS TANTOG, JEMIL OYAO & JOEL OYAO, represented by their parents MR. & MRS. ELIEZER OYAO, JANETH DIAMOS & JEREMIAS DIAMOS, represented by parents MR. & MRS. GODOFREDO DIAMOS, SARA OSTIA & JONATHAN OSTIA, represented by their parents MR. & MRS. FAUSTO OSTIA, IRVIN SEQUINO & RENAN SEQUINO, represented by their parents MR. & MRS. LYDIO SEQUINO, NAPTHALE TUNACAO represented by his parents MR. & MRS. MANUEL TUNACAO PRECILA PINO represented by her parents MR. & MRS. FELIPE PINO, MARICRIS ALFAR, RUWINA ALFAR, represented by their parents MR. & MRS. HERMINIGILDO ALFAR, FREDESMINDA ALFAR & GUMERSINDO ALFAR, represented by their parents ABDON ALFAR ALBERTO ALFAR & ARISTIO ALFAR, represented by their parents MR. & MRS. GENEROSO ALFAR, MARTINO VILLAR, represented by their parents MR. & MRS. GENARO VILLAR, PERGEBRIEL GUINITA & CHAREN GUINITA, represented by their parents MR. & MRS. CESAR GUINITA, ALVIN DOOP represented by his parents MR. & MRS. LEONIDES DOOP, RHILYN LAUDE represented by her parents MR. & MRS. RENE LAUDE, LEOREMINDA MONARES represented by her parents MR. & MRS. FLORENCIO MONARES, MERCY MONTECILLO, represented by her parents MR. & MRS. MANUEL MONTECILLO, ROBERTO TANGAHA, represented by his parent ILUMINADA TANGAHA, EVELYN MARIA & FLORA TANGAHA represented by their parents MR. & MRS. ALBERTO TANGAHA, MAXIMO EBRALINAG represented by his parents MR. & MRS. PAQUITO EBRALINAG, JUTA CUMON, GIDEON CUMON & JONATHAN CUMON, represented by their father RAFAEL CUMON, EVIE LUMAKANG and JUAN LUMAKANG, represented by their parents MR. & MRS. LUMAKANG, EMILIO SARSOZO & PAZ AMOR SARSOZO, & IGNA MARIE SARSOZO represented by their parents MR. & MRS. VIRGILIO SARSOZO, MICHAEL JOSEPH & HENRY JOSEPH, represented by parent ANNIE JOSEPH, EMERSON TABLASON & MASTERLOU TABLASON, represented by their parents EMERLITO TABLASON, petitioners, vs. THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU, and MR. MANUEL F. BIONGCOG, Cebu District Supervisor, respondents. G.R. No. 95887 December 29, 1995 MAY AMOLO, represented by her parents MR. & MRS. ISAIAS AMOLO, REDFORD ALSADO, JOEBERT ALSADO, & RUDYARD ALSADO represented by their parents MR. & MRS. ABELARDO ALSADO, NESIA ALSADO, REU ALSADO and LILIBETH ALSADO, represented by their parents MR. & MRS. ROLANDO ALSADO, SUZETTE NAPOLES, represented by her parents ISMAILITO NAPOLES and OPHELIA NAPOLES, JESICA CARMELOTES, represented by her parents MR. & MRS. SERGIO CARMELOTES, BABY JEAN MACAPAS, represented by her parents MR. & MRS. TORIBIO MACAPAS, GERALDINE ALSADO, represented by her parents MR. & MRS. JOEL ALSADO, RAQUEL DEMOTOR, and LEAH DEMOTOR, represented by their parents MR. & MRS. LEONARDO DEMOTOR, JURELL VILLA and MELONY VILLA, represented by their parents MR. & MRS. JOVENIANO VILLA, JONELL HOPE MAHINAY, MARY GRACE MAHINAY, and MAGDALENE MAHINAY, represented by their parents MR. & MRS. FELIX MAHINAY, JONALYN ANTIOLA and JERWIN ANTIOLA, represented by their parents FELIPE ANTIOLA and ANECITA ANTIOLA, MARIA CONCEPCION CABUYAO, represented by her parents WENIFREDO CABUYAO and ESTRELLITA CABUYAO, NOEMI TURNO represented by her parents MANUEL TURNO and VEVENCIA TURNO, SOLOMON PALATULON, SALMERO PALATULON and ROSALINA PALATULON, represented by their parents MARTILLANO PALATULON and CARMILA PALATULON, petitioners, vs. THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU, and ANTONIO A. SANGUTAN, respondents. R E SO L U T I O N

Padilla, Bellosillo, Kapunan and Hermosisima, Jr., JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC

KAPUNAN, J.:

The State moves for a reconsideration of our decision dated March 1, 1993 granting private respondents' petition for certiorari and prohibition and annulling the expulsion orders issued by the public respondents therein on the ground that the said decision created an exemption in favor of the members of the religious sect, the Jehovah's Witnesses, in violation of the "Establishment Clause" of the Constitution. The Solicitor General, on behalf of the public respondent, furthermore contends that: The accommodation by this Honorable Court to a demand for special treatment in favor of a minority sect even on the basis of a claim of religious freedom may be criticized as granting preference to the religious beliefs of said sect in violation of the "non-establishment guarantee" provision of the Constitution. Surely, the decision of the Court constitutes a special favor which immunizes religious believers such as Jehovah's Witnesses to the law and the DECS rules and regulations by interposing the claim that the conduct required by law and the rules and regulation (sic) are violative of their religious beliefs. The decision therefore is susceptible to the very criticism that the grant of exemption is a violation of the "non-establishment" provision of the Constitution. Furthermore, to grant an exemption to a specific religious minority poses a risk of collision course with the "equal protection of the laws" clause in respect of the non-exempt, and, in public schools, a collision course with the "non-establishment guarantee." Additionally the public respondent insists that this Court adopt a "neutral stance" by reverting to its holding in Gerona declaring the flag as being devoid of any religious significance. He stresses that the issue here is not curtailment of religious belief but regulation of the exercise of religious belief. Finally, he maintains that the State's interests in the case at bench are constitutional and legal obligations to implement the law and the constitutional mandate to inculcate in the youth patriotism and nationalism and to encourage their involvement in public and civic affairs, referring to the test devised by the United States Supreme Court in U.S. vs. O'Brien. 1 II All the petitioners in the original case 2 were minor school children, and members of the sect, Jehovah's Witnesses (assisted by their parents) who were expelled from their classes by various public school authorities in Cebu for refusing to salute the flag, sing the national anthem and recite the patriotic pledge as required by Republic Act No. 1265 of July 11, 1955 and by Department Order No. 8, dated July 21, 1955 issued by the Department of Education. Aimed primarily at private educational institutions which did not observe the flag ceremony exercises, Republic Act No. 1265 penalizes all educational institutions for failure or refusal to observe the flag ceremony with public censure on first offense and cancellation of the recognition or permit on second offense. The implementing regulations issued by the Department of Education thereafter detailed the manner of observance of the same. Immediately pursuant to these orders, school officials in Masbate expelled children belonging to the sect of the Jehovah's Witnesses from school for failing or refusing to comply with the flag ceremony requirement. Sustaining these expulsion orders, this Court in the 1959 case of Gerona vs. Secretary of Education 3 held that: The flag is not an image but a symbol of the Republic of the Philippines, an emblem of national sovereignty, of national unity and cohesion and of freedom and liberty which it and the Constitution guarantee and protect. Considering the complete separation of church and state in our system of government, the flag is utterly devoid of any religious significance. Saluting the flag consequently does not involve any religious ceremony. . . . After all, the determination of whether a certain ritual is or is not a religious ceremony must rest with the courts. It cannot be left to a religious group or sect, much less to a follower of said group or sect; otherwise, there would be confusion and misunderstanding for there might

be as many interpretations and meanings to be given to a certain ritual or ceremony as there are religious groups or sects or followers. Upholding religious freedom as a fundamental right deserving the "highest priority and amplest protection among human rights," this Court, in Ebralinag vs. Division Superintendent of Schools of Cebu 4 reexamined our over two decades-old decision in Gerona and reversed expulsion orders made by the public respondents therein as violative of both the free exercise of religion clause and the right of citizens to education under the 1987 Constitution. 5 From our decision of March 1, 1993, the public respondents filed a motion for reconsideration on grounds hereinabove stated. After a careful study of the grounds adduced in the government's Motion For Reconsideration of our original decision, however, we find no cogent reason to disturb our earlier ruling. The religious convictions and beliefs of the members of the religious sect, the Jehovah's Witnesses are widely known and are equally widely disseminated in numerous books, magazines, brochures and leaflets distributed by their members in their house to house distribution efforts and in many public places. Their refusal to render obeisance to any form or symbol which smacks of idolatry is based on their sincere belief in the biblical injunction found in Exodus 20:4,5, against worshipping forms or idols other than God himself. The basic assumption in their universal refusal to salute the flags of the countries in which they are found is that such a salute constitutes an act of religious devotion forbidden by God's law. This assumption, while "bizarre" to others is firmly anchored in several biblical passages. 6 And yet, while members of Jehovah's Witnesses, on the basis of religious convictions, refuse to perform an act (or acts) which they consider proscribed by the Bible, they contend that such refusal should not be taken to indicate disrespect for the symbols of the country or evidence that they are wanting in patriotism and nationalism. They point out that as citizens, they have an excellent record as law abiding members of society even if they do not demonstrate their refusal to conform to the assailed orders by overt acts of conformity. On the contrary, they aver that they show their respect through less demonstrative methods manifesting their allegiance, by their simple obedience to the country's laws, 7 by not engaging in antigovernment activities of any kind, 8 and by paying their taxes and dues to society as self-sufficient members of the community. 9 While they refuse to salute the flag, they are willing to stand quietly and peacefully at attention, hands on their side, in order not to disrupt the ceremony or disturb those who believe differently. 10 The religious beliefs, practices and convictions of the members of the sect as a minority are bound to be seen by others as odd and different and at divergence with the complex requirements of contemporary societies, particularly those societies which require certain practices as manifestations of loyalty and patriotic behavior. Against those who believe that coerced loyalty and unity are mere shadows of patriotism, the tendency to exact "a hydraulic insistence on conformity to majoritarian standards," 11 is seductive to the bureaucratic mindset as a shortcut to patriotism. No doubt, the State possesses what the Solicitor General describes as the responsibility "to inculcate in the minds of the youth the values of patriotism and nationalism and to encourage their involvement in public and civic affairs." The teaching of these values ranks at the very apex of education's "high responsibility" of shaping up the minds of the youth in those principles which would mold them into responsible and productive members of our society. However, the government's interest in molding the young into patriotic and civic spirited citizens is "not totally free from a balancing process" 12 when it intrudes into other fundamental rights such as those specifically protected by the Free Exercise Clause, the constitutional right to education and the unassailable interest of parents to guide the religious upbringing of their children in accordance with the dictates of their conscience and their sincere religious beliefs. 13 Recognizing these values, Justice Carolina Grino-Aquino, the writer of the original opinion, underscored that a generation of Filipinos which cuts its teeth on the Bill of Rights would find abhorrent the idea that one may be compelled, on pain of expulsion, to salute the flag sing the national anthem and recite the patriotic pledge during a flag ceremony. 14 "This coercion of conscience has no place in a free society". 15 The State's contentions are therefore, unacceptable, for no less fundamental than the right to take part is the right to stand apart. 16 In the context of the instant case, the freedom of religion enshrined in the Constitution should be seen as the rule, not the exception. To view the constitutional guarantee in the manner suggested by the petitioners would be to denigrate the status of a preferred freedom and to relegate it to the level of an abstract principle devoid of any

substance and meaning in the lives of those for whom the protection is addressed. As to the contention that the exemption accorded by our decision benefits a privileged few, it is enough to re-emphasize that "the constitutional protection of religious freedom terminated disabilities, it did not create new privileges. It gave religious equality, not civil immunity." 17 The essence of the free exercise clause is freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma. 18 Moreover, the suggestion implicit in the State's pleadings to the effect that the flag ceremony requirement would be equally and evenly applied to all citizens regardless of sect or religion and does not thereby discriminate against any particular sect or denomination escapes the fact that "[a] regulation, neutral on its face, may in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion." 19 III The ostensible interest shown by petitioners in preserving the flag as the symbol of the nation appears to be integrally related to petitioner's disagreement with the message conveyed by the refusal of members of the Jehovah's Witness sect to salute the flag or participate actively in flag ceremonies on religious grounds. 20 Where the governmental interest clearly appears to be unrelated to the suppression of an idea, a religious doctrine or practice or an expression or form of expression, this Court will not find it difficult to sustain a regulation. However, regulations involving this area are generally held against the most exacting standards, and the zone of protection accorded by the Constitution cannot be violated, except upon a showing of a clear and present danger of a substantive evil which the state has a right to protect. 21 Stated differently, in the case of a regulation which appears to abridge a right to which the fundamental law accords high significance it is the regulation, not the act (or refusal to act), which is the exception and which requires the court's strictest scrutiny. In the case at bench, the government has not shown that refusal to do the acts of conformity exacted by the assailed orders, which respondents point out attained legislative cachet in the Administrative Code of 1987, would pose a clear and present danger of a danger so serious and imminent, that it would prompt legitimate State intervention. In a case involving the Flag Protection Act of 1989, the U.S. Supreme Court held that the "State's asserted interest in preserving the fag as a symbol of nationhood and national unity was an interest related to the suppression of free expression . . . because the State's concern with

adverted to by the Solicitor General that certain methods of religious expression may be prohibited 26 to serve legitimate societal purposes, refusal to participate in the flag ceremony hardly constitutes a form of religious expression so offensive and noxious as to prompt legitimate State intervention. It is worth repeating that the absence of a demonstrable danger of a kind which the State is empowered to protect militates against the extreme disciplinary methods undertaken by school authorities in trying to enforce regulations designed to compel attendance in flag ceremonies. Refusal of the children to participate in the flag salute ceremony would not interfere with or deny the rights of other school children to do so. It bears repeating that their absence from the ceremony hardly constitutes a danger so grave and imminent as to warrant the state's intervention. Finally, the respondents' insistence on the validity of the actions taken by the government on the basis of their averment that "a government regulation of expressive conduct is sufficiently justified if it is within the constitutional power of the government (and) furthers an important and substantial government interest" 27 misses the whole point of the test devised by the United States Supreme Court in O'Brien, cited by respondent, because the Court therein was emphatic in stating that "the government interest (should be) unrelated to the suppression of free expression." We have already stated that the interest in regulation in the case at bench was clearly related to the suppression of an expression directly connected with the freedom of religion and that respondents have not shown to our satisfaction that the restriction was prompted by a compelling interest in public order which the state has a right to protect. Moreover, if we were to refer (as respondents did by referring to the test in O'Brien) to the standards devised by the US Supreme Court in determining the validity or extent of restrictive regulations impinging on the freedoms of the mind, then the O'Brien standard is hardly appropriate because the standard devised in O'Brien only applies if the State's regulation is not related to communicative conduct. If a relationship exists, a more demanding standard is applied. 28 The responsibility of inculcating the values of patriotism, nationalism, good citizenship, and moral uprightness is a responsibility shared by the State with parents and other societal institutions such as religious sects and denominations. The manner in which such values are demonstrated in a plural society occurs in ways so variable that government cannot make claims to the exclusivity of its methods of inculcating patriotism so all-encompassing in scope as to leave no room for appropriate parental or religious influences. Provided that those influences do not pose a clear and present danger of a substantive evil to society and its institutions, expressions of diverse beliefs, no matter how upsetting they may seem to the majority, are the price we pay for the freedoms we enjoy. WHEREFORE, premises considered, the instant Motion is hereby DENIED. SO ORDERED.

protecting the flag's symbolic meaning is implicated only when a person's treatment of the flag communicates some message. 22 While

the very concept of ordered liberty precludes this Court from allowing every individual to subjectively define his own standards on matters of conformity in which society, as a whole has important interests, the records of the case and the long history of flag salute cases abundantly supports the religious quality of the claims adduced by the members of the sect Jehovah's Witnesses. Their treatment of flag as a religious symbol is well-founded and well-documented and is based on grounds religious principle. The message conveyed by their refusal to participate in the flag ceremony is religious, shared by the entire community of Jehovah's Witnesses and is intimately related to their theocratic beliefs and convictions. The subsequent expulsion of members of the sect on the basis of the regulations assailed in the original petitions was therefore clearly directed against religious practice. It is obvious that the assailed orders and memoranda would gravely endanger the free exercise of the religious beliefs of the members of the sect and their minor children. Furthermore, the view that the flag is not a religious but a neutral, secular symbol expresses a majoritarian view intended to stifle the expression of the belief that an act of saluting the flag might sometimes be to some individuals so offensive as to be worth their giving up another constitutional right the right to education. Individuals or groups of individuals get from a symbol the meaning they put to it. 23 Compelling members of a religious sect to believe otherwise on the pain of denying minor children the right to an education is a futile and unconscionable detour towards instilling virtues of loyalty and patriotism which are best instilled and communicated by painstaking and non-coercive methods. Coerced loyalties, after all, only serve to inspire the opposite. The methods utilized to impose them breed resentment and dissent. Those who attempt to coerce uniformity of sentiment soon find out that the only path towards achieving unity is by way of suppressing dissent. 24 In the end, such attempts only find the "unanimity of the graveyard." 25 To the extent to which members of the Jehovah's Witnesses sect assiduously pursue their belief in the flag's religious symbolic meaning, the State cannot, without thereby transgressing constitutionally protected boundaries, impose the contrary view on the pretext of sustaining a policy designed to foster the supposedly far-reaching goal of instilling patriotism among the youth. While conceding to the idea

Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Francisco and Hermosisima, Jr., JJ., concur. Panganiban, J., took no part. Padilla, J., I reiterate my Separate Opinion in G.R. No. 95770 (Ebralinag vs. The Division Superintendent of Schools of Cebu), 1 March 1993, 219 SCRA 276.
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-68828 March 27, 1985 RELI GERMAN, RAMON PEDROSA, TIRSO SANTILLAN, JR., MA. LUISA ANDAL, NIEVA MALINIS, RICARDO LAVIA, CESAR CORTES, DANILO REYES, JOSE REYES, JOSEFINA MATE, LOURDES CALMA, MILDRED JUAN, OLIVE GUANZON, FERNANDO COCHICO, SHERMAN CID, NAZARENO BENTULAN, ROSLINA DONAIRE, MARIO MARTINEZ, BEATRIZ TEYLAN, ANGELINA LAPID, ROSEMARIE FLORES, DANIEL VAN SOTO, EDGARDO MERCADER, NELLY AGUSTIN, MARILY MAGCALAS, DAVID CHAN, ARSENIO SALANSANG, NELSON DE GUZMAN, MARCIANO ARANETA, CESAR MENESES, DIONISIO RELLOSA, MARIO SANTIAGO, SEVERINO SANTOS, LEONORA SANTOS, NIMFA DORONILLA, FLORENCE GUINTO, ROSALINA MANANSALA, PERCIVAL OSTONAL, TOMMY MACARANAS,

ROGER NICANDRO, petitioners, vs. GEN. SANTIAGO BARANGAN and MA. JOR ISABELO LARIOSA, respondents.

guests transacting business with Malacaang. The need to secure the safety of heads of state and other government officials cannot be overemphasized. The threat to their lives and safety is constant, real and felt throughout the world. Vivid illustrations of this grave and serious problem are the gruesome assassinations, kidnappings and other acts of violence and terrorism that have been perpetrated against heads of state and other public officers of foreign nations. Said restriction is moreover intended to secure the several executive offices within the Malacaang grounds from possible external attacks and disturbances. These offices include communications facilities that link the central government to all places in the land. Unquestionably, the restriction imposed is necessary to maintain the smooth functioning of the executive branch of the government, which petitioners' mass action would certainly disrupt. Freedom of religious worship is guaranteed under Section 8, Article IV of the 1973 Constitution, thus: No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights. Elucidating on the meaning and scope of freedom of religion, the U.S. Supreme Court in Cantwell v. Connecticut 2said: The constitutional inhibition on legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus the amendment embraces two concepts-freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be. In the case at bar, petitioners are not denied or restrained of their freedom of belief or choice of their religion, but only in the manner by which they had attempted to translate the same into action. This curtailment is in accord with the pronouncement of this Court in Gerona v. Secretary of Education, 3 thus: The realm of belief and creed is infinite and limitless bounded only by one's imagination and thought. So is the freedom of belief, including religious belief, limitless and without bounds. One may believe in most anything, however strange, bizarre and unreasonable the same may appear to others, even heretical when weighed in the scales of orthodoxy or doctrinal standards. But between the freedom of belief and the exercise of said belief, there is quite a stretch of road to travel. If

ESCOLIN, * J.: Invoking their constitutional freedom to religious worship and locomotion, petitioners seek the issuance of [1] a writ of mandamus to compel respondents to allow them to enter and pray inside St. Jude Chapel located at J.P. Laurel Street, Manila; and [2] a writ of injunction to enjoin respondents from preventing them from getting into and praying in said church. The facts to be considered are the following: At about 5:00 in the afternoon of October 2, 1984, petitioners, composed of about 50 businessmen, students and office employees converged at J.P. Laurel Street, Manila, for the ostensible purpose of hearing Mass at the St. Jude Chapel which adjoins the Malacaang grounds located in the same street. Wearing the now familiar inscribed yellow T-shirts, they started to march down said street with raised clenched fists 1 and shouts of anti-government invectives. Along the way, however, they were barred by respondent Major lsabelo Lariosa, upon orders of his superior and co-respondent Gen. Santiago Barangan, from proceeding any further, on the ground that St. Jude Chapel was located within the Malacaang security area. When petitioners' protestations and pleas to allow them to get inside the church proved unavailing, they decided to leave. However, because of the alleged warning given them by respondent Major Lariosa that any similar attempt by petitioners to enter the church in the future would likewise be prevented, petitioners took this present recourse. Petitioners' alleged purpose in converging at J.P. Laurel Street was to pray and hear mass at St. Jude church. At the hearing of this petition, respondents assured petitioners and the Court that they have never restricted, and will never restrict, any person or persons from entering and worshipping at said church. They maintain, however, that petitioners' intention was not really to perform an act of religious worship, but to conduct an anti-government demonstration at a place close to the very residence and offices of the President of the Republic. Respondents further lament petitioners' attempt to disguise their true motive with a ritual as sacred and solemn as the Holy Sacrifice of the Mass. Undoubtedly, the yellow T-shirts worn by some of the marchers, their raised clenched fists, and chants of anti-government slogans strongly tend to substantiate respondents allegation. Thus, J.P. Fenix, commenting on the motive of petitioners' mass action of October 2, 1984, wrote the following in his article entitled "Mission Impossible", published in the October 12-18, 1984 issue of the "Mr. & Mrs." magazine: They couldn't go through Mendiola Bridge, and so they dared to get even closer to the heart of the matter. But as in Mendiola , the barbed wire barricades and the array of sheet metal shields got in the way of the members of the August TwentyOne Movement (ATOM) as they tried last October 2 to get to the pearly gates of power via the St. Jude Chapel on Laurel St. St. Jude happens to be a neighbor of President Marcos, his (sic) chapel being adjacent to Malacaang. ... The foregoing cannot but cast serious doubts on the sincerity and good faith of petitioners in invoking the constitutional guarantee of freedom of religious worship and of locomotion. While it is beyond debate that every citizen has the undeniable and inviolable right to religious freedom, the exercise thereof, and of all fundamental rights for that matter, must be done in good faith. As Article 19 of the Civil Code admonishes: "Every person must in the exercise of his rights and in the performance of his duties ... observe honesty and good faith." Even assuming that petitioners' claim to the free exercise of religion is genuine and valid, still respondents reaction to the October 2, 1984 mass action may not be characterized as violative of the freedom of religious worship. Since 1972, when mobs of demonstrators crashed through the Malacaang gates and scaled its perimeter fence, the use by the public of J.P. Laurel Street and the streets approaching it have been restricted. While travel to and from the affected thoroughfares has not been absolutely prohibited, passers-by have been subjected to courteous, unobtrusive security checks. The reasonableness of this restriction is readily perceived and appreciated if it is considered that the same is designed to protect the lives of the President and his family, as well as other government officials, diplomats and foreign

the exercise of said religious belief clashes with the established institutions of society and with the
law, then the former must yield and give way to the latter. The government steps in and either restrains said exercise or even prosecutes the one exercising it. (Emphasis supplied) Petitioners likewise invoke their freedom of locomotion under Section 5, Article IV of the Constitution, which provides: The liberty of abode and of travel shall not be impaired except upon lawful order of the court, or when necessary in the interest of national security, public safety, or public health. Suffice it to say that the restriction imposed on the use of J.P. Laurel Street, the wisdom and reasonableness of which have already been discussed, is allowed under the fundamental law, the same having been established in the interest of national security. WHEREFORE, the instant petition is hereby dismissed. No costs. SO ORDERED.

Fernando, C.J., Concepcion, Jr., Plana, De la Fuente and Cuevas, JJ., concur. Aquino, J., concur in the result. Alampay, J., took no part.

(4) Any violation of the aforesaid conditions shall cause the forfeiture of accused-appellant's bail bond, the dismissal of appeal and his immediate arrest and confinement in jail. SO ORDERED.5 A motion for reconsideration was filed, seeking the reduction of the amount of bail fixed by respondent court, but was denied in a resolution issued on November 25, 1999. Hence, this petition. Petitioner sets out the following assignments of error: The respondent Court of Appeals committed grave abuse of discretion in fixing the bail of the provisional liberty of petitioner pending appeal in the amount of P5 .5 million. The respondent Court of Appeals committed grave abuse of discretion in basing the bail for the provisional liberty of the petitioner on his civil liability. The respondent Court of Appeals unduly restricted petitioner's constitutional liberty of abode and travel in imposing the other conditions for the grant of bail. Petitioner contends that the Court of Appeals, by setting bail at a prohibitory amount, effectively denied him his right to bail. He challenges the legal basis of respondent court for fixing bail at P5,500,000.00, which is equivalent to the amount of his civil liability to private complainant Manila Mahogany Marketing Corporation, and argues that the Rules of Court never intended for the civil liability of the accused to be a guideline or basis for determining the amount of bail. He prays that bail be reduced to at least P40,000.00, citing the maximum amount of bail that can be posted for the crime of estafa under the 1996 Bail Bond Guide, or P20,000.00, equivalent to the amount of bail he posted during the trial of the case.6 On the other hand, the Solicitor General maintains that no grave abuse of discretion could be ascribed to the Court of Appeals for fixing the amount of bail at P5,500,000.00 considering the severity of the penalty imposed, the weight of the evidence against petitioner, and the gravity of the offense of which petitioner was convicted by the RTC. He asserted that the P5,500,000.00 not only corresponded to civil liability but also to the amount of fraud imputed to petitioner. The Solicitor General further pointed out the probability of flight in case petitioner is released on bail, it having been established that petitioner was in possession of a valid passport and visa and had in fact left the country several times during the course of the proceedings in the lower court. It was also shown that petitioner used different names in his business transactions and had several abodes in different parts of the country. As for the conditions imposed by the bail bond, the Solicitor General advanced that all that the Court of Appeals requires is notice in case of change of address; it does not in any way impair petitioner's right to change abode for as long as the court is apprised of his change of residence during the pendency of the appeal. Petitioner's case falls within the provisions of Section 5, Rule 114 of the 1997 Rules of Court which states: SEC. 5. Bail, when discretionary. -- Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, the court, on application, may admit the accused to bail. The court, in its discretion, may allow the accused to continue on provisional liberty under the same bail bond during the period to appeal subject to the consent of the bondsman. If the court imposed a penalty of imprisonment exceeding six (6) years, but not more than twenty (20) years, the accused shall be denied bail, or his bail previously granted shall be cancelled, upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances: (a) That the accused is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration;

Republic of the Philippines SUPREME COURT Manila THIRD DIVISION G.R. No. 141529 June 6, 2001

FRANCISCO YAP, JR., aka EDWIN YAP, petitioner, vs. COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents. GONZAGA-REYES, J.: The right against excessive bail, and the liberty of abode and travel, are being invoked to set aside two resolutions of the Court of Appeals which fixed bail at P5,500,000.00 and imposed conditions on change of residence and travel abroad. For misappropriating amounts equivalent to P5,500,000.00, petitioner was convicted of estafa by the Regional Trial Court of Pasig City1 and was sentenced to four years and two months of prision correctional, as minimum to eight years of prision mayor as maximum, "in addition to one (1) year for each additional P10,000.00 in excess of P22,000.00 but in no case shall it exceed twenty (20) years."2 He filed a notice of appeal, and moved to be allowed provisional liberty under the cash bond he had filed earlier in the proceedings. The motion was denied by the trial court in an order dated February 17,1999. After the records of the case were transmitted to the Court of Appeals, petitioner filed with the said court a Motion to Fix Bail For the Provisional Liberty of Accused Appellant Pending Appeal, invoking the last paragraph of Section 5, Rule 114 of the 1997 Revised Rules of Court. Asked to comment on this motion, the Solicitor General opined that petitioner may be allowed to post bail in the amount of P5,500,000.00 and be required to secure "a certification/guaranty from the Mayor of the place of his residence that he is a resident of the area and that he will remain to be so until final judgment is rendered or in case he transfers residence, it must be with prior notice to the court and private complainant."3 Petitioner filed a Reply, contending that the proposed bail ofP5,500,000.00 was violative of his right against excessive bail. The assailed resolution of the Court of Appeals4, issued on October 6, 1999, upheld the recommendation of the Solicitor General; thus, its dispositive portion reads: WHEREFORE, premises considered, the "Motion to Fix Bail For Provisional Liberty of Accused-Appellant Pending Appeal" is hereby GRANTED. Accused-appellant Francisco Yap, Jr., a.k.a. Edwin Yap is hereby ALLOWED TO POST BAIL in the amount of Five Million Five Hundred Thousand (P5,500,000.00) Pesos, subject to the following conditions, viz. : (1) He (accused-appellant) secures a certification/guaranty from the Mayor of the place of his residence that he is a resident of the area and that he will remain to be a resident therein until final judgment is rendered or in case he transfers residence, it must be with prior notice to the court; (2) The Commission of lmmigration and Deportation (CID) is hereby directed to issue a hold departure order against accused-appellant; and (3) The accused-appellant shall forthwith surrender his passport to the Division Clerk of Court for safekeeping until the court orders its return;

(b) That the accused is found to have previously escaped from legal confinement, evaded sentence, or has violated the conditions of his bail without valid justification; (c) That the accused committed the offense while on probation, parole, or under conditional pardon; (d) That the circumstances of the accused or his case indicate the probability of flight if released on bail; or (e) That there is undue risk that during the pendency of the appeal, the accused may commit another crime. The appellate court may review the resolution of the Regional Trial Court, on motion and with notice to the adverse party.7 There is no question that in the present case the Court of Appeals exercised its discretion in favor of allowing bail to petitioner on appeal. Respondent court stated that it was doing so for "humanitarian reasons", and despite a perceived high risk of flight, as by petitioner's admission he went out of the country several times during the pendency of the case, for which reason the court deemed it necessary to peg the amount of bail at P5,500,000.00. The prohibition against requiring excessive bail is enshrined in the Constitution.8 The obvious rationale, as declared in the leading case of De la Camara vs. Enage,9 is that imposing bail in an excessive amount could render meaningless the right to bail. Thus, in Villaseor vs. Abano,10 this Court made the pronouncement that it will not hesitate to exercise its supervisory powers over lower courts should the latter, after holding the accused entitled to bail, effectively deny the same by imposing a prohibitory sum or exacting unreasonable conditions. xxx There is grim irony in an accused being told that he has a right to bail but at the same time being required to post such an exorbitant sum. What aggravates the situation is that the lower court judge would apparently yield to the command of the fundamental law. In reality, such a sanctimonious avowal of respect for a mandate of the Constitution was on a purely verbal level. There is reason to believe that any person in the position of petitioner would under the circumstances be unable to resist thoughts of escaping from confinement, reduced as he must have been to a state of desperation. In the same breath as he was told he could be bailed out, the excessive amount required could only mean that provisional liberty would be beyond his reach. It would have been more forthright if he were informed categorically that such a right could not be availed of. There would have been no disappointment of expectations then. It does call to mind these words of Justice Jackson, "a promise to the ear to be broken to the hope, a teasing illusion like a munificent bequest in a pauper's will." XXX11 At the same time, Section 9, Rule 114 of the Revised Rules of Criminal Procedure advises courts to consider the following factors in the setting of the amount of bail: (a) Financial ability of the accused to give bail; (b) Nature and circumstances of the offense; (c) Penalty for the offense charged; (d) Character and reputation of the accused; (e) Age and health of the accused; (f) Weight of the evidence against the accused; (g) Probability of the accused appearing at the trial; (h) Forfeiture of other bail; (i) The fact that the accused was a fugitive from justice when arrested; and (j) Pendency of other cases where the accused is on bail.

Thus, the court has wide latitude in fixing the amount of bail. Where it fears that the accused may jump bail, it is certainly not precluded from installing devices to ensure against the same. Options may include increasing the bail bond to an appropriate level, or requiring the person to report periodically to the court and to make an accounting of his movements.12 In the present case, where petitioner was found to have left the country several times while the case was pending, the Court of Appeals required the confiscation of his passport and the issuance of a hold-departure order against him. Under the circumstances of this case, we find that appropriate conditions have been imposed in the bail bond to ensure against the risk of flight, particularly, the combination of the hold-departure order and the requirement that petitioner inform the court of any change of residence and of his whereabouts. Although an increase in the amount of bail while the case is on appeal may be meritorious, we find that the setting of the amount at P5,500,000.00 is unreasonable, excessive, and constitutes an effective denial of petitioner's right to bail. The purpose for bail is to guarantee the appearance of the accused at the trial,13 or whenever so required by the Court14. The amount should be high enough to assure the presence of the accused when required but no higher than is reasonably calculated to fulfill this purpose.15 To fix bail at an amount equivalent to the civil liability of which petitioner is charged (in this case, P5,500,000.00).is to permit the impression that the amount paid as bail is an exaction of the civil liability that accused is charged of; this we cannot allow because bail is not intended as a punishment, nor as a satisfaction of civil liability which should necessarily await the judgment of the appellate court. At the same time, we cannot yield to petitioner's submission that bail in the instant case be set at P40,000.00 based on the 1996 Bail Bond Guide. (The current Bail Bond Guide, issued on August 29, 2000, maintains recommended bail at P40,000.00 for estafa where the amount of fraud is P142,000.00 or over and the imposable penalty 20 years of reclusion temporal). True, the Court has held that the Bail Bond Guide, a circular of the Department of Justice for the guidance of state prosecutors, although technically not binding upon the courts, "merits attention, being in a sense an expression of policy of the Executive Branch, through the Department of Justice, in the enforcement of criminal laws."16 Thus, courts are advised that they must not only be aware but should also consider the Bail Bond Guide due to its significance in the administration of criminal justice.17 This notwithstanding, the Court is not precluded from imposing in petitioner's case an amount higher than P40,000.00 (based on the Bail Bond Guide) where it perceives that an appropriate increase is dictated by the circumstances. It militates emphasis that petitioner is seeking bail on appeal. Section 5, Rule 114 of the Revised Rules of Criminal Procedure is clear that although the grant of bail on appeal is non-capital offenses is discretionary, when the penalty imposed on the convicted accused exceeds six years and circumstances exist that point to the probability of flight if released on bail, then the accused must be denied bail, or his bail previously granted should be cancelled.18 In the same vein, the Court has held that the discretion to extend bail during the course of the appeal should be exercised with grave caution and for strong reasons, considering that the accused had been in fact convicted by the trial court.19 In an earlier case, the Court adopted Senator Vicente J. Francisco's disquisition on why bail should be denied after judgment of conviction as a matter of wise discretion; thus: The importance attached to conviction is due to the underlying principle that bail should be granted only where it is uncertain whether the accused is guilty or innocent, and therefore, where that uncertainty is removed by conviction it would, generally speaking, be absurd to admit to bail. After a person has been tried and convicted the presumption of innocence which may be relied upon in prior applications is rebutted, and the burden is upon the accused to show error in the conviction. From another point of view it may be properly argued that the probability of ultimate punishment is so enhanced by the conviction that the accused is much more likely to attempt to escape if liberated on bail than before conviction.xxx20 Petitioner is seeking bail on appeal. He was in fact declared guilty beyond reasonable doubt by the RTC, and due to the serious amount of fraud involved, sentenced to imprisonment for twenty years --the maximum penalty for estafa by false pretenses or fraudulent acts allowed by the Revised Penal Code. Although it cannot be controverted that the Court of Appeals, despite the foregoing considerations and the possibility of flight still wielded its discretion to grant petitioner bail, the setting of bail in the amount of P5,500,000.00 is unjustified as having no legal nor factual basis. Guided by the penalty imposed by

the lower court and the weight of the evidence against petitioner, we believe that the amount of P200,000.00 is more reasonable. Petitioner also contests the condition imposed by the Court of Appeals that he secure "a certification/guaranty from the Mayor of the place of his residence that he is a resident of the area and that he will remain to be a resident therein until final judgment is rendered or in case he transfers residence, it must be with prior notice to the court", claiming that the same violates his liberty of abode and travel. Notably, petitioner does not question the hold-departure order which prevents him from leaving the Philippines unless expressly permitted by the court which issued the order.21 In fact, the petition submits that "the hold-departure order against petitioner is already sufficient guarantee that he will not escape. Thus, to require him to inform the court every time he changed his residence is already unnecessary."22 The right to change abode and travel within the Philippines, being invoked by petitioner, are not absolute rights. Section 6, Article III of the 1987 Constitution states: The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law. The order of the Court of Appeals releasing petitioner on bail constitutes such lawful order as contemplated by the above provision.23 The condition imposed by the Court of Appeals is simply consistent with the nature and function of a bail bond, which is to ensure that petitioner will make himself available at all times whenever the Court requires his presence. Besides, a closer look at the questioned condition will show that petitioner is not prevented from changing abode; he is merely required to inform the court in case he does so. WHEREFORE, the petition is PARTIALLY GRANTED. Petitioner's bail pending appeal is reduced from P5,500,000.00 to P200,000.00. In all other respects, the resolutions of the Court of Appeals, dated October 6, 1999 and November 25, 1999, respectively, are AFFIRMED. No pronouncement as to costs. SO ORDERED. 1wphi1.nt

doubt, he must be acquitted. This reasonable doubt standard is demanded by the due process clause of the Constitution which protects the accused from conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the crime with which he is charged. The burden of proof is on the prosecution, and unless it discharges that burden the accused need not even offer evidence in his behalf, and he would be entitled to an acquittal. Proof beyond reasonable doubt does not, of course, mean such degree of proof as, excluding the possibility of error, produce absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind. The conscience must be satisfied that the accused is responsible for the offense charged. So also, well settled, to the point of being elementary, is the doctrine that when inculpatory facts are susceptible to two or more interpretations, one of which is consistent with the innocence of the accused, the evidence does not fulfill or hurdle the test of moral certainty required for conviction. (People of the Philippines vs. Eric F. Timtiman, G.R. No. 101663, November 4, 1992, 215 SCRA 364, 373 citing People vs. Remorosa, 200 SCRA 350, 360 [1991]; People vs. Raquel, 265 SCRA 248; People vs. Aranda, 226 SCRA 562; People vs. Maongco, 230 SCRA 562; People vs. Salangga, 234 SCRA 407). Mindful of and guided by the aforecited constitutional and legal precepts, doctrines and principles prevailing in this jurisdiction, should petitioner's Motion for Reconsideration be granted? Docketed as Criminal Case No. 17450 before the Sandiganbayan, the Information indicting Imelda R. Marcos and Jose P. Dans, Jr. for a violation of Section 3(9) of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, alleges: That on or about June 8, 1984, and for sometime prior or subsequent thereto, in Makati, MetroManila, Philippines, and within the jurisdiction of this Honorable Court, the accused IMELDA R. MARCOS and JOSE P. DANS, JR., public officers, being then Chairman and Vice-Chairman, respectively, of the Light Rail Transit Authority (LRTA), a government corporate entity created under Executive Order No. 603 of the former President Ferdinand Marcos, while in the performance of their official functions, taking advantage of their positions and committing the crime in relation to their offices, did then and there wilfully, unlawfully and criminally conspiring with one another, enter on behalf of the aforesaid government corporation into a Lease Agreement covering LRTA property located in Pasay City, with the Philippines General Hospital Foundation, Inc. (PGHFI), a private enterprise, under terms and conditions manifestly and grossly disadvantageous to the government. CONTRARY TO LAW.

Melo, Vitug, Panganiban, and Sandova/-Gutierrez, JJ. , concur.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 126995 October 6, 1998 IMELDA R. MARCOS, petitioner, vs. The Honorable SANDIGANBAYAN (First Division), and THE PEOPLE OF THE PHILIPINES, respondents. RESOLUTION

The case was raffled off to the First Division of the Sandiganbayan, with Presiding Justice Francis E. Garchitorena, as Chairman and Justices Jose S. Balajadia and Narciso T. Atienza, as members. On September 15, 1993, when the First Division failed to comply with the legal requirement of unanimity of its three members due to the dissent of Justice Narciso T. Atienza, Presiding Justice Garchitorena issued Administrative Order No. 288-93 constituting a Special Division of five and designating Justices Augusto M. Amores and Cipriano A. Del Rosario, as additional members. On September 21, 1993, Justice Amores wrote Presiding Justice Garchitorena requesting that he be given fifteen (15) days to send in his Manifestation. However, on the same day, September 21, 1993, when Justice Balajadia and Presiding Justice Garchitorena agreed with the opinion of Justice Del Rosario, Presiding Justice Garchitorena issued Administrative Order No. 293-93, dissolving the Special Division of Five, without waiting for Justice Amores' manifestation. Justice Garchitorena considered the said request of Justice Amores as "pointless because of the agreement of Justice Balajadia and the undersigned to the conclusion reached by Justice Atienza". Thus, on September 24, 1993, the now assailed decision was handed down by the First Division of the Sandiganbayan.

PURISIMA, J.: This scenic Philippine archipelago is a citadel of justice, due process and rule of law. Succinst and clear is the provision of the constitution of this great Republic that every accused is presumed innocent until the contrary is proved. [Art. 111, Sec. 14(2)]. As held in People of the Philippines vs. Ellizabeth Ganguso y Decena (G.R. No. 115430, November 23, 1995, 250 SCRA 268, 274-275): An accused has in his favor the presumption of innocence which the Bill of Rights guarantees. Unless his guilt is shown beyond reasonable

Under the aforequoted Information charging accused Imelda R. Marcos and Jose P. Dans, Jr. with a violation of Section 3(g) of RA 3019, the following elements of the offense charged must be proved beyond reasonable doubt, to wit: 1] that the accused acted as a public officer; 2] that subject Contract or transaction entered into by the latter is manifestly and grossly disadvantageous to the government. There is no dispute that sometime in the year 1984, the herein petitioner, Imelda R. Marcos, was Minister of Human Settlement while Jose P. Dans, Jr. was the Minister of Transportation and Communication. The two served as ex oficio Chairman and ViceChairman, respectively, of the Light Rail Transport Authority (LRTA). Petitioner Marcos was also Chairman of the Board of Trustees of the Philippine General Hospital Foundation, Inc. (PGHFI). On June 8, 1984, petitioner, in her capacity as Chairman of PGHFI, and Jose P. Dans, Jr. as Vice Chairman of LRTA, signed the Lease Agreement (Exhibit "B") by virtue of which LRTA leased to PGHFI subject lot with an area of 7.340 square meters, at a monthly rental of P102,760.00 for a period of twenty-five (25) years. On June 27, 1984, the PGHFI, represented by its Chairman Imelda R. Marcos, and Transnational Construction Corporation, represented by its President Ignacio B. Gimenez, signed the Sublease Agreement (Exhibit "D"), wherein said lessee rented the same area of 7.340 square meters for P734,000.00 a month, for a period of twenty-five (25) years. For executing the aforesaid Lease Agreement (Exhibit "B"), petitioner and Jose P. Dans, Jr. were indicted in the said Information, for conspiring and confederating with each other in entering into subject Lease Agreement alleged to be manifestly and grossly disadvantageous to the government. After trial, as earlier alluded to, the Sandiganbayan convicted the petitioner and Jose P. Dans, Jr. of the offense charged. On June 29, 1998, the Third Division of this court came out with its decision affirming the judgment, as against petitioner Imelda R. Marcos in G.R. No. 126995, but reversing the same judgment, as against Joe P. Dans, Jr., in G.R. No. 127073. In affirming the judgment of conviction against petitioner, the Third Division found the rental price stipulated in the Lease Agreement, (Exhibit "B") unfair and unreasonably low, upon a comparison with the rental rate in the Sub-lease Agreement (Exhibit "D"), which contract petitioner subsequently signed on behalf of PGHFI, with TNCC. Undaunted, the petitioner interposed the present Motion for Reconsideration. The pivot of inquiry here is whether all the elements of the offense charged have been duly substantiated. As regards the first element, did petitioner Imelda R. Marcos enter into the Lease Agreement marked Exhibit "B" as a public officer? As clearly stated on the face of the subject contract under scrutiny, it petitioner signed the same in her capacity as Chairman of PGHFI and not as Human Settlement Minister nor as ex-officio Chairman of LRTA. It was Jose P. Dans, Jr. who signed said Contract, as ex-officio Vice Chairman of LRTA. Although petitioner was theex-officio Chairman of LRTA, at the time, there is no evidence to show that she was present when the Board of Directors of LRTA authorized and approved the Lease Agreement sued upon. In light of the foregoing antecedent facts and circumstances, the irresistible conclusion is that petitioner did not sign subject Lease Agreement as a public officer, within the contemplation of RA 3019 and, therefore, the first element of the offense charged is wanting. It bears stressing, in this connection, that Jose P. Cans, Jr., the public officer who signed the said Lease Agreement (Exhibit "B") for LRTA, was acquitted. As regards the second element of the offense that such Lease Agreement is grossly and manifestly disadvantageous to the government, the respondent court based its finding thereon against the petitioner and Jose P. Dans, Jr., on a ratiocination that while the rental price under the Lease Agreement is only P102,760.00 a month, the monthly rental rate under the Sub-lease Agreement is P734,000.00. After comparing the two rental rates aforementioned, the respondent court concluded that the rental price of P102,760.00 a month is unfair, unreasonable and disadvantageous to the government.

But Exhibit "B" does not prove that the said contract entered into by petitioner is "manifestly and grossly disadvantageous to the government." There is no established standard by which Exhibit "B"'s rental provisions could be adjudged prejudicial to LRTA or the entire government. Exhibit "B" standing alone does not prove any offense. Neither does Exhibit "B" together with the Sub-lease Agreement (Exhibit "D") prove the offense charged. At most, it creates only a doubt in the mind of the objective readers as to which (between the lease and sub-lease rental rates) is the fair and reasonable one, considering the different circumstances as well as parties involved. It could happen that in both contracts, neither the LRTA nor the Government suffered any injury. There is, therefore, insufficient evidence to prove petitioner's guilt beyond reasonable doubt. Verily, it is too obvious to require an extended disquisition that the only basis of the respondent court for condemning the Lease Agreement (Exhibit "B") as "manifestly and grossly disadvantageous to the government" was a comparison of the rental rate in the Lease Agreement, with the very much higher rental price under the Sublease Agreement (Exhibit "D"). Certainly, such a comparison is purely speculative and violative of due process. The mere fact that the Sublease Agreement provides a monthly rental of P734,000.00 does not necessarily mean that the rental price of P102,760.00 per month under the Lease Agreement (Exhibit "B") is very low, unreasonable and manifestly and grossly disadvantageous to the government. There are many factors to consider in the determination of what is a reasonable rate of rental. What is more, as stressed by Jose P. Dans Jr., when subject Lease Agreement was inked, the rental rate thereinprovided was based on a study conducted in accordance with generally accepted rules of rental computation. On this score, Mr. Ramon F. Cuervo, Jr., the real estate appraiser who testified in the case as an expert witness and whose impartiality and competence were never impugned, assured the court that the rental price stipulated in the Lease Agreement under scrutiny was fair and adequate. According to him, witness, the reasonable rental for subject property at the time of execution of Exhibit "B" was only P73,000.00 per month. That the Sub-lease Agreement (Exhibit "D") was for a very much higher rental rate of P734,000.00 a month is of no moment. This circumstance did not necessarily render the monthly rental rate of P102,760.00 manifestly and grossly disadvantageous to the lessor. Evidently, the prosecution failed to prove that the rental rate of P102,760.00 per month was manifestly and grossly disadvantageous to the government. Not even a single lease contract covering a property within the vicinity of the said leased premises was offered in evidence The disparity between the rental price of the Lease Agreement and that of the Sublease Agreement is no evidence at all to buttress the theory of the prosecution, "that the Lease Agreement in question is manifestly and grossly disadvantageous to the government". "Gross" is a comparative term. Before it can be considered "gross", there must be a standard by which the same is weighed and measured. All things viewed in proper perspective, it is decisively clear that there is a glaring absence of substantiation that the Lease Agreement under controversy is grossly and manifestly disadvantageous to the government, as theorized upon by the prosecution. Furthermore, that the lessee, PGHFI, succeeded in obtaining a high rental rate of P734,000.00 a month, did not result in any disadvantage to the government because obviously, the rental income realized by PGHFI from the Sub-lease Agreement (Exhibit "D"), augmented the financial support for and improved the management and operation of the Philippine General Hospital, which is, after all, a government hospital of the people and for the people. Another sustainable ground for the granting of petitioner's motion for reconsideration is the failure and inability of the prosecution to prove that petitioner was present when the Board of Directors of LRTA authorized and approved the Lease Agreement complained of. Albeit, petitioner was ex oficio chairman of the Board of Directors of LRTA when the said Lease Agreement was entered into, there is no evidence whatsoever to show that she attended the board meeting of LRTA which deliberated and acted upon subject Lease Agreement (Exhibit "B"). It is thus beyond cavil that petitioner signed the said Lease Agreement as Chairman of the PGH Foundation, Inc., a private charitable foundation, and not as a public officer. Neither can petitioner be considered as in conspiracy with Jose P. Dans, Jr., who has been found without any criminal liability for signing the same Lease Agreement. Absent any conspiracy of petitioner with Dans, the act of the latter cannot be viewed as an act of the former.

Petitioner is only answerable for her own individual act. Consequently, petitioner not having signed Exhibit "B" as a Public officer, there is neither legal nor factual basis for her conviction under Section 3(g) of Rep Act 3019. It beers repeating that apart from the Lease Agreement and Sub-lease Agreement marked Exhibits "B" and "D", respectively, the prosecution offered no other evidence to prove the accusation at bar. What makes petitioner's stance the more meritorious and impregnable is the patent violation of her right to due process, substantive and procedural, by the respondent court. Records disclose that: (a) the First Division of the Sandiganbayan composed of Presiding Justice Garchitorena and Associate Justices Balajadia and Atienza could not agree on whether to convict or acquit the petitioner in the five (5) criminal cases pending against her. Justice Atienza was in favor of exonerating petitioner in Criminal Case Nos. 17449, 17451 and 17452. Justices Garchitorena and Balajadia wanted to convict her in Criminal Case Nos. 17450, 17451, 17452 and 17453. As there was no unanimity of votes in Criminal Case Nos. 17451 and 17452; (b) on September 15, 1993, in accordance with Sec. 5 of P.D. No. 1606, Presiding Justice Garchitorena issued Adm. Order No. 288-93 constituting a Special Division of five (5) justices, and naming thereto, Justices Augusto M. Amores and Cipriano A. del Rosario; (c) on September 21, 1993, Justice Amores sent a written request to Presiding Justice Garchitorena asking that he be given fifteen (15) days to submit his Manifestation; (d) on the same day, September 21, 1993, however, Presiding Justice Garchitorena and Justices Balajadia and del Rosario, after attending a hearing of the Committee of Justice of the House of Representatives, lunched together in a Quezon City restaurant where they discussed petitioner's cases in the absence of Justices Atienza and Amores and in the presence of a non-member of the Special Division. Thereat, Presiding Justice Garchitorena, and Justices, Balajadia and del Rosario agreed with the position of Justice Atienza to acquit petitioner in Criminal Case Nos. 17449, 17451 and 17452 and to convict her in the other cases; and (e) when the Justices returned to the official workplace of Sandiganbayan, Presiding Justice Garchitorena issued Adm. Order No. 293-93 dissolving the Special Division. Such prodedural flaws committed by respondent Sandiganbayan are fatal to the validity of its "decision" convicting petitioner for the following reasons, viz:

the vote of three justices, regardless of whether her cases are before a regular division of three (3) justices or a Special Division of five (5) justices. But more important than the vote of three (3) justices is the process by which they arrive at their vote. It is indispensable that their vote be preceded by discussion and deliberation by all the members of the division. Before the deliberation by all, any opinion of a justice is but tentative and could be changed. It is only after all the justices have been heard should the justices reach a judgment. No one opinion can be denigrated in importance for experience shows that an opinion that starts as a minority opinion could become the majority opinion after the collision of views of the justices. The right of the petitioner, therefore, is the right to be heard by all the five justices of the Special Division. She is entitled to be afforded the opinion of all its members. In the case at bar, Presiding Justice Garchitorena had already created the Special Division of five (5) justices in view of the lack of unanimity of the three (3) justices in the First Division. At that stage, petitioner had a vested right to be heard by the five (5) justices, especially the new justices in the persons of Justices Amores and del Rosario who may have a different view of the cases against her. At that point, Presiding Justice Garchitorena and Justice Balajadia may change their mind and agree with the original opinion of Justice Atienza but the turnaround cannot deprive petitioner of her vested right to the opinion of justices Amores and del Rosario. It may be true that Justice del Rosario had already expressed his opinion during an informal, unscheduled meeting in the unnamed restaurant but as aforestated, that opinion is not the opinion contemplated by law. But what is more, petitioner was denied the opinion of Justice Amores for before it could be given, Presiding Justice Garchitorena dissolved the Special Division. We reject the rationalization that the opinion of Justice Amores was of de minimis importance as it cannot overturn the votes of the three justices convicting the petitioner. This is a mere guesswork. The more reasonable supposition is that said opinion could have changed the opinions of the other justices if it is based on an unbiased appreciation of facts and an undistorted interpretation of pertinent laws. For we cannot unreasonably suppose that Presiding Justice Garchitorena and Justices Balajadia and Atienza are bigots who will never change their opinions about the guilt of the petitioner despite a better opinion. Yet, that is not all the value of the aborted opinion of Justice Amores. If it were an opinion for the acquittal of the petitioner, that opinion will have an added value when petitioner appeals her conviction to this Court. Again, depending on its scholarship, that minority opinion could sway the opinion of this Court towards the acquittal of petitioner. Prescinding from those premises, it is indisputable that the decision of the First Division of the respondent Sandiganbayan convicting the petitioner is void for violating her right to substantive and procedural due process of law. It is opined, however, that this case should be remanded to the respondent Sandiganbayan for re-decision by a Special Division of 5. As a general rule, a void decision will not result in the acquittal of an accused. The case ought to be remanded to the court of origin for further proceedings for a void judgment does not expose an accused to double jeopardy. But the present case deserves a different treatment considering the great length of time it has been pending with our courts. Records reveal that petitioner was first indicted in Criminal Case No. 17450 in January 1992. More than six (6) years passed but petitioner's prosecution is far from over. To remand the case to the Sandiganbayan will not sit well with her constitutional right to its speedy disposition. Section 16, Article III of the Constitution assures "all persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies." This right expands the right of an accused "to have a speedy, impartial, and public trial . . ." in criminal case guaranteed by Section 14(2) of Article III of the Constitution. It has a broadening effect because Section 16 covers the periods before, during and after trial whereas Section 14(2) covers only the trial period. 1 Heretofore, we have held that an accused should be acquitted when his right to speedy trial has been violated. Thus, in the early 1936 case of People vs. Castaeda, et al., 63 Phil 480, 485, 486, a ponencia of Mr. Justice Laurel, we held: A strict regard for the constitutional rights of the accused would demand, therefore, that the case be remanded to the court below for new trial before an impartial judge. There are vital considerations, however, which in the opinion of this court render this step unnecessary. In the first place, the Constitution, Article

First. Section 4, Rule VI categorically provides that "sessions of the Sandiganbayan, whether en banc or division, shall be held in its principal office in the Metropolitan Manila where it shall try and determine all cases filed with it . . .." This rule reiterates Sec. 2 of P.D.
No. 1606, as amended, creating the Sandiganbayan.

Second. The rules of Sandiganbayan do not allow unscheduled

discussion of cases. We take judicial notice of the procedure that cases in all courts are carefully calendared and advance notices are given to judges and justices to enable them to study and prepare for deliberation. The calendaring cases cannot be the subject of anybody's whims and caprices.

Third. The rules of Sandiganbayan do not also allow informal

discussion of cases. The deliberations in case at bar did not appear on record. The informal discussion of the three justices came to light only when petitioner moved to inhibit Presiding Justice Garchitorena after her conviction by the resuscitated First Division. Presiding Justice Garchitorena, in a paper entitled "Response," revealed for the first time the informal discussion of petitioner's cases at an unnamed restaurant in Quezon City. There is no way to know how the discussion was conducted as it was not minuted.

Fourth. The rules of the Sandiganbayan do not allow the presence of a

non-member in the deliberation of cases. In the case at bar a certain justice was present when Presiding Justice Garchitorena, Justice Balajadia, and Justice del Rosario discussed petitioner's cases while taking their lunch in a Quezon City restaurant.

Fifth. The rules of the Sandiganbayan do not allow the exclusion of a

member of a Division, whether regular or special, in the deliberation of cases. Justices Atienza and Amores were members of the Special Division but were not present when petitioner's cases were discussed over lunch in a Quezon City restaurant. They ware not notified of the informal, unscheduled meeting. In fact, Justice Amores had a pending request for 15 days to study petitioner's cases. In effect, Atienza and Amores were disenfranchised. They were denied their right to vote for the conviction or acquittal of petitioner. These irregularities violated the right of petitioner to be tried by a collegial court. Under PD No. 1606, as amended, and pursuant to the rules of Sandiganbayan, petitioner cannot be convicted except upon

III, section 1, paragraph 17, guarantees to every accused person the right to a speedy trial. This criminal proceeding has been dragging on for almost five (5) years now. The accused have twice appealed to this court for redress from the wrong that they have suffered at the hands of the trial court. At least one of them, namely, Pedro Fernandez (alias Piro), had been confined in prison from July 20, 1932 to November 27, 1934 for inability to post the required bond of P3,000 which was finally reduced to P300. The Government should be the last to set an example of delay and oppresson in the administration of justice and it is the moral and legal obligation of this court to see that the criminal proceedings against the accused to come to an end and that they be immediately discharged from the custody of the law. (Conde vs. Rivera and Unson, 45 Phil., 650). We reiterated this rule in Acebedo vs. Sarmiento, viz:
2

2. More specifically, this Court has consistently adhered to the view thatb a dismissal based on the denial of the right to a speedy trial amounts to an acquittal. Necessarily, any further attempt at continuing the prosecution or starting a new one would fall within the prohibition against an accused being twice put in jeopardy. The extensive opinion of Justice Castro in People vs. Obsania noted earlier made reference to four Philippine decisions. People vs. Diaz, People vs. Abao, People vs. Robles, and People vs. Cloribel. In all of the above case, this Court left no doubt that a dismissal of the case, though at the instance of the defendant grounded on the disregard of his right to a speedy trial was tantamount to an acquittal. In People vs. Diaz, it was shown that the case was set for hearing twice and the prosecution without asking for postponement or giving any explanation failed to appear. In People vs. Abao, the facts disclosed that there were three postponements. Thereafter, at the time the resumption of the trial was scheduled, the complaining witness as in this case was absent, this Court held that respondent Judge was justified in dismissing the case upon motion of the defense and that the annulment or setting aside of the order of dismissal would place the accused twice in jeopardy of punishment for the same offense. People vs. Robles likewise presented a picture of witnesses for the prosecution not being available, with the lower court

after having transferred the hearings on several occasions denying the last plea for postponement and dismissing the case. Such order of dismissal, accordirig to this Court "is not provisional in character but one which is tantamount to acquittal that would bar further prosecution of the accused for the same offense." This is a summary of the Cloribel case as set forth in the above opinion of Justice Castro. "In Cloribel, the case dragged for three years and eleven months, that is, from September 27, 1958 when the information was filed to August 15, 1962 when it was called for trial, after numerous postponements, mostly at the instance of the prosecution. On the latter date, the prosecution failed to appear for trial, and upon motion of defendants, the case was dismissed. This Court held, "that the dismissal here complained of was not truly a "dismissal" but an acquittal. For it was entered upon the defendants" insistence on their constitutional right to speedy trial and by reason of the prosecution's failure to appear on the date of trial." (Emphasis supplied)" There is no escaping the conclusion then that petitioner here has clearly made out a case of an acquittal arising from the order of dismissal given in open court. The rationale for both Section 14(2) and section 16 of Article III of the Constitution is the same, "justice delayed is justice denied." Violation of either section should therefore result in the acquittal of the accused. There are other reasons why the case should not be remanded to the court a quo. Three justices of the Special Division, namely Justice Atienza, Balajadia and Amores have already retired. Presiding Justice Garchitorena is still with the respondent court but his impartiality has been vigorously assailed by the petitioner. Mr. Justice Francisco of the Third Division of this Court noted that Presiding Justice Garchitorena's undue interference in the examination of witness Cuervo relealed his bias and prejudice against petitioner. 3 As Mr. Justice Francisco observed "the court questions were so numerous which as per petitioner Dans count totaled 179 compared to prosecutor Querubin's questions which numbered merely 73. More noteworthy, however, is that the court propounded leading, misleading, and baseless hypothetical questions rolled into one." 4 Mr. Justice Francisco's opinion was concurred by Mr. Justice Melo. Truly, even Mr. Chief Justice Narvasa, Madam Justice Romero and Mr. Justice Panganiban who voted to convict petitioner did not refute Mr. Justice Francisco's observations on the lack of impartiality of Presiding Justice Garchitorena. They disregarded Mr. Ramon F. Cuervo's testimony and based the conviction of petitioner purely on the documentary evidence submitted by the People. Moreover, all the evidence in the case at bar are now before this Court and to avoid further delay, we can evaluate the evidence. In fact, the same evidence has been passed upon by the Third Division of this Court in formulating its judgment of affirmance sought to be reconsidered. Certainly, it will be sheer rigmarole for this Court to still remand the case for a Special Division of five of the Sandiganbayan to render another decision in the case, with respect to the herein petitioner. I consider this opinion incomplete without quoting herein the following portion of the concurring and dissenting opinion of former Associate Justice Ricardo J. Francisco dated January 29, 1998: Thus, purely from the legal standpoint, with the evident weakness of the prosecution's case and the procedural aberrations that marred the trial, it is simply unsound and

impossible to treat differently each petitioner who found themselves in one and the same situation. Indeed, our regained democracy, creditably, is successfully bailing us out from the ruins of the authoritarian regime, and it expects that government efforts in going after the plunderers of that dark past remain unrelenting and decisive. But let us not, in our anxiety to carry out this duty, for a moment forget that our criminal justice system is not a popularity contest where freedom and punishment are determined merely by the fame or infamy of the litigants. "The scales of justice", it has been aptly said, 5 "must hang equal and, in fact, should even be tipped in favor of the accused because of the constitutional presumption of innocence. Needless to stress, this right is available to every accused, whatever his present circumstance and no matter how dark and repellent his past." Culpability for crimes Must always take its bearing from evidence and universal precepts of due process lest we sacrifice in mocking shame once again the very liberties we are defending. IN VIEW OF THE FOREGOING, the Motion for Reconsideration under consideration is hereby GRANTED and petitioner Imelda R. Marcos is hereby ACQUITTED of the offense charged. Costs de oficio. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 88211 October 27, 1989 FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS. JR., IRENE M. ARANETA, IMEE M. MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS, NICANOR YIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), represented by its President, CONRADO F. ESTRELLA, petitioners, vs. HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOEZ, MIRIAM DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity as Secretary of Foreign Affairs, Executive Secretary, Secretary of Justice, Immigration Commissioner, Secretary of National Defense and Chief of Staff, respectively, respondents. RESOLUTION

EN BANC: In its decision dated September 15,1989, the Court, by a vote of eight (8) to seven (7), dismissed the petition, after finding that the President did not act arbitrarily or with grave abuse of discretion in determining that the return of former President Marcos and his family at the present time and under present circumstances pose a threat to national interest and welfare and in prohibiting their return to the Philippines. On September 28, 1989, former President Marcos died in Honolulu, Hawaii. In a statement, President Aquino said: In the interest of the safety of those who will take the death of Mr. Marcos in widely and passionately conflicting ways, and for the tranquility of the state and order of society, the remains of Ferdinand E. Marcos will not be allowed to be brought to our country until such time as the government, be it under this administration or the succeeding one, shall otherwise decide. [Motion for Reconsideration, p. 1; Rollo, p, 443.] On October 2, 1989, a Motion for Reconsideration was filed by petitioners, raising the following major arguments: 1. to bar former President Marcos and his family from returning to the Philippines is to deny them not only the inherent right of citizens to return to their country of birth but also the protection of the Constitution and all of the rights guaranteed to Filipinos under the Constitution; 2. the President has no power to bar a Filipino from his own country; if she has, she had exercised it arbitrarily; and 3. there is no basis for barring the return of the family of former President Marcos. Thus, petitioners prayed that the Court reconsider its decision, order respondents to issue the necessary travel documents to enable Mrs. Imelda R. Marcos, Ferdinand R. Marcos, Jr., Irene M. Araneta, Imee M. Manotoc, Tommy Manotoc and Gregorio Araneta to return to the Philippines, and enjoin respondents from implementing President Aquino's decision to bar the return of the remains of Mr. Marcos, and the other petitioners, to the Philippines. Commenting on the motion for reconsideration, the Solicitor General argued that the motion for reconsideration is moot and academic as to the deceased Mr. Marcos. Moreover, he asserts that "the 'formal' rights being invoked by the Marcoses under the label 'right to return', including the label 'return of Marcos' remains, is in reality or substance a 'right' to destabilize the country, a 'right' to hide the Marcoses' incessant shadowy orchestrated efforts at destabilization." [Comment, p. 29.] Thus, he prays that the Motion for Reconsideration be denied for lack of merit. We deny the motion for reconsideration.

Martinez and Quisumbing, JJ., concur. Narvasa, C.J., is on leave, I certify that Narvasa, C.J., concurs in the dissenting opinions of Romero, J. Regalado, J., I concur in the dissenting opinion of Romero J. Davide, Jr., J., I certify that Davide, Jr., J., concurs in the dissenting opinion of Romero, J. Romero, J., Please see Dissenting Opinion. Bellosillo, J., For insufficiency of evidence, I vote for acquitted of petition. See Concuring Opinion. Melo, J., I also concur in the separate opinion of Justice Kapunan. Puno, J., I vote for acquittal: (1) petitioner's trial was not impartial, and (2) petitioner was convicted by a Division of the Sandiganbayan without jurisdiction. Vitug, J., I vote for remanding the case in order to allow the corrections of the perceived "irregularities" in the proceeding below: Kapunan, J., See separate concurring opionion. Mendoza, J., I concur on the ground of insufficiency of evidence. Panganiban, J., Pls. see Dissenting Opinion.

1. It must be emphasized that as in all motions for reconsideration, the burden is upon the movants, petitioner herein, to show that there are compelling reasons to reconsider the decision of the Court. 2. After a thorough consideration of the matters raised in the motion for reconsideration, the Court is of the view that no compelling reasons have been established by petitioners to warrant a reconsideration of the Court's decision. The death of Mr. Marcos, although it may be viewed as a supervening event, has not changed the factual scenario under which the Court's decision was rendered. The threats to the government, to which the return of the Marcoses has been viewed to provide a catalytic effect, have not been shown to have ceased. On the contrary, instead of erasing fears as to the destabilization that will be caused by the return of the Marcoses, Mrs. Marcos reinforced the basis for the decision to bar their return when she called President Aquino "illegal," claiming that it is Mr. Marcos, not Mrs. Aquino, who is the "legal" President of the Philippines, and declared that the matter "should be brought to all the courts of the world." [Comment, p. 1; Philippine Star, October 4, 1989.] 3. Contrary to petitioners' view, it cannot be denied that the President, upon whom executive power is vested, has unstated residual powers which are implied from the grant of executive power and which are necessary for her to comply with her duties under the Constitution. The powers of the President are not limited to what are expressly enumerated in the article on the Executive Department and in scattered provisions of the Constitution. This is so, notwithstanding the avowed intent of the members of the Constitutional Commission of 1986 to limit the powers of the President as a reaction to the abuses under the regime of Mr. Marcos, for the result was a limitation of specific power of the President, particularly those relating to the commander-in-chief clause, but not a diminution of the general grant

be confused with the power of the President under the 1973 Constitution to legislate pursuant to Amendment No. 6 which provides: Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action, he may, in order to meet the exigency, issue the necessary decrees, orders, or letters of instruction, which shall form part of the law of the land, There is no similarity between the residual powers of the President under the 1987 Constitution and the power of the President under the 1973 Constitution pursuant to Amendment No. 6. First of all, Amendment No. 6 refers to an express grant of power. It is not implied. Then, Amendment No. 6 refers to a grant to the President of thespecific power of legislation. 4. Among the duties of the President under the Constitution, in compliance with his (or her) oath of office, is to protect and promote the interest and welfare of the people. Her decision to bar the return of the Marcoses and subsequently, the remains of Mr. Marcos at the present time and under present circumstances is in compliance with this bounden duty. In the absence of a clear showing that she had acted with arbitrariness or with grave abuse of discretion in arriving at this decision, the Court will not enjoin the implementation of this decision. ACCORDINGLY, the Court resolved to DENY the Motion for Reconsideration for lack of merit." Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 74930 February 13, 1989 RICARDO VALMONTE, OSWALDO CARBONELL, DOY DEL CASTILLO, ROLANDO BARTOLOME, LEO OBLIGAR, JUN GUTIERREZ, REYNALDO BAGATSING, JUN "NINOY" ALBA, PERCY LAPID, ROMMEL CORRO and ROLANDO FADUL, petitioners, vs. FELICIANO BELMONTE, JR., respondent.

of executive power.

That the President has powers other than those expressly stated in the Constitution is nothing new. This is recognized under the U.S. Constitution from which we have patterned the distribution of governmental powers among three (3) separate branches. Article II, [section] 1, provides that "The Executive Power shall be vested in a President of the United States of America." In Alexander Hamilton's widely accepted view, this statement cannot be read as mere shorthand for the specific executive authorizations that follow it in [sections] 2 and 3. Hamilton stressed the difference between the sweeping language of article II, section 1, and the conditional language of article I, [section] 1: "All legislative Powers herein granted shall be vested in a Congress of the United States . . ." Hamilton submitted that "[t]he [article III enumeration [in sections 2 and 31 ought therefore to be considered, as intended merely to specify the principal articles implied in the definition of execution power; leaving the rest to flow from the general grant of that power, interpreted in confomity with other parts of the Constitution... In Myers v. United States, the Supreme Court accepted Hamilton's proposition, concluding that the federal executive, unlike the Congress, could exercise power from sources not enumerated, so long as not forbidden by the constitutional text: the executive power was given in general terms, strengthened by specific terms where emphasis was regarded as appropriate, and was limited by direct expressions where limitation was needed. . ." The language of Chief Justice Taft in Myers makes clear that the constitutional concept of inherent power is not a synonym for power without limit; rather, the concept suggests only that not all powers granted in the Constitution are themselves exhausted by internal enumeration, so that, within a sphere properly regarded as one of "executive' power, authority is implied unless there or elsewhere expressly limited. [TRIBE, AMERICAN CONSTITUTIONAL LAW 158-159 (1978).] And neither can we subscribe to the view that a recognition of the President's implied or residual powers is tantamount to setting the stage for another dictatorship. Despite petitioners' strained analogy, the residual powers of the President under the Constitution should not

Ricardo C. Valmonte for and in his own behalf and his co-petitioners. The Solicitor General for respondent.

CORTES, J.: Petitioners in this special civil action for mandamus with preliminary injunction invoke their right to information and pray that respondent be directed:

(a) to furnish petitioners the list of the names of the Batasang Pambansa members belonging to the UNIDO and PDP-Laban who were able to secure clean loans immediately before the February 7 election thru the intercession/marginal note of the then First Lady Imelda Marcos; and/or (b) to furnish petitioners with certified true copies of the documents evidencing their respective loans; and/or

(c) to allow petitioners access to the public records for the subject information. (Petition, pp. 4-5; paragraphing supplied.] The controversy arose when petitioner Valmonte wrote respondent Belmonte the following letter: June 4, 1986 Hon. Feliciano Belmonte GSIS General Manager Arroceros, Manila Sir: As a lawyer, member of the media and plain citizen of our Republic, I am requesting that I be furnished with the list of names of the opposition members of (the) Batasang Pambansa who were able to secure a clean loan of P2 million each on guarranty (sic) of Mrs. Imelda Marcos. We understand that OIC Mel Lopez of Manila was one of those aforesaid MPs. Likewise, may we be furnished with the certified true copies of the documents evidencing their loan. Expenses in connection herewith shall be borne by us. If we could not secure the above documents could we have access to them? We are premising the above request on the following provision of the Freedom Constitution of the present regime. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions or decisions, shall be afforded the citizen subject to such limitation as may be provided by law. (Art. IV, Sec. 6). We trust that within five (5) days from receipt hereof we will receive your favorable response on the matter.

this confidentiality; and that it would not be proper for the GSIS to breach this confidentiality unless so ordered by the courts. As a violation of this confidentiality may mar the image of the GSIS as a reputable financial institution, I regret very much that at this time we cannot respond positively to your request. Very truly yours, (Sgd.) MEYNARDO A. TIRO Deputy General Counsel [Rollo, p. 40.] On June 20, 1986, apparently not having yet received the reply of the Government Service and Insurance System (GSIS) Deputy General Counsel, petitioner Valmonte wrote respondent another letter, saying that for failure to receive a reply, "(W)e are now considering ourselves free to do whatever action necessary within the premises to pursue our desired objective in pursuance of public interest." [Rollo, p. 8.] On June 26, 1986, Valmonte, joined by the other petitioners, filed the instant suit. On July 19, 1986, the Daily Express carried a news item reporting that 137 former members of the defunct interim and regular Batasang Pambansa, including ten (10) opposition members, were granted housing loans by the GSIS [Rollo, p. 41.] Separate comments were filed by respondent Belmonte and the Solicitor General. After petitioners filed a consolidated reply, the petition was given due course and the parties were required to file their memoranda. The parties having complied, the case was deemed submitted for decision. In his comment respondent raises procedural objections to the issuance of a writ of mandamus, among which is that petitioners have failed to exhaust administrative remedies. Respondent claims that actions of the GSIS General Manager are reviewable by the Board of Trustees of the GSIS. Petitioners, however, did not seek relief from the GSIS Board of Trustees. It is therefore asserted that since administrative remedies were not exhausted, then petitioners have no cause of action. To this objection, petitioners claim that they have raised a purely legal issue, viz., whether or not they are entitled to the documents sought, by virtue of their constitutional right to information. Hence, it is argued that this case falls under one of the exceptions to the principle of exhaustion of administrative remedies. Among the settled principles in administrative law is that before a party can be allowed to resort to the courts, he is expected to have exhausted all means of administrative redress available under the law. The courts for reasons of law, comity and convenience will not entertain a case unless the available administrative remedies have been resorted to and the appropriate authorities have been given opportunity to act and correct the errors committed in the administrative forum. However, the principle of exhaustion of administrative remedies is subject to settled exceptions, among which is when only a question of law is involved [Pascual v. Provincial Board, 106 Phil. 466 (1959); Aguilar v. Valencia, et al., G.R. No. L-30396, July 30, 1971, 40 SCRA 210; Malabanan v. Ramento, G.R. No. L-2270, May 21, 1984, 129 SCRA 359.] The issue raised by petitioners, which requires the interpretation of the scope of the constitutional right to information, is one which can be passed upon by the regular courts more competently than the GSIS or its Board of Trustees, involving as it does a purely legal question. Thus, the exception of this case from the application of the general rule on exhaustion of administrative remedies is warranted. Having disposed of this procedural issue, We now address ourselves to the issue of whether or not mandamus hes to compel respondent to perform the acts sought by petitioners to be done, in pursuance of their right to information. We shall deal first with the second and third alternative acts sought to be done, both of which involve the issue of whether or not petitioners are entitled to access to the documents evidencing loans granted by the GSIS. This is not the first time that the Court is confronted with a controversy directly involving the constitutional right to information. In Taada v. Tuvera, G.R. No. 63915, April 24,1985, 136 SCRA 27 and

[Rollo, p. 7.] To the aforesaid letter, the Deputy General Counsel of the GSIS replied: June 17, 1986 Atty. Ricardo C. Valmonte 108 E. Benin Street Caloocan City Dear Compaero: Possibly because he must have thought that it contained serious legal implications, President & General Manager Feliciano Belmonte, Jr. referred to me for study and reply your letter to him of June 4, 1986 requesting a list of the opposition members of Batasang Pambansa who were able to secure a clean loan of P2 million each on guaranty of Mrs. Imelda Marcos. My opinion in this regard is that a confidential relationship exists between the GSIS and all those who borrow from it, whoever they may be; that the GSIS has a duty to its customers to preserve

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

The Court has always grappled with the meanings of the terms "public interest" and "public concern". As observed in Legazpi: In determining whether or not a particular information is of public concern there is no rigid test which can be applied. "Public concern" like "public interest" is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citezen. In the final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public. [Ibid. at p. 541] In the Taada case the public concern deemed covered by the constitutional right to information was the need for adequate notice to the public of the various laws which are to regulate the actions and conduct of citezens. InLegaspi, it was the "legitimate concern of citezensof ensure that government positions requiring civil service eligibility are occupied only by persons who are eligibles" [Supra at p. 539.] The information sought by petitioners in this case is the truth of reports that certain Members of the Batasang Pambansa belonging to the opposition were able to secure "clean" loans from the GSIS immediately before the February 7, 1986 election through the intercession of th eformer First Lady, Mrs. Imelda Marcos. The GSIS is a trustee of contributions from the government and its employees and the administrator of various insurance programs for the benefit of the latter. Undeniably, its funds assume a public character. More particularly, Secs. 5(b) and 46 of P.D. 1146, as amended (the Revised Government Service Insurance Act of 1977), provide for annual appropriations to pay the contributions, premiums, interest and other amounts payable to GSIS by the government, as employer, as well as the obligations which the Republic of the Philippines assumes or guarantees to pay. Considering the nature of its funds, the GSIS is expected to manage its resources with utmost prudence and in strict compliance with the pertinent laws or rules and regulations. Thus, one of the reasons that prompted the revision of the old GSIS law (C.A. No. 186, as amended) was the necessity "to preserve at all times the actuarial solvency of the funds administered by the System" [Second Whereas Clause, P.D. No. 1146.] Consequently, as respondent himself admits, the GSIS "is not supposed to grant 'clean loans.'" [Comment, p. 8.] It is therefore the legitimate concern of the public to ensure that these funds are managed properly with the end in view of maximizing the benefits that accrue to the insured government employees. Moreover, the supposed borrowers were Members of the defunct Batasang Pambansa who themselves appropriated funds for the GSIS and were therefore expected to be the first to see to it that the GSIS performed its tasks with the greatest degree of fidelity and that an its transactions were above board. In sum, the public nature of the loanable funds of the GSIS and the public office held by the alleged borrowers make the information sought clearly a matter of public interest and concern. A second requisite must be met before the right to information may be enforced through mandamus proceedings,viz., that the information sought must not be among those excluded by law. Respondent maintains that a confidential relationship exists between the GSIS and its borrowers. It is argued that a policy of confidentiality restricts the indiscriminate dissemination of information. Yet, respondent has failed to cite any law granting the GSIS the privilege of confidentiality as regards the documents subject of this petition. His position is apparently based merely on considerations of policy. The judiciary does not settle policy issues. The Court can only declare what the law is, and not what the law should be. Under our system of government, policy issues are within the domain of the political branches of the government, and of the people themselves as the repository of all State power. Respondent however contends that in view of the right to privacy which is equally protected by the Constitution and by existing laws, the documents evidencing loan transactions of the GSIS must be deemed outside the ambit of the right to information. There can be no doubt that right to privacy is constitutionally protected. In the landmark case of Morfe v. Mutuc[130 Phil. 415

(1968), 22 SCRA 424], this Court, speaking through then Mr. Justice Fernando, stated: ... The right to privacy as such is accorded recognition independently of its identification with liberty; in itself, it is fully deserving of constitutional protection. The language of Prof. Emerson is particularly apt: "The concept of limited government has always included the idea that governmental powers stop short of certain intrusions into the personal life of the citizen. This is indeed one of the basic distinctions between absolute and limited government. UItimate and pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute. state, In contrast, a system of limited government safeguards a private sector, which belongs to the individual, firmly distinguishing it from the public sector, which the state can control. Protection of this private sector protection, in other words, of the dignity and integrity of the individual has become increasingly important as modem society has developed. All the forces of technological age industrialization, urbanization, and organization operate to narrow the area of privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and support this enclave of private life marks the difference between a democratic and a totalitarian society." [at pp. 444445.] When the information requested from the government intrudes into the privacy of a citizen, a potential conflict between the rights to information and to privacy may arise. However, the competing interests of these rights need not be resolved in this case. Apparent from the above-quoted statement of the Court in Morfe is that the right to privacy belongs to the individual in his private capacity, and not to public and governmental agencies like the GSIS. Moreover, the right cannot be invoked by juridical entities like the GSIS. As held in the case of Vassar College v. Loose Wills Biscuit Co. [197 F. 982 (1912)], a corporation has no right of privacy in its name since the entire basis of the right to privacy is an injury to the feelings and sensibilities of the party and a corporation would have no such ground for relief. Neither can the GSIS through its General Manager, the respondent, invoke the right to privacy of its borrowers. The right is purely personal in nature [Cf. Atkinson v. John Doherty & Co., 121 Mich 372, 80 N.W. 285, 46 L.RA. 219 (1899); Schuyler v. Curtis, 147 N.Y. 434, 42 N.E. 22, 31 L.R.A. 286 (1895)), and hence may be invoked only by the person whose privacy is claimed to be violated. It may be observed, however, that in the instant case, the concerned borrowers themselves may not succeed if they choose to invoke their right to privacy, considering the public offices they were holding at the time the loans were alleged to have been granted. It cannot be denied that because of the interest they generate and their newsworthiness, public figures, most especially those holding responsible positions in government, enjoy a more limited right to privacy as compared to ordinary individuals, their actions being subject to closer public scrutiny [Cf.Ayer Productions Pty. Ltd. v. Capulong, G.R. Nos. 82380 and 82398, April 29, 1988; See also Cohen v. Marx, 211 P. 2d 321 (1949).] Respondent next asserts that the documents evidencing the loan transactions of the GSIS are private in nature and hence, are not covered by the Constitutional right to information on matters of public concern which guarantees "(a)ccess to official records, and to documents, and papers pertaining to official acts, transactions, or decisions" only. It is argued that the records of the GSIS, a government corporation performing proprietary functions, are outside the coverage of the people's right of access to official records. It is further contended that since the loan function of the GSIS is merely incidental to its insurance function, then its loan transactions are not covered by the constitutional policy of full public disclosure and the right to information which is applicable only to "official" transactions. First of all, the "constituent ministrant" dichotomy characterizing government function has long been repudiated. In ACCFA v. 6441, the Court said that the government, whether carrying out its

sovereign attributes or running some business, discharges the same function of service to the people. Consequently, that the GSIS, in granting the loans, was exercising a proprietary function would not justify the exclusion of the transactions from the coverage and scope of the right to information. Moreover, the intent of the members of the Constitutional Commission of 1986, to include government-owned and controlled corporations and transactions entered into by them within the coverage of the State policy of fun public disclosure is manifest from the records of the proceedings: xxx xxx xxx THE PRESIDING OFFICER (Mr. Colayco). Commissioner Suarez is recognized. MR. SUAREZ. Thank you. May I ask the Gentleman a few question? MR. OPLE. Very gladly. MR. SUAREZ. Thank you. When we declare a "policy of full public disclosure of all its transactions" referring to the transactions of the State and when we say the "State" which I suppose would include all of the various agencies, departments, ministries and instrumentalities of the government.... MR. OPLE. Yes, and individual public officers, Mr. Presiding Officer. MR. SUAREZ. Including government-owned and

controlled corporations.

MR. OPLE. That is correct, Mr. Presiding Officer. MR. SUAREZ. And when we say "transacti ons" which should be distinguis hed from contracts, agreemen ts, or treaties or whatever, does the Gentlema n refer to the steps leading to the consumm ation of the contract, or does he refer to the contract itself? MR. OPLE.

Confederation of Unions and Government Corporations and Offices (G.R. Nos. L-21484 and L-23605, November 29, 1969, 30 SCRA

The "transacti ons" used

here I suppose is generic and, therefore, it can cover both steps leading to a contract, and already a consumm ated contract, Mr. Presiding Officer.
MR. SUAREZ. This contempl ates inclusion of negotiatio ns leading to the consumm ation of the transactio n. MR. OPLE. Yes, subject only to reasonabl e safeguard s on the national interest. MR. SUAREZ. Thank you. [V Record of the Constituti onal Commissi on 2425.] (Emphasi s supplied.) Considering the intent of the framers of the Constitution which, though not binding upon the Court, are nevertheless persuasive, and considering further that government-owned and controlled corporations, whether performing proprietary or governmental functions are accountable to the people, the Court is convinced that transactions entered into by the GSIS, a government-controlled corporation created by special legislation are within the ambit of the people's right to be informed pursuant to the constitutional policy of transparency in government dealings. In fine, petitioners are entitled to access to the documents evidencing loans granted by the GSIS, subject to reasonable regulations that the latter may promulgate relating to the manner and hours of examination, to the end that damage to or loss of the records may be avoided, that undue interference with the duties of the custodian of the records may be prevented and that the right of other persons entitled to inspect the records may be insured [Legaspi v. Civil Service Commission, supra at p. 538, quoting Subido v. Ozaeta, 80 Phil. 383, 387.] The petition, as to the second and third alternative acts sought to be done by petitioners, is meritorious.

However, the same cannot be said with regard to the first act sought by petitioners, i.e., "to furnish petitioners the list of the names of the Batasang Pambansa members belonging to the UNIDO and PDP-Laban who were able to secure clean loans immediately before the February 7 election thru the intercession/marginal note of the then First Lady Imelda Marcos." Although citizens are afforded the right to information and, pursuant thereto, are entitled to "access to official records," the Constitution does not accord them a right to compel custodians of official records to prepare lists, abstracts, summaries and the like in their desire to acquire information on matters of public concern. It must be stressed that it is essential for a writ of mandamus to issue that the applicant has a well-defined, clear and certain legal right to the thing demanded and that it is the imperative duty of defendant to perform the act required. The corresponding duty of the respondent to perform the required act must be clear and specific [Lemi v. Valencia, G.R. No. L-20768, November 29,1968,126 SCRA 203; Ocampo v. Subido, G.R. No. L-28344, August 27, 1976, 72 SCRA 443.] The request of the petitioners fails to meet this standard, there being no duty on the part of respondent to prepare the list requested. WHEREFORE, the instant petition is hereby granted and respondent General Manager of the Government Service Insurance System is ORDERED to allow petitioners access to documents and records evidencing loans granted to Members of the former Batasang Pambansa, as petitioners may specify, subject to reasonable regulations as to the time and manner of inspection, not incompatible with this decision, as the GSIS may deem necessary. SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Grio-Aquino, Medialdea and Regalado, JJ., concur.
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-56350 April 2, 1981 SAMUEL C. OCCENA, petitioner, vs. THE COMMISSION ON ELECTIONS, THE COMMISSION ON AUDIT, THE NATIONAL TREASURER, THE DIRECTOR OF PRINTING, respondents.

G.R. No. L-56404 April 2, 1981 RAMON A. GONZALES, MANUEL B. IMBONG, JO AUREA MARCOS-IMBONG, RAY ALLAN T. DRILON, NELSON B. MALANA and GIL M. TABIOS, petitioners, vs. THE NATIONAL TREASURER and the COMMISSION ON ELECTIONS, respondents.

FERNANDO, C.J.: The challenge in these two prohibition proceedings against the validity of three Batasang Pambansa Resolutions 1proposing constitutional amendments, goes further than merely assailing their alleged constitutional infirmity. Petitioners Samuel Occena and Ramon A. Gonzales, both members of the Philippine Bar and former delegates to the 1971 Constitutional Convention that framed the present Constitution, are suing as taxpayers. The rather unorthodox aspect of these petitions is the assertion that the 1973 Constitution is not the fundamental law, the Javellana 2 ruling to the contrary notwithstanding. To put it at its mildest, such an approach has the arresting charm of novelty but nothing else. It is in fact self defeating, for if such were indeed the case, petitioners have come to the wrong forum. We sit as a Court duty-bound to uphold and apply that Constitution. To contend otherwise as was done here would be, quite clearly, an exercise in futility. Nor are the arguments of

petitioners cast in the traditional form of constitutional litigation any more persuasive. For reasons to be set forth, we dismiss the petitions. The suits for prohibition were filed respectively on March 6 3 and March 12, 1981. 4 On March 10 and 13 respectively, respondents were required to answer each within ten days from notice. 5 There was a comment on the part of the respondents. Thereafter, both cases were set for hearing and were duly argued on March 26 by petitioners and Solicitor General Estelito P. Mendoza for respondents. With the submission of pertinent data in amplification of the oral argument, the cases were deemed submitted for decision. It is the ruling of the Court, as set forth at the outset, that the petitions must be dismissed. 1. It is much too late in the day to deny the force and applicability of the 1973 Constitution. In the dispositive portion of Javellana v. The Executive Secretary, 6 dismissing petitions for prohibition and mandamus to declare invalid its ratification, this Court stated that it did so by a vote of six 7 to four. 8 It then concluded: "This being the vote of the majority, there is no further judicial obstacle to the new Constitution being considered in force and effect." 9 Such a statement served a useful purpose. It could even be said that there was a need for it. It served to clear the atmosphere. It made manifest that, as of January 17, 1973, the present Constitution came into force and effect. With such a pronouncement by the Supreme Court and with the recognition of the cardinal postulate that what the Supreme Court says is not only entitled to respect but must also be obeyed, a factor for instability was removed. Thereafter, as a matter of law, all doubts were resolved. The 1973 Constitution is the fundamental law. It is as simple as that. What cannot be too strongly stressed is that the function of judicial review has both a positive and a negative aspect. As was so convincingly demonstrated by Professors Black 10 and Murphy, 11 the Supreme Court can check as well as legitimate. In declaring what the law is, it may not only nullify the acts of coordinate branches but may also sustain their validity. In the latter case, there is an affirmation that what was done cannot be stigmatized as constitutionally deficient. The mere dismissal of a suit of this character suffices. That is the meaning of the concluding statement in Javellana. Since then, this Court has invariably applied the present Constitution. The latest case in point is People v. Sola, 12 promulgated barely two weeks ago. During the first year alone of the effectivity of the present Constitution, at least ten cases may be cited. 13 2. We come to the crucial issue, the power of the Interim Batasang Pambansa to propose amendments and how it may be exercised. More specifically as to the latter, the extent of the changes that may be introduced, the number of votes necessary for the validity of a proposal, and the standard required for a proper submission. As was stated earlier, petitioners were unable to demonstrate that the challenged resolutions are tainted by unconstitutionality. (1) The existence of the power of the Interim Batasang Pambansa is indubitable. The applicable provision in the 1976 Amendments is quite explicit. Insofar as pertinent it reads thus: "The Interim Batasang Pambansa shall have the same powers and its Members shall have the same functions, responsibilities, rights, privileges, and disqualifications as the interim National Assembly and the regular National Assembly and the Members thereof." 14One of such powers is precisely that of proposing amendments. The 1973 Constitution in its Transitory Provisions vested the Interim National Assembly with the power to propose amendments upon special call by the Prime Minister by a vote of the majority of its members to be ratified in accordance with the Article on Amendments. 15When, therefore, the Interim Batasang Pambansa, upon the call of the President and Prime Minister Ferdinand E. Marcos, met as a constituent body it acted by virtue Of such impotence Its authority to do so is clearly beyond doubt. It could and did propose the amendments embodied in the resolutions now being assailed. It may be observed parenthetically that as far as petitioner Occena is Concerned, the question of the authority of the InterimBatasang Pambansa to propose amendments is not new. In Occena v. Commission on Elections, 16 filed by the same petitioner, decided on January 28, 1980, such a question was involved although not directly passed upon. To quote from the opinion of the Court penned by Justice Antonio in that case: "Considering that the proposed amendment of Section 7 of Article X of the Constitution extending the retirement of members of the Supreme Court and judges of inferior courts from sixty-five (65) to seventy (70) years is but a restoration of the age of retirement provided in the 1935 Constitution and has been intensively and extensively discussed at the Interim Batasang Pambansa, as well as through the mass media, it cannot, therefore, be said that our people are unaware of the advantages and disadvantages of the proposed amendment." 17 (2) Petitioners would urge upon us the proposition that the amendments proposed are so extensive in character that they go far

beyond the limits of the authority conferred on the Interim Batasang Pambansa as Successor of the Interim National Assembly. For them, what was done was to revise and not to amend. It suffices to quote from the opinion of Justice Makasiar, speaking for the Court, in Del Rosario v. Commission on Elections 18 to dispose of this contention. Thus: "3. And whether the Constitutional Convention will only propose amendments to the Constitution or entirely overhaul the present Constitution and propose an entirely new Constitution based on an Ideology foreign to the democratic system, is of no moment; because the same will be submitted to the people for ratification. Once ratified by the sovereign people, there can be no debate about the validity of the new Constitution. 4. The fact that the present Constitution may be revised and replaced with a new one ... is no argument against the validity of the law because 'amendment' includes the 'revision' or total overhaul of the entire Constitution. At any rate, whether the Constitution is merely amended in part or revised or totally changed would become immaterial the moment the same is ratified by the sovereign people." 19 There is here the adoption of the principle so well-known in American decisions as well as legal texts that a constituent body can propose anything but conclude nothing. 20 We are not disposed to deviate from such a principle not only sound in theory but also advantageous in practice. (3) That leaves only the questions of the vote necessary to propose amendments as well as the standard for proper submission. Again, petitioners have not made out a case that calls for a judgment in their favor. The language of the Constitution supplies the answer to the above questions. The Interim Batasang Pambansa, sitting as a constituent body, can propose amendments. In that capacity, only a majority vote is needed. It would be an indefensible proposition to assert that the three-fourth votes required when it sits as a legislative body applies as well when it has been convened as the agency through which amendments could be proposed. That is not a requirement as far as a constitutional convention is concerned. It is not a requirement either when, as in this case, the Interim Batasang Pambansa exercises its constituent power to propose amendments. Moreover, even on the assumption that the requirement of three- fourth votes applies, such extraordinary majority was obtained. It is not disputed that Resolution No. 1 proposing an amendment allowing a natural-born citizen of the Philippines naturalized in a foreign country to own a limited area of land for residential purposes was approved by the vote of 122 to 5; Resolution No. 2 dealing with the Presidency, the Prime Minister and the Cabinet, and the National Assembly by a vote of 147 to 5 with 1 abstention; and Resolution No. 3 on the amendment to the Article on the Commission on Elections by a vote of 148 to 2 with 1 abstention. Where then is the alleged infirmity? As to the requisite standard for a proper submission, the question may be viewed not only from the standpoint of the period that must elapse before the holding of the plebiscite but also from the standpoint of such amendments having been called to the attention of the people so that it could not plausibly be maintained that they were properly informed as to the proposed changes. As to the period, the Constitution indicates the way the matter should be resolved. There is no ambiguity to the applicable provision: "Any amendment to, or revision of, this Constitution shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not later than three months after the approval of such amendment or revision." 21 The three resolutions were approved by the InterimBatasang Pambansa sitting as a constituent assembly on February 5 and 27, 1981. In the Batasang Pambansa Blg. 22, the date of the plebiscite is set for April 7, 1981. It is thus within the 90-day period provided by the Constitution. Thus any argument to the contrary is unavailing. As for the people being adequately informed, it cannot be denied that this time, as in the cited 1980 Occena opinion of Justice Antonio, where the amendment restored to seventy the retirement age of members of the judiciary, the proposed amendments have "been intensively and extensively discussed at the Interim Batasang Pambansa, as well as through the mass media, [ so that ] it cannot, therefore, be said that our people are unaware of the advantages and disadvantages of the proposed amendment [ s ]." 22 WHEREFORE, the petitions are dismissed for lack of merit. No costs.

Barredo, Makasiar, Aquino Concepcion, Jr., Fernandez, Guerrero, De Castro and Melencio-Herrera, JJ., concur. Abad Santos, J., is on leave.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 101083 July 30, 1993 JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and represented by their parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA, minor, represented by her parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD and PATRISHA, all surnamed FLORES, minors and represented by their parents ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN, minor, represented by her parents SIGRID and DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all surnamed MISA, minors and represented by their parents GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN, minor, represented by his parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO, minor, represented by her parents JOSE and MARIA VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO, minor, represented by her parents FREDENIL and JANE CASTRO, JOHANNA DESAMPARADO, minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN T. NARVASA, minor, represented by his parents GREGORIO II and CRISTINE CHARITY NARVASA, MA. MARGARITA, JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all surnamed SAENZ, minors, represented by their parents ROBERTO and AURORA SAENZ, KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID IAN, all surnamed KING, minors, represented by their parents MARIO and HAYDEE KING, DAVID, FRANCISCO and THERESE VICTORIA, all surnamed ENDRIGA, minors, represented by their parents BALTAZAR and TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA, minors, represented by their parents ANTONIO and MARICA ABAYA, MARILIN, MARIO, JR. and MARIETTE, all surnamed CARDAMA, minors, represented by their parents MARIO and LINA CARDAMA, CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all surnamed OPOSA, minors and represented by their parents RICARDO and MARISSA OPOSA, PHILIP JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all surnamed QUIPIT, minors, represented by their parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL and FRANCISCO, all surnamed BIBAL, minors, represented by their parents FRANCISCO, JR. and MILAGROS BIBAL, and THE PHILIPPINE ECOLOGICAL NETWORK, INC., petitioners, vs. THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of the Department of Environment and Natural Resources, and THE HONORABLE ERIBERTO U. ROSARIO, Presiding Judge of the RTC, Makati, Branch 66, respondents.

Department of Environment and Natural Resources (DENR). His substitution in this petition by the new Secretary, the Honorable Angel C. Alcala, was subsequently ordered upon proper motion by the petitioners. 1 The complaint2 was instituted as a taxpayers' class suit 3 and alleges that the plaintiffs "are all citizens of the Republic of the Philippines, taxpayers, and entitled to the full benefit, use and enjoyment of the natural resource treasure that is the country's virgin tropical forests." The same was filed for themselves and others who are equally concerned about the preservation of said resource but are "so numerous that it is impracticable to bring them all before the Court." The minors further asseverate that they "represent their generation as well as generations yet unborn." 4Consequently, it is prayed for that judgment be rendered: . . . ordering defendant, his agents, representatives and other persons acting in his behalf to (1) Cancel all existing timber license agreements in the country; (2) Cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements. and granting the plaintiffs ". . . such other reliefs just and equitable under the premises." 5 The complaint starts off with the general averments that the Philippine archipelago of 7,100 islands has a land area of thirty million (30,000,000) hectares and is endowed with rich, lush and verdant rainforests in which varied, rare and unique species of flora and fauna may be found; these rainforests contain a genetic, biological and chemical pool which is irreplaceable; they are also the habitat of indigenous Philippine cultures which have existed, endured and flourished since time immemorial; scientific evidence reveals that in order to maintain a balanced and healthful ecology, the country's land area should be utilized on the basis of a ratio of fifty-four per cent (54%) for forest cover and forty-six per cent (46%) for agricultural, residential, industrial, commercial and other uses; the distortion and disturbance of this balance as a consequence of deforestation have resulted in a host of environmental tragedies, such as (a) water shortages resulting from drying up of the water table, otherwise known as the "aquifer," as well as of rivers, brooks and streams, (b) salinization of the water table as a result of the intrusion therein of salt water, incontrovertible examples of which may be found in the island of Cebu and the Municipality of Bacoor, Cavite, (c) massive erosion and the consequential loss of soil fertility and agricultural productivity, with the volume of soil eroded estimated at one billion (1,000,000,000) cubic meters per annum approximately the size of the entire island of Catanduanes, (d) the endangering and extinction of the country's unique, rare and varied flora and fauna, (e) the disturbance and dislocation of cultural communities, including the disappearance of the Filipino's indigenous cultures, (f) the siltation of rivers and seabeds and consequential destruction of corals and other aquatic life leading to a critical reduction in marine resource productivity, (g) recurrent spells of drought as is presently experienced by the entire country, (h) increasing velocity of typhoon winds which result from the absence of windbreakers, (i) the floodings of lowlands and agricultural plains arising from the absence of the absorbent mechanism of forests, (j) the siltation and shortening of the lifespan of multi-billion peso dams constructed and operated for the purpose of supplying water for domestic uses, irrigation and the generation of electric power, and (k) the reduction of the earth's capacity to process carbon dioxide gases which has led to perplexing and catastrophic climatic changes such as the phenomenon of global warming, otherwise known as the "greenhouse effect." Plaintiffs further assert that the adverse and detrimental consequences of continued and deforestation are so capable of unquestionable demonstration that the same may be submitted as a matter of judicial notice. This notwithstanding, they expressed their intention to present expert witnesses as well as documentary, photographic and film evidence in the course of the trial. As their cause of action, they specifically allege that:

Oposa Law Office for petitioners. The Solicitor General for respondents.

DAVIDE, JR., J.: In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful ecology which the petitioners dramatically associate with the twin concepts of "inter-generational responsibility" and "inter-generational justice." Specifically, it touches on the issue of whether the said petitioners have a cause of action to "prevent the misappropriation or impairment" of Philippine rainforests and "arrest the unabated hemorrhage of the country's vital life support systems and continued rape of Mother Earth." The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66 (Makati, Metro Manila) of the Regional Trial Court (RTC), National Capital Judicial Region. The principal plaintiffs therein, now the principal petitioners, are all minors duly represented and joined by their respective parents. Impleaded as an additional plaintiff is the Philippine Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit corporation organized for the purpose of, inter alia, engaging in concerted action geared for the protection of our environment and natural resources. The original defendant was the Honorable Fulgencio S. Factoran, Jr., then Secretary of the

CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing allegations. 8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares of rainforests

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

Environmental Policy which, in pertinent part, states that it is the policy of the State (a) to create, develop, maintain and improve conditions under which man and nature can thrive in productive and enjoyable harmony with each other; (b) to fulfill the social, economic and other requirements of present and future generations of Filipinos and; (c) to ensure the attainment of an environmental quality that is conductive to a life of dignity and well-being. (P.D. 1151, 6 June 1977) 20. Furthermore, defendant's continued refusal to cancel the aforementioned TLA's is contradictory to the Constitutional policy of the State to a. effect "a more equitable distribution of opportunities, income and wealth" and "make full and efficient use of natural resources (sic)." (Section 1, Article XII of the Constitution); b. "protect the nation's marine wealth." (Section 2, ibid); c. "conserve and promote the nation's cultural heritage and resources (sic)" (Section 14, Article XIV,id.); d. "protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature." (Section 16, Article II, id.) 21. Finally, defendant's act is contrary to the highest law of humankind the natural law and violative of plaintiffs' right to self-preservation and perpetuation. 22. There is no other plain, speedy and adequate remedy in law other than the instant action to arrest the unabated hemorrhage of the country's vital life support systems and continued rape of Mother Earth. 6 On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss the complaint based on two (2) grounds, namely: (1) the plaintiffs have no cause of action against him and (2) the issue raised by the plaintiffs is a political question which properly pertains to the legislative or executive branches of Government. In their 12 July 1990 Opposition to the Motion, the petitioners maintain that (1) the complaint shows a clear and unmistakable cause of action, (2) the motion is dilatory and (3) the action presents a justiciable question as it involves the defendant's abuse of discretion. On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to dismiss. 7 In the said order, not only was the defendant's claim that the complaint states no cause of action against him and that it raises a political question sustained, the respondent Judge further ruled that the granting of the relief prayed for would result in the impairment of contracts which is prohibited by the fundamental law of the land. Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of Court and ask this Court to rescind and set aside the dismissal order on the ground that the respondent Judge gravely abused his discretion in dismissing the action. Again, the parents of the plaintiffs-minors not only represent their children, but have also joined the latter in this case. 8 On 14 May 1992, We resolved to give due course to the petition and required the parties to submit their respective Memoranda after the Office of the Solicitor General (OSG) filed a Comment in behalf of the respondents and the petitioners filed a reply thereto. Petitioners contend that the complaint clearly and unmistakably states a cause of action as it contains sufficient allegations concerning their right to a sound environment based on Articles 19, 20 and 21 of the Civil Code (Human Relations), Section 4 of Executive Order (E.O.) No.

192 creating the DENR, Section 3 of Presidential Decree (P.D.) No. 1151 (Philippine Environmental Policy), Section 16, Article II of the 1987 Constitution recognizing the right of the people to a balanced and healthful ecology, the concept of generational genocide in Criminal Law and the concept of man's inalienable right to self-preservation and self-perpetuation embodied in natural law. Petitioners likewise rely on the respondent's correlative obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a healthful environment. It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion in granting Timber License Agreements (TLAs) to cover more areas for logging than what is available involves a judicial question. Anent the invocation by the respondent Judge of the Constitution's non-impairment clause, petitioners maintain that the same does not apply in this case because TLAs are not contracts. They likewise submit that even if TLAs may be considered protected by the said clause, it is well settled that they may still be revoked by the State when the public interest so requires. On the other hand, the respondents aver that the petitioners failed to allege in their complaint a specific legal right violated by the respondent Secretary for which any relief is provided by law. They see nothing in the complaint but vague and nebulous allegations concerning an "environmental right" which supposedly entitles the petitioners to the "protection by the state in its capacity as parens patriae." Such allegations, according to them, do not reveal a valid cause of action. They then reiterate the theory that the question of whether logging should be permitted in the country is a political question which should be properly addressed to the executive or legislative branches of Government. They therefore assert that the petitioners' resources is not to file an action to court, but to lobby before Congress for the passage of a bill that would ban logging totally. As to the matter of the cancellation of the TLAs, respondents submit that the same cannot be done by the State without due process of law. Once issued, a TLA remains effective for a certain period of time usually for twenty-five (25) years. During its effectivity, the same can neither be revised nor cancelled unless the holder has been found, after due notice and hearing, to have violated the terms of the agreement or other forestry laws and regulations. Petitioners' proposition to have all the TLAs indiscriminately cancelled without the requisite hearing would be violative of the requirements of due process. Before going any further, We must first focus on some procedural matters. Petitioners instituted Civil Case No. 90-777 as a class suit. The original defendant and the present respondents did not take issue with this matter. Nevertheless, We hereby rule that the said civil case is indeed a class suit. The subject matter of the complaint is of common and general interest not just to several, but to all citizens of the Philippines. Consequently, since the parties are so numerous, it, becomes impracticable, if not totally impossible, to bring all of them before the court. We likewise declare that the plaintiffs therein are numerous and representative enough to ensure the full protection of all concerned interests. Hence, all the requisites for the filing of a valid class suit under Section 12, Rule 3 of the Revised Rules of Court are present both in the said civil case and in the instant petition, the latter being but an incident to the former. This case, however, has a special and novel element. Petitioners minors assert that they represent their generation as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves, for others of their generation and for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right, as hereinafter expounded, considers the "rhythm and harmony of nature." Nature means the created world in its entirety. 9 Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources to the end that their exploration, development and utilization be equitably accessible to the present as well as future generations. 10 Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. Put a little differently, the minors' assertion of their right to a sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of that right for the generations to come.

The locus standi of the petitioners having thus been addressed, We shall now proceed to the merits of the petition. After a careful perusal of the complaint in question and a meticulous consideration and evaluation of the issues raised and arguments adduced by the parties, We do not hesitate to find for the petitioners and rule against the respondent Judge's challenged order for having been issued with grave abuse of discretion amounting to lack of jurisdiction. The pertinent portions of the said order reads as follows: xxx xxx xxx After a careful and circumspect evaluation of the Complaint, the Court cannot help but agree with the defendant. For although we believe that plaintiffs have but the noblest of all intentions, it (sic) fell short of alleging, with sufficient definiteness, a specific legal right they are seeking to enforce and protect, or a specific legal wrong they are seeking to prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the Court notes that the Complaint is replete with vague assumptions and vague conclusions based on unverified data. In fine, plaintiffs fail to state a cause of action in its Complaint against the herein defendant. Furthermore, the Court firmly believes that the matter before it, being impressed with political color and involving a matter of public policy, may not be taken cognizance of by this Court without doing violence to the sacred principle of "Separation of Powers" of the three (3) co-equal branches of the Government. The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the country and to cease and desist from receiving, accepting, processing, renewing or approving new timber license agreements. For to do otherwise would amount to "impairment of contracts" abhored (sic) by the fundamental law. 11 We do not agree with the trial court's conclusions that the plaintiffs failed to allege with sufficient definiteness a specific legal right involved or a specific legal wrong committed, and that the complaint is replete with vague assumptions and conclusions based on unverified data. A reading of the complaint itself belies these conclusions. The complaint focuses on one specific fundamental legal right the right to a balanced and healthful ecology which, for the first time in our nation's constitutional history, is solemnly incorporated in the fundamental law. Section 16, Article II of the 1987 Constitution explicitly provides: Sec. 16. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. This right unites with the right to health which is provided for in the preceding section of the same article: Sec. 15. The State shall protect and promote the right to health of the people and instill health consciousness among them. While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies and not under the Bill of Rights, it does not follow that it is less important than any of the civil and political rights enumerated in the latter. Such a right belongs to a different category of rights altogether for it concerns nothing less than self-preservation and self-perpetuation aptly and fittingly stressed by the petitioners the advancement of which may even be said to predate all governments and constitutions. As a matter of fact, these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind. If they are now explicitly mentioned in the fundamental charter, it is because of the well-founded fear of its framers that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself, thereby highlighting their continuing

importance and imposing upon the state a solemn obligation to preserve the first and protect and advance the second, the day would not be too far when all else would be lost not only for the present generation, but also for those to come generations which stand to inherit nothing but parched earth incapable of sustaining life. The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment. During the debates on this right in one of the plenary sessions of the 1986 Constitutional Commission, the following exchange transpired between Commissioner Wilfrido Villacorta and Commissioner Adolfo Azcuna who sponsored the section in question: MR. VILLACORTA: Does this section mandate the State to provide sanctions against all forms of pollution air, water and noise pollution? MR. AZCUNA: Yes, Madam President. The right to healthful (sic) environment necessarily carries with it the correlative duty of not impairing the same and, therefore, sanctions may be provided for impairment of environmental balance. 12 The said right implies, among many other things, the judicious management and conservation of the country's forests. Without such forests, the ecological or environmental balance would be irreversiby disrupted. Conformably with the enunciated right to a balanced and healthful ecology and the right to health, as well as the other related provisions of the Constitution concerning the conservation, development and utilization of the country's natural resources, 13 then President Corazon C. Aquino promulgated on 10 June 1987 E.O. No. 192, 14Section 4 of which expressly mandates that the Department of Environment and Natural Resources "shall be the primary government agency responsible for the conservation, management, development and proper use of the country's environment and natural resources, specifically forest and grazing lands, mineral, resources, including those in reservation and watershed areas, and lands of the public domain, as well as the licensing and regulation of all natural resources as may be provided for by law in order to ensure equitable sharing of the benefits derived therefrom for the welfare of the present and future generations of Filipinos." Section 3 thereof makes the following statement of policy: Sec. 3. Declaration of Policy. It is hereby declared the policy of the State to ensure the sustainable use, development, management, renewal, and conservation of the country's forest, mineral, land, off-shore areas and other natural resources, including the protection and enhancement of the quality of the environment, and equitable access of the different segments of the population to the development and the use of the country's natural resources, not only for the present generation but for future generations as well. It is also the policy of the state to recognize and apply a true value system including social and environmental cost implications relative to their utilization, development and conservation of our natural resources. This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative Code of 1987, 15specifically in Section 1 thereof which reads: Sec. 1. Declaration of Policy. (1) The State shall ensure, for the benefit of the Filipino people, the full exploration and development as well as the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural resources, consistent with

the necessity of maintaining a sound ecological balance and protecting and enhancing the quality of the environment and the objective of making the exploration, development and utilization of such natural resources equitably accessible to the different segments of the present as well as future generations. (2) The State shall likewise recognize and apply a true value system that takes into account social and environmental cost implications relative to the utilization, development and conservation of our natural resources. The above provision stresses "the necessity of maintaining a sound ecological balance and protecting and enhancing the quality of the environment." Section 2 of the same Title, on the other hand, specifically speaks of the mandate of the DENR; however, it makes particular reference to the fact of the agency's being subject to law and higher authority. Said section provides: Sec. 2. Mandate. (1) The Department of Environment and Natural Resources shall be primarily responsible for the implementation of the foregoing policy. (2) It shall, subject to law and higher authority, be in charge of carrying out the State's constitutional mandate to control and supervise the exploration, development, utilization, and conservation of the country's natural resources. Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will serve as the bases for policy formulation, and have defined the powers and functions of the DENR. It may, however, be recalled that even before the ratification of the 1987 Constitution, specific statutes already paid special attention to the "environmental right" of the present and future generations. On 6 June 1977, P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152 (Philippine Environment Code) were issued. The former "declared a continuing policy of the State (a) to create, develop, maintain and improve conditions under which man and nature can thrive in productive and enjoyable harmony with each other, (b) to fulfill the social, economic and other requirements of present and future generations of Filipinos, and (c) to insure the attainment of an environmental quality that is conducive to a life of dignity and wellbeing." 16 As its goal, it speaks of the "responsibilities of each generation as trustee and guardian of the environment for succeeding generations." 17The latter statute, on the other hand, gave flesh to the said policy. Thus, the right of the petitioners (and all those they represent) to a balanced and healthful ecology is as clear as the DENR's duty under its mandate and by virtue of its powers and functions under E.O. No. 192 and the Administrative Code of 1987 to protect and advance the said right. A denial or violation of that right by the other who has the corelative duty or obligation to respect or protect the same gives rise to a cause of action. Petitioners maintain that the granting of the TLAs, which they claim was done with grave abuse of discretion, violated their right to a balanced and healthful ecology; hence, the full protection thereof requires that no further TLAs should be renewed or granted. A cause of action is defined as: . . . an act or omission of one party in violation of the legal right or rights of the other; and its essential elements are legal right of the plaintiff, correlative obligation of the defendant, and act or omission of the defendant in violation of said legal right. 18 It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint fails to state a cause of action, 19 the question submitted to the court for resolution involves the sufficiency of the facts alleged in the complaint itself. No other matter should be considered; furthermore, the truth of falsity of the said allegations is beside the point for the truth thereof is deemed hypothetically admitted. The only issue to be resolved in such a case is: admitting such alleged facts to be true, may the court render a valid judgment in accordance with the prayer in the complaint? 20 In Militante vs. Edrosolano, 21 this Court laid down the rule that the judiciary should

"exercise the utmost care and circumspection in passing upon a motion to dismiss on the ground of the absence thereof [cause of action] lest, by its failure to manifest a correct appreciation of the facts alleged and deemed hypothetically admitted, what the law grants or recognizes is effectively nullified. If that happens, there is a blot on the legal order. The law itself stands in disrepute." After careful examination of the petitioners' complaint, We find the statements under the introductory affirmative allegations, as well as the specific averments under the sub-heading CAUSE OF ACTION, to be adequate enough to show, prima facie, the claimed violation of their rights. On the basis thereof, they may thus be granted, wholly or partly, the reliefs prayed for. It bears stressing, however, that insofar as the cancellation of the TLAs is concerned, there is the need to implead, as party defendants, the grantees thereof for they are indispensable parties. The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy formulation or determination by the executive or legislative branches of Government is not squarely put in issue. What is principally involved is the enforcement of a right vis-avis policies already formulated and expressed in legislation. It must, nonetheless, be emphasized that the political question doctrine is no longer, the insurmountable obstacle to the exercise of judicial power or the impenetrable shield that protects executive and legislative actions from judicial inquiry or review. The second paragraph of section 1, Article VIII of the Constitution states that: Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A. Cruz, a distinguished member of this Court, says: The first part of the authority represents the traditional concept of judicial power, involving the settlement of conflicting rights as conferred as law. The second part of the authority represents a broadening of judicial power to enable the courts of justice to review what was before forbidden territory, to wit, the discretion of the political departments of the government. As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the power to rule upon even the wisdom of the decisions of the executive and the legislature and to declare their acts invalid for lack or excess of jurisdiction because tainted with grave abuse of discretion. The catch, of course, is the meaning of "grave abuse of discretion," which is a very elastic phrase that can expand or contract according to the disposition of the judiciary. In Daza vs. Singson, noted:
23

approving new timber license agreements. For to do otherwise would amount to "impairment of contracts" abhored (sic) by the fundamental law. 24 We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a sweeping pronouncement. In the first place, the respondent Secretary did not, for obvious reasons, even invoke in his motion to dismiss the non-impairment clause. If he had done so, he would have acted with utmost infidelity to the Government by providing undue and unwarranted benefits and advantages to the timber license holders because he would have forever bound the Government to strictly respect the said licenses according to their terms and conditions regardless of changes in policy and the demands of public interest and welfare. He was aware that as correctly pointed out by the petitioners, into every timber license must be read Section 20 of the Forestry Reform Code (P.D. No. 705) which provides: . . . Provided, That when the national interest so requires, the President may amend, modify, replace or rescind any contract, concession, permit, licenses or any other form of privilege granted herein . . . Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a contract, property or a property right protested by the due process clause of the Constitution. In Tan vs. Director of Forestry, 25 this Court held: . . . A timber license is an instrument by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. A timber license is not a contract within the purview of the due process clause; it is only a license or privilege, which can be validly withdrawn whenever dictated by public interest or public welfare as in this case. A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract between the authority, federal, state, or municipal, granting it and the person to whom it is granted; neither is it property or a property right, nor does it create a vested right; nor is it taxation (37 C.J. 168). Thus, this Court held that the granting of license does not create irrevocable rights, neither is it property or property rights (People vs. Ong Tin, 54 O.G. 7576). We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary: 26 . . . Timber licenses, permits and license agreements are the principal instruments by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. And it can hardly be gainsaid that they merely evidence a privilege granted by the State to qualified entities, and do not vest in the latter a permanent or irrevocable right to the particular concession area and the forest products therein. They may be validly amended, modified, replaced or rescinded by the Chief Executive when national interests so require. Thus, they are not deemed contracts within the purview of the due process of law clause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as amended. Also, Tan v. Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302]. Since timber licenses are not contracts, the non-impairment clause, which reads: Sec. 10. No law impairing, the obligation of contracts shall be passed. 27 cannot be invoked.

Mr. Justice Cruz, now speaking for this Court,

In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason is that, even if we were to assume that the issue presented before us was political in nature, we would still not be precluded from revolving it under the expanded jurisdiction conferred upon us that now covers, in proper cases, even the political question. Article VII, Section 1, of the Constitution clearly provides: . . . The last ground invoked by the trial court in dismissing the complaint is the non-impairment of contracts clause found in the Constitution. The court a quo declared that: The Court is likewise of the impression that it cannot, no matter how we stretch our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber license agreements in the country and to cease and desist from receiving, accepting, processing, renewing or

In the second place, even if it is to be assumed that the same are contracts, the instant case does not involve a law or even an executive issuance declaring the cancellation or modification of existing timber licenses. Hence, the non-impairment clause cannot as yet be invoked. Nevertheless, granting further that a law has actually been passed

mandating cancellations or modifications, the same cannot still be stigmatized as a violation of the non-impairment clause. This is because by its very nature and purpose, such as law could have only been passed in the exercise of the police power of the state for the purpose of advancing the right of the people to a balanced and healthful ecology, promoting their health and enhancing the general welfare. In Abe vs. Foster Wheeler Corp. 28 this Court stated: The freedom of contract, under our system of government, is not meant to be absolute. The same is understood to be subject to reasonable legislative regulation aimed at the promotion of public health, moral, safety and welfare. In other words, the constitutional guaranty of nonimpairment of obligations of contract is limited by the exercise of the police power of the State, in the interest of public health, safety, moral and general welfare. The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine American Life Insurance Co. vs. Auditor General, 30 to wit: Under our form of government the use of property and the making of contracts are normally matters of private and not of public concern. The general rule is that both shall be free of governmental interference. But neither property rights nor contract rights are absolute; for government cannot exist if the citizen may at will use his property to the detriment of his fellows, or exercise his freedom of contract to work them harm. Equally fundamental with the private right is that of the public to regulate it in the common interest. In short, the non-impairment clause must yield to the police power of the state. 31 Finally, it is difficult to imagine, as the trial court did, how the nonimpairment clause could apply with respect to the prayer to enjoin the respondent Secretary from receiving, accepting, processing, renewing or approving new timber licenses for, save in cases of renewal, no contract would have as of yet existed in the other instances. Moreover, with respect to renewal, the holder is not entitled to it as a matter of right. WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the challenged Order of respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is hereby set aside. The petitioners may therefore amend their complaint to implead as defendants the holders or grantees of the questioned timber license agreements. No pronouncement as to costs. SO ORDERED.

Julian B. San Juan, Jr. for accused.

PER CURIAM: This is an automatic review of the decision of the Court of First Instance of Catanduanes, finding Felicito Tawat and Leo Tawat guilty of robbery with triple homicide, sentencing Felicito to death and Leo to an indeterminate penalty within the range of reclusion temporal and ordering them to pay solidarily damages of P32,000 to each set of heirs of the three victims, Bernarda Salvador, Lito Siao and Jose Magdaraog. (Crim. Case No. 927.) Leo did not appeal. In the morning of January 23, 1980, Andrea Magdaraog-Siao and her nephew, Luis Magdaraog, who were residing in the barrio proper of Agban, Baras, Catanduanes, went to her hut located in Sitio Banog, a mountainous portion of Agban. They wanted to find out what happened to her mother, Bernardo da Salvador Magdaraog, 79, and her two grandchildren who were staying with the old woman. The horrible and gory sight, which greeted them, beggars description (Exh. F): Sprawled on the floor of the humble abode, four by two and a half meters, were the dead bodies of Bernarda, Andrea's son Lito Siao, 13, and Luis' brother Jose, 15, bathed in their own blood (Exh. B). Bernarda had six stab wounds in the chest, two stab wounds in the abdomen (one gaping), a hack wound in the forehead, fractures on the left temple, mandible and ribs and a hack wound in the lower left leg, severing the bone with only a thread of skin remaining, or fourteen wounds in all (Exh. A). Lito had eight stab, gaping wounds in the chest, which penetrated his lungs, six stab wounds in the neck, cutting the carotid arteries, and a hack wound in the head, fracturing the skull, fifteen wounds in all (Exh. A-1 and A-3, p. 202, Record). Jose Magdaraog had three stab wounds in the chest which injured his lungs, a hack wound in the occipital region, fracturing the bone, and a stab wound which penetrated his heart, five serious wounds in all (Exh. A-2). Bernarda was prostrate on the floor with her teeth showing. Her waist was slashed. She was naked from the waist down. The cloth-belt, where she kept her money, was missing. Also missing were a pig, four chickens, a mosquito net, three kettles, one frying pan and plates and spoons, all valued at P705. The door of the hut wits destroyed. The belongings were scattered on the floor. There was a black underwear with garter belt marked "Armin" and "No. 7" (Exh. D) which was later proven to have been worn by accused Felicito Tawat. Who were the perpetrators of the dastardly misdeeds? They were Felicito Tawat, 23, and his first cousin, Leo Tawat, 16. At about three o'clock in the afternoon of the following day January 23, 1980, they unexpectedly arrived at the hut of Floro Ogalesco, '"15, an abaca and rattan stripper, in the remote and isolated forest of Sitio Capipian, Barrio Paraiso, San Miguel, Catanduanes, Felicito, in the presence of Leo, confessed to Ogalesco that they were taking refuge in his secluded hut because the night before they had

Cruz, Padilla, Bidin, Grio-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Quiason, JJ., concur. Narvasa, C.J., Puno and Vitug, JJ., took no part.

killed at Sitio Banog, Barrio Agban, Baras an old woman and two boys, one of whom was Andrea Siao's son.
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-62871 May 25, 1984 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FELICITO TAWAT and LEO TAWAT, accused. FELICITO TAWAT, accused whose death sentence is under review. Felicito recounted that they were drunk. As they passed Siao's hut, a dog barked. Felicito killed the dog. This provoked an old woman to shout at Felicito. He stabbed and killed her. The two boys shouted also. Felicito killed one while Leo killed the other. They took the dead dog, chickens, pork and other belongings in the hut and proceeded to the house of Julio Tawat, father of Leo, in Barrio Agban, and from there they repaired to Capipian. that was the story narrated in court by Ogalesco, linking Felicito and Leo to the robbery with triple homicide committed on the evening of January 22, 1980. The accused's confession to Ogalesco is in part corroborated by the sworn statement of Alejo Tawat, father of Felicito. Alejo declared that at about eight o'clock in the morning of January 23, 1980 he and his brother, Julio (father of Leo), went to their abaca plantation in Sitio Calabiga. He found Felicito and Leo cooking chickens in a kettle. He saw a mosquito net in the hut. A pig had been killed and was about to be cooked. (Nos. 11 and 12, Exh. C.)

The Solicitor General for plaintiff-appellee.

After Felicito and Leo had finished eating, Alejo and Julio accompanied their sons to the forest of Capipian. Alejo and Julio left them there and returned to Barrio J. M. Alberto, Baras. From his neighbors, Alejo learned that the mother-in-law of Jovito Siao, his son Lito and his wife's nephew Jose were killed and that the pig, blanket, mosquito net, kettle and chickens of Jovito Siao were stolen (Nos. 15-17 and 22-23, Exh. C). Any doubt as to the connection of Felicito with the robbery with triple homicide was removed by the finding at the scene of the crime of black shorts with belt (Exh. D). Luis Magdaraog testified that the shorts were worn by Felicito in the morning of January 22, 1980 (the crime was committed at night) when he gave cigarettes to Felicito and Leo (4 tsn October 8, 1981). Leo in his sworn statement confirmed that the shorts belonged to Felicito (No. 32, Exh. G). Felicito relied on an alibi. He testified that he was in Mercedes, Camarines Norte from 1963 to October 1980. This claim is manifestly false because he was only seven years old in 1963. He finished the sixth grade at Barrio Agban, Baras in 1972 (Exh. I, p. 211, Rollo). His father saw him on January 22, 1980 at Barrio J.M. Alberto, Baras (No. 5, Exh. C; p. 46, Record; 26 tsn Oct. 6, 1982). The trial court concluded that although there was no eyewitness testimony to the perpetration of the crime, nevertheless, the totality of the circumstantial evidence is so overwhelming as to prove Felicito's guilt to a moral certainty. Felicito was not immediately arrested. He, with Nestor Rojo and Jimmy Tarraya, committed another robbery with homicide and frustrated homicide on November 30, 1980 at Barrio Bugao, Bagamanoc, Catanduanes. Felicito stabbed to death with a dagger Jovita Lim, a storekeeper, while a companion got the loot of P110. He was convicted and sentenced to death. This court affirmed the judgment of conviction but commuted the death penalty to reclusion perpetua (People vs. Tawat, G.R. No. 62547, December 21, 1983). In connection with that case, Felicito executed a confession on January 9, 1981 before the chief of police of Bagamanoc, Catanduanes. Incidentally, he stated therein that he wanted to get out of Catanduanes because he was wanted by the police for the killing of three persons in Barrio Agban, Baras. he had hidden himself in the hut of Ogalesco in Capipian, San Miguel. (Nos. 13 and 18, Exh. H-6, p. 163, Record.) Counsel de oficio contends that the trial court erred in relying on that admission of Felicito in his confession which he later repudiated. He argues that the confession during custodial interrogation cannot be admissible in evidence, as held in Morales vs. Ponce Enrile, G. R. No. 61016, April 26, 1983, 121 SCRA 538. That admission was only alluded to in passing by the trial court. It was not the basis for Felicito's conviction in this case. His guilt was predicated on his confession to Ogalesco which was not taken during custodial interrogation. Ogalesco was not a peace officer. While still a teenager, Felicito, who, as already stated, finished the elementary course in 1972, embarked on a criminal career. In 1975, he was charged in the Baras municipal court with theft of two cocks, alimbuyogon andbalawon (Exh. J). He pleaded guilty. He was sentenced to 15 days' imprisonment (Exh. J-2). He was suspected of being implicated in a case of murder and frustrated murder committed in December, 1979 in Tigaon, Camarines Sur (Exh. K and HH). As already noted, for another robo con homicidio committed on November 30, 1980 (subsequent to the instant case), he was convicted and the judgment was affirmed in People vs. Tawat, G.R. No. 62547, December 21, 1983,supra, where the death penalty was commuted to reclusion perpetua. The crime in this case may be mitigated by drunkenness but it was aggravated by dwelling, abuse of superiority,despoblado and disregard of sex and old age in the case of the 79-year-old woman victim. The second and third homicides may be also regarded as an additional aggravating circumstance (People vs. Pedroso, L-32997, July 30, 1982, 115 SCRA 599, 609).

We agree with the learned trial judge that the guilt of the accused was established beyond reasonable doubt. The testimony of Ogalesco on Felicito's oral confession is competent evidence. "The declaration of an accused expressly acknowledging his guilt of the offense charged, may be given in evidence against him" (Sec. 29, Rule 130, Rules of Court). What Felicito told Ogalesco may in a sense be also regarded as part of the res gestae. The rule is that "any person, otherwise competent as a witness, who heard the confession, is competent to testify as to the substance of what he heard if he heard and understood all of it. An oral confession need not be repeated verbatim, but in such case it must be given in its substance." (23 C.J.S. 196.) "Proof of the contents of an oral extrajudicial confession may be made by the testimony of a person who testifies that he was present, heard, understood, and remembers the substance of the conversation or statement made by the accused." (Underhill's Criminal Evidence, 4th. Ed., Niblack, sec. 278, p. 551.) In U.S. vs. Corrales, 28 Phil. 362, a malversation case, Jose Corrales, clerk of the Court of First Instance, received on June 6, 1913 P321.88 from a man named Melliza as payment of the fine and costs imposed on Melizza. Corrales did not issue any receipt but merely gave Melliza a copy of the judgment of conviction with a note at the bottom: "Multas y costas pagadas". A week later, or on June 13, the auditor examined Corrales' accounts. The sum paid by Melliza was not turned over to him. On June 14, an information for misappropriation was filed against Corrales. In the afternoon of that day, Corrales went to the auditor's house and confessed to him that he placed that amount of P321.88 in the office safe only in the afternoon of June 13 after the auditor's examination. On the witness stand, the accused claimed that the amount .had always been in the drawer for personal funds in his office safe. This testimony was contradicted by the auditor who testified on Corrales' confession that he placed the amount only in the afternoon of June 13. Corrales' counsel assailed the admissibility of the auditor's testimony. It was held that the auditor's testimony was admissible and properly taken into consideration by the trial. court. Judge Graciano P. Gayapa. Jr. acted corrective in imposing the death penalty. In the annals of criminal law, no one deserved the death penalty more than Felicito Tawat. Society must protect itself against a dangerous criminal like him "by taking his life in retribution for his offense and as an example and warning to others". "In these days of rampant criminality, it should have a salutary effect upon the criminally minded to know that the courts do not shirk their disagreeable duty to impose the death penalty in cases where the law so requires" (People vs. Carillo and Raquenio, 85 Phil. 611; 635). Justice Montemayor says: "We have no quarrel with the trial judge or with anyone else, layman or jurist as to the wisdom or folly of the death penalty Today, there are quite a number of people who honestly believe that the supreme penalty is either morally wrong or unwise or ineffective. "However, as long as that penalty remains in the statute books, and as long as our criminal law provides for its imposition in certain cases, it is the duty of judicial officers to respect and apply the law regardless of their private opinions" (People vs. Limaco, 88 Phil. 35,43). WHEREFORE, the trial court's judgment is affirmed with the slight modification that Felicito Tawat is also ordered to pay the heirs of Bernarda Magdaraog the value of the articles taken in the sum of P705. No costs. SO ORDERED.

Makasiar, Aquino, Guerrero, Abad Santos, De Castro, MelencioHerrera, Plana, Escolin and Gutierrez, Jr., JJ., concur. Teehankee, Concepcion, Jr., Relova and De la Fuente, JJ., took no part.
Fernando, C.J., votes for the imposition of the penalty of reclusion perpetua, Accordingly, in the absence of the necessary ten votes for

the death sentence to be validly imposed, Felicito Tawat is sentenced to reclusion perpetua.

On 3 March 1981, the Court issued a temporary restraining order "effective as of this date and continuing until otherwise ordered by the court". 1 Petitioner contends that the respondent judge acted in excess of jurisdiction and with grave abuse of discretion, in issuing the assailed order. He insists that said order, in denying his Motion To Acquit, is null and void for being violative of his rights to counsel and to due process. 2 We find no merit in the contentions of petitioner. To begin with, the instant petition is one for certiorari, alleging grave abuse of discretion, amounting to lack of jurisdiction, committed by the respondent judge in issuing the questioned order dated 23 October 1980. It is basic, however, that for certiorari to lie, there must be a capricious, arbitrary and whimsical exercise of power, the very antithesis of judicial prerogative in accordance with centuries of both civil law and common law traditions.3 To warrant the issuance of the extraordinary writ of certiorari, the alleged lack of jurisdiction, excess thereof, or abuse of discretion must be so gross or grave, as when power is exercised in an arbitrary or despotic manner by reason of passion, prejudice or personal hostility, or the abuse must be so patent as to amount to an evasion of positive duty, or to a virtual refusal to perform a duty enjoined by law, or to act at all, in contemplation of law. 4This is not the situation in the case at bar. The respondent court considered petitioner's arguments as well as the prosecution's evidence against him, and required him to present his evidence. The rights to counsel and to due process of law are indeed two (2) of the fundamental rights guaranteed by the Constitution, whether it be the 1973 or 1987 Constitution. In a democratic society, like ours, every person is entitled to the full enjoyment of the rights guaranteed by the Constitution. On the right to counsel, Sec. 20, Art. IV of the Bill of Rights of the 1973 Constitution, reads: No person shall be compelled to be a witness against himself Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence. The same guarantee, although worded in a different manner, is included in the 1987 Constitution. Section 12 (1, 2 & 3), Article III thereof provides: Sec. 12 (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or the preceding section shall be inadmissible in evidence against him. The right to counsel attaches upon the start of an investigation, i.e. when the investigating officer starts to ask questions to elicit information and/or confessions or admissions from the respondent/accused. At such point or stage, the person being interrogated must be assisted by counsel to avoid the pernicious practice of extorting false or coerced admissions or confessions from the lips of the person undergoing interrogation, for the commission of an offense.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-56291 June 27, 1988 CRISTOPHER GAMBOA, petitioner, vs. HON. ALFREDO CRUZ, JUDGE of the Court of First Instance of Manila, Br. XXIX, respondent.

Rene V. Sarmiento for petitioner.

PADILLA, J.: Petition for certiorari and prohibition, with prayer for a temporary restraining order, to annul and set aside the order dated 23 October 1980 of the Court of First Instance of Manila, Branch XXIX, in Criminal Case No. 47622, entitled "People of the Philippines, Plaintiff vs. Cristopher Gamboa y Gonzales, Accused," and to restrain the respondent court from proceeding with the trial of the aforementioned case. Petitioner alleges that: On 19 July 1979, at about 7:00 o'clock in the morning, he was arrested for vagrancy, without a warrant of arrest, by Patrolman Arturo Palencia. Thereafter, petitioner was brought to Precinct 2, Manila, where he was booked for vagrancy and then detained therein together with several others. The following day, 20 July 1979, during the lineup of five (5) detainees, including petitioner, complainant Erlinda B. Bernal pointed to petitioner and said, "that one is a companion." After the Identification, the other detainees were brought back to their cell but petitioner was ordered to stay on. While the complainant was being interrogated by the police investigator, petitioner was told to sit down in front of her. On 23 July 1979, an information for robbery was filed against the petitioner. On 22 August 1979, petitioner was arraigned. Thereafter, hearings were held. On 2 April 1980, the prosecution formally offered its evidence and then rested its case. On 14 July 1980, petitioner, by counsel, instead of presenting his defense, manifested in open court that he was filing a Motion to Acquit or Demurrer to Evidence. On 13 August 1980, petitioner filed said Motion predicated on the ground that the conduct of the line-up, without notice to, and in the absence of, his counsel violated his constitutional rights to counsel and to due process. On 23 October 1980, the respondent court issued the following order (assailed in the petition at bar) denying the Motion to Acquit: For resolution is a motion to acquit the accused based on the grounds that the constitutional rights of the said accused, to counsel and to due process, have been violated. After considering the allegations and arguments in support of the said motion in relation to the evidence presented, the Court finds the said motion to be without merit and, therefore, denies the same. The hearing of this case for the purpose of presenting the evidence for the accused is hereby set on November 28, 1980, at 8:30 o'clock in the morning. Hence, the instant petition.

Any person under investigation must, among other things, be assisted by counsel. The above-cited provisions of the Constitution are clear. They leave no room for equivocation. Accordingly, in several cases, this Court has consistently held that no custodial investigation shall be conducted unless it be in the presence of counsel, engaged by the person arrested, or by any person in his behalf, or appointed by the court upon petition either of the detainee himself, or by anyone in his behalf, and that, while the right may be waived, the waiver shall not be valid unless made in writing and in the presence of counsel. 5 As aptly observed, however, by the Solicitor General, the police line-up (at least, in this case) was not part of the custodial inquest, hence, petitioner was not yet entitled, at such stage, to counsel. The Solicitor General states: When petitioner was Identified by the complainant at the police line-up, he had not been held yet to answer for a criminal offense. The police line-up is not a part of the custodial inquest, hence, he was not yet entitled to counsel. Thus, it was held that when the process had not yet shifted from the investigatory to the accusatory as when police investigation does not elicit a confession the accused may not yet avail of the services of his lawyer (Escobedo v. Illinois of the United States Federal Supreme Court, 378 US 478, 1964). Since petitioner in the course of his Identification in the police line-up had not yet been held to answer for a criminal offense, he was, therefore, not deprived of his right to be assisted by counsel because the accusatory process had not yet set in. The police could not have violated petitioner's right to counsel and due process as the confrontation between the State and him had not begun. In fact, when he was Identified in the police line-up by complainant he did not give any statement to the police. He was, therefore, not interrogated at all as he was not facing a criminal charge. Far from what he professes, the police did not, at that stage, exact a confession to be used against him. For it was not he but the complainant who was being investigated at that time. He "was ordered to sit down in front of the complainant while the latter was being investigated" (par. 3.03, Petition). Petitioner's right to counsel had not accrued. 6 Even under the constitutional guarantees obtaining in the United States, petitioner would have no cause for claiming a violation of his rights to counsel and due process. In Kirby vs. Illinois, 7 the facts of the case and the votes of the Justices therein are summarized as fellows: After arresting the petitioner and a companion and bringing them to a police station, police officers learned that certain items found in their possession had been stolen in a recent robbery. The robbery victim was brought to the police station and immediately Identified the petitioner and his companion as the robbers. No attorney was present when the Identification was made, and neither the petitioner nor his companion had asked for legal assistance or had been advised of any right to the presence of counsel. Several weeks later, the petitioner and his companion were indicted for the robbery. At trial in an Illinois state court, the robbery victim testified that he had seen the petitioner and his companion at the police station, and he pointed them out in the courtroom and Identified them as the robbers. The petitioner and his companion were convicted, and the Illinois Appellate Court, First District, affirmed the petitioner's conviction, holding that the constitutional rule requiring the exclusion of evidence derived from out-of-court Identification procedures conducted in the absence of counsel did not apply to pre-indictment Identifications (121 III App 2d 323, 257 NEE 2d 589). On certiorari, the United States Supreme Court, although not agreeing on an opinion, affirmed. In an opinion by STEWART, J., announcing the judgment of the court and expressing the view of four members of the court, it was held that the constitutional right to counsel did not attach until judicial criminal proceedings were initiated, and that the exclusionary rule relating to out-of-court Identifications in the absence of counsel did not

apply to Identification testimony based upon a police station show-up which took place before the accused had been indicted or otherwise formally charged with any criminal offense. BURGER, Ch. J., concurring, joined in the plurality opinion and expressed his agreement that the right to counsel did not attach until criminal charges were formally made against an accused. POWELL, J., concurred in the result on the ground that the exclusionary rule should not be extended. BRENNAN J., joined by DOUGHLAS and MARSHALL, JJ., dissented on the grounds that although Supreme Court decisions establishing the exclusionary rule happened to involve postindictment Identifications, the rationale behind the rule was equally applicable to the present case. WHITE, J., dissented on the grounds that Supreme Court decisions establishing the exclusionary rule governed the present case. Mr. Justice Stewart, expressing his view and that of three other members 9 of the Court, said: In a line of constitutional cases in this Court stemming back to the Court's landmark opinion in Powell v. Alabama, 287 US 45, 77 L Ed 158, 53 S Ct 55, 84 ALR 527, it has been firmly established that a person's Sixth and Fourteenth Amendment right to counsel attaches only at or

after the time that adversary judicial proceedings have been initiated against him. See Powell v.

Alabama, supra; Johnson v. Zerbst, 304 US 458, 82 L Ed 1461, 58 S Ct 1019, 146 ALR 357; Hamilton v. Alabama, 368 US 52, 7 L Ed 2d 114, 82 S Ct 157; Gideon v. Wainwright, 372 US 335, 9 L Ed 2d 799, 83 S Ct 792, 93 ALR 2d 733; White v. Maryland, 373 US 59, 10 L Ed 2d 193, 83 S Ct 1050; Messiah v. United States, 377 US 201, 12 L Ed 246, 84 S Ct 1199; United States v. Wade, 388 US 218, 18 L Ed 2d 1149, 87 S Ct 1926; Gilbert v. California, 388 US 263, 18 L Ed 2d 1178, 87 S Ct 1951; Coleman v. Alabama, 399 US 1, 26 L Ed 2d 387, 90 S Ct. 1999. This is not to say that a defendant in a criminal case has a constitutional right to counsel only at the trial itself. The Powell case makes clear that the right attaches at the time of arraignment and the Court has recently held that it exists also at the time of a preliminary hearing. Coleman v. Alabama, supra. But the point is that, while members of the court have differed as to existence of the right to counsel in the contexts of some of the above cases, all of those cases have involved points of time at or after the initiation of adversary judicial criminal proceedings whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. (Emphasis supplied). 10 As may be observed, the 1973 and 1987 Philippine Constitutions go farther and beyond the guarantee of the right to counsel under the Sixth and Fourteenth Amendments to the U.S. Constitution. For while, under the latter, the right to counsel "attaches only at or after the time that adversary judicial proceedings have been initiated against him (the accused)," under the 1973 and 1987 Philippine Constitutions, the right to counsel attaches at the start of investigation against a respondent and, therefore, even before adversary judicial proceedings against the accused have begun. Given the clear constitutional intent in the 1973 and 1987 Constitutions, to extend to those under police investigation the right to counsel, this occasion may be better than any to remind police investigators that, while the Court finds no real need to afford a suspect the services of counsel during a police line-up, the moment there is a move or even an urge of said investigators to elicit admissions or confessions or even plain information which may appear innocent or innocuous at the time, from said suspect, he should then and there be assisted by counsel, unless he waives the right, but the waiver shall be made in writing and in the presence of counsel.

On the right to due process, the Court finds that petitioner was not, in any way, deprived of this substantive and constitutional right, as he was duly represented by a member of the Bar. He was accorded all the opportunities to be heard and to present evidence to substantiate his defense; only that he chose not to, and instead opted to file a Motion to Acquit after the prosecution had rested its case. What due process abhors is the absolute lack of opportunity to be heard. 11 The case at bar is far from this situation. In any event, certiorari and prohibition are not the proper remedies against an order denying a Motion To Acquit. Section 1, Rule 117 of the Rules of Court provides that, upon arraignment, the defendant shall immediately either move to quash the complaint or information or plead thereto, or do both and that, if the defendant moves to quash, without pleading, and the motion is withdrawn or overruled, he should immediately plead, which means that trial must proceed. If, after trial on the merits, judgment is rendered adversely to the movant (in the motion to quash), he can appeal the judgment and raise the same defenses or objections (earlier raised in his motion to quash) which would then be subject to review by the appellate court. An order denying a Motion to Acquit (like an order denying a motion to quash) is interlocutory and not a final order. It is, therefore, not appealable. Neither can it be the subject of a petition for certiorari. Such order of denial may only be reviewed, in the ordinary course of law, by an appeal from the judgment, after trial. As stated inCollins vs. Wolfe, 12 and reiterated in Mill vs. Yatco, 13 the accused, after the denial of his motion to quash, should have proceeded with the trial of the case in the court below, and if final judgment is rendered against him, he could then appeal, and, upon such appeal, present the questions which he sought to be decided by the appellate court in a petition for certiorari. In Acharon vs. Purisima,
14

Fernan, Narvasa, Melencio-Herrera, Paras, Feliciano, Bidin, Cortes, Grio-Aquino and Medialdea, JJ., concur.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 85215 July 7, 1989 THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. JUDGE RUBEN AYSON, Presiding over Branch 6, Regional Trial Court, First Judicial Region, Baguio City, and FELIPE RAMOS, respondents.

Nelson Lidua for private respondent.

the procedure was well defined, thus: NARVASA, J.: What has given rise to the controversy at bar is the equation by the respondent Judge of the right of an individual not to "be compelled to be a witness against himself" accorded by Section 20, Article III of the Constitution, with the right of any person "under investigation for the

Moreover, when the motion to quash filed by Acharon to nullify the criminal cases filed against him was denied by the Municipal Court of General Santos his remedy was not to file a petition for certiorari but to go to trial without prejudice on his part to reiterate the special defenses he had invoked in his motion and, if, after trial on the merits, an adverse decision is rendered, to appeal therefrom in the manner authorized by law. This is the procedure that he should have followed as authorized by law and precedents. Instead, he took the usual step of filing a writ of certiorari before the Court of First Instance which in our opinion is unwarranted it being contrary to the usual course of law. 15 Conformably with the above rulings, whether or not petitioner was, afforded his rights to counsel and to due process is a question which he could raise, as a defense or objection, upon the trial on the merits, and, if that defense or objection should fail, he could still raise the same on appeal. On the other hand, if a defendant does not move to quash the complaint or information before he pleads, he shall be taken to have waived all objections which are grounds for a motion to quash, except where the complaint or information does not charge an offense, or the court is without jurisdiction of the same. 16 Here, petitioner filed a Motion To Acquit only after the prosecution had presented its evidence and rested its case. Since the exceptions, above-stated, are not applicable, petitioner is deemed to have waived objections which are grounds for a motion to quash. Besides, the grounds relied upon by petitioner in his Motion to Acquit are not among the grounds provided in Sec. 2, Rule 117 of the Rules of Court for quashing a complaint or information. Consequently, the lower court did not err in denying petitioner's Motion to Acquit. WHEREFORE, the petition is DISMISSED. The temporary restraining order issued on 3 March 1981 is LIFTED. The instant case is remanded to the respondent court for further proceedings to afford the petitioner-accused the opportunity to present evidence on his behalf. This decision is immediately executory. With costs against the petitioner. SO ORDERED.

commission of an offense . . . to remain silent and to counsel, and to be informed of such right," granted by the same provision. The
relevant facts are not disputed.

Private respondent Felipe Ramos was a ticket freight clerk of the Philippine Airlines (PAL), assigned at its Baguio City station. It having allegedly come to light that he was involved in irregularities in the sales of plane tickets, 1 the PAL management notified him of an investigation to be conducted into the matter of February 9, 1986. That investigation was scheduled in accordance with PAL's Code of Conduct and Discipline, and the Collective Bargaining Agreement signed by it with the Philippine Airlines Employees' Association (PALEA) to which Ramos pertained. 2 On the day before the investigation, February 8,1986, Ramos gave to his superiors a handwritten notes 3 reading as follows: 2-8-86 TO WHOM IT MAY CONCERN: THE UNDERSIGNED WOULD LIKE TO STATE THAT HE IS WILLING TO SETTLE IRREGULARITIES ALLEGEDLY CHARGED VS. HIM IN THE AMT. OF P 76,000 (APPROX.) SUBJECT TO CONDITIONS AS MAY BE IMPOSED BY PAL ON OR BEFORE 1700/9 FEB 86.

At the investigation of February 9, 1986, conducted by the PAL Branch Manager in Baguio City, Edgardo R. Cruz, in the presence of Station Agent Antonio Ocampo, Ticket Freight Clerk Rodolfo Quitasol, and PALEA Shop Steward Cristeta Domingo, Felipe Ramos was informed "of the finding of the Audit Team." Thereafter, his answers in response to questions by Cruz, were taken down in writing. Ramos' answers were to the effect inter alia that he had not indeed made disclosure of the tickets mentioned in the Audit Team's findings, that the proceeds had been "misused" by him, that although he had planned on paying back the money, he had been prevented from doing so, "perhaps (by) shame," that he was still willing to settle his obligation, and proferred a "compromise x x to pay on staggered basis, (and) the amount would

be known in the next investigation;" that he desired the next investigation to be at the same place, "Baguio CTO," and that he should be represented therein by "Shop stewardees ITR Nieves Blanco;" and that he was willing to sign his statement (as he in fact afterwards did). 4 How the investigation turned out is not dealt with the parties at all; but it would seem that no compromise agreement was reached much less consummated. About two (2) months later, an information was filed against Felipe Ramos charging him with the crime of estafa allegedly committed in Baguio City during the period from March 12, 1986 to January 29, 1987. In that place and during that time, according to the indictment, 5 he (Ramos) .. with unfaithfulness and/or abuse of confidence, did then and there willfully ... defraud the Philippine Airlines, Inc., Baguio Branch, ... in the following manner, to wit: said accused ... having been entrusted with and received in trust fare tickets of passengers for one-way trip and roundtrip in the total amount of P76,700.65, with the express obligation to remit all the proceeds of the sale, account for it and/or to return those unsold, ... once in possession thereof and instead of complying with his obligation, with intent to defraud, did then and there ... misappropriate, misapply and convert the value of the tickets in the sum of P76,700.65 and in spite of repeated demands, ... failed and refused to make good his obligation, to the damage and prejudice of the offended party .. . On arraignment on this charge, Felipe Ramos entered a plea of "Not Guilty," and trial thereafter ensued. The prosecution of the case was undertaken by lawyers of PAL under the direction and supervision of the Fiscal. At the close of the people's case, the private prosecutors made a written offer of evidence dated June 21, 1988, 6which included "the (above mentioned) statement of accused Felipe J. Ramos taken on February 9, 1986 at PAL Baguio City Ticket Office," which had been marked as Exhibit A, as well as his "handwritten admission x x given on February 8, 1986," also above referred to, which had been marked as Exhibit K. The defendant's attorneys filed "Objections/Comments to Plaintiff s Evidence." 7 Particularly as regards the peoples' Exhibit A, the objection was that "said document, which appears to be a confession, was taken without the accused being represented by a lawyer." Exhibit K was objected to "for the same reasons interposed under Exhibits 'A' and 'J.' By Order dated August 9, 1988, 8 the respondent judge admitted all the exhibits "as part of the testimony of the witnesses who testified in connection therewith and for whatever they are worth," except Exhibits A and K, which it rejected. His Honor declared Exhibit A "inadmissible in evidence, it appearing that it is the statement of accused Felipe Ramos taken on February 9, 1986 at PAL Baguio City Ticket Office, in an investigation conducted by the Branch Manager x x since it does not appear that the accused was reminded of this constitutional rights to remain silent and to have counsel, and that when he waived the same and gave his statement, it was with the assistance actually of a counsel." He also declared inadmissible "Exhibit K, the handwritten admission made by accused Felipe J. Ramos, given on February 8, 1986 x x for the same reason stated in the exclusion of Exhibit 'A' since it does not appear that the accused was assisted by counsel when he made said admission." The private prosecutors filed a motion for reconsideration. It was denied, by Order dated September 14, 1988.10 In justification of said Order, respondent Judge invoked this Court's rulings in Morales, Jr. v. Juan Ponce Enrile, et al., 121 SCRA 538, People v. Galit, 135 SCRA 467, People. v. Sison, 142 SCRA 219, and People v. Decierdo,149 SCRA 496, among others, to the effect that "in custodial investigations the right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel," and the explicit precept in the present Constitution that the rights in custodial investigation "cannot be waived except in writing and in the presence of counsel." He pointed out that the investigation of Felipe Ramos at the PAL Baguio Station was one "for the offense of allegedly misappropriating the proceeds of the tickets issued to him' and therefore clearly fell "within the coverage of the constitutional provisions;" and the fact that Ramos was not detained at the time, or the investigation was administrative in character could not operate to except the case "from the ambit of the constitutional provision cited."
9

These Orders, of August 9, 1988 and September 14, 1988 are now assailed in the petition for certiorari and prohibition at bar, filed in this Court by the private prosecutors in the name of the People of the Philippines. By Resolution dated October 26, 1988, the Court required Judge Ayson and Felipe Ramos to comment on the petition, and directed issuance of a "TEMPORARY RESTRAINING ORDER . . . ENJOINING the respondents from proceeding further with the trial and/or hearing of Criminal Case No. 3488-R (People ... vs. Felipe Ramos), including the issuance of any order, decision or judgment in the aforesaid case or on any matter in relation to the same case, now pending before the Regional Trial Court of Baguio City, Br. 6, First Judicial Region." The Court also subsequently required the Solicitor General to comment on the petition. The comments of Judge Ayson, Felipe Ramos, and the Solicitor General have all been filed. The Solicitor General has made common cause with the petitioner and prays "that the petition be given due course and thereafter judgment be rendered setting aside respondent Judge's Orders . . . and ordering him to admit Exhibits 'A' and 'K' of the prosecution." The Solicitor General has thereby removed whatever impropriety might have attended the institution of the instant action in the name of the People of the Philippines by lawyers de parte of the offended party in the criminal action in question. The Court deems that there has been full ventilation of the issue of whether or not it was grave abuse of discretion for respondent Judge to have excluded the People's Exhibits A and K. It will now proceed to resolve it. At the core of the controversy is Section 20, Article IV of the 1973 Constitution, 11 to which respondent Judge has given a construction that is disputed by the People. The section reads as follows: SEC. 20. No person shall be compelled to be a witness against himself Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence. It should at once be apparent that there are two (2) rights, or sets of rights, dealt with in the section, namely: 1) the right against self-incrimination i.e., the right of a person not to be compelled to be a witness against himself set out in the first sentence, which is a verbatim reproduction of Section 18, Article III of the 1935 Constitution, and is similar to that accorded by the Fifth Amendment of the American Constitution, 12 and 2) the rights of a person in custodial interrogation, i.e., the rights of every suspect "under investigation for the commission of an offense." Parenthetically, the 1987 Constitution indicates much more clearly the individuality and disparateness of these rights. It has placed the rights in separate sections. The right against self- incrimination, "No person shall be compelled to be a witness against himself," is now embodied in Section 17, Article III of the 1987 Constitution. The lights of a person in custodial interrogation, which have been made more explicit, are now contained in Section 12 of the same Article III. 13 Right Against Self-Incrimination The first right, against self-incrimination, mentioned in Section 20, Article IV of the 1973 Constitution, is accorded to every person who gives evidence, whether voluntarily or under compulsion of subpoena, in any civil, criminal, or administrative proceeding. 14 The right is NOT to "be compelled to be a witness against himself" The precept set out in that first sentence has a settled meaning. 15 It prescribes an "option of refusal to answer incriminating questions and not a prohibition of inquiry." 16 It simply secures to a witness, whether he be a party or not, the right to refue to answer any particular incriminatory question, i.e., one the answer to which has a tendency to incriminate him for some crime. However, the right can be claimed only when the specific question, incriminatory in character, is actually put to the witness. It cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena, to decline to appear before the court at the time appointed, or to refuse to testify altogether. The witness receiving a subpoena must obey it, appear as

required, take the stand, be sworn and answer questions. It is only when a particular question is addressed to him, the answer to which may incriminate him for some offense, that he may refuse to answer on the strength of the constitutional guaranty. That first sentence of Section 20, Article IV of the 1973 Constitution does not impose on the judge, or other officer presiding over a trial, hearing or investigation, any affirmative obligation to advise a witness of his right against self-incrimination. It is a right that a witness knows or should know, in accordance with the well known axiom that every one is presumed to know the law, that ignorance of the law excuses no one. Furthermore, in the very nature of things, neither the judge nor the witness can be expected to know in advance the character or effect of a question to be put to the latter. 17 The right against self-incrimination is not self- executing or automatically operational. It must be claimed. If not claimed by or in behalf of the witness, the protection does not come into play. It follows that the right may be waived, expressly, or impliedly, as by a failure to claim it at the appropriate time. 18 Rights in Custodial Interrogation Section 20, Article IV of the 1973 Constitution also treats of a second right, or better said, group of rights. These rights apply to persons "under investigation for the commission of an offense," i.e., "suspects" under investigation by police authorities; and this is what makes these rights different from that embodied in the first sentence, that against self-incrimination which, as aforestated, indiscriminately applies to any person testifying in any proceeding, civil, criminal, or administrative. This provision granting explicit rights to persons under investigation for an offense was not in the 1935 Constitution. It is avowedly derived from the decision of the U.S. Supreme Court in Miranda v. Arizona, 19 a decision described as an "earthquake in the world of law enforcement." 20 Section 20 states that whenever any person is "under investigation for the commission of an offense"-1) he shall have the right to remain silent and to counsel, and to be informed of such right, 21 2) nor force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him; 22 and 3) any confession obtained in violation of x x (these rights shall be inadmissible in evidence.

brought to an army camp or police headquarters and there questioned and "cross-examined" not only by one but as many investigators as may be necessary to break down his morale. He finds himself in strange and unfamiliar surroundings, and every person he meets he considers hostile to him. The investigators are well-trained and seasoned in their work. They employ all the methods and means that experience and study have taught them to extract the truth, or what may pass for it, out of the detainee. Most detainees are unlettered and are not aware of their constitutional rights. And even if they were, the intimidating and coercive presence of the officers of the law in such an atmosphere overwhelms them into silence. Section 20 of the Bill of Rights seeks to remedy this imbalance. Not every statement made to the police by a person involved in some crime is within the scope of the constitutional protection. If not made "under custodial interrogation," or "under investigation for the commission of an offense," the statement is not protected. Thus, in one case, 29 where a person went to a police precinct and before any sort of investigation could be initiated, declared that he was giving himself up for the killing of an old woman because she was threatening to kill him by barang, or witchcraft, this Court ruled that such a statement was admissible, compliance with the constitutional procedure on custodial interrogation not being exigible under the circumstances. Rights of Defendant in Criminal Case As Regards Giving of Testimony It is pertinent at this point to inquire whether the rights just discussed, i.e., (1) that against self-incrimination and (2) those during custodial interrogation apply to persons under preliminary investigation or already charged in court for a crime. It seems quite evident that a defendant on trial or under preliminary investigation is not under custodial interrogation. His interrogation by the police, if any there had been would already have been ended at the time of the filing of the criminal case in court (or the public prosecutors' office). Hence, with respect to a defendant in a criminal case already pending in court (or the public prosecutor's office), there is no occasion to speak of his right while under "custodial interrogation" laid down by the second and subsequent sentences of Section 20, Article IV of the 1973 Constitution, for the obvious reason that he is no longer under "custodial interrogation." But unquestionably, the accused in court (or undergoing preliminary investigation before the public prosecutor), in common with all other persons, possesses the right against self- incrimination set out in the first sentence of Section 20 Article IV of the 1973 Constitution, i.e., the right to refuse to answer a specific incriminatory question at the time that it is put to him. 30 Additionally, the accused in a criminal case in court has other rights in the matter of giving testimony or refusing to do so. An accused "occupies a different tier of protection from an ordinary witness." Under the Rules of Court, in all criminal prosecutions the defendant is entitled among others1) to be exempt from being a witness against himself, 31 and 2) to testify as witness in his own behalf; but if he offers himself as a witness he may be cross-examined as any other witness; however, his neglect or refusal to be a witness shall not in any manner prejudice or be used against him. 32 The right of the defendant in a criminal case "to be exempt from being a witness against himself' signifies that he cannot be compelled to testify or produce evidence in the criminal case in which he is the accused, or one of the accused. He cannot be compelled to do so even by subpoena or other process or order of the Court. He cannot be required to be a witness either for the prosecution, or for a coaccused, or even for himself. 33 In other words unlike an ordinary witness (or a party in a civil action) who may be compelled to testify by subpoena, having only the right to refuse to answer a particular incriminatory question at the time it is put to him-the defendant in a criminal action can refuse to testify altogether. He can refuse to take the witness stand, be sworn, answer any question. 34 And, as the law categorically states, "his neglect or refusal to be a witness shall not in any manner prejudice or be used against him." 35

23

In Miranda, Chief Justice Warren summarized the procedural safeguards laid down for a person in police custody, "in-custody interrogation" being regarded as the commencement of an adversary proceeding against the suspect.24 He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise those rights must be afforded to him throughout the interrogation. After such warnings have been given, such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer or make a statement. But unless and until such warnings and waivers are demonstrated by the prosecution at the trial, no evidence obtained as a result of interrogation can be used against him. The objective is to prohibit "incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statement without full warnings of constitutional rights." 25 The rights above specified, to repeat, exist only in "custodial interrogations," or "in-custody interrogation of accused persons." 26 And, as this Court has already stated, by custodial interrogation is meant "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." 27 The situation contemplated has also been more precisely described by this Court." 28 .. . After a person is arrested and his custodial investigation begins a confrontation arises which at best may be tanned unequal. The detainee is

If he should wish to testify in his own behalf, however, he may do so. This is his right. But if he does testify, then he "may be crossexamined as any other witness." He may be cross-examined as to any matters stated in his direct examination, or connected therewith . 36 He may not on cross-examination refuse to answer any question on the ground that the answer that he will give, or the evidence he will produce, would have a tendency to incriminate him for the crime with which he is charged. It must however be made clear that if the defendant in a criminal action be asked a question which might incriminate him, not for the crime with which he is charged, but for some other crime, distinct from that of which he is accused, he may decline to answer that specific question, on the strength of the right against self-incrimination granted by the first sentence of Section 20, Article IV of the 1973 Constitution (now Section 17 of the 1987 Constitution). Thus, assuming that in a prosecution for murder, the accused should testify in his behalf, he may not on cross-examination refuse to answer any question on the ground that he might be implicated in that crime of murder; but he may decline to answer any particular question which might implicate him for a different and distinct offense, say, estafa. In fine, a person suspected of having committed a crime and subsequently charged with its commission in court, has the following rights in the matter of his testifying or producing evidence, to wit: 1) BEFORE THE CASE IS FILED IN COURT (or with the public prosecutor, for preliminary investigation), but after having been taken into custody or otherwise deprived of his liberty in some significant way, and on being interrogated by the police: the continuing right to remain silent and to counsel, and to be informed thereof, not to be subjected to force, violence, threat, intimidation or any other means which vitiates the free will; and to have evidence obtained in violation of these rights rejected; and 2) AFTER THE CASE IS FILED IN COURT 37 a) to refuse to be a witness; b) not to have any prejudice whatsoever result to him by such refusal; c) to testify in his own behalf, subject to cross-examination by the prosecution; d) WHILE TESTIFYING, to refuse to answer a specific question which tends to incriminate him for some crime other than that for which he is then prosecuted. It should by now be abundantly apparent that respondent Judge has misapprehended the nature and import of the disparate rights set forth in Section 20, Article IV of the 1973 Constitution. He has taken them as applying to the same juridical situation, equating one with the other. In so doing, he has grossly erred. To be sure, His Honor sought to substantiate his thesis by arguments he took to be cogent and logical. The thesis was however so far divorced from the actual and correct state of the constitutional and legal principles involved as to make application of said thesis to the case before him tantamount to totally unfounded, whimsical or capricious exercise of power. His Orders were thus rendered with grave abuse of discretion. They should be as they are hereby, annulled and set aside. It is clear from the undisputed facts of this case that Felipe Ramos was not in any sense under custodial interrogation, as the term should be properly understood, prior to and during the administrative inquiry into the discovered irregularities in ticket sales in which he appeared to have had a hand. The constitutional rights of a person under custodial interrogation under Section 20, Article IV of the 1973 Constitution did not therefore come into play, were of no relevance to the inquiry. It is also clear, too, that Ramos had voluntarily answered questions posed to him on the first day of the administrative investigation, February 9, 1986 and agreed that the proceedings should be recorded, the record having thereafter been marked during the trial of the criminal action subsequently filed against him as Exhibit A, just as it is obvious that the note (later marked as Exhibit K) that he sent to his superiors on February 8,1986, the day before the investigation, offering to

compromise his liability in the alleged irregularities, was a free and even spontaneous act on his part. They may not be excluded on the ground that the so-called "Miranda rights" had not been accorded to Ramos. His Honor adverts to what he perceives to be the "greater danger x x (of) the violation of the right of any person against self-incrimination when the investigation is conducted by the complaining parties, complaining companies, or complaining employers because being interested parties, unlike the police agencies who have no propriety or pecuniary interest to protect, they may in their over-eagerness or zealousness bear heavily on their hapless suspects, whether employees or not, to give statements under an atmosphere of moral coercion, undue ascendancy and undue influence." It suffices to draw attention to the specific and peremptory requirement of the law that disciplinary sanctions may not be imposed on any employee by his employer until and unless the employee has been accorded due process, by which is meant that the latter must be informed of the offenses ascribed to him and afforded adequate time and opportunity to explain his side. The requirement entails the making of statements, oral or written, by the employee under such administrative investigation in his defense, with opportunity to solicit the assistance of counsel, or his colleagues and friends. The employee may, of course, refuse to submit any statement at the investigation, that is his privilege. But if he should opt to do so, in his defense to the accusation against him, it would be absurd to reject his statements, whether at the administrative investigation, or at a subsequent criminal action brought against him, because he had not been accorded, prior to his making and presenting them, his "Miranda rights" (to silence and to counsel and to be informed thereof, etc.) which, to repeat, are relevant only in custodial investigations. Indeed, it is self-evident that the employee's statements, whether called "position paper," "answer," etc., are submitted by him precisely so that they may be admitted and duly considered by the investigating officer or committee, in negation or mitigation of his liability. Of course the possibility cannot be discounted that in certain instances the judge's expressed apprehensions may be realized, that violence or intimidation, undue pressure or influence be brought to bear on an employee under investigation or for that matter, on a person being interrogated by another whom he has supposedly offended. In such an event, any admission or confession wrung from the person under interrogation would be inadmissible in evidence, on proof of the vice or defect vitiating consent, not because of a violation of Section 20, Article IV of the 1973 Constitution, but simply on the general, incontestable proposition that involuntary or coerced statements may not in justice be received against the makers thereof, and really should not be accorded any evidentiary value at all. WHEREFORE, the writ of certiorari is granted annulling and setting aside the Orders of the respondent Judge in Criminal Case No. 3488-R, dated August 9, 1988 and September 14, 1988, and he is hereby ordered to admit in evidence Exhibits "A" and "K" of the prosecution in said Criminal Case No. 3488-R, and thereafter proceed with the trial and adjudgment thereof. The temporary restraining order of October 26, 1988 having become functus officio, is now declared of no further force and effect.

Cruz, Gancayco, Grio-Aquino and Medialdea, JJ., concur.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 110357 August 17, 1994 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. CARLOS Y ARELLANO, accused-appellant.

The Solicitor General for plaintiff-appellee. Public Attorney's Office for accused-appellant.

DAVIDE, JR., J.:

In an information filed on 10 May 1991 with the Regional Trial Court (RTC) of Makati, accused Carlos Tranca y Arellano was charged with the violation of Section 15, Article III of R.A. No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972. The accusatory portion of the information reads: That on or about 07 May 1991, in the Municipality of Makati, Metro Manila, Philippines, a place within the jurisdiction of the Honorable Court, the abovenamed accused, without the corresponding license, prescription of being authorized by law, did, then and there, willfully, unlawfully and feloniously sell, deliver and distribute Methamphetamine Hydrochloride (shabu), which is a regulated drug, in violation of the above-cited law. 1 The case was docketed as Criminal Case No. 2574 and assigned to Branch 136 of the said court. At the trial of the case on its merits after the accused had pleaded not guilty at his arraignment on 25 October 1991, 2 the prosecution presented as witnesses for its evidence in chief Sgt. Jose Latumbo of the National Capital Region NARCOM Unit (NCRNU) with office at Camp Crame, Quezon City, SPO1 Franciso Matundan, Police Lt. Julita De Villa, and Teresita Alberto, and presented in rebuttal SPO1 Francisco Matundan and SPO3 Albert San Jose. The accused took the witness stand and presented his sister, Clarita Cheng, as his witness. Through the testimonies of Sgt. Jose Latumbo and SPO1 Francisco Matundan, the prosecution established the following facts: On 6 May 1991 at 11:00 p.m., a "confidential agent" or informer went to the office of the NCRNU and proceeded to the desk of their superior, Capt. Jonathan Miano. Sgt. Jose Latumbo, SPO3 Oliver Tugade, SPO2 Albert San Jose, SPO1 Francisco Matundan, and PO3 Lilia Ochia were summoned by Capt. Miano to a briefing. The latter told them that the informer had revealed that a certain "Jon-Jon" (later identified as the accused) was selling shabu along Kalayaan Avenue, Makati, Metro Manila. Capt. Miano then formed a buy-bust team with himself as the team leader, Sgt. Latumbo as the poseur-buyer, and the rest, including the informer, forming the support group. Capt. Miano gave to Sgt. Latumbo a P100 bill with serial number SN886097 (Exhibit "B") and which had been dusted with fluorescent powder to be used in the buy-bust operation. The team, riding in two cars, then proceeded to the target area. At the corner of Kalayaan Avenue and J.B. Roxas Street, the informer spotted the accused, who was standing in front of a house, and pointed him out to the team members. The team then circled back and alighted from their vehicles. As planned, Sgt. Latumbo and the informer approached the accused while the rest of the team took vantage points so as to observe the operation and close in at the opportune time. The informer introduced Sgt. Latumbo to the accused and told the latter that his companion was interested in buying shabu. The informer then asked the accused if he had any for sale. The accused answered in the affirmative and asked for the quantity to be bought. Sgt. Latumbo replied, "Pare, tapatan mo na lang itong piso ko." (In illegal drug parlance, "piso" means one hundred pesos) The accused momentarily left the pair and entered his house. When the accused emerged, he gave a package (Exhibit "F- 2") to Sgt. Latumbo who in turn handed to the accused the P100 marked money. Sgt. Latumbo examined the package he received and upon ascertaining that it was really shabu, gave the pre-arranged signal by scratching his head. Capt. Miano and the rest of the police officers then closed in on the accused. They introduced themselves as NARCOM agents and arrested the accused. Upon interrogation by Capt. Miano, the accused voluntarily surrendered one plastic bag of shabu (Exhibit "F-3") and the P100 marked money (Exhibit "B"). The accused was handcuffed and taken to the NARCOM headquarters. 3 On 7 May 1991, SPO1 Matundan requested Teresita Alberto, the Chief Chemist of the Physical Identification Division of the PNP Crime Laboratory Service at Camp Crame, to examine the person of the accused and a P100 bill with serial number SN886097. She exposed the P100 bill to ultraviolet radiation and found the presence of fluorescent powder thereon. She likewise exposed the person of the accused to ultraviolet radiation and discovered fluorescent powder on his hands, face, and on the opening of the left-side pocket of the white shorts that he was then wearing. The results of her examination are contained in her Physical Identification Report No. PI-073-91 (Exhibit "C"). 4 On the same date, SPO1 Matundan came to the office of Police Lt. Julita De Villa, a forensic chemist at the PNP Crime Laboratory

Service in Camp Crame, to deliver specimens consisting of a 0.06-gram substance wrapped in aluminum foil (Exhibit "F-2") and a 1.04-gram substance contained in a plastic bag (Exhibit "F-3"), together with a letter-request (Exhibit "E") asking her to examine the two specimens. She subjected both specimens to three different laboratory tests, viz., chemical examination, thin-layer chromatograhic examination, and infrared spectrometric record analysis. Both specimens were confirmed to be methamphetamine hydrochloride (shabu), as stated in her Initial Chemistry Report No. D-464-91 dated 7 May 1991 (Exhibit "G") and her (Final) Chemistry Report No. D-464-91 (Exhibit "H"). 5 The accused denied the allegations against him and contended that he was framed by the police officers. According to him, on 6 May 1991, he was inside his house from morning till night with his parents, three sisters (one of whom is Clarita Cheng), a brother, two nieces, a nephew, his wife, and one of his neighbors. At about 11:40 p.m., while he was fixing his videocassette recorder, he heard a knocking at the front door. He called to ask who was knocking and someone replied, "Joey." As he was busy, he asked his nephew, John David, to open the door. When the latter did so, four men suddenly barged in. He did not know the men then but he later came to know that they were Police Officers Latumbo, Matundan, Tugade, and San Jose, who had said that he was "Joey." San Jose grabbed him by the collar and asked if he was "Jon-Jon." He answered that he was. They told him, "Kung puede kailangan namin ng pera, kaya magturo ka na." He replied that he knew nothing. Capt. Miano, who by then had appeared, slapped him while San Jose poked a pistol at him and said, "Kung gusto mo, patayin ka na lang namin." He, together with his parents and the occupants of the house, pleaded with the police officers to stop. He was then brought out of the house by the men. He wanted to bring his sister, Clarita Cheng, with him but she was not allowed to board a police vehicle. He saw Matundan talking to her sister. Although he could not hear what they were saying, he noticed his sister giving some money to Matundan. He was first brought to a damaged building at the Metropolitan along Ayala Avenue, Makati, where he was made to alight and talk to Capt. Miano who told him to point to someone selling shabu; he answered that he knew no one selling shabu. After half an hour, he was brought to the NARCOM headquarters at Camp Crame. At 10:40 a.m. the following day, he was investigated by Matundan. After he was investigated, he was made to stand up and place his hands behind his back after which he was handcuffed. Latumbo then got a P100 bill from a drawer and wiped this on the accused's hands and left pocket of his shorts. His handcuffs were then removed and he was brought back to his cell. After thirty minutes, he was brought to the PNP Crime Laboratory for ultraviolet ray examination and then returned to his cell. 6 Clarita Cheng's testimony corroborates that of the accused, his brother. She declared that she asked the police officers why they were treating her brother like that and told them that if they do not believe him, they should rather just kill him. She wanted to accompany her brother but they would not let her. Matundan told her not to worry because her brother would be brought back. He asked from her P1,000.00 for gasoline which she gave. His brother, however, was never returned. She searched for him and found that he was detained at Camp Crame. 7 On rebuttal, SPO3 San Jose and SPO1 Matundan denied that they barged into the accused's house and illegally arrested him. SPO1 Matundan denied that he received P1,000.00 from Clarita Cheng. SPO3 San Jose also denied that he wiped a P100 bill on the accused's hands and pocket while the latter was detained. 8 On 23 March 1993, the trial court promulgated its decision 9 finding the accused guilty as charged and sentencing him to suffer the penalty of life imprisonment and to pay a fine of P30,000.00. The accused appealed the decision to this Court. He asseverates that the constitutional presumption of innocence in his favor was not overcome by proof of guilt beyond reasonable doubt. After assiduously going over the appellant's brief and the records of this case, we find no reason to overturn the trial court's judgment of conviction. The trial court found the testimony given by the prosecution witnesses to be more credible and logical. It said that the prosecution witnesses "testified candidly and in a straightforward manner that exuded all the marks of truthfulness." 10 Long settled in criminal jurisprudence is the rule that when the issue is one of credibility of witnesses, appellate courts will generally not disturb the findings of the trial court, considering that the latter is in a

better position to decide the question, having heard the witnesses themselves and observed their deportment and manner of testifying during the trial, unless it has plainly overlooked certain facts of substance and value that, if considered, might affect the result of the case. 11 We do not find any such oversight on the part of the trial court. The NARCOM agents have in their favor the presumption of regularity in the performance of their official duties. 12 The accused was not able to prove that the police officers had any improper or ulterior motive in arresting him. The police officers are thus presumed to have regularly performed their official duty in the absence of any evidence to the contrary. The accused's allegation that the policemen barged into his house and demanded that he point to anybody selling drugs is somewhat hard to believe. As noted by the trial court: The . . . version advanced by the accused and his sister is not only by itself weak and easily contrived, it suffers in logic and cause. Why would police officers barge into a private dwelling in the middle of the night only to force somebody to inform on unnamed drug dealers? They could much easier pick somebody on a street at a more convenient time when their target is alone and away from his family. And it is not logical that they would do it to extort money from the accused since by his own testimony none was demanded from the accused. As such, the defense raised merits scant considerations. 13 Likewise, his contention that the marked money was wiped on his hands and pocket was supported by nothing more than his bare allegation. We have stated that an allegation that one was framed can be made with ease. That allegation must therefore be proved by clear and convincing evidence. The presumption that law enforcers have regularly performed their duties perforce requires that proof of a frame-up must be strong. 14 The accused also assails the fact that there was not prior surveillance before the alleged entrapment was effected and contends that this casts doubt on the regularity of the police operation. This contention is untenable. A prior surveillance is not a prerequisite for the validity of an entrapment operation. There is no rigid or textbook method of conducting buy-bust operations. 15 Flexibility is a trait of good police work. The police officers may decide that time is of the essence and dispense with the need for prior surveillance. The accused also harps on the fact that there was not mission order for the buy-bust operation and that there was no investigation report made after the operation. A mission order is not an essential requisite for a valid buy-bust operation. The execution of an investigation report is likewise not indispensable considering further that SPO3 San Jose had testified that he prepared the booking sheet, receipt of property seized, and the affidavit of arrest. 16 To ask that every buy-bust operation be conducted in a textbook or blue ribbon manner is to ask for too much from our law enforcers. The defense questions the non-presentation of the informer. There is no merit in this objection. The testimony of the informer would at best be corroborative since the testimonies of Sgt. Latumbo and SP01 Matundan had sufficiently established how the crime was committed. The testimony or identity of the informer may be dispensed with since his narration would be merely corroborative and cumulative with that of the poseur-buyer who was himself presented and who took the witness stand for the precise purpose of attesting to the sale of the illegal drug. 17 The defense contends that the right of the accused against selfincrimination was violated when he was made to undergo an ultraviolet ray examination. The defense also argues that Chief Chemist Teresita Alberto failed to inform the accused of his right to counsel before subjecting him to the examination. These contentions are without merit. What is prohibited by the constitutional guarantee against self-incrimination is the use of physical or moral compulsion to export communication from the witness, not an inclusion of his body in evidence, when it may be material. 18 Stated otherwise, it is simply a prohibition against legal process to extract from the defendant's own lips, against his will, an admission of guilt. 19 Nor can the subjection of the accused's body to ultraviolet radiation, in order to determine the presence of ultraviolet powder, be considered a custodial investigation so as to warrant the presence of counsel. In fine, we affirm the finding of the trial court that the accused was caught in flagrante selling shabu to the members of the buy-bust team. The penalty imposed upon the accused, however, must be

modified in view of the new amendments introduced by R.A. No. 7659 20 to Section 15, Article III, and Section 20, Article IV of R.A. No. 6425, as amended. R.A. No. 7659 was approved on 13 December 1993 and took effect on 31 December 1993. As thus further amended, the penalty prescribed in Section 15 was changed from "life imprisonment to death and a fine ranging from twenty thousand to thirty thousand pesos" to "reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos." However, pursuant to Section 17 of R.A. No. 7659, which amends Section 20 of R.A. No. 6425, the new penalty shall be applied if the quantity of the dangerous drugs involved falls within the first paragraph of the amended Section 20, and if the quantity would be lower than that specified in said first paragraph, the penalty shall be from "prision correccional to reclusion perpetua." The pertinent portion of the amended Section 20 reads as follows: Sec. 20. Application of Penalties, Confiscation and

Forfeiture of the Proceeds or Instrument of the Crime. The penalties for offenses under Section

3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act shall be applied if the dangerous drugs involved is in any of the following quantities: xxx xxx xxx 3. 200 grams or more of shabu or methylamphetamine hydrochloride; xxx xxx xxx Otherwise, if the quantity involved is less than the foregoing quantities, the penalty shall range from prision correccional to reclusion perpetua depending upon the quantity. The penalty then in Section 15 is now based on the quantity of the regulated drugs involved, except where the victim is a minor or where the regulated drug involved in any offense under Section 15 is the proximate cause of the death of the victim, in which case the maximum penalty prescribed in Section 15 shall be imposed regardless of the quantity of the regulated drugs involved. 21 In People vs. Martin Simon y Sunga, Court ruled as follows:
22

decided on 29 July 1994, this

(1) Provisions of R.A. No. 7659 which are favorable to the accused shall be given retroactiv e effect pursuant to Article 22 of the Revised Penal Code. (2) Where the quantity of the dangerou s drug involved is less than the quantities stated in the first paragrap h of Section 20 of R.A. No. 6425, the penalty to be

imposed shall range from

prision correccio nal to reclusion temporal, and not reclusion perpetua.

quantity of the dangerou s drugs involved, each of the compone nt penalties thereof

The reason is that there is an overlappi ng error, probably through oversight in the drafting, in the provisions on the penalty of

prision correccio nal, prision mayor,

and

reclusion temporal

reclusion perpetua

as shown by its dual impositio n, i.e., as the minimum of the penalty where the quantity of the dangerou s drugs involved is more than those specified in the first paragrap h of the amended Section 20 and also as the maximum of the penalty where the quantity of the dangerou s drugs involved is less than those so specified in the first paragrap h. (3) Consideri ng that the aforesaid penalty of

shall be considere d as a principal imposable penalty dependin g on the quantity, such that the quantity of the drugs enumerat ed in the second paragrap h should then be divided into three, with the resulting quotient, and double or treble the same, as the bases for determini ng the appropria te compone nt penalty. (4) The modifying circumsta nces in the Revised Penal Code may be appreciat ed to determine the proper period of the correspon ding imposable penalty or even to effect its reduction by one or more degrees; provided, however, that in no

prision correccio nal to reclusion temporal

shall depend upon the

case should such graduatio n of penalties reduce the imposable penalty lower than

within the range of the penalty next lower in degree to the imposable penalty. With the foregoing as our touchstones, and it appearing from Chemistry Report No. D-464-91 (Exhibit "H") 23 signed by Police Lt. Julita T. De Villa, PNP Forensic Chemist, that the quantity of the shabu recoverd from the accused in this case is only 1.10 grams, the imposable penalty under the second paragraph of Section 20 of R.A. No. 6425, as further amended by Section 17 of R.A. No. 7659, should be prision correccional. Applying the Indeterminate Sentence Law, the accused may then be sentenced to suffer an indeterminate penalty ranging from six (6) months of arresto mayor as minimum to six (6) years of prision correccional as maximum. WHEREFORE, the challenged decision of Branch 136 of the Regional Trial Court of Makati in Criminal Case No. 2754 is hereby AFFIRMED subject to the modification of the penalty. Accused CARLOS TRANCA Y ARELLANO is hereby sentenced to suffer an indeterminate penalty ranging from six (6) months of arresto mayor as minimum to six (6) years of prision correccional as maximum. Costs against the accused. SO ORDERED.

prision correccio nal.

(5) In appropria te instances, the Indetermi nate Sentence Law shall be applied and considerin g that R.A. No. 7659 has unqualifie dly adopted the penalties under the Revised Penal Code with their technical significati on and effects, then the crimes under the Dangerou s Drugs Act shall now be considere d as crimes punished by the Revised Penal Code; hence, pursuant to Section 1 of the Indetermi nate Sentence Law, the indetermi nate penalty which may be imposed shall be one whose maximum shall be within the range of the imposable penalty and whose minimum shall be

Bellosillo, Quiason and Kapunan, JJ., concur. Cruz, J., is on leave.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 70270 November 11, 1988 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DANILO TURLA Y BATI, defendant-appellant.

The Solicitor General for plaintiff-appellee. Citizens Legal Assistance Office for defendant-appellant.

PADILLA, J.: In Criminal Case No. 2945 of the Regional Trial Court of Pampanga, Branch 41, San Fernando, Pampanga, Danilo Turla y Bati was charged with Violation of Rep. Act. No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, allegedly committed as follows: That on or about the 24th day of September 1984, in the Municipality of San Fernando, Province of Pampanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused DANILO TURLA y BATI, knowing fully well that Marijuana is a prohibited drug, did then and there wilfully, unlawfully and feloniously have in his possession, control and custody dried marijuana flowering tops with leaves with an appropriate weight of one (1) kilogram and to transport the same to San Fernando, Pampanga, without authority to do so. 1

After hearing the evidence adduced by the parties, the trial court 2 found the accused guilty, as charged, and sentenced him to suffer the penalty of reclusion perpetua, and to pay a fine of P20,000.00 and costs. 3 From this judgment, the accused has appealed to this Court. The proofs adduced on behalf of the prosecution establish the following facts: The evidence shows that on September 23, 1984 at around 3:00 o'clock in the afternoon, Sgt. Venusto Jamisolamin of the 3rd Narcotics Regional Unit, Camp Olivas, San Fernando, Pampanga received information from an informer that at dawn the following day a drug pusher was going to steal a car at the vicinity of 31-d Street, Balibago, Angeles City. On the same date, Sgt. Ruben Bazar, also of the 3rd Regional Narcotics Unit, with the aid of an informer met the herein accused at the Hongkong Restaurant in Angeles City. In that meeting, Sgt. Bazar, who pretended to be a civilian, proposed to buy from the accused a kilo of marijuana for Pl,000.00. It was then agreed that the accused would deliver the marijuana on the following day between 5:00 and 6:00 o'clock in the morning at the Pampanguea Restaurant in San Fernando, Pampanga. Acting on the information supplied by his informant, Sgt. Jamisolamin together with Sgts. Daniel M. Guillermo and one Sgt. Nava, left Camp Olivas at around 3:45 in the morning of September 24, 1984 for the purpose of arresting the would be thief. On reaching 3rd Street, Balibago, Angeles City, at around 4:10 in the morning, the three PC sergeants, together with Sgt. Jamisolamin's informer, who was already waiting for them, positioned themselves inconspicuously near the place where the Toyota car was parked. After waiting for about fifteen minutes, a man appeared, proceeded to the car, opened its left door and drove the car away. Sgt. Jamisolamin recognized the man as the same man he had previously arrested for violation of the Dangerous Drugs Act. That man was Danilo Turla, alias Danny Bangus. The PC sergeants attempted to pursue the accused but lost sight of him when their car developed engine trouble. Having failed to apprehend the accused, the PC soldiers, together with the informer, decided to return to San Fernando, Pampanga to assist Sgt. Bazar in arresting a drug pusher whom the latter would meet at the Pampanguea Restaurant. Upon reaching Barangay Dolores, San Fernando, Pampanga, the informer noticed the red Toyota Corona, which they had earlier pursued, parked at a Shell gasoline station. The PC soldiers, after their attention was called to such fact, immediately drove to the gasoline station to effect an arrest. There, the soldiers confronted the accused as to the ownership of the car and asked him to show his driver's license and the car's registration papers. The accused could show neither of the documents asked but explained to the soldiers that the car belonged to his sister. The PC soldiers then directed the accused to open the back compartment of the car. At first, the accused hesitated but finally opened it. Inside the trunk, the PC soldiers found a sack. Upon further inspection, the sack yielded a plastic bag containing dried marijuana leaves weighing at about one kilo (Exhibit E-1). When asked as to the ownership of the marijuana leaves, the accused declared that he does not know anything of the articles. Thereupon, the PC soldiers brought the accused and the car to Camp Olivas. A receipt of the custody of the car, marijuana leaves and other articles found inside the car and/or taken from the accused was prepared by Sgts. Guillermo and Jamisolamin consisting of two pages (Exhibits B and B-1) duly signed and subscribed by them and also by the accused (Exh. B-4). Likewise, a Booking Sheet and Arrest Report was prepared by Sgt. Jamisolamin (Exh. A) which was signed by

him (Exh. A-2) and by the accused (Exh. A-1). In addition thereto, Sgts. Guillermo and Jamisolamin executed a joint affidavit in connection with the inci dent (Exhs. C, C-1). Later, upon follow-up of the case, it was learned the red Toyota car belongs to and was stolen from an American serviceman. It was also found out that the key used by the accused on said car was a master key and not the real key. Although the car was subsequently returned to its real owner, the accused was nevertheless charged for carnapping. The laboratory examination later conducted on the aforesaid leaves revealed that the same was positively marijuana (Exh. F). 4 The accusedappellant denied having agreed to sell marijuana leaves to Sgt. Bazar. He also denied that marijuana leaves were found in the trunk compartment of the car. His version is as follows: The accused testified that he knows a person by the name of Sgt. Amizolamin as the latter hired him as a civilian informer in 1982. He again met Sgt. Amizolamin in August 1984 at the Sahara Beer Garden located in Angeles city and the latter requested him to work as a civilian informer but refused because he expects to profit more as a fish dealer. When he refused, Sgt. Amizolamin was slightly mad. On September 24, 1984 at around 4:00 to 5:00 o'clock in the morning after coming from Angeles City, he saw Sgt. Amizolamin while he was buying gasoline at the Shell Gasoline Station at San Fernando. Before he left Angeles City, he went to Sahara Beer Garden at around 10:00 to 11:00 o'clock in the evening and stayed in said Beer Garden until 3:30 o'clock in the morning. While he was in said Beer Garden, a certain person by the name of Jojo Alimurung approached him and offered to sell a Toyota Car for Pl0,000.00. After inspecting the car parked outside the Beer house, he paid Jojo Alimurung the amount of P10,000.00 without any receipt issued and in the presence of a certain Winnie. They further agreed to meet the following day, September 24, 1984, to prepare the pertinent papers. Thereafter, he went towards the road going to St. Jude Village, San Fernando, Pampanga but later changed his mind. Instead, he went to the Ifugao Muramu to look for his girlfriend but the latter was not there. He returned to St. Jude Village but the car ran out of gasoline at the Shell Gasoline Station. While the car was being filled with gasoline at around 4:00 to 5:00 o'clock in the morning of September 24, 1984, a Ford Fiera stopped near the car and three persons in uniform alighted from the Ford Fiera. Then two of them approached him and told him that they have a warrant of arrest issued against him. Thereafter they forced him to ride in their Ford Fiera and brought him to Camp Olivas, San Fernando, Pampanga. In Camp Olivas, he noticed Sgt. Venusto Amizolamin. Likewise he saw Pat. Philip Paz and Pat. Carlito Carino and requested said Policemen to talk with the persons who arrested him. Finally, on September 26, 1984 he was able to talk with the arresting officers and the latter told him that he will be released if he will give P5,000.00 but he refused. He was then called to give his statement but he also refused. The arresting officers then prepared one but he refused to sign so he was brought to the kitchen and blindfolded. In the kitchen, they held his hands and forced him to lie down on the cement floor. Then he felt something wet placed on his face and water was entering his nostril causing him to hardly breath. When he could no longer endure the suffering, he was constrained to sign the statement prepared including the receipt for custody marked as Exh. A, B, B-1 respectively. He further testified that he does not know Sgt. Bazar nor agreed to deliver to him one (1) kilogram of marijuana. He likewise denied the testimonies of Sgts. Jamizolamin and Guillermo that the latter have found one kilogram of marijuana at the back

compartment of the car (TSN, pp. 2-26, Jail. 9, 1985. TSN, pp. 2-11 Jan. 10, 1985). 5 The trial judge gave no weight to the testimony of the accused as it appeared to him to be unnatural and lacking in candor and plausibility; and it could not overcome the evidence presented by the prosecution. It is now contended on behalf of the accused-appellant that the evidence of the prosecution is not sufficient to support a finding that he is guilty of the crime charged, since he was not caught in the act of selling marijuana, and his ownership or possession of the marijuana leaves, said to have been found inside the trunk compartment of the car, has not been duly proved. Counsel for the appellant points out that the only incriminating evidence against him is the Receipt for Custody (Exh. B) which contains a list of things, a sack of marijuana leaves included, found inside the car driven by the appellant when he was apprehended by PC soldiers and which bears the signature of the appellant. But, this receipt, according to counsel for the accusedappellant is inadmissible in evidence as the signature of the accused therein was obtained by means of force and intimidation during custodial investigation without the assistance of counsel. The Court agrees with counsel for the accused-appellant that the Receipt for Custody (Exh. B) is inadmissible in evidence, as it was signed by the accused during custodial investigation without the assistance of counsel of his choice and without having been first informed of his constitutional right to silence and to counsel. The said Receipt is a declaration against interest and a tacit admission of the crime charged, since mere unexplained possession of prohibited drugs is punished by law. The Receipt is in the same category as extrajudicial confessions outlawed by the Constitution. However, the claim of insufficiency of evidence to support a conviction is not tenable. As the trial court correctly found, "even if the documents, more particularly the Booking and Arrest Report and the Receipt for Custody, are disregarded, there is more than enough evidence to sustain a judgment of conviction. As already stated, the testimonies of the prosecution witnesses proved beyond reasonable doubt the guilt of the accused in the offense charged." 6 PC Sgt. Venusto Jamisolamin, detailed with the Third Narcotics Regional Unit stationed at Camp Olivas, San Fernando, Pampanga, declared that when they apprehended the accused in the morning of 24 September 1984, they found a big plastic bag containing marijuana leaves in the trunk compartment of the car the accused was driving. His testimony reads, as follows: Q. After you arrested the accused at the Shell gasoline station at Dolores, San Fernando, Pampanga, what else did you do? A. I let the suspect open the back compartment of the car, sir. Q. Were you actually the one who asked him to open the back compartment of the car? A. Yes, sir. Q. Did the accused open the back compartment of the car? A. Yes, sir Q. Was he easily able to open it? A. Yes, sir. Q. After the back compartment of the car was opened, what did you find inside the compartment of the car? A. We found one big plastic bag containing marijuana leaves, sir. CUEVAS, JR., J.:

Q. Why do you say that the things you found on the big plastic bag is marijuana? A. Because I am very familiar with marijuana, sir. 7 This statement is corroborated by PC Sgt. Daniel Guillermo, also of the Narcotics Unit, who was with PC Sgt. Jamisolamin when they apprehended the accused in the early morning of 24 September 1984.
8

It is claimed for the defense that the testimonies of the prosecution witnesses are contradictory and conflicting so that they do not deserve credence. It would appear, however, that the contradictory and conflicting statements pointed out by counsel for the accusedappellant refer to minor details which cannot destroy the credibility of witnesses. Again, the issue posed is one of credibility of witnesses which, as this Court has often said, is a matter that is peculiarly within the province of the trial judge, who had first-hand opportunity to watch and observe the demeanor and behavior of witnesses both for the prosecution and the defense, at the time of their testimony. We find no cogent reason to disturb the findings of the trial judge. WHEREFORE, the judgment appealed from should be, as it is hereby, AFFIRMED. With costs against the accused-appellant, Danilo Turla y Bati. SO ORDERED.

Melencio-Herrera (Chairperson), Paras, Sarmiento and Regalado, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. Nos. 71208-09 August 30, 1985 SATURNINA GALMAN AND REYNALDO GALMAN, petitioners, vs. THE HONORABLE PRESIDING JUSTICE MANUEL PAMARAN AND ASSOCIATE JUSTICES AUGUSTO AMORES AND BIENVENIDO VERA CRUZ OF THE SANDIGANBAYAN, THE HONORABLE BERNARDO FERNANDEZ, TANODBAYAN, GENERAL FABIAN C. VER, MAJOR GENERAL PROSPERO OLIVAS, SGT. PABLO MARTINEZ, SGT. TOMAS FERNANDEZ, SGT. LEONARDO MOJICA SGT. PEPITO TORIO, SGT. PROSPERO BONA AND AlC ANICETO ACUPIDO, respondents. G.R. Nos. 71212-13 August 30, 1985 PEOPLE OF THE PHILIPPINES, represented by the TANODBAYAN (OMBUDSMAN), petitioner, vs. THE SANDIGANBAYAN, GENERAL FABIAN C. VER, MAJOR GEN. PROSPERO OLIVAS, SGT. PABLO MARTINEZ, SGT. TOMAS FERNANDEZ, SGT. LEONARDO MOJICA, SGT. PEPITO TORIO, SGT. PROSPERO BONA AND AIC ANICETO ACUPIDO, respondents.

On August 21, 1983, a crime unparalleled in repercussions and ramifications was committed inside the premises of the Manila International Airport (MIA) in Pasay City. Former Senator Benigno S. Aquino, Jr., an opposition stalwart who was returning to the country after a long-sojourn abroad, was gunned down to death. The assassination rippled shock-waves throughout the entire country which reverberated beyond the territorial confines of this Republic. The aftershocks stunned the nation even more as this ramified to all aspects of Philippine political, economic and social life. To determine the facts and circumstances surrounding the killing and to allow a free, unlimited and exhaustive investigation of all aspects of

the tragedy, 1 P.D. 1886 was promulgated creating an ad hoc Fact Finding Board which later became more popularly known as the Agrava Board. 2 Pursuant to the powers vested in it by P.D. 1886, the Board conducted public hearings wherein various witnesses appeared and testified and/or produced documentary and other evidence either in obedience to a subpoena or in response to an invitation issued by the Board Among the witnesses who appeared, testified and produced evidence before the Board were the herein private respondents General Fabian C. Ver, Major General Prospero Olivas, 3 Sgt. Pablo Martinez, Sgt. Tomas Fernandez, Sgt. Leonardo Mojica, Sgt. Pepito Torio, Sgt. Prospero Bona and AIC Aniceto Acupido. 4 UPON termination of the investigation, two (2) reports were submitted to His Excellency, President Ferdinand E. Marcos. One, by its Chairman, the Hon. Justice Corazon Juliano Agrava; and another one, jointly authored by the other members of the Board namely: Hon. Luciano Salazar, Hon. Amado Dizon, Hon. Dante Santos and Hon. Ernesto Herrera. 'the reports were thereafter referred and turned over to the TANODBAYAN for appropriate action. After conducting the necessary preliminary investigation, the TANODBAYAN 5 filed with the SANDIGANBAYAN two (2) Informations for MURDER-one for the killing of Sen. Benigno S. Aquino which was docketed as Criminal Case No. 10010 and another, criminal Case No. 10011, for the killing of Rolando Galman, who was found dead on the airport tarmac not far from the prostrate body of Sen. Aquino on that same fateful day. In both criminal cases, private respondents were charged as accessories, along with several principals, and one accomplice. Upon arraignment, all the accused, including the herein private ate Respondents pleaded NOT GUILTY. In the course of the joint trial of the two (2) aforementioned cases, the Prosecution represented by the Office of the petition TANODBAYAN, marked and thereafter offered as part of its evidence, the individual testimonies of private respondents before the Agrava Board. 6 Private respondents, through their respective counsel objected to the admission of said exhibits. Private respondent Gen. Ver filed a formal "Motion to Exclude Testimonies of Gen. Fabian C. Ver before the Fact Finding Board as Evidence against him in the above-entitled cases" 7 contending that its admission will be in derogation of his constitutional right against self-incrimination and violative of the immunity granted by P.D. 1886. He prayed that his aforesaid testimony be rejected as evidence for the prosecution. Major Gen. Olivas and the rest of the other private respondents likewise filed separate motions to exclude their respective individual testimonies invoking the same ground. 8 Petitioner TANODBAYAN opposed said motions contending that the immunity relied upon by the private respondents in support of their motions to exclude their respective testimonies, was not available to them because of their failure to invoke their right against self-incrimination before the ad hoc Fact Finding Board. 9 Respondent SANDIGANBAYAN ordered the TANODBAYAN and the private respondents to submit their respective memorandum on the issue after which said motions will be considered submitted for resolution. 10 On May 30, 1985, petitioner having no further witnesses to present and having been required to make its offer of evidence in writing, respondent SANDIGANBAYAN, without the pending motions for exclusion being resolved, issued a Resolution directing that by agreement of the parties, the pending motions for exclusion and the opposition thereto, together with the memorandum in support thereof, as well as the legal issues and arguments, raised therein are to be considered jointly in the Court's Resolution on the prosecution's formal offer of exhibits and other documentary evidences. 11 On June 3, 1985, the prosecution made a written "Formal Offer of Evidence" which includes, among others, the testimonies of private respondents and other evidences produced by them before the Board, all of which have been previously marked in the course of the trial. 12 All the private respondents objected to the prosecution's formal offer of evidence on the same ground relied upon by them in their respective motion for exclusion. On June 13, 1985, respondent SANDIGANBAYAN issued a Resolution, now assailed in these two (2) petitions, admitting all the evidences offered by the prosecution except the testimonies and/or other evidence produced by the private respondents in view of the immunity granted by P.D. 1886. 13 Petitioners' motion for the reconsideration of the said Resolution having been DENIED, they now come before Us by way of certiorari 14 praying for the amendment and/or setting aside of the challenged Resolution on the ground that it was issued without jurisdiction and/or with grave abuse of discretion amounting to lack of jurisdiction. Private prosecutor below, as counsel for the mother of deceased Rolando Galman, also filed a separate petition for

certiorari 15 on the same ground. Having arisen from the same factual beginnings and raising practically Identical issues, the two (2) petitioners were consolidated and will therefore be jointly dealt with and resolved in this Decision. The crux of the instant controversy is the admissibility in evidence of the testimonies given by the eight (8) private respondents who did not invoke their rights against self-incrimination before the Agrava Board. It is the submission of the prosecution, now represented by the petitioner TANODBAYAN, that said testimonies are admissible against the private respondents, respectively, because of the latter's failure to invoke before the Agrava Board the immunity granted by P.D. 1886. Since private respondents did not invoke said privilege, the immunity did not attach. Petitioners went further by contending that such failure to claim said constitutional privilege amounts to a waiver thereof. 16 The private respondents, on the other hand, claim that notwithstanding failure to set up the privilege against selfincrimination before the Agrava Board, said evidences cannot be used against them as mandated by Section 5 of the said P.D. 1886. They contend that without the immunity provided for by the second clause of Section 5, P.D. 1886, the legal compulsion imposed by the first clause of the same Section would suffer from constitutional infirmity for being violative of the witness' right against selfincrimination.17 Thus, the protagonists are locked in horns on the effect and legal significance of failure to set up the privilege against self-incrimination. The question presented before Us is a novel one. Heretofore, this Court has not been previously called upon to rule on issues involving immunity statutes. The relative novelty of the question coupled with the extraordinary circumstance that had precipitated the same did nothing to ease the burden of laying down the criteria upon which this Court will henceforth build future jurisprudence on a heretofore unexplored area of judicial inquiry. In carrying out this monumental task, however, We shall be guided, as always, by the constitution and existing laws. The Agrava Board, 18 came into existence in response to a popular public clamor that an impartial and independent body, instead of any ordinary police agency, be charged with the task of conducting the investigation. The then early distortions and exaggerations, both in foreign and local media, relative to the probable motive behind the assassination and the person or persons responsible for or involved in the assassination hastened its creation and heavily contributed to its early formation. 19 Although referred to and designated as a mere Fact Finding Board, the Board is in truth and in fact, and to all legal intents and purposes, an entity charged, not only with the function of determining the facts and circumstances surrounding the killing, but more importantly, the determination of the person or persons criminally responsible therefor so that they may be brought before the bar of justice. For indeed, what good will it be to the entire nation and the more than 50 million Filipinos to know the facts and circumstances of the killing if the culprit or culprits will nevertheless not be dealt with criminally? This purpose is implicit from Section 12 of the said Presidential Decree, the pertinent portion of which provides SECTION 12. The findings of the Board shall be made public. Should the findings warrant the prosecution of any person, the Board may initiate the filing of proper complaint with the appropriate got government agency. ... (Emphasis supplied) The investigation therefor is also geared, as any other similar investigation of its sort, to the ascertainment and/or determination of the culprit or culprits, their consequent prosecution and ultimately, their conviction. And as safeguard, the P.D. guarantees "any person called to testify before the Board the right to counsel at any stage of the proceedings." 20 Considering the foregoing environmental settings, it cannot be denied that in the course of receiving evidence, persons summoned to testify will include not merely plain witnesses but also those suspected as authors and co-participants in the tragic killing. And when suspects are summoned and called to testify and/or produce evidence, the situation is one where the person testifying or producing evidence is undergoing investigation for the commission of an offense and not merely in order to shed light on the facts and surrounding circumstances of the assassination, but more importantly, to determine the character and extent of his participation therein. Among this class of witnesses were the herein private respondents, suspects in the said assassination, all of whom except Generals Ver and Olivas, were detained (under technical arrest) at the time they were summoned and gave their testimonies before the Agrava Board.

This notwithstanding, Presidential Decree No. 1886 denied them the right to remain silent. They were compelled to testify or be witnesses against themselves. Section 5 of P.D. 1886 leave them no choice. They have to take the witness stand, testify or produce evidence, under pain of contempt if they failed or refused to do so. 21 The jeopardy of being placed behind prison bars even before conviction dangled before their very eyes. Similarly, they cannot invoke the right not to be a witness against themselves, both of which are sacrosantly enshrined and protected by our fundamental law. 21-a Both these constitutional rights (to remain silent and not to be compelled to be a witness against himself) were right away totally foreclosed by P.D. 1886. And yet when they so testified and produced evidence as ordered, they were not immune from prosecution by reason of the testimony given by them. Of course, it may be argued is not the right to remain silent available only to a person undergoing custodial interrogation? We find no categorical statement in the constitutional provision on the matter which reads: ... Any person under investigation for the commission of an offense shall have the right to remain and to counsel, and to be informed of such right. ... 22 (Emphasis supplied) Since the effectivity of the 1973 Constitution, we now have a mass of jurisprudence 23 on this specific portion of the subject provision. In all these cases, it has been categorically declared that a person detained for the commission of an offense undergoing investigation has a right to be informed of his right to remain silent, to counsel, and to an admonition that any and all statements to be given by him may be used against him. Significantly however, there has been no pronouncement in any of these cases nor in any other that a person similarly undergoing investigation for the commission of an offense, if not detained, is not entitled to the constitutional admonition mandated by said Section 20, Art. IV of the Bill of Rights. The fact that the framers of our Constitution did not choose to use the term "custodial" by having it inserted between the words "under" and investigation", as in fact the sentence opens with the phrase "any person " goes to prove that they did not adopt in toto the entire fabric of the Miranda doctrine. 24 Neither are we impressed by petitioners' contention that the use of the word "confession" in the last sentence of said Section 20, Article 4 connotes the Idea that it applies only to police investigation, for although the word "confession" is used, the protection covers not only "confessions" but also "admissions" made in violation of this section. They are inadmissible against the source of the confession or admission and against third person. 25 It is true a person in custody undergoing investigation labors under a more formidable ordeal and graver trying conditions than one who is at liberty while being investigated. But the common denominator in both which is sought to be avoided is the evil of extorting from the very mouth of the person undergoing interrogation for the commission of an offense, the very evidence with which to prosecute and thereafter convict him. This is the lamentable situation we have at hand. All the private respondents, except Generals Ver and Olivas, are members of the military contingent that escorted Sen. Aquino while disembarking from the plane that brought him home to Manila on that fateful day. Being at the scene of the crime as such, they were among the first line of suspects in the subject assassination. General Ver on the other hand, being the highest military authority of his copetitioners labored under the same suspicion and so with General Olivas, the first designated investigator of the tragedy, but whom others suspected, felt and believed to have bungled the case. The papers, especially the foreign media, and rumors from uglywagging tongues, all point to them as having, in one way or another participated or have something to do, in the alleged conspiracy that brought about the assassination. Could there still be any doubt then that their being asked to testify, was to determine whether they were really conspirators and if so, the extent of their participation in the said conspiracy? It is too taxing upon one's credulity to believe that private respondents' being called to the witness stand was merely to elicit from them facts and circumstances surrounding the tragedy, which was already so abundantly supplied by other ordinary witnesses who had testified earlier. In fact, the records show that Generals Ver and Olivas were among the last witnesses called by the Agrava Board. The subject matter dealt with and the line of questioning as shown by the transcript of their testimonies before the Agrava Board, indubitably evinced purposes other than merely eliciting and determining the socalled surrounding facts and circumstances of the assassination. In the light of the examination reflected by the record, it is not far-fetched to conclude that they were called to the stand to determine their probable involvement in the crime being investigated. Yet they have not been informed or at the very least even warned while so testifying,

even at that particular stage of their testimonies, of their right to remain silent and that any statement given by them may be used against them. If the investigation was conducted, say by the PC, NBI or by other police agency, all the herein private respondents could not have been compelled to give any statement whether incriminatory or exculpatory. Not only that. They are also entitled to be admonished of their constitutional right to remain silent, to counsel, and be informed that any and all statements given by them may be used against them. Did they lose their aforesaid constitutional rights simply because the investigation was by the Agrava Board and not by any police investigator, officer or agency? True, they continued testifying. May that be construed as a waiver of their rights to remain silent and not to be compelled to be a witness against themselves? The answer is yes, if they have the option to do so. But in the light of the first portion of Section 5 of P.D. 1886 and the awesome contempt power of the Board to punish any refusal to testify or produce evidence, We are not persuaded that when they testified, they voluntarily waived their constitutional rights not to be compelled to be a witness against themselves much less their right to remain silent. Compulsion as it is understood here does not necessarily connote the use of violence; it may be the product of unintentional statements. Pressure which operates to overbear his will, disable him from making a free and rational choice, or impair his capacity for rational judgment would in our opinion be sufficient. So is moral coercion 'tending to force testimony from the unwilling lips of the defendant. 26 Similarly, in the case of Louis J. Lefkowitz v. Russel 27 Turley" citing Garrity vs. New Jersey" where certain police officers summoned to an inquiry being conducted by the Attorney General involving the fixing of traffic tickets were asked questions following a warning that if they did not answer they would be removed from office and that anything they said might be used against them in any criminal proceeding, and the questions were answered, the answers given cannot over their objection be later used in their prosecutions for conspiracy. The United States Supreme Court went further in holding that: the protection of the individuals under the Fourteenth Amendment against coerced statements prohibits use in subsequent proceedings of statements obtained under threat or removal from office, and that it extends to all, whether they are policemen or other members of the body politic. 385 US at 500, 17 L Ed. 562. The Court also held that in the context of threats of removal from office the act of responding to interrogation was not voluntary and was not an effective waiver of the privilege against selfincrimination. To buttress their precarious stand and breathe life into a seemingly hopeless cause, petitioners and amicus curiae (Ex-Senator Ambrosio Padilla) assert that the "right not to be compelled to be a witness against himself" applies only in favor of an accused in a criminal case. Hence, it may not be invoked by any of the herein private respondents before the Agrava Board. The Cabal vs. Kapunan 28 doctrine militates very heavily against this theory. Said case is not a criminal case as its title very clearly indicates. It is not People vs. Cabal nor a prosecution for a criminal offense. And yet, when Cabal refused to take the stand, to be sworn and to testify upon being called as a witness for complainant Col. Maristela in a forfeiture of illegally acquired assets, this Court sustained Cabal's plea that for him to be compelled to testify will be in violation of his right against self- incrimination. We did not therein state that since he is not an accused and the case is not a criminal case, Cabal cannot refuse to take the witness stand and testify, and that he can invoke his right against self-incrimination only when a question which tends to elicit an answer that will incriminate him is profounded to him. Clearly then, it is not the character of the suit involved but the nature of the proceedings that controls. The privilege has consistently been held to extend to all proceedings sanctioned by law and to all cases in which punishment is sought to be visited upon a witness, whether a party or not. 29 If in a mere forfeiture case where only property rights were involved, "the right not to be compelled to be a witness against himself" is secured in favor of the defendant, then with more reason it cannot be denied to a person facing investigation before a Fact Finding Board where his life and liberty, by reason of the statements to be given by him, hang on the balance. Further enlightenment on the subject can be found in the historical background of this constitutional provision against selfincrimination. The privilege against self- incrimination is guaranteed in the Fifth Amendment to the Federal Constitution. In the Philippines, the same principle obtains as a direct result of American influence. At

first, the provision in our organic laws were similar to the Constitution of the United States and was as follows: That no person shall be ... compelled in a criminal case to be a witness against himself. 30 As now worded, Section 20 of Article IV reads: No person shall be compelled to be a witness against himself. The deletion of the phrase "in a criminal case" connotes no other import except to make said provision also applicable to cases other than criminal. Decidedly then, the right "not to be compelled to testify against himself" applies to the herein private respondents notwithstanding that the proceedings before the Agrava Board is not, in its strictest sense, a criminal case No doubt, the private respondents were not merely denied the aforediscussed sacred constitutional rights, but also the right to "due process" which is fundamental fairness. 31 Quoting the highlyrespected eminent constitutionalist that once graced this Court, the former Chief Justice Enrique M. Fernando, due process ... is responsiveness to the supremacy of reason, obedience to the dictates of justice. Negatively put, arbitrariness is ruled out and unfairness avoided. To satisfy the due process requirement, official action, to paraphrase Cardozo, must not outrun the bounds of reason and result in sheer oppression. Due process is thus hostile to any official action marred by lack of reasonableness. Correctly, it has been Identified as freedom from arbitrariness. It is the embodiment of the sporting Idea of fair play(Frankfurter, Mr. Justice Holmes and the Supreme Court, 1983, pp. 32-33). It

testimony or any evidence produced by him shall not be used against him in connection with any transaction, matter or thing concerning which he is compelled, after having invoked his privilege against self-incrimination, to testify or produce evidence, except that such individual so testifying shall not be exempt from prosecution and punishment for perjury committed in so testifying, nor shall he be exempt from demotion or removal from office. (Emphasis supplied) it is beyond dispute that said law belongs to the first type of immunity statutes. It grants merely immunity from use of any statement given before the Board, but not immunity from prosecution by reason or on the basis thereof. Merely testifying and/or producing evidence do not render the witness immuned from prosecution notwithstanding his invocation of the right against self- incrimination. He is merely saved from the use against him of such statement and nothing more. Stated otherwise ... he still runs the risk of being prosecuted even if he sets up his right against self- incrimination. The dictates of fair play, which is the hallmark of due process, demands that private respondents should have been informed of their rights to remain silent and warned that any and all statements to be given by them may be used against them. This, they were denied, under the pretense that they are not entitled to it and that the Board has no obligation to so inform them. It is for this reason that we cannot subscribe to the view adopted and urged upon Us by the petitioners that the right against selfincrimination must be invoked before the Board in order to prevent use of any given statement against the testifying witness in a subsequent criminal prosecution. A literal interpretation fashioned upon Us is repugnant to Article IV, Section 20 of the Constitution, which is the first test of admissibility. It reads: No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence. (Emphasis supplied) The aforequoted provision renders inadmissible any confession obtained in violation thereof. As herein earlier discussed, this exclusionary rule applies not only to confessions but also to admissions, 33 whether made by a witness in any proceeding or by an accused in a criminal proceeding or any person under investigation for the commission of an offense. Any interpretation of a statute which will give it a meaning in conflict with the Constitution must be avoided. So much so that if two or more constructions or interpretations could possibly be resorted to, then that one which will avoid unconstitutionality must be adopted even though it may be necessary for this purpose to disregard the more usual and apparent import of the language used. 34 To save the statute from a declaration of unconstitutionality it must be given a reasonable construction that will bring it within the fundamental law. 35 Apparent conflict between two clauses should be harmonized. 36 But a literal application of a requirement of a claim of the privilege against self- incrimination as a condition sine qua non to the grant of immunity presupposes that from a layman's point of view, he has the option to refuse to answer questions and therefore, to make such claim. P.D. 1886, however, forecloses such option of refusal by imposing sanctions upon its exercise, thus: SEC. 4. The Board may hold any person in direct or indirect contempt, and impose appropriate penalties therefor. A person guilty of .... including ... refusal to be sworn or to answer as a witness or to subscribe to an affidavit or deposition when lawfully required to do so may be summarily adjudged in direct contempt by the Board. ... Such threat of punishment for making a claim of the privilege leaves the witness no choice but to answer and thereby forfeit the immunity purportedly granted by Sec. 5. The absurdity of such application is apparent Sec. 5 requires a claim which it, however, forecloses under threat of contempt proceedings against anyone who makes such claim. But the strong testimonial compulsion imposed by Section 5 of P.D. 1886 viewed in the light of the sanctions provided in Section 4,infringes upon the witness' right against self-incrimination. As a rule, such infringement of the constitutional right renders inoperative the testimonial compulsion, meaning, the witness cannot be compelled to answer UNLESS a co-extensive protection in the form of IMMUNITY is

exacts fealty "to those strivings for justice and judges the act of officialdom of whatever branch "in the light of reason drawn from considerations of fairness that reflect (democratic) traditions of legal and political thought."(Frankfurter, Hannah v. Larche 1960, 363 US 20, at 487). It is not a narrow or '"echnical conception with fixed content unrelated to time, place and circumstances."(Cafeteria Workers v. McElroy 1961, 367 US 1230) Decisions based on such a clause requiring a 'close and perceptive inquiry into fundamental principles of our society. (Bartkus vs. Illinois, 1959, 359 US 121). Questions of due process are not to be treated narrowly or pedantically in slavery to form or phrases.
(Pearson v. McGraw, 1939, 308 US 313).

Our review of the pleadings and their annexes, together with the oral arguments, manifestations and admissions of both counsel, failed to reveal adherence to and compliance with due process. The manner in which the testimonies were taken from private respondents fall short of the constitutional standards both under the DUE PROCESS CLAUSE and under the EXCLUSIONARY RULE in Section 20, Article IV. In the face of such grave constitutional infirmities, the individual testimonies of private respondents cannot be admitted against them in ally criminal proceeding. This is true regardless of absence of claim of constitutional privilege or of the presence of a grant of immunity by law. Nevertheless, We shall rule on the effect of such absence of claim to the availability to private respondents of the immunity provided for in Section 5, P.D. 1886 which issue was squarely raised and extensively discussed in the pleadings and oral arguments of the parties. Immunity statutes may be generally classified into two: one, which grants "use immunity"; and the other, which grants what is known as "transactional immunity." The distinction between the two is as follows: "Use immunity" prohibits use of witness' compelled testimony and its fruits in any manner in connection with the criminal prosecution of the witness. On the other hand, "transactional immunity" grants immunity to the witness from prosecution for an offense to which his compelled testimony relates." 32 Examining Presidential Decree 1886, more specifically Section 5 thereof, which reads: SEC. 5. No person shall be excused from attending and testifying or from producing books, records, correspondence, documents, or other evidence in obedience to a subpoena issued by the Board on the ground that his testimony or the evidence required of him may tend to incriminate him or subject him to penalty or forfeiture; but his

offered. 37 Hence, under the oppressive compulsion of P.D. 1886, immunity must in fact be offered to the witness before he can be required to answer, so as to safeguard his sacred constitutional right. But in this case, the compulsion has already produced its desired results the private respondents had all testified without offer of immunity. Their constitutional rights are therefore, in jeopardy. The only way to cure the law of its unconstitutional effects is to construe it in the manner as if IMMUNITY had in fact been offered. We hold, therefore, that in view of the potent sanctions imposed on the refusal to testify or to answer questions under Sec. 4 of P.D. 1886, the testimonies compelled thereby are deemed immunized under Section 5 of the same law. The applicability of the immunity granted by P.D. 1886 cannot be made to depend on a claim of the privilege against self-incrimination which the same law practically strips away from the witness. With the stand we take on the issue before Us, and considering the temper of the times, we run the risk of being consigned to unpopularity. Conscious as we are of, but undaunted by, the frightening consequences that hover before Us, we have strictly adhered to the Constitution in upholding the rule of law finding solace in the view very aptly articulated by that well-known civil libertarian and admired defender of human rights of this Court, Mr. Justice Claudio Teehankee, in the case of People vs. Manalang 38 and we quote: I am completely conscious of the need for a balancing of the interests of society with the rights and freedoms of the individuals. I have advocated the balancing-of-interests rule in an situations which call for an appraisal of the interplay of conflicting interests of consequential dimensions. But I reject any proposition that would blindly uphold the interests of society at the sacrifice of the dignity of any human being. (Emphasis supplied) Lest we be misunderstood, let it be known that we are not by this disposition passing upon the guilt or innocence of the herein private respondents an issue which is before the Sandiganbayan. We are merely resolving a question of law and the pronouncement herein made applies to all similarly situated, irrespective of one's rank and status in society. IN VIEW OF THE FOREGOING CONSIDERATIONS and finding the instant petitions without merit, same are DISMISSED. No pronouncement as to costs. SO ORDERED.

Aquino, J., concurs (as certified by Makasiar, C.J.). Abad Santos, J., is on leave.